O.P(C) No.410 of 2010 and C.R.P. No.447 of 2010, High Court of Kerala at Ernakulam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH** **FRIDAY, THE 22ND OCTOBER 2010 / 30TH ASWINA 1932** **OP(C).NO. 410 OF 2010(O)** **-------------------------------------** **OS.3062/1999 OF II ADDL.M.C.,THRISSUR** **....................** **PETITIONER:** **---------------------** **JAMES, AGED 43, S/O. CHEERAMBAN JOSEPH, MISSION QUARTERS DESOM, CHEMBUKAVU VILLAGE, THRISSUR TALUK.** **BY ADV. SRI.G.SREEKUMAR (CHELUR) SRI.K.RAVI (PARIYARATH)** **RESPONDENT(S):** **------------------------** **M/S. GOODWILL HIRE PURCHASE CHITS AND FINANCE (P) LTD., POST OFFICE ROAD, CHETTIANGADI, THRISSUR-1.** **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 22/10/2010 ALONG WITH C.R.P. NO.447 OF 2010 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **THOMAS P.JOSEPH, J.** **==================================== O.P(C) No.410 of 2010 and C.R.P. No.447 of 2010 ==================================== Dated this the 22[nd] day of October, 2010** ## **J U D G M E N T** This Original Petition under Article 227 of the Constitution and Revision under Section 115 of the Code of Civil Procedure (for short, “the Code”) are at the instance of judgment debtor No.2 in E.P. No.636 of 2009 in O.S.No.3062 of 1992 of the court of learned Munsiff, Thrissur. Respondent obtained a decree for payment of money against petitioner and others and put the decree into execution. Respondent wanted personal execution against petitioner and others. In the course of execution proceeding petitioner filed E.A. No.1598 of 2010 contending that after the decree was passed and before execution petition was filed he had paid the decree amount to the respondent. But since himself was a shareholder of respondent and its Chairman is his brother, he did not keep the receipts for the payment. He, vide E.A. No.1598 of 2010 wanted executing court to direct respondent to produce three documents which according to him would show that he has ## **O.P(C) No.410 & C.R.P. No.447 of 2010** -: 2 :- discharged liability under the decree. That application was dismissed by the executing court observing that in the counter affidavit filed by the respondent it is stated that one of the documents referred to in E.A. No.1598 of 2010 has been taken away by the brother of the petitioner, there is no such document as stated in E.A. No.1598 of 2010 and the last one is necessary for the day-to-day affairs of the respondent. In the light of that counter affidavit, executing court dismissed E.A. No.1598 of 2010 which is under challenge in O.P(C) No.410 of 2010. On the request of respondent for personal execution its Peon gave evidence as P.W.1 as regards means of petitioner-judgment debtor No.2. He stated that petitioner is engaged in share and real estate business. Petitioner is also a shareholder of the respondent-company and is getting more than Rs.50,000/- per month. No contra evidence was adduced by petitioner. Executing court accepted evidence of P.W.1 and ordered warrant of arrest. That order is under challenge in C.R.P. No.447 of 2010. Learned counsel for petitioner contended that so far as O.P(C) No.410 of 2010 is concerned executing court was in error in not summoning the documents required by petitioner. According to **O.P(C) No.410 & C.R.P. No.447 of 2010** -: 3 :- the learned counsel even if it is assumed that payment was not certified either at the instance of respondent or the petitioner as required under Rule 2 of Order XXI of the Code executing court was bound to conduct an enquiry as to whether any such payment was made. According to the learned counsel when any question as to the execution, discharge and satisfaction of the decree arises between respondent and petitioner that matter was required to be enquired and decided by the executing court under Sec.47 of the Code. Learned counsel would draw a distinction - that the procedure under Rule 2 of Order XXI is for recording payment or adjustment of the decree, but the power under Sec.47 has to be exercised by the executing court to conduct enquiry and to arrive at a finding whether the discharge or satisfaction pleaded by petitioner is true or not. It is also the contention of learned counsel that in view of Sec.47 a separate suit for recovery of the amount at the instance of petitioner is not maintainable. Learned counsel has placed reliance on the decisions **Sultana Begum v. Prem Chand Jain** (1997) 1 SCC 373) and **Laksmi Narayan v. S.S.Pandian** (2000) 7 SCC 240). In response it is contended by learned counsel for ## **O.P(C) No.410 & C.R.P. No.447 of 2010** -: 4 :- respondent that Sec.47 of the Code confers power on the executing to enquire into the questions relating to execution, discharge and satisfaction of the decree while, when it comes to the issue regarding payment or adjustment of the decree, any payment or adjustment even if made outside court unless it is certified in the manner stated in Rule 2 of Order XXI cannot be taken into account by the executing court and in the circumstances there was no obligation on the executing court to conduct any enquiry into the plea of petitioner. It is also contention of learned counsel that a separate suit in such circumstance is maintainable and reliance is placed on the decision of a Division Bench of this Court in **C.K.Xavier v. Bhagaraj Singh** (1987 [1] KLT 385). So far as finding regarding means against petitioner is concerned it is contended that there is only the evidence of P.W1 which the executing court has taken into account. According to the learned counsel if as contended by learned counsel petitioner was a shareholder of respondent even before passing of the decree that itself is evidence of his means. It is also pointed out that petitioner has not gone into the box to contradict evidence given by P.W1 and ## **O.P(C) No.410 & C.R.P. No.447 of 2010** -: 5 :- hence there is no reason to interfere with the finding of the executing court regarding means of petitioner. 