IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF NOVEMBER 2019 BEFORE THE HON’BLE MR. JUSTICE S.R.KRISHNA KUMAR CIVIL REVISION PETITION NO.45 OF 2016 BETWEEN:
A.G.Nanjegowda S/o Giddegowda Aged 76 years Retired Daffedar R/o Ambuga Village Shanthigrama Hobli Hassan Taluk and District-573201 (By Sri Rajendra S, Advocate for Sri S.V.Prakash, Advocate) AND:
1. Puttalakshmamma W/o Somegowda Aged about 57 years 2. S.P.Somegowda S/o Bommarayigowda Aged about 66 years Respondents 1 and 2 are R/at LIC House No.150 Housing Board Holenarasipura Town-573211 Hassan District ... Petitioner 3. S. Manjula W/o T.P.Lingaraj Major in age R/o Thatanahalli Halli Mysuru Hobli Holenarasipura Taluk-573211 Hassan District ... Respondents This Civil Revision Petition is filed under Section 115 of Civil Procedure Code against the order dated 11.01.2016 passed in Execution No.37/2010 on the file of the Senior Civil Judge and JMFC, Holenarasipura, closed the petition as settled out of Court.
This Civil Revision Petition coming on for admission this day, the Court made the following:
ORDER This Revision Petition has been preferred against the order dated 11.01.2016 passed by the Court below closing/dismissing the Execution petition No.37/2010 filed by the petitioner/Decree holder.
2. As stated above, the petitioner was the decree holder in the said execution proceedings and the respondents herein were the judgment debtors. Before this Court, the respondents having been served with notice of this Revision petition have received service and not chosen to appear and remained unrepresented.
3. Lower court records have been received.
4. As stated above, since the respondents are served and unrepresented, I have heard the learned counsel for the petitioner and taken up this revision petition for final disposal at the stage of admission itself.
5. The undisputed facts giving raise to this revision petition are as follows:
6. The petitioner filed a suit on 02.03.2000 in O.S.No.30/2000 in the Court below for recovery of a sum of Rs.1,13,500/- together with interest at 18% per annum from the date of suit till realization from the respondents. The said suit having been contested by the respondents, the Court below partly decreed the suit in favour of the petitioner directing the respondent No.1 to pay a sum of Rs.1,00,000/- with interest @ 18% per annum from 26.05.1999 and further interest @ 8% per annum from the date of suit, till realization.
7. Aggrieved by the said judgment and decree, the respondents preferred an appeal in RA No.29/20096 before the learned Additional District Judge and Fast Track Court, Holenarasipura. By judgment and decree dated 24.04.2010, the lower Appellate Court dismissed the appeal filed by the respondents thereby confirmed the judgment and decree passed by the trial Court. After dismissal of the appeal by the lower appellate Court, the respondents did not prefer any further appeal and the said judgment and decree passed by the lower appellate Court attained finality and became conclusive and binding upon the petitioner as well as the respondents.
8. Since the respondents did not comply with the judgment and decree passed in RA No.29/2009, the petitioners put the said decree into execution in Ex.No.37/2010 on 14.06.2010. In the said execution proceedings, the first respondent entered appearance and contested the same inter-alia contending that the execution proceedings were not maintainable in view of the fact that the decretal amount had been paid by her to the petitioner on 18.07.2010 which was evidenced by a receipt. It was also contended on behalf of the respondent No.1/judgment debtor that in view of the fact that she had paid the amount due under the decree to the petitioner and towards full and final settlement of the decree, the execution proceedings were not maintainable and that the same were liable to be dismissed.
9. In view of the objections raised by the respondent No.1/judgment debtor regarding satisfaction, discharge and executability of the decree passed in RA No.29/2009, the Court below permitted the petitioner as well as respondent No.1 to adduce evidence. Accordingly, the petitioner examined himself as PW-1 and exhibits P.1 to P.4 were marked on his behalf. The respondent No.1/judgment debtor No.1 examined herself as RW1 and on her behalf three witnesses, RW2, RW3 and RW4 were examined and exhibits R1 to R5 were marked in support of her defence.
