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Janki Prashad Vs. Thakur Das Mukherjee and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in13Ind.Cas.21
AppellantJanki Prashad
RespondentThakur Das Mukherjee and ors.
Excerpt:
civil procedure code (act v of 1908), order xxt, rule 2(3) - uncertified payment--court cannot allow it to be proved in execution--revision--error of law--substantial justice not done. - - he obtained a decree and put it into execution several times without success. on the 9th of april, the court had ordered an account to be prepared and the case to be put up on monday the 13fch april, on which date it held, accepting the evidence of the judgment-debtor, that the decree had been satisfied and dismissed the decree-holder's application for execution with costs. i am far from satisfied that material justice has been done in the case......whole amount of the decree. he produced some nine receipts, six of these covered sums which the decree-holder had allowed in his application as having been paid. in the case of one receipt, the decree-holder admitted having received a sum of rs. 5 and urged that the figure i had been inserted and the receipt altered. in the case of the other two receipts, the decree-holder totally denied that he either received the money or granted the receipt. the court called on the judgment-debtors to prove the three disputed receipts, over-looking the terms of clause (3) of order xxi, rule 2, of the code of civil procedure. the receipts related to payments which had not been certified and recorded according to the terms of order xxi, rule 2. the court ought to have refused to go into the question.....
Judgment:

Tudball, J.

1. This is an application for revision under Section 25 of the Provincial Small Cause Courts Act, It rises out of the following circumstances: In 1902, the applicant advanced a sum of Rs. 50 to the opposite parties on a promissory-note at the rate of Rs. 37 1/2 per cent, interest per annum. In February 1903, he sued to recover his money plus interest. His claim was for Rs. 54 odd, a payment of Rs. 5 haying been already made. He obtained a decree and put it into execution several times without success. Finally, in January 1909, when one of the judgment-debtors, who is a Railway servant, had been transferred to Allahabad, he put his decree into execution. He allowed certain payments as having been made. One of the judgment-debtors came to Court and filed an objection to the effect that he paid off the whole amount of the decree. He produced some nine receipts, six of these covered sums which the decree-holder had allowed in his application as having been paid. In the case of one receipt, the decree-holder admitted having received a sum of Rs. 5 and urged that the figure I had been inserted and the receipt altered. In the case of the other two receipts, the decree-holder totally denied that he either received the money or granted the receipt. The Court called on the judgment-debtors to prove the three disputed receipts, over-looking the terms of Clause (3) of Order XXI, Rule 2, of the Code of Civil Procedure. The receipts related to payments which had not been certified and recorded according to the terms of Order XXI, Rule 2. The Court ought to have refused to go into the question of these payments, leaving it to the judgment debtor to recover the money, if paid, from the decree-holder by a separate suit. The Court, however, called on the judgment-debtor to prove the payments covered by these three receipts. On the 3rd of March 1910, it ordered the judgment-debtor to secure an expert for examination of the receipts. This apparently was not done. On the 2nd of April 1910, an order was passed postponing the case to the 9fch of April for the purpose of examining the judgment-debtor himself in proof of the receipts. On the 8th of April, the decree-holder, who personally conducted his case without the assistance of a legal adviser, wrote to the presiding officer of the Court stating that he was ill and that he would be unable to attend the Court on the 9th and asking for one week's postponement. On the 13th of April 1910, the judgment-debtor was examined in the absence of the decree-holder. He made a brief bald statement supporting the receipts. On the 9th of April, the Court had ordered an account to be prepared and the case to be put up on Monday the 13fch April, on which date it held, accepting the evidence of the judgment-debtor, that the decree had been satisfied and dismissed the decree-holder's application for execution with costs. On the 11th of May, the decree-holder applied for restoration and rehearing of the application. This was rejected on the 15th of August 1910, on the ground that the decree-holder had not deposited the amount of costs decreed against him. He made a second application on the 2nd of September 1910 with a deposit. This was rejected on the 26th of September as being barred by limitation. He has now come on revision to this Court. It is quite clear that the lower Court has committed an error in making inquiry as to the payment or non-payment of the amount disputed. The terms of Order XXI, Rule 2, Clause (3), are very plain and unmistakeable. At the same time, the lower Court did make some sort of inquiry, and if I could say with certainty that substantial justice had been done, I should have refused to entertain the revision. The receipts produced by the judgment-debtors are on the record and I have compared the disputed ones with the admitted ones. There is a distinct difference in the hand-writing, although not such as to enable a nomexpert to say with any degree of certainty that the disputed receipts are forgeries. There are certain other features, too, which go to create a certain amount of suspicion in the matter. These disputed receipts are supported by a very meagre bare ex parte statement of the judgment-debtor himself and by no other evidence. He was not even cross-examined as the decree-holder was absent. 'Without describing these disputed receipts as forgeries, still, I think, the circumstances of the case are such that the lower Court was not justified in holding that the receipts were proved, and it would be certainly advisable that these receipts, the burden of proving which was on the judgment-debtor, should be established, if the latter deems fit to do so, by a regular suit rather be accepted in the present proceedings after a very meagre inquiry. I am far from satisfied that material justice has been done in the case. The lower Court has been guilty of an error of law and I think I can do justice to both parties by allowing the decree to be executed, leaving it to the judgment-debtors to establish by a regular suit the genuineness of their receipts and thereby recovering their money. I, therefore, admit this application, and set aside the order of the lower Court dated the 13th of April 1910. The application for execution will be granted and the lower Court will proceed to execute the decree according to law. The decree-holder applicant will have his costs in the lower Court. So far as costs in this Court are concerned, each party will bear his own costs.


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