2. To understand the rival contentions as to the scope of Sec.47 and Order XXI Rule 2 of the Code it is necessary to refer to the relevant provisions. Section 47 of the Code deals with questions to be determined by the court executing decree. It is stated that all questions arising between the parties to the suit in which the decree was passed or their representatives and relating to the execution, discharge or satisfaction the decree shall be determined by the court executing the decree and not by a separate suit. Order XXI Rule 2 states about procedure for recording payment or adjustment of the decree when such payment or adjustment is made out of court to the decree holder. Sub-rule (1) speaks about decree holder seeking certification of such payment or adjustment. Sub-rule (2) speaks about the right of a judgment debtor to inform the court of such payment or adjustment and apply to the court to issue a notice to the decree holder to show cause on a day to be fixed by the court why such payment or adjustment should not be recorded as certified. Subrule (2A) says that no payment or adjustment shall be recorded at ## **O.P(C) No.410 & C.R.P. No.447 of 2010** ## -: 6 :- the instance of judgment debtor unless conditions referred to in clauses (a) to (c) thereunder are satisfied. Sub-rule (3) says that when a payment or adjustment (made out of court) which has not been certified or recorded as aforesaid (i.e., as stated in sub-rule 2A) shall not be recognised by any court executing the decree. 3. Reading Rule 2 of Order XXI of the Code it is certain that if there was any payment or adjustment of the decree out of court, respondent and if it failed to do so, petitioner ought to have exercised his right under sub-rule (2) of Rule 2 of Order XXI. Manner of such recording of the payment or adjustment is contained in sub-rule (2A) of Rule 2. Sub-rule 3 of Rule 2 is specific that any payment or adjustment not recorded as provided under sub-rule (2A) of Rule 2 shall not be “recognised by any court executing the decree.” 4. I shall refer to the decisions relied on by learned counsel on either side. **Sultana Begum v. Prem Chand Jain** (supra) was a case where adjustment of the decree was not certified and in paragraph 17 it was held that since Section 47 provides that the question relating to the execution, discharge or satisfaction of the decrees shall be determined by the court **O.P(C) No.410 & C.R.P. No.447 of 2010** -: 7 :- executing the decree, it clearly confers a specific jurisdiction for determination of those questions on the executing court. That decision only referred to the power of executing court under Sec.47 of the Code but did not mean to say that any payment or adjustment pleaded by the judgment debtor and not recorded or certified in the manner provided under sub-rule (2A) of Rule 2 of Order XXI of the Code could be recognised by the executing court in violation of the mandate of sub-rule (3) of Rule 2 of Order XXI. **Laksmi Narayanan v. S.S. Pandian** (supra) does not help the petitioner. That was a case where a decree for eviction was passed and judgment debtor contended that after decree was passed and before execution petition preferred there was some sort of settlement between judgment debtor and decree holder but of course it was not recorded or certified as provided under Rule 2 of Order XXI of the Code. There, in paragraph 9 after referring to the provisions of Order XXI Rule 2 of the Code it is stated that adjustment pleaded by judgment debtor and which is not certified as required under sub-rule 2A of Rule 2 of Order XXI cannot be taken into account. Learned counsel for petitioner has invited my attention to paragraph 14 of the **O.P(C) No.410 & C.R.P. No.447 of 2010** -: 8 :- judgment. That paragraph only says about power of executing court under Sec.47 of the Code but does not say that even with regard to any payment or adjustment not certified in the manner referred to in sub-rule 2 of Rule 2 of Order XXI, Sec.47 of the Code would come to the rescue of the judgment debtor. 5. I shall also refer to the other decisions on the point which would throw light on the issue. One is **P. Ponnappan** **v. Vijayan** (1990 [1] KLJ 207) where this Court observed that there is no conflict between Sec.47 and Rule 2 of Order XXI of the Code. It was held that Sec.47 confers power on the executing court for deciding the dispute as to the execution, discharge and satisfaction of he decree while the procedure is prescribed under Rule 2 of Order XXI of the Code. Reference was made to the decision of the Supreme Court in **M.P.Shreevastava v.