Rekhasingh Charansingh Sandhu vs Vimalbai Pundalik Chavan And ...
2017 Latest Caselaw 2919 Bom

                                                               WP/5630/2016
                                      1

                IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                           BENCH AT AURANGABAD

                        WRIT PETITION NO. 5630 OF 2016

 Rekhasingh Charansingh Sandhu,
 Age 60 Years, Occ. Business,
 R/o Sangam Road Carrier,
 Bhagatsing Road, Nanded.                       ..Petitioner

 Versus

 1. Vimalbai Pundalik Chavan,
 Age major, Occ. Household,
 R/o Hadoli Tanda, Tq. Loha,
 District Nanded.

 2. Ankush Pundalik Chavan,
 Age major, Occ. Nil,
 U/g of respondent No.1 i.e. mother.

 3. Ulhas Pundalik Chavan,
 Age 24 , Occ. Labour,
 R/o Hadoli Tanda, Tq. Loha,
 District Nanded.

 4. Babarao Pundalik Chavan,
 Age major, Occ. Labour
 R/o as above.

 5. Devidas Pundalik Chavan,
 Age major, Occ. Labour
 R/o as above.

 6. Ashabai Mehavan Chavan
 Age 21 years, Occ. labour
 R/o Godi Tanda, Taluka Loha,
 District Nanded.

 7. Panchabai Maroti Chavan
 Age 22 years, Occ. Labour
 R/o as Above.




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                                                                   WP/5630/2016
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 8. Kushabai Laxman Rathod,
 Age 25 years, Occ. Labour,
 R/o as above.                                     ..Respondents

                                  ...
            Advocate for Petitioners : Shri Bora Satyajit S.
        Advocate for Respondents 1 & 2 : Shri Nandedkar D.Y.
           Advocate for Respondents 3 & 8 : Shri Bagal S.R.
                                  ...

                        CORAM : RAVINDRA V. GHUGE, J.

Dated: June 08, 2017 ...

ORAL JUDGMENT :-

1. Heard the learned Advocates for the respective parties.

2. Rule.

3. By consent, Rule is made returnable forthwith and the petition

is taken up for final disposal.

4. The petitioner is aggrieved by the order dated

17.12.2015, by which, application Exhibit 20 filed by the

petitioner praying for recognizing and validating the payment of

money to the decree holder under Order XXI Rule 2 of the Civil

Procedure Code ("CPC") has been rejected.

5. I have considered the strenuous submissions of the

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learned Advocates.

6. There is no dispute that on account of the demise of

Pundlik, his wife Vimalbai along with the mother and son of the

deceased, preferred a claim bearing No. MACT 2202 of 2002 for

seeking compensation. By judgment dated 5.8.2003, the claim

was allowed and the petitioner was directed to pay an amount

of Rs.2,65,000/- with interest @ 9 % per annum. On 2.2.2005,

respondent Nos.1 and 2 herein filed a Regular Darkhast No.39 of

2005 seeking execution of the decree. The total amount

claimed, with interest, was Rs.3,57,894/-.

7. It is the case of the petitioner that the petitioner

preferred to settle the claim out of Court with the claimants

under Rule 1(1)(b) of Order XXI of the CPC and paid the entire

amount of Rs.3,57,894/- to Vimalbai on 3.10.2005. The said

payment has been evidenced by a written document on a non-

judicial stamp paper of Rs.50/-. Thereafter, the petitioner

moved the executing Court under Order XXI Rule 2 of the CPC

for recording the payment to the decree holder out of Court and

seeking validation that the decree has been satisfied.

WP/5630/2016

8. The applicants in the execution proceedings declined to

acknowledge the payment of the said amounts and took a stand

that no such payment was received by Vimalbai. The executing

Court permitted the parties to lead evidence and by the

impugned order has concluded that the writing on the Rs.50/-

non-judicial stamp paper does not inspire confidence and cannot

be accepted as being a valid proof of the payment of the entire

decreed amount.

9. Shri Bora strenuously submits that the evidence of

Vimalbai before the executing Court clearly indicates that she

herself had purchased the bond paper and has submitted it to

the petitioner. Though the document was not notarized and was

not subjected to verification, it would evidence the payment of

the amount under Order XXI Rule 1(1)(b) of the CPC. He

submits that when the document in any form bearing the thumb

impression of the decree holder is placed on record and has the

photographs of the decree holder affixed thereon, it needs to be

accepted as a piece of evidence. He, therefore, prays that the

impugned order be quashed and set aside.

10. Learned counsel for the respondent defended the

WP/5630/2016

impugned order by contending that the writing on the non-

judicial stamp paper was an act of the petitioner with the

intention of taking undue advantage of the illiteracy of

Vimalbai, who is the wife of the deceased. It is stated that

though Vimalbai sought change of Advocate, with an ulterior

motive as is contended by Shri Bora, the said would have little

bearing as, whether an Advocate is changed or not, the factum

of payment needs to be established under Order XXI Rule 2 of

the CPC. Vimalbai has not received the amount and her

illiteracy was exploited by the petitioner by settling the matter

out of Court. This further indicates that the petitioner was not

precluded from approaching the executing Court and making the

payment of the decreed amount since the petitioner claims that

the entire amount has been paid.

11. I have scrutinized the impugned order, which is quite

extensive and is based on the evidence recorded by the

executing Court. It is curious that the petitioner did not choose

to have the deed of settlement notarized before a notary so as

to render validity to the said document. The petitioner could

also have ensured that proper affidavits were executed by

following the due procedure if the amount was actually paid to

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Vimalbai. It also cannot be ignored that an amount as large as

Rs.3,57,894/- is said to have been paid in cash by the petitioner

to Vimalbai. If the entire decreed amount was to be paid, it is

beyond comprehension as to what prevented the petitioner from

making the said payment in the presence of the executing Court

so as to enable the executing Court to pass an order under

Order XXI Rule 2 of the CPC. This would have led to the

complete satisfaction of the decree.

12. In the above backdrop, the documents bearing the thumb

impression of Vimalbai would not inspire confidence. The

principles of probabilities indicate that the entire amount, if

was being paid to Vimalbai, could have been paid in the Court

itself. Vimalbai has stated on oath that she was not paid the

said amount. She has denied her thumb impression on the bond

paper.

13. When the petitioner was making the entire payment of

the decreed amount, it would have been more convenient for

the petitioner to make the said payment in the open Court

where the executing Court would have passed orders under Rule

XXI Rule 2 of the CPC. There are no reasons canvassed by the

WP/5630/2016

petitioner as to what prevented such payment of entire decretal

amount before the Court and what were the compelling

circumstances for making the said payment in cash and out of

the Court.

14. In the light of the above and keeping in view that that the

executing Court has relied upon the law laid down in the

reported judgments, I do not find that the impugned order could

be termed as being perverse or erroneous. Merely because a

second view is possible, would not justify causing an

interference in the writ or supervisory jurisdiction of this Court,

considering the law laid down by the Honourable Supreme Court

in the matters of Syed Yakoob Vs. K.S. Radhakrishnan and others

[AIR 1964 SC 447] and Surya Dev Rai Vs. Ram Chander Rai [2003(6)

SCC 682].

15. This petition being devoid of merits is, therefore,

dismissed. Rule is discharged.

( RAVINDRA V. GHUGE, J. ) ...

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