Bapulal Walchand Jain, (Since ... vs Pandurang Vithal Pingle
2002 Latest Caselaw 303 Bom

ORDER

J.C. Chitre, J.

1. This writ petition is filed for a writ of certiorari for quashing the order which has been passed by executing Court (4th Jt. Civil Judge, S. D., Pune) dated 29-9-1987, by which the learned Judge recorded the payment of Rs. 2002.50 as payment made by respondent, judgment-debtor to the present petitioner (D.H.) by placing reliance on the balance sheet of the present petitioner which shows the amount of Rs. 2002.50 as payable by the respondent to him as on 30th of November 1983.

2. A decree was put to execution. Some amount was paid by the respondent to the petitioner and there was balance of Rupees 5260.20 recoverable by the petitioner from the respondent. The petitioner filed Darkhast for recovery of that amount. The respondent took the defence that he had paid the amount out of Court to the petitioner and only amount of Rs. 2002.50 were remaining to be paid. In view of the said contention the executing Court called the balance sheet from the Income-tax Department which was submitted by the present petitioner. The said balance sheet was, as the record shows, submitted by Income-tax Department in a sealed envelope which was opened by the executing Court at the time of deciding the said Darkhast. The Court perused the said balance sheet wherein payment made by the present respondent was shown and Rs. 2002.50 was shown as recoverable from the respondent. So the Court recorded its finding that way and that is the subject-matter of challenge in the present writ petition.

3. Shri Mahmane, Counsel appearing for the petitioner, pointed out the provisions of Order 21, Rules 1 and 2 which shows modes of paying money under the decree. According to Shri Mahamane, the Court should have taken into consideration the modes indicated by Rule 1 of Order 21 of C.P.C. and should have insisted for payment to be made to the petitioner by the respondent by such mode. He submitted that as it has not been done by the executing Court a writ of a certiorari be issued in favour of the petitioner and said order be quashed. Shri Deshmukh, counsel appearing for the respondent, justified the said order by submitting that the amount which has been recoverable as shown by the petitioner has been considered by the executing Court and that has been taken to be payment made by the respondent to the petitioner. Therefore, there is nothing illegal in the order which needs to be dealt with by this Court by issuing writ of certiorari.

4. Order 21, Rule 1 narrates the modes of paying money under decree which need to be mentioned for reference so far as decision of this writ petition is concerned. Sub-rule (1) provides that money payable, under a decree shall be paid as follows, namely :

(a) by deposit into the Court whose duty it is to execute the decree, or sent to that Court by postal money order or through a bank; or

(b) out of Court, to the decree-holder by postal money order or through a bank or by any other mode wherein payment is evidenced in writing; or

(c) otherwise, as the Court which made the decree, directs.

Sub-rule (2) provides that where any payment is made under Clause (a) or Clause (c) of Sub-rule (1), the judgment-debtor shall give notice thereof to the decree-holder either through the Court or directly to him by registered post, acknowledgment due.

Sub-rule (3) provides that where money is paid by postal money order or through a bank under Clause (a) or Clause (b) of Sub-rule (1), the money order or payment through bank, as the case may be, shall accurately state the following particulars etc.

5. Rule 2 provides that :

(1) 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.

6. Therefore, from the bare reading of Rules 1 and 2 concerned, it is clear J. D. is entitled to make the payment out of the Court for satisfying the decretal amount but he has to abide by the modes prescribed and Sub-rule 1(b) provides that he can make such payments by any other mode wherein payment is evidenced in writing.

7. Here in this case the petitioner has submitted an Income-tax Return to the Income-tax Department wherein he had on his own accord disclosed that he was to recover Rs. 2002.50 from the respondent. The Court had called for document from Income-tax Department and it was supplied by that department to that Court in a sealed envelope and that sealed envelope was opened by the Court and that was sufficient for the purpose of satisfaction whether the said payment has been evidenced in writing. The said return was submitted by the petitioner on his own accord and, therefore, now he is estopped from denying such payment.

8. When this Court is exercising the jurisdiction of superintendence in view of Article 227 of the Constitution of India it has to interfere in the order passed by the executing Court only if there are compelling and justifiable grounds to do so. This Court does not find any such ground and, therefore, the writ petition stands dismissed with costs and as a result of that Civil Application which has been tagged in the Writ Petition bearing No. 5557/1997 stands allowed.

The parties to this litigation are directed to act on the copy of this order duly authenticated by the Sheristedar of this Court.