** **Veena** (AIR 1967 SC 1193) where also the same view was taken. In that case their Lordships of the Supreme Court held that there is no antethesis between Sec.47 and Rule 2 of Order XXI of the Code, the former deals with the power of the court and the latter deals with the procedure to be followed in respect of a limited class of cases relating to the discharge or satisfaction of ## **O.P(C) No.410 & C.R.P. No.447 of 2010** -: 9 :- the decrees. In paragraph 8 in **V.Ponnappan v. Vijayan** (supra) this Court held, “The position therefore is that if the satisfaction of the decree or adjustment of the decree has not been certified as prescribed under Order 21 Rule 2 the executing court cannot go into that question. On the other hand if the question relates to execution, discharge or satisfaction of the decree that can be gone into under Section 47 subject to the recording of the payment or adjustment under Order 21 rule 2 which relate only to the discharge or satisfaction of the decree. The question whether a decree could be executed or not is independent of Order 21 rule 2 and can be gone into under Section 47.” 6. Yet another decision on the point is **Padma Ben v. Yogendra Rathore** (2006 [3] KLT SN 78 (Case No.110) where the Supreme Court held, again referring to Sec.47 and Rule 2 of Order XXI of the Code that there is no conflict between the said **O.P(C) No.410 & C.R.P. No.447 of 2010** ## -: 10 :- provisions and that the general power of deciding questions relating to execution, discharge or satisfaction of the decree under Sec.47 can be exercised “subject to the restriction placed by Order XXI Rule 2 including sub-rule (3) containing special provisions relating to payment of money due under a decree outside the court or in any other manner adjusting the decree.” Reading Sec.47 and Rule 2 of Order XXI of the Code and the binding authorities referred to above, it leaves me in no doubt that there is no conflict between Sec.47 and Rule 2 of Order XXI of the Code and that while Sec.47 confers power on the executing court the manner of exercise of that power is regulated so far as it relates to payment or adjustment of the decree by Rule 2 of Order XXI of the Code. 7. It is not a case of petitioner that either the respondent or himself has got the alleged payment or adjustment certified or recorded as required under Rule 2 of Order XXI of the Code. It follows that in the light of sub-rule (3) of Rule 2 of Order XXI, adjustment or payment pleaded by petitioner could not be recognised or taken into account by the executing court. If that be so, to contend that executing court may have no power to record **O.P(C) No.410 & C.R.P. No.447 of 2010** ## -: 11 :- payment or adjustment but it still has to conduct an enquiry and find whether there was payment or adjustment is something which I cannot accept in the light of the provisions which I have stated above. No court is required to conduct an enquiry which is worthless or meaningless. I think, that is not the function of the court. Therefore though not for the reasons stated by the executing court, request vide E.A. No.1598 of 2010 could not be accepted. Executing court was not required to conduct enquiry whether there was any payment or adjustment as pleaded by petitioner for the reasons I have stated above. Hence the ultimate dismissal of E.A. No.1598 of 2010 requires no interference. 8. That however does not mean that petitioner, if he has actually made any payment to the respondent is without any remedy. His remedy in such situation, as held by this Court in **C.K. Xavier v. Bhagraj Sing** h (supra) is to institute separate suit against the respondent, prove his claim and recover the amount in case there is any such payment. 9. Now I shall come to the finding of executing court regarding means of petitioner. That finding is based on **O.P(C) No.410 & C.R.P. No.447 of 2010** -: 12 :- evidence of P.W.1 who is the Peon of the respondent. He stated that petitioner is engaged in share and real estate business and is earning Rs.50,000/- per month. True, petitioner did not adduce contra evidence. Learned counsel states that it was under the impression that petitioner could get the documents required by E.A. No.1598 of 2010 and prove payment or adjustment of the decree amount and get himself exonerated from liability to pay the amount further that he did not adduce contra evidence regarding the alleged means. Learned counsel for respondent would contend that the very fact that according to the petitioner he discharged the liability even before execution proceeding was initiated is indicative of means of petitioner. I am afraid, that argument as such cannot be accepted. The mere fact that at some point of time petitioner had been a shareholder of respondent cannot also be a ground to hold that he has sufficient means. Having regard to the circumstances stated by learned counsel for petitioner I am persuaded to think that petitioner must be given an opportunity to adduce evidence regarding the alleged means. In that view of the matter, the order issuing warrant to petitioner which is challenged in C.R.P. No.447 of **O.P(C) No.410 & C.R.P. No.447 of 2010** -: 13 :- 2010 is liable to be set aside. Resultantly, these petitions are disposed of in the following lines: (i) O.P(C) No.410 of 2010 is dismissed in confirmation of the order passed on E.A. No.1598 of 2010 in E.P.No.636 of 2009 in O.S. No.3062 of 1999 of the court of learned Munsiff, Thrissur. (ii) C.R.P. No.447 of 2010 is allowed by way of remand and the impugned order finding means and issuing warrant to the petitioner is set aside. That matter is remitted to the executing court for fresh decision after giving both sides opportunity to adduce further evidence in respect of the contention regarding means of petitioner. (iii) Executing court shall after recording evidence enter a finding regarding the alleged means of petitioner and pass appropriate ## **O.P(C) No.410 &** **C.R.P. No.447 of 2010** -: 14 :- consequential orders. (iv) The executing court shall conduct enquiry and decide the matter as early as possible. ## **THOMAS P. JOSEPH, JUDGE.** vsv