10. It is relevant to state that Ex.R.4 produced by the respondent No.1 is an alleged receipt dated 18.07.2010, said to have been executed by the petitioner in favour of respondent No.1, thereby acknowledging the receipt of Rs.1,50,000/- from the respondent No.1 towards full and final settlement of the decreetal amount. This document at Ex.R.4 was seriously disputed by the petitioner both in his pleadings as well as in evidence. Under these circumstances, respondent No.1 in addition to examining RW-2 and RW-3, who are said to be the witnesses to said receipt at Ex.R.4, also sought for referring the said document at Ex.R.4 to the handwriting expert for the purpose determining whether the signature alleged to have been found in Ex.R.4 was that of the petitioner or not. In this background, the Court below referred Ex.R.4 to M/s Truth Labs, Hyderabad, vide letter dated 29.06.2013. Pursuant thereto, the said organization examined Ex.R.4 and submitted a report at Ex.R.5 inter- alia coming to the conclusion that the signature found on Ex.R.4 at R.4(a) was indeed the signatures of the petitioner and consequently submitted a report in favour of respondent No.1. Aggrieved by the said report, the petitioner filed his objections and summoned the author of the report for cross examination. Pursuant thereto, one J.S.Shiva Kumar who submitted the report on behalf of M/s Truth Labs, was examined as RW-4 and he marked the report as ExR.5. RW-4 was also cross examined by the petitioner.
11. After hearing both the parties, the Court below proceeded to pass the impugned order holding that the respondents had successfully proved that the signatures found on Ex.R.4 was that of the petitioner and the petitioner having received a sum of Rs.1,50,000/- towards full and final settlement of the decretal amount as admitted by him under Ex.R.4, the execution proceedings were liable to be dismissed as closed.
12. The Court below also placed reliance on the report of the handwriting expert at Ex.R.5 on the alleged receipt Ex.R.4 and the oral evidence of RW-2 and RW-3, who were the witnesses to Ex.R.4 and came to the conclusion that respondent No.1/judgment debtor had successfully proved that no further amount was due by her, payable by her under the decree sought to be executed and consequently the execution petition deserves to be closed. Aggrieved by the impugned order passed by the Executing Court, the decree holder has preferred this revision petition.
13. I have heard the learned counsel appearing on behalf of the petitioner. As stated above, though the respondent/judgment debtors have been served with notice of this revision petition, they have chosen to remain absent and are accordingly unrepresented.
14. I have also perused the lower court records which have been summoned. Learned counsel for the petitioner has contended that firstly, the executing Court committed an error in failing to appreciate that notwithstanding the alleged payment of Rs.1,50,000/- under Ex.R.4, the said payment will not absolve the respondents from the liability to satisfy the decreetal amount in the absence of the respondents following the mandatory procedure prescribed under Order 21 Rules 1 and 2 CPC. It is contended that Order 21 Rule 2(3) mandates that if any payment is made by the judgment debtor to the decree holder out of Court, by way of payment or adjustment, the same shall not be recognized by the executing Court so long as the said payment or adjustment has not been certified or recognized as provided under Rules 1, 2 and 2(a) of Order 21 CPC. He contends that even assuming but not conceding that the payment of Rs.1,50,000/- was proved, no reliance can be placed upon Ex.R.4 since the payment made under Ex.R.4 has not been duly certified in accordance with Order 21 Rules 1 and 2 CPC and consequently, the finding of the court below that the decree has been satisfied is only perverse and liable to be set aside.
15. In support of his submission, he places reliance on the judgment of the Hon’ble Supreme Court in the case of BADAMO DEVI AND ORS. VS. SAGAR SHARMA (1999(10) Supreme Today 18). Reliance is also placed on the judgment of this Court in the case of SEETHARAMAKRISHNAIAH SETTY VS SATYANARAYANA SETTY (ILR 1987 KAR 579).
16. Secondly it is contended on behalf of the petitioner that apart from the various discrepancies, contradictions and inconsistencies in the evidence of RWs.1 to 3, no reliance could have been placed on the evidence of handwriting expert RW-4 in as much as in his cross examination he has admitted that he does not possess the necessary qualifications or credentials to submit his report on Ex.R.4. He invited my attention to the cross examination of RW-4 which reads as under:
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17. It is therefore contended by the learned counsel that in view of the categorical admission made by RW-4 that he does not possess necessary credentials or qualifications to give an opinion regarding handwriting / signature found in Ex.R.4, he was not the proper person to submit such an opinion on behalf of M/s Truth Labs. It is also contended that said organization M/s Truth Labs is either the State Forensic Science Laboratory or the Central Forensic Science Laboratory and consequently the credibility of the said institution being in dispute, no reliance should have been placed on the report at Ex.R.5 on this ground also.
18. I have given my careful consideration to the submissions made by the learned counsel for the petitioner and perused the material on record including lower court records.
