Pothillathil Seemanthini v. E.M. Dileep

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE P.BHAVADASAN** **THURSDAY, THE 11TH MARCH 2010 / 20TH PHALGUNA 1931** **WP(C).No. 13925 of 2009(O)** **---------------------------------------** **(AGAINST THE ORDER DATED 25/10/2008 IN EP.NO.87/2006 IN OS.NO.264/1999 OF PRL. SUB COURT,THALASSERY)** **....................** **PETITIONER:** **-------------------** **POTHILLATHIL SEEMANTHINI, AGED 64 YEARS, D/O. KRISHNAN, KANNUR TALUK, ELAYAVOOR, AMSOM, CHOVVA DESOM.** **BY ADVS. MR.V.R.KESAVA KAIMAL, MR.N.M.MADHU.** **RESPONDENT:** **----------------------** **E.M. DILEEP. AGED 41 YEARS, S/O. ISMAIL, JASMINE COTTAGE, NEW MALABAR JEWELLERY, BELLARD ROAD, KANNUR.** **BY ADV. MR.P.K.RAVISANKAR.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/03/2010, THE COURT ON 11/03/2010 DELIVERED THE FOLLOWING:** ## **W.P.(C). NO.13925/2009-O:** ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** **EXT.P.1: COPY OF THE DECREE DTD. 31/10/2000 IN O.S. 264/1999.** **EXT.P.2: COPY OF THE EXECUTION PETITION NO. 87/2006 IN O.S. 264/1999.** **EXT.P.3: COPY OF THE COUNTER STATEMENT FILED BY THE RESPONDENT TO EXT.P.2.** **EXT.P.4: COPY OF THE RECEIPT.** **EXT.P.5: COPY OF THE DEPOSITION DTD. 07/06/2006 RECORDED BY THE JFCM I, KANNUR IN S.T.C. 2285/2005.** **EXT.P.6: COPY OF THE JUDGMENT DTD. 17/07/2006 IN S.T.C. 2285/2005.** **EXT.P.7: COPY OF THE ORDER DTD. 25/10/08 IN E.P. 87/2006 IN O.S. 264/1999.** ## **RESPONDENTS' EXHIBITS: NIL.** **//TRUE COPY//** **P.S. TO JUDGE.** **Prv.** ## **P. BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C). No. 13925 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 11[th] day of March, 2010. ## **JUDGMENT** Petitioner was the plaintiff in O.S.264 of 1999 on the file of Sub Court, Thalassery. That was a suit for declaration to the effect that Document No.1250 of 1999 executed by the plaintiff was only as a security for a loan transaction and never intended to be a sale deed. The parties entered into a compromise and Ext.P1 is the compromise decree. As per the decree, the respondent herein was to pay Rs.1,25,000/- to the petitioner and on payment of the same the plaintiff was to surrender vacant possession of the house in which she was residing. The respondent is the second defendant in the suit. According to the petitioner, the respondent did not honour his commitment and did not pay the amount. That forced the petitioner to file execution petition. A copy of the petition is produced as Ext.P2. The respondent entered appearance and objected to the WPC.13925/2009. 2 execution petition. Ext.P3 is his objection. The contention of the respondent was that the amount was in fact paid by him and in turn the decree holder had executed the deed as contemplated by the decree. The document so executed is marked as Ext.P4. The petitioner alleges that it is a forged document and she had not executed the same and the money had not been paid to her. 2. It is pointed out that the respondent had initiated criminal proceedings against the son of the petitioner for offence punishable under Section 138 of Negotiable Instruments Act. In that proceedings, the respondent had given his testimony and that is Ext.P5. The petitioner points out that in the criminal proceedings Ext.P4 was not produced at all. Finally the criminal proceedings ended in the acquittal of the son of the petitioner. 3. In the light of the controversy involved, the execution court took evidence in the matter. The petitioner examined herself as P.W.1 and marked Ext.A1. From the side of the respondent R.Ws.1 and 2 were examined and WPC.13925/2009. 3 Exts.B1 and B2 were marked. The execution court by order dated 25.10.2008 dismissed the execution petition. The said order is appealed in this writ petition. 4. The question that arises for consideration is whether any interference is called for with the order of the execution court. 5. There is no dispute regarding the fact that there was a suit as O.S. 264 of 1999 between the petitioner herein and three persons as defendants. The second defendant is the respondent herein. That suit was compromised and a compromise decree was passed, which is produced as Ext.P1. As per that compromise decree, the second defendant in the suit, that is the respondent herein, was to pay a sum of Rs.1,25,000/- to the plaintiff on 21.1.2001 being the compensation and on tendering that amount, the plaintiff had to surrender possession of the house named “Pranatha' bearing No.ELP XI-99 situate in the property scheduled to document no.1250/99 of SRO Kannur. The grievance of the decree holder is that the said amount WPC.13925/2009. 4 has not been paid. On the other hand, the respondent would contend that he had infact paid the amount to the decree holder and she had executed Ext.A1 agreement, which clearly shows that the house has been surrendered to him. The court below chose to accept the version given by the respondent and dismissed the E.P.. 6. Learned counsel appearing for the petitioner pointed out that the court below has omitted to take note of Order XXI Rule 1 and 2 CPC. Going by that provision, in case payment is said to have been made by the judgment debtor out of court in the manner provided therein, the payment cannot be taken into consideration unless the decree holder certifies such payment or the court. There is no such certification in the case on hand and on that sole ground, the relief should have been granted to the petitioner. It is also contended that the definite case of the decree holder was that Ext.B1 agreement produced by the respondent was a concocted document and that it was not executed by her. It is claimed that the document ought to have been WPC.13925/2009. 5 forwarded for expert opinion and the order now passed without doing so is illegal. Various other circumstances are also pointed out by the learned counsel for the petitioner, which according to her would indicate that the claim of the respondent is totally false. 7. Learned counsel appearing for the respondents on the other hand submits that there is no merit in any of the contentions raised by the petitioner before this court. Attention was drawn to the pleading in the E.P. wherein it is clearly stated that the decree holder had vacated the premises in January, 2001 itself and handed over the key to the respondent. In evidence of the same, she had executed Ext. B1 agreement also. Attention was drawn to the fact that E.P. was filed only in 2006. Having surrendered the building in 2001, it is inconceivable that she would have waited till 2006 if as a matter of fact the amount had not been received by her. Learned counsel also drew the attention of this court to the fact that there was criminal proceedings initiated by the respondent against the son of WPC.13925/2009. 