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Nagendla Subba Lakshamma Vs. Salam Subba Rami Reddy and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtAndhra Pradesh High Court
Decided On
Case NumberC.R.P. No. 3353 of 1994
Judge
Reported in1995(3)ALT611
ActsCode of Civil Procedure (CPC) , 1908 - Sections 47, 47(1) and 121 - Order 21, Rule 2, 2(1), 2(2) and 2(3); Code of Civil Procedure (CPC) (Amendment) Act, 1976
AppellantNagendla Subba Lakshamma
RespondentSalam Subba Rami Reddy and anr.
Appellant AdvocateR. Subba Rao and ;M. Venkateswara Rao, Advs.
Respondent AdvocateC. Kodandaram, Adv.
DispositionPetition dismissed
Excerpt:
- practice & procedure repeal of act; [bilal nazki, c.v. ramulu & d. appa rao, jj] rules framed under the old (repealed) act held, rules framed under the repealed act do not remain in force once the act is repealed unless repealing act provided otherwise. - rule 2 of order xxi of the code deals with the cases, where the decrees are satisfied or adjusted out of the court. sub-rule (1) of rule-2 of order xxi lays down that where a decree is satisfied or adjusted, the decree-holder shall certify such payment or adjustment to the court, which is to execute the decree and the court shall record the same accordingly......sanction to the rules framed under the code. order xxi of the code deals with the execution of the decrees. rule 2 of order xxi of the code deals with the cases, where the decrees are satisfied or adjusted out of the court. sub-rule (1) of rule-2 of order xxi lays down that where a decree is satisfied or adjusted, the decree-holder shall certify such payment or adjustment to the court, which is to execute the decree and the court shall record the same accordingly. sub-rule (2) of rule 2 of order xxi of the code thereafter lays down that in case of such payment or adjustment, the judgment-debtor may also inform the court of such payment or adjustment and request court to record and certify the same. sub-rule (2-a) of rule-2 of order xxi of the code is inserted by the amendment act 1976;.....
Judgment:
ORDER

Maithili Sharan, J.

1. This revision petition is directed against the Order, dt. 12-8-1994 in E.P.No. 49 of 1992 in O.S.No.68 of 1991 passed by the Principal District Munsif, Cuddapah.

2. The relevant facts leading to this revision petition may be summarised thus:-

The respondents filed O.S.No.68 of 1991 in the Court of Prl. District Munsif, Cuddapah against the petitioner for recovery of a sum of money on the basis of a pronote. The suit was decreed on 25-2-1992 for a total sum of Rs. 34,733/-. Afterwards, E.P.No.49 of 1992 was filed by the respondents for the realisation of the decretal amount and the property of the Judgment Debtor i.e. revision petitioner herein, was attached in execution. The revision petitioner - Judgment Debtor raised two defences, namely., (1) The attached property did not belong to her, but in fact, it belonged to her husband; and (2) she had already made two payments Rs. 7,000/- and Rs. 5,000/- the stamped receipts are Exs. B-l and B-2 respectively. The learned Executing Court did not agree with the defences taken by the Judgment Debtor and allowed the E.P. by the impugned order. Hence, this revision petition.

3. I have heard the learned counsel on both sides at length and have also carefully gone through the record of the case.

4. At the outset, the learned counsel for the petitioner submits that he waived the first defence taken by the petitioner before the executing Court that the attached property belonged to her husband, as according to her, it was the husband who could have filed objections in this regard. His vehement argument on the second defence is that in view of Section 47 of the Code of Civil Procedure, (for short 'the Code'), the execting Court should have enquired the genuineness or otherwise of the above referred to two payments viz., Rs. 7,000/- and Rs. 5,000/-, through Exs.B-1 and B-2 respectively, and not solely on the basis of the provisions engrafted under Order XXI, Rule 2 and subrule (2-A) of the Code. In other words, he has argued that the above Rules of the Code do not exhaust the remedy available to the Judgment Debtor in facts and in Law; the complete enquiry in this regard has to be made under Section 47 of the Code, which lays down that all questions arising between the parties to the suit shall be determined by the executing Court. On the basis of this argument, he has submitted before me that the impugned order deserves to be set aside and the case deserves to be remanded to the executing Court to enquire into the genuineness of the above two documents viz., Exs.B-1 and B-2, in the light of the mandate given Under Section 47 of the Code. He has also relied upon a pronouncement of the Supreme Court in M.P. Shreevastava v. Mrs. Veena, : [1967]1SCR147 .