19. A perusal of the material on record would clearly indicate that a specific contention urged on behalf of respondent No.1/judgment debtor was that she paid a sum of Rs.1,50,000/- on 18.07.2010 to the petitioner/decree holder towards full and final settlement of the decretal amount. It is not in dispute that the execution petition was presented by the petitioner/decree holder in the executing Court on 04.06.2010 and that the alleged receipt at Ex.R.4 dated 18.07.2010 came into existence after institution of the execution proceedings. In this context, it is relevant to state that the modes of payment of money under a decree is provided under Order 21 Rule 1 CPC. Order 21 Rule 2 of CPC provides for payment out of Court to the decree holder. It is an undisputed fact that the alleged payment of Rs.1,50,000/- by respondent No.1/judgment debtor to the petitioner was not paid in accordance with Order 21 Rule 1 CPC.
20. It is the specific contention of respondent No.1 that the said payment was made out of Court by her to the petitioner/decree holder. Under these circumstances, if the said payment of Rs.1,50,000/- was paid by the respondent No.1 to the decree holder out of Court, the said payment has to be made in accordance with mandatory provisions contained in Order 21 Rule 2 of CPC. It is relevant to extract the provisions contained under Order 21 Rule 2 CPC which reads as under:
Payment out of Court to decree-holder:-
(1) Where any money payable under a decree of any kind is paid out of Court, [or a decree of any kind is otherwise adjusted] in whole or in part to the satisfaction of the decree holder, the decree-holder shall certify such payment of adjustment to the Court whose duty it is to execute the decree, and the Court shall record the same accordingly.
(2) The judgment-debtor [or any person who has become surety for the judgment-debtor] also may 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; and if, after service of such notice, the decree holder fails to show cause why the payment or adjustment should not be recorded as certified, the Court shall record the same accordingly.
(2A) No payment or adjustment shall be recorded at the instance of the judgment debtor unless— (a) the payment is made in the manner provided in Rule 1; or (b) the payment or adjustment is proved by documentary evidence; or (c) the payment or adjustment is admitted by, or on behalf of, the decree-holder in his reply to the notice given under sub- rule (2) of rule 1 , or before the Court] (3) A payment or adjustment, which has not been certified or recorded as aforesaid, shall not be recognized by any court executing the decree.
21. A perusal of these provisions would indicate that if any payment is made out of Court by the judgment debtor to the decree holder, in whole or in part thereof, such payment is to be necessarily certified by the Court executing the decree and that the same shall be recorded accordingly.
22. Order 21 Rule 2(2) also mandates that after such payment is made, the judgment debtor shall apply to the Court to issue notice to the decree holder to show cause on a particular date as to why such a payment or adjustment has been made according to law that after such service of notice if the decree holder fails to show cause, the court shall record the same accordingly.
23. Order 21 Rule 2(3) mandates that any such payment made by a judgment debtor out of Court shall not be recognized by any court executing the decree unless such a payment or adjustment had been satisfied or certified by the court executing the decree.
24. The aforesaid provisions would clearly go to show that it is incumbent upon the judgment debtor making a payment out of Court towards part or full satisfaction or discharge of a decree to issue notice to the decree holder as well as apply to the executing Court to issue of notice to the decree holder and pursuant to the procedure provided under Order 21 Rule 2 CPC, the executing Court shall record and certify the same. It is only if such recording of payment made out of Court and certification of the same has been done by the executing Court that the said payment shall be recognized by the Court executing the decree which is thereafter empowered to take further steps in the execution proceedings. In other words, in the absence of any certification or recording of payment or adjustment by the executing Court in terms of the mandatory provisions contained in Order 21 Rule 1 and 2 CPC, such a payment out of Court is no payment in the eye of law and same cannot be considered or recognized by the executing Court when the decree is sought to be put in execution by the decree holder.
25. The principles laid down in Order 21 Rule 2 CPC with regard to certification and recording of payment made out of Court by the judgment debtor are no longer res-integra in view of the law laid down by the Hon’ble Supreme Court in the case of Badamo Devi (supra) wherein it is held at para 9 as follows:
Under this rule, if any payment due under the decree is made out of Court or a decree of any kind is otherwise adjusted in whole or in part to the satisfaction of the decree-holder, it becomes the duty of the decree-holder to certify such payment of adjustment to the Court and the court has to record the same. Under sub-rule(2) of Rule 2 of Order 21, a right has also been given to the judgment- debtor to apply to the Court for certifying the payment or adjustment. If any application to this effect is made by the judgment-debtor, the court after issuing notice to the decree- holder would record the said adjustment or payment provided no cause is shown by the decree-holder. Sub rule(3) of Rule 2 of Order 21 provides that a payment or adjustment which has not been certified would not be recognized by any Court executing the decree.
