Andhra Pradesh High Court - Amravati

C T Surya Gupta vs K Hanumantha Gupta on 1 May, 2024

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APHC010021682019
                     IN THE HIGH COURT OF ANDHRA PRADESH
                                   AT AMARAVATI                           [3458]
                            (Special Original Jurisdiction)

                   WEDNESDAY, THE FIRST DAY OF MAY
                   TWO THOUSAND AND TWENTY FOUR

                                    PRESENT

        THE HONOURABLE SMT JUSTICE KIRANMAYEE MANDAVA

                    CIVIL REVISION PETITION NO:247/2019

Between:

C T Surya Gupta                                                   ...PETITIONER

                                       AND

K Hanumantha Gupta                                              ...RESPONDENT

Counsel for the Petitioner:

   1. O. MANOHER REDDY

Counsel for the Respondent:

   1.

The Court made the following:

ORDER:

The Civil Revision Petition is filed under Article 227 of the Constitution

of India, challenging the order dated 19.11.2018 in E.P. No. 52 of 2015 in

O.S. No.65 of 2013 on the file of Senior Civil Judge, Hindupur.

2. D. Hr filed suit against the J.Dr in OS No. 65 of 2013 for recovery

of money and obtained a decree for Rs.1,35,588/- with interest, seeking

execution of the said decree, the D.Hr filed EP and sought issuance of notice

to the J.Dr to pay the amount and if he failed to pay the EP amount, the D.Hr

sought for civil imprisonment of the J.Drpending realization of the EP amount.

The J.Dr filed his counter stating that after a decree, the D.Hr had approached

him and sought a settlement in the presence of elders. Accordingly, the issue

was settled for Rs.1,00,000/-. It is stated that the J.Dr has paid the said

amount of Rs.1,00,000/-. And that D.Hr has also executed a receipt to the said

effect. He accordingly prayed for the dismissal of the EP. In the EP, on behalf

of J.Dr, RW-1 & 2 were examined, and the receipt was marked as Ex.B1 for

J.Dr and D.Hr was examined as PW-1. The learned Judgedismissed EP,

observing that the J.Dr has proved the payment of Rs.1,00,000/- and that he

has also examined the attestorof the receipt Ex.A1. Thus EP filed by the

D.Hrwas dismissed by the learned Judge on the ground that the J.Dr had paid

an amount of Rs.1,00,000/- and settled the matter. Hence, the present Civil

Revision

3. Heard, Sri O. Manohar Reddy, learned Senior Counsel for the

petitioner. Though notice is served on the respondents, appearance is not

entered on behalf of the respondent.

4. It is contended by the learned counsel for the petitioner that if

J.Dr had really settled the matter out of Court, he ought to have filed the said

document before the Court and got the same recorded in terms of the

provisions Order XXI Rule 2 of CPC.The learned counsel for the petitioner in

support of his contention, relies on the decision of this Court in the case of

Shaik Mohammad Rafiuddin Vs. Gummala Narayana Reddy1, wherein it is

observed as under:

"7) In the instant case, E.P.No.157 of 2015 was filed on 24.08.2015. As per J.Dr, he paid D.Hr Rs.30,000/- under Ex.B.1 on 28.08.2015 following the out of Court settlement. However, the petitioner/J.Dr did not apply before the executing Court for recording of the payment under Ex.B.1 within one month from the date of Ex.B.1 in terms of Order XXI Rule 2 CPC. He brought to the notice of the Court about the alleged payment of Rs.30,000/- by way of out of Court settlement through his counter dated 25.01.2016 for the first time. Thus, it is clear that the J.Dr has not followed the mandate prescribed under Order XXI Rule 2 CPC. The Apex Court and our High Court have narrated the effect of non- recording of the satisfaction. In Padma Ben Banushali and another vs. Yogendra Rathore and others, 2006 (3) ALD 121 (SC) = AIR 2006 SC 2167, the Apex Court observed thus:

Para 12: The problem can be looked into from another angle on the basis of the maxim "generaliaspecialibus non derogant".

Section 47, as pointed out earlier, gives full jurisdiction and power to the executing court to decide all questions relating to execution, discharge and satisfaction of the decree. Order XXI Rule 3, however, places a restraint on the exercise of that power by providing that the executing court shall not recognise or look into any uncertified payment of money or any adjustment of decree. If any such adjustment or payment is pleaded by the judgment-debtor before the executing court, the latter, in view of the legislative

2017 (3) ALD 469

mandate, has to ignore it if it has not been certified or recorded by the Court.

Para 13: The general power of deciding questions relating to execution, discharge or satisfaction of decree under Section 47 can thus be exercised subject to the restriction placed by Order XXI Rule 2 including Sub-rule (3) containing special provisions regulating payment of money due under a decree outside the court or in any other manner adjusting the decree. The general provision under Section 47 has, therefore, to yield to that extent to the special provisions contained in Order XXI Rule 2 which have been enacted to prevent a judgment-debtor from setting up false or cooked-up pleas so as to prolong or delay the execution proceedings. The aforesaid aspects were highlighted in Sultan Begum's case (supra).

Our High Court in P.Narasaiah vs. P.Rajoo Reddy , K.Sitarama Rao's case(supra) and Haji P.BasheerSahebs case(supra) also expressed similar view. In view of clear exposition of the law, the contention of the J.Dr cannot be upheld.

5. Further, the learned counsel for the petitioner relies on the

decision of this Court in the case of P. Narasaiah Vs. P. Rajoo Reddy 2 ,

wherein it is observed as under:

"20. For the above reasons, I hold, agreeing with Upendralal Waghray, J. that the payment allegedly made by the judgment-debtor on 5-1-1979 not having been recorded and certified in accordance with Order XXI, Rule 2(2), C.P.C., cannot be recognized by the executing Court in E.P. No. 73/1981, because the application alleging such payment was made, even in the earlier E.P., (E.P. No. 20/1979), beyond 30 days of the payment."

6. Order XXI Rule 2 of CPC, reads as under:

AIR 1989 AP 264

"2. 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.

Order XXI Rule 2(3):