5. On the other hand, the learned counsel for the respondents has argued that the provisions laid down under Rule 2 and sub-rule (2-A) of Order XXI of the Code give complete procedure to be followed in regard to the payment or adjustment of the decretal amount made out of Courfrand Section 47 of the Code has nothing to do in this case.

6. I have seriously considered the arguments advanced by both the learned counsel and gone through the pronouncement of the Supreme Court cited supra. For a proper appreciation of the matter in hand, it would be appropriate to reproducehere Section 47(1) and Order XXI, Rule-2 of the Code, as amended by the Amendment Act, 1976:-

'Section 47(1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit.

(2) ......................................

(3) ..........................................'

'Order XXI Rule 2. (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 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 decreeholder 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.

(2-A) 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 Rulel; 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.'

7. The rationale underlined under Section 47 of the Code is that all questions relating to execution, discharge or satisfaction of the decree are to be determined only by the executing Court and not by a separate suit. The idea is to avoid multiplicity of proceedings.

8. Section 121 of the Code dealing with the 'Rules' lays down that the Rules in the First Schedule shall have effect as if enacted in the body of this Code until annulled or altered in accordance with the provisions of this part. This means that the Rules framed under various Orders of the Code shall have the sanctity of having been enacted unless of course annulled in accordance with Law. So, Section 121 of the Code gives legal sanction to the Rules framed under the Code. Order XXI of the Code deals with the execution of the decrees. Rule 2 of Order XXI of the Code deals with the cases, where the decrees are satisfied or adjusted out of the Court. Sub-rule (1) of Rule-2 of Order XXI lays down that where a decree is satisfied or adjusted, the Decree-holder shall certify such payment or adjustment to the Court, which is to execute the decree and the Court shall record the same accordingly. Sub-rule (2) of Rule 2 of Order XXI of the Code thereafter lays down that in case of such payment or adjustment, the Judgment-debtor may also inform the Court of such payment or adjustment and request Court to record and certify the same. Sub-Rule (2-A) of Rule-2 of Order XXI of the Code is inserted by the Amendment Act 1976; it provides that a payment or adjustment, which can be recorded or certified under Rule-2 is only payment made under Rule-1 or where such payment or adjustment is admitted by the decree-holder in the Court or in his reply to the notice given under sub-rule (2) of Rule 1. Sub-rule (3) of Rule 2 of Order XXI of the Code emphatically declares that a payment or adjustment not so certified or recorded as contemplated by the said Rule 'shall not be recognised by any Court executing the decree.'

9. In the instant case, admittedly, the two documents Exs. B-l and B-2 referred to above had not been got certified in accordance with the above Rules. Now, the contention of the learned counsel for the petitioner is that even if such documents have not been certified, still their genuineness ought to have been otherwise considered by the executing Court Under Section 47 of the Code. I am of the view that this is not legally a sound view. Section 47 of the Code lays down the fundamental Law that all questions arising between the parties to the suit have to be determined by the executing Court and not by a separate suit. The procedure to be adopted by the executing Court in regard to the execution of the decrees is laid down in Order XXI of the Code. Thus, the Rules framed under Order XXI of the Code ought to be taken to be supplemental to the mandate laid down under Section 47 of the Code; such Rules cannot be in derogation of this mandate. The Supreme Court has also observed in Paragraph-13 of its pronouncement cited supra as under:-

'There is, in our judgment, no antithesis between Section 47 and Order 21, Rule 2: the former deals with the power of the Court and the latter with the procedure to be followed in respect of a limited class of cases relating to discharge or satisfaction of decrees.'

10. Thus, after the procedure laid down under the Rules referred to above is exhausted, it would not be legal to again fall upon Section 47 of the Code for determining the genuineness or otherwise of the alleged documents.

11. In view of the above discussion on the factual and legal aspects involved in the case, I am of the opinion that the impugned order passed by the exectuing Court does not call for any interference by this Court and it is hereby upheld, and this revision Petition is dismissed. No costs.


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