26. So also this Court in the case of Seetharamakrishnaiah Setty (supra), has held as under:
9. The Settlement Deed Ex. D4 appears to be in Telugu. The material portion of the translation of Ex. D4 reads as :
"I have filed suit 44/74 against you in the Civil Judge's Court, Bellary, and obtained a decree. But, all the 3 of you filed a suit O.S 1/75 against me and other brothers in the Civil Judge's Court, Bellary and the said suit is still pending. But, we have decided that it is not desirable to go on with the litigation. Hence, we have entered into this Agreement and given in writing with the following conditions by way of compromise.
DETAILS My late father has executed Gift Deed of a house standing in his name, in my favour and got it registered with absolute rights to me only. With regard to this matter, O.S. 1/75 has been filed. The house has been valued by us fit Rs. 30,000/-. Out of the your 3 shares will be Rs. 12,900/-.
In O.S. 44/74, I have to get Rs. 31,000/-. Out of this your share of Rs. 12,900/-, being the value of your 3 shares in that house covered under the Girt Deed was deducted and the balance of amount I had to get under the said decree is Rs. 18,100/-. For this Rs. 18,100 - without interest, you have to pay me at the rate of Rs. 300/- per month from 1-6-76. With these conditions, we, both the parties, have agreed and accepted, got this Agreement in duplicate and signed the same and one copy is kept with me and the other is given to you. In this manner, the decree in O.S. 44/74 and our rights in O.S. 1/75 have beep settled under this agreement."
Learned Counsel Ramachandra Rao relied on the last portion of the Settlement Deed and contended that the Settlement Deed Ex. D4 superseded the liability under the decree and a fresh agreement was entered into between the parties and whatever payments had been made by his clients, the J.Drs. ware all towards the liability created under the agreement Ex.D4. The said argument of learned Counsel Ramachandra Rao proceeds on the basis that the agreement Ex.D4 has superseded the decree. There is nothing in the said Settlement Deed Ex. D4 to indicate that the agreement has rendered the decree ineffective or had superseded the decree. What was sought to be done by the Settlement Deed was that the value of the share of these J Drs. in the house which was Rs. 12,900/- was adjusted towards the decree liability in O.S. 49/74 and that the balance amount of Rs. 18,100/- was still due under the decree. This amount of Rs. 18,100/- was stipulated to be paid at the rate of Rs. 300/- per month. The settlement deed only recorded the procedure of the payment. It did not vary the terms of the decree or did not create any fresh liability under the agreement. Order 21 Rule 2 C.P.C. reads :
"2.(1) Payment out of Court to decree-holder:
Where any money payable under a decree of any kind is paid out of Court, or the decree of any kind is otherwise adjusted in whole or in part to the satisfaction of the decree-holder, the decree-holder shall certify such payment or adjustment to the Court whose duty it is to execute the decree, and the Court shall record the same accordingly.
(2) The judgment-debtor or any person who has become surety for the judgment-debtor also may 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 ; and if, after service of such notice, the decree-holder fails to show cause why the payment or adjustment should not be recorded as certified, the Court shall record the same accordingly.
(2A) No payment or adjustment shall be recorded at the instance of the judgment- debtor unless-
(a) the payment is made in the manner provided in Rule 1; or (b) the payment or adjustment is proved by documentary evidence ; or (c) the payment or adjustment is admitted by, or on behalf of, the decree-holder in his reply to the notice given under Sub-rule (2) of Rule 1, or before the Court.
(3) A payment or adjustment, which has not been certified or recorded as aforesaid, shall not be recognised by any Court executing the decree."
Adjustment contemplated by Order 21, Rule 2 C.P.C. is a mutual agreement between the parties. Any arrangement or composition or agreement between the J.Drs. and the Decree-holder would be an adjustment within the meaning of Rule 2 and would require certification. Even if the agreement varies the mode of payment and even if there is in agreement reducing the quantum for liability of the J.Drs. it would be an adjustment within the meaning of Rule 2 and without certification such payment or adjustment cannot be recognised by the executing Court at all.
13. In Sri Ram v. Lekhraj, AIR 1982 Allahabad 814 the following facts were involved:
"Suit by A, the reversioner against B the vendee of house from widow, for possession decreed - In execution agreement between A and B, that A should sell the house to B for Rs.5,000, and that money lying in deposit to credit of B should be withdrawn by A as part consideration - Balance deposited by B in Court - Contract is a completed one and amounts to adjustment of decree which can be certified".
