Pritam Singh Safeer, J.
(1) This petition is directed against an order made by the trial court on the 31st of May, 1974, by which the petitioner's application under order 26, rule 4 read with order 16 rule l9 of the Code of Civil Procedure (hereafter called 'the Code').was dismissed.
(2) I have perusedthatapplication. It is stated there in that the payment of Rs. 280/ was made to the decree-holder through one Banarsi Lal, whose address is C/o Messrs Bansi Lal Banarsi Lal, Petrol Pump, Dhamtari, District Raipur (Madhya Pradesh). It is contended that the said payment was also mentioned in the objections filed by the judgmentdel for.
(3) I have read the objectins. In paragraph 5 of the objection it is stated :-
The averment means that three payments were made in the presence of Banar Lal The first on' was of Rs 200.00 , the second one was of Rs. 40.00 and the third one also of Rs. 40.00 . All the three payments were allegedly made in 1965. In the application, which was dismissed by the impugned order, the stand taken was that Rs 280.00 had been paid in the presence of Shri Banarsi Lal. The impression created is that it was in lump-sum.
(4) I find that the decree which is sought to be executed was made on the 4th of May, 1965. The parties had litigated and no love was last between them. If the judgment-debtor was to make any payment to the decree-holder he could have deposited the amount in court or made the payment against receipt. He could have also made the payment through a cheque. In any case, where the payment was being made by the judgment debtor towards the satisfaction of the decree, he was to bear in mind that he would have to prove that the decree had been satisfied to a precise extent. The decree, as mentioned in the execution application, was for a sum of RS. 1000.00 and the judgment- debtor was to pay interest at 6 per cent. per annum from the date of the decree till the date of its realisation. If the jufgment-de btor was miking a part-payment towards the decree he was of necessity to keep proof.
(5) It has been urged on behalf of the petitioner that an opportunity should have been given for adducing the eviden by examining on commission Banarsi Lal of Dhamtari, District Raipur (Madhya Pradesh). My attention is invited to rule 19 in order 16 of the Code. The provision is:-
'19.No witness to be ordered to attend in person unless resident within certain limits. No one shall be ordered to attend in person to give evidence unless he resides- (a) within the local limits of the Court's ordinary original jurisdiction, or (b) without such limits but at a place less than fifty or (where there is railway or steamer communication or other established public conveyance for five sixths of the distance between the place where he resides and the place where the Court is situate) less than two hundred miles distant from the courthouse.'
All that is prescribed is that no prson living beyond the local limits of the court's ordinary jurisdiction shall be ordered to appear to give evidenee. There is nothing imperative in the provision that the court must whenever an application is made for examining a witness outside its local limits pass an order under order 26, rule 4 of the Code. In every case it is the judicial duty of the court to find out for itself whether the application merits an order appointing a commissioner for recording svidence.
(6) Mr Joshi has cited Gadamsetty Subrahmanyam v. Gadamsetty Venkayya, and has read out paragraph 8 in that judgment. The observations made therein do not help him. It is observed by the Andhra Pradesh High Court that the court as of duty is to see that the application with which it is called upon to deal is not an abuse of the process of a court and that it is not actuated by mala-fides or fraud. The learned counsel has cited another case reported as Ramesh Siram Sane v. Bhagwandas Atmasingh. In both the cases cited by the learned counsel the distinction emphasised is between a witness who may be a party to the litigation and who may not be a party. A party to the litigation may be residing beyond the territorial limits of the jurisdiction of the court. It may be residing beyond 200 mils. There may be a witness who may not be a party to the litigation and who may be similarly residing b yond such distance. He may deserve the consideration whether a commission should be issued for his examination or not what is observed is thas in case of witn esse who are not parties to the litigation different considerations will apply. There is no quarrel with the proposition.
(7) In each case the court while bearing in mind the distinction that the witness sought to be examined on commission is not a party to the litigation has to deal with every aspect which arises before it. In this pirticular case the court was faced with the situation where there was no allegation that the payment had been made in the presence of Banarsi Lat on account of which any receipt had been executed or any entry had been made in any account book There was no allegation in the application dismissed by the impugned order that any note was made any where evidencing that payment had been made in the presence of Banarsi Lal. The petitioner did not adopt the stand that he was maintaining any account-books and that even though no receipt had been obtained at the tims of making the disputed payment hs had made some entry his account-books.
(8) Tnousands of execution applications are pending in the courts below It would indeed be a had day if the law is laid down that wherever a witness from a far off place is cited alleging that some payment was nude before him or through him, he muat of necessity be allowed to be examined on commission. In thousands of execu'ion pro ceedings witnesses would be cited from distant places in India alleging that payments without receipts were made before them towards the satisfaction of the decretal amounts. .Will the courts be helplessly issuing commissions under order 26, rule 4 of the Code ?
(9) A court acting within in order 26, rule 4 of the code had to exercise its judicial discretion in accordance with the circumstances of each case. In this case, I do not find any justification for interfering with the impugned order within the purview of section 115 of the Code under which this petition has been preferred.
(10) There is no merit in the petition. The same is dismissed. There will be no order as To costs.