6 the decree holder for offence under Section 138 of the Negotiable Instruments Act and in order to pressurise the respondents to withdraw the same, the present proceedings had been instituted. 8. It is difficult to believe the case put forward by the petitioner. There was a compromise decree passed in the suit between the plaintiff and the respondent and two others. The condition was that on payment of Rs.1,25,000/the decree holder would vacate the house and hand it over to the respondent. The respondent has produced Ext.B1, which according to him is the document which would indicate that the decree has been honoured by him as well as the decree holder. The petitioner disputes her signature on the said document. The respondent had examined himself and another person, who is a witness to Ext.B1. Both of them say about the payment of the amount and execution of Ext.B1 by the petitioner. 9. It is true that in the deposition given before criminal court proceedings against the son of the petitioner, WPC.13925/2009. 7 the respondent does not say about Ext.B1 agreement. This was highlighted as a clinching circumstance by the learned counsel for the petitioner. 10. One must at once notice that the issue regarding Ext.B1 was not a matter relevant for consideration in the criminal proceedings. There was no occasion for the respondent to urge that Rs.1,25,000/- had been paid to the petitioner and she had executed a document. Therefore this contention has no basis. 11. The evidence of P.W.1 is very interesting. She has filed an affidavit in chief in which she speaks about the case in terms of the execution petition. In cross examination she admitted that she had surrendered the building to the respondent and maintained that she had not received the amount as stipulated in the decree. When she was shown her vakalath, E.P. etc, she denied her signature on all documents presented by her before court. The court below has considered the evidence in detail and also found that the signature found on Ext.B1 tallies with the other WPC.13925/2009. 8 signatures of the petitioner available before court. This aspect was taken serious objection to by the learned counsel for the petitioner. It is pointed out that first of all the court was not justified in doing so and the court below ought to have sent the document for expert opinion. It is also pointed out that a bare look at the signature would show that they are different. 12. There is no rule that the court should sent the document for expert opinion and there is no harm in the court comparing the signatures. The court is enabled to do so under Section 73 **o** f the Evidence Act but the court shall not base its conclusion only on that basis. Opinion formed by the court on comparison of the signature can be taken as an additional item of evidence and that should not be the sole criterion for arriving at a decision. The court below cannot be found fault with for comparing the signatures. 13. Learned counsel appearing for the petitioner referred to the decisions reported in **Ittiavira Thommen v. Chandry Abraham** (1956 KLT 282), **V. Ponnappan v.** WPC.13925/2009. 9 **Vijayan** (1997(1) KLJ 207), **M.K. Lakshman v. K. Surendran** (1997(2) ILR Ker. 826) and **Sultama Begum v. Prem Chand Jain** ((997) 1 SCC 373) for the position that unless the payment of amount is certified under Order XXI Rules 1 and 2, the payment cannot be accepted. However, at the time of argument, learned counsel was forced to concede that this provision may not have any application at all. Even if it is necessary, Ext.B1 is sufficient to show that the amount has been paid. 14. As rightly pointed out by the learned counsel for the respondents, if as a matter of fact the building was surrendered in 2001, it is inconceivable that the petitioner and her son would have kept quite for such a long period in case they have not received the amount as per the decree. This is a clinching circumstance which goes against the petitioner. Then her conduct in the court in denying all her signatures also shows that she had no regard for truth. There is no reason to disbelieve R.Ws. 1 and 2. The court below has carefully perused Ext.B1 document and had come WPC.13925/2009. 10 to the conclusion that it was infact executed by the petitioner. 15. A fervent plea was made by the learned counsel for the petitioner that this court may remand the matter to the trial court directing the trial court to send Ext.B1 document for expert opinion. Apart from the fact that it is unnecessary, it will also serve no purpose. One may remember that the petitioner has chosen to deny her signatures on all the documents filed by her in court. Under such circumstances, it is felt that it is unnecessary to accede to the request made by the learned counsel for the petitioner. 16. The inconsistency in the evidence of R.W.1 is not so serious so as to disbelieve him. As rightly pointed out by the lower court, Ext.A1 deposition is in criminal proceedings in which the issue now involved was not at all relevant. It is on the basis of the inconsistencies in the deposition that the petitioner had ventured to contend that WPC.13925/2009. 11 Ext.B1 is a concocted document and it was subsequently drawn up. 17. Merely because there are some inconsistencies in the deposition before the criminal court and before the execution court, it cannot be said that Ext.B1 is a concocted document. One cannot easily accept that the petitioner would have simply surrendered the building without receiving the amount. No valid reason is given either in the execution petition or in her deposition as to why she did so. One must also remember that she has a son. He also did not react when the amount was not paid by the respondent. It is true that Ext.B1 agreement was executed on the very same day of the compromise decree itself. But that is not a ground to doubt the same in the light of the averments in the execution petition. 18. The court below has considered the entire matter in great detail and no grounds are made out to interfere with the order of the court below. WPC.13925/2009. 12 This writ petition is without merits and accordingly it is dismissed. **P. BHAVADASAN, JUDGE** sb.