Therefore, as already stated by me above, the settlement deed Ex.D4 has brought about an adjustment of the liability of the present J.Drs. under the decree sought to be executed. It does not create any fresh agreement between the parties Ex. D4 cannot be said to supersede the decree sought to be executed. Therefore, it only amounts to an adjustment Within the meaning of Order 21, Rule 2 CPC. Admittedly, the said payments are not certified. Therefore, as laid down by Order 21, Rule 2(3), the said payments which are not certified, cannot be recognised and taken into account by the executing Court at all.
14. Learned Counsel Sri Ramachandra then stated that this Court should be very slow in exercising its revisional jurisdiction under Section 115 CPC. The proviso to Section 115 CPC reads as:
"Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of any suit or other proceeding, except where :--
(a) xxx xxx xxx (b) the Order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made."
According to him, the issue relating to the payment or adjustment of the decretal amount having been decided by the executing Court in his favour, if set aside by this Court would occasion a failure of justice or cause irreparable injury to the respondents. In short, he contended that O.S. 1/75 had been compromised in view of Ex. D4, the agreement, and their clients in view of the compromise decree in O.S. 1/75 lost their right in respect of the house on account of the adjustment entered into between the parties under Ex. D4. According to him, the amount of Rs. 12,900/- which was the value of the share of the respondents in the house and which was adjusted to the decretal amount in O. S. 44/74, will have to be paid again by them. According to him the payments made by him are all beyond three years and he cannot even file a suit for recovering the same from the L.Rs. of the Decree-Holder. I understand the mischief that would work out against the J.Drs. Merely because the J.Drs. would be required to pay over again all the amounts and merely because they would stand to lose all their rights in the house it does not follow that the order which is illegal and in contravention of Order 21, Rule 2(3) must be allowed to stand. Order 21, Rule 2(3) makes it clear that under no circumstances the Court shall recognise the payments made without certification. Therefore, merely because the J.Drs. would be put to the risk of making the payments over again, I do not think that the order impugned in this revision should be allowed to stand.
27. As stated above in view of the law laid down by the Apex Court as well as this Court in the decisions referred to above, the alleged payment of Rs.1,50,000/- under Ex.R.4 cannot be construed or treated as a payment made out of Court as contemplated in Order 21 Rule 1 and 2 CPC. Consequently, said payment, if any, cannot be made the basis by the respondents to contend that the decree has been satisfied and that the execution petition deserves to be closed.
28. Insofar as the contention of the respondent No.1/judgment debtor that she paid a sum of Rs.1,50,000/- under Ex.R.4 is concerned, a perusal of the evidence of RW-4 would indicate that he did not possess necessary credentials or qualification to render or submit a report as an handwriting expert as admitted by him during the course of cross examination that he does not possess a degree or a certificate in handwriting science and consequently, he was neither competent nor empowered to submit a report on behalf of the said organization M/s Truth Labs, which as stated above is not either a State Forensic Science Laboratory nor a Central Forensic Science Laboratory and that the same is a private organization. In view of the admissions of RW1 in his cross examination it was incumbent upon the respondent No.1 to take appropriate steps to obtain a second report from the accredited Forensic Science Laboratory in respect of the genuineness and validity of Ex.R.4 which was seriously disputed by the petitioner. Having not undertaken this exercise, no reliance can be placed on Ex.R.4 by the respondent No.1 in support of her contentions that said document would prove the payment of Rs.1,50,000/- by her to the decree holder. Consequently, I am of the view that based on the material on record, the Court below committed an error in holding that the respondent No.1 had proved that she had paid Rs.1,50,000/- to the petitioner under Ex.R.4.
29. The aforesaid discussion as well as the material on record would clearly establish that the Court below has acted illegally and with material irregularity in exercise of its jurisdiction in coming to the conclusion that the execution proceedings were not maintainable and that the same were liable to be closed.
30. The impugned order being wholly illegal, perverse and opposed to facts and probabilities of the case, the same requires to be interfered with by this Court. Accordingly, I pass the following:
ORDER The revision petition is hereby allowed. The impugned order dated 11.01.2016 passed in Ex.No.37/2010 by the Additional District Judge, Fast Track Court, Holenarasipura is hereby set aside.
Execution petition No.37/2010 is hereby restored to the file of the executing Court which shall execute the decree and further proceed with the matter having regard to the observations made herein before.
Having regard to the fact that the suit is of the year 2000, the executing Court shall complete the proceedings within a period of six months from the date of receipt of the copy of this order.
Learned counsel for the petitioner submits that the petitioner will appear before the executing Court on 09.12.2019 and the executing Court to proceed further in the matter.
No costs.
SD/-
JUDGE KMV*