Shantimol vs Annamma
2021 Latest Caselaw 20869 Ker

                 IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
                    THE HONOURABLE MR.JUSTICE V.G.ARUN
     WEDNESDAY, THE 6TH DAY OF OCTOBER 2021 / 14TH ASWINA, 1943
                          OP(C) NO. 768 OF 2018
       AGAINST THE ORDER/JUDGMENT IN OS 69/1999 OF SUB COURT,
                            KATTAPPANA, IDUKKI
PETITIONER:

              SHANTIMOL
              AGED 46 YEARS
              D/O. CHACKO, AGED 46 YEARS,
              NJAVELLIL HOUSE,
              CHELLARKOIL KARA,
              ANAKKARA VILLAGE,
              UDUMBANCHOLA TALUK.

              BY ADVS.
              SRI.PHILIP T.VARGHESE
              SMT.ACHU SUBHA ABRAHAM
              SRI.THOMAS T.VARGHESE



RESPONDENT:

              ANNAMMA
              AGED 58 YEARS
              D/O. CHACKO, AGED 58 YEARS,
              PANTHALLOR HOUSE,
              THANKAMANY KARA,
              THANKAMANY VILLAGE,
              IDUKKI TALUK-685515.

              BY ADV SRI.S.SACHITHANANDA PAI




     THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 06.10.2021, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 OP(C) NO. 768 OF 2018
                                   2



                            JUDGMENT

Dated this the 6th day of October, 2021

The petitioner is the judgment debtor in E.P. No.

42/2015 in O.S. No. 69/1999 of the Sub Court,

Kattappana. The execution petition was filed based on the

decree in O.S. No. 69/1999 wherein the petitioner figured

as the 7th defendant. The suit was filed for partition and a

compromise decree was passed on 15.09.2009, as per

which, defendants 1, 2, 3, 6 and 7 agreed to pay

Rs.1,00,000/- each to the 5th defendant with 12% interest

per annum from 10.06.2009 for equalizing the value of

the shares allotted to them. According to the petitioner,

she paid the sum of Rs.1,00,000/- to the respondent/5 th

defendant on 25.11.2009 in full and final settlement of

the decree debt. Ext.P1 is stated to be the receipt

evidencing such payment. The petitioner's version is that,

after payment certain issues arose among the siblings,

resulting in the respondent instituting the execution OP(C) NO. 768 OF 2018

proceedings, falsely claiming that the amount was not

paid. The petitioner filed objection to the execution

petition stating that the amount was paid and filed EA No.

63/2017 under Order XXI Rule 2 read with Section 151 of

the Code of Civil Procedure to certify the payment made

by her. The petitioner gave evidence as DW1 and the

respondent/decree holder, as PW1. By Ext.P6 oder, the

execution court dismissed EA No. 63/2017 holding that

the application is barred by limitation under Article 125 of

the Limitation Act. For arriving at the conclusion the

execution court relied on the decision in C.K. Xavier V.

Bhagaraj Singh (1987 (1) KLT 385). The execution

court observed that the petitioner's remedy is to file a

suit. Aggrieved, this original petition is filed.

2. Heard Advocate Smt. Monisha K.R. learned

counsel for the petitioner and Sri. S.Sachithananda Pai

learned counsel for the respondent at length.

3. The period of limitation for making certification

under Order XXI Rule 2 read with Section 151 of the Code OP(C) NO. 768 OF 2018

of Civil Procedure is 30 days, as provided under Article

125 of the Limitation Act. Indisputably, the application

(E.A. No. 63/2017) was filed by the petitioner way beyond

30 days. As held in C.K. Xavier (Supra) when payment

is made out of court, there is an implied understanding

between the judgment debtor and the decree holder that

the decree holder shall credit that amount towards the

decree debt. If the decree holder proceeds to execute the

decree without giving credit to the money paid or the

adjustment effected, he is guilty of breach of contract and

the remedy available to the judgment debtor is sue for

damages. This being the legal position the impugned

order warrants no interference.

In the result, the original petition is dismissed.

(Sd/-) V.G.ARUN JUDGE LU OP(C) NO. 768 OF 2018

APPENDIX OF OP(C) 768/2018

PETITIONER EXHIBITS

EXHIBIT P1 TRUE COPY OF THE RECEIPT ISSUED BY THE RESPONDENT TO THE PETITIONER DATED 25.11.2009.

EXHIBIT P2 TRUE COPY OF E.P.NO. 42/2015 IN O.S. NO.

69/2009 FILED IN THE SUB COURT, KATTAPPANA DATED NIL.

EXHIBIT P3 TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER TO EXHIBIT P2 PETITION DATED 20.05.2016.

EXHIBIT P4 TRUE COPY OF E.A. NO. 63/2017 IN E.P.NO.

42/2015 IN O.S. NO. 69/1999 OF THE SUB COURT, KATTAPPANA DATED 20.02.2017.

EXHIBIT P5 TRUE COPY OF THE COUNTER AFFIDAVIT FILED IN EXHIBIT P4 APPLICATION DATED 22.02.2017.

EXHIBIT P6 TRUE COPY OF THE ORDER OF THE SUB COURT, KATTAPPANA IN E.A. NO. 63/2017 IN E.P. NO. 42/2015 IN O.S. NO. 69/1999 DATED 21.12.2017.

               //   True Copy //             PA To Judge