Dismissed

Salu Varghese v. P.P.Prabhakaran

Kerala HC19 Nov 2009CRP/613/2009

Case brief

AI extract

What is this about?

This court dismissed a civil revision petition challenging an order dismissing an application for recording satisfaction of a decree debt by way of a cheque. The court held the application was barred by limitation as it was filed over three years after the alleged payment, emphasizing that Article 125 of the Limitation Act mandates a 30-day limit for such applications.

What did the court decide?

The revision petition filed by the judgment debtor against the execution court's order dismissing his application for certification of payment was dismissed.

Salu Varghese Vs P.P.Prabhakaran — Money Laundering | Kerala HC (2009)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 19TH NOVEMBER 2009 / 28TH KARTHIKA 1931

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CRP.No. 613 of 2009()

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--------------------AGAINST THE ORDER DATED 09/10/2009 IN EA 402/00 IN EP 557/96 IN OS.529/1994 of ADDL.SUB COURT,PARAVUR

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REVN. PETITIONER(S)/PETITIONER/1ST JUDGMENT DEBTOR:

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---------------------

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SALU VARGHESE,S/O.VARGHESE, MAPPILAMALIL HOUSE, P.O.NELLAD, KUNNATHUNADU TALUK, ERNKUALAM DISTRICT.

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BY ADV. SRI.PIRAPPANCODE V.S.SUDHIR

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RESPONDENT(S)/RESPONDENTS/DECREE HOLDERS:

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1. P.P.PRABHAKARAN,S/O.PAPPU, PUTHENPURACKAL HOUSE, MAZHUVANNOOR VILLAGE, KUNNATHUNADU TALUK.

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2.SUBASH CHANDABOSE,PUTHENPURACKAL HOUSE, MAZHUVANNOOR VILLAGE, KUNNATHUNADU TALUK.

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3.BHARATHY,W/O.PRABHAKARAN,PUTHENPURACKAL HOUSE, MAZHUVANNOOR VILLAGE, KUNNATHUNADU TALUK.

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4.P.N.PAPPU,PUTHENPURACKAL HOUSE, MAZHUVANNOOR VILLAGE, KUNNATHUNADU TALUK.

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5.DEVAKI,W/O.PAPPU,PUTHENPURACKAL HOUSE, MAZHUVANNOOR VILLAGE, KUNNATHUNADU TALUK.

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THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 19/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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S.S.SATHEESACHANDRAN, J.

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C.R.P.NO.613 OF 2009 ()

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Dated this the 19^th day of November, 2009

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O R D E R

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The revision is directed against the order dated 9.10.2009 in E.A.No.402 of 2000 in E.P.No.557 of 1996 in O.S.No.529 of 1994 on the file of the Additional Sub Court, North Paravur. Petitioner is the judgment debtor in the above execution petition. The execution proceedings relate to the decree passed in O.S.No.529 of 1994, a suit for money, and the respondents are the decree holders. Petitioner/judgment debtor had moved an application under Order XXI Rule 1 and 2 of the Code of Civil Procedure to certify the payment purported to have been made to one of the decree holders, the 1^st respondent by way of a cheque to satisfy the decree. That application, after enquiry, was dismissed by the learned Additional Sub Judge, under the impugned order. Propriety and correctness of that order is challenged in the revision.

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I heard the counsel on both sides. Previously, there

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was a revision before this Court as CRP.No.629 of 2001 at the instance of the decree holders when the execution court had passed an order on the application of the judgment debtor that there was payment of the decree debt by way of cheque as contended by him in his application and also to record full satisfaction of the decree debt. That revision was disposed by this Court by order dated 17.8.2005 setting aside the order of the execution court and remitting the case for fresh consideration subject to the observations made. Pursuant to such remission, the disputed cheque was sent over to a forensic expert for scientific examination and the report collected is Ext.X3. Petitioner/judgment debtor, on his side, had examined three witnesses including himself as PWs.1 to 3, and exhibited A1 and A2. On the side of the decree holders, the 1^st respondent was examined as RW1. Towards court exhibits, two documents were exhibited as X1 and X2 apart from X3 report. On the basis of the materials produced, the execution court arrived at the conclusion that the payment claimed by the judgment debtor by way of cheque is acceptable, but it is not sufficient under the rule for certification of the payment. Since there are several decree

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holders, payment to one of them was not sufficient in the absence of consent and concurrence by the other decree holders for certification of the payment of the decree debt, was the view taken by the execution court to conclude that the request made under the application by the judgment debtor cannot be allowed. The application was therefore dismissed. Petitioner/judgment debtor challenge the above order contending that once payment to one of the decree holders has been established by the materials produced in the case, that has to be treated as sufficient for certification of the payment as covered by the rule to satisfy the decree debt.

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In the given facts of the case, it has become essential to advert to the backdrop of the case and most particularly what transpired earlier in the execution proceedings. In the previous order dated 17.8.2005 disposing C.R.P.No.629 of 2001, proceedings in execution had been adverted to with reference to the dates of enquiry on the execution application moved by the judgment debtor and what transpired in the enquiry. It would be profitable to reproduce what has been stated with respect to the above aspect in that order, which

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reads thus:

“The execution petition was filed for realisation of an amount of Rs.1,68,529/-. The suit was decreed on 22.12.1995 and the E.P. was filed on 17.9.1996. The alleged handing over of the cheque was on 30.7.1997. The proceedings paper in the execution petition shows that the judgment debtor was praying for time for filing objections on 2.6.1997. The case was posted for filing objections to 14.8.1997. On that day also, the judgment debtor prayed for time for filing objections and the case was adjourned to 12.12.1997. Again the judgment debtor prayed for time for filing objections and the case was adjourned to 30.3.1998. On 30.3.1998, the counsel for the judgment debtor represented before the execution court that the judgment debtor has deposited an amount of Rs.1,60,000/- in court. On that basis, the E.P. was dismissed. But the next day, the same counsel filed a petition bringing to the notice of the court that the amount was not deposited and it was by mistake in his office that such a representation was made. The records show that the decree holder also filed a similar petition bringing to the notice of the court that no such deposit was seen made by the judgment debtor. The execution petition was therefore restored and the case was again adjourned for objections to 1.6.1998. On 1.6.1998, objection was filed and for enquiry the case was adjourned to 21.8.1998. On 21.1.1998, Rule 66 notice was ordered and the case was adjourned

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to 13.11.1998. Again the case was adjourned to 21.1.1998 and judgment debtor appeared and prayed for time for filing objections and the case was posted to 20.3.1999. Again the case was adjourned for objections and final hearing to 30.1.2000. On 30.1.2000, the execution court directed incorporation of the objections regarding the upset price in the sale proclamation and the case was posted to 1.4.2000. Thereafter, amended schedule was filed and the execution court ordered proclamation and sale on 23.8.2000. The execution petition was thereafter adjourned on various dates. While so, the judgment debtor filed the present E.P. on 3.7.2000 to record satisfaction of the decree on the basis of the alleged payment of Rs.1,60,000/- on 30.7.1997 by way of cheque.”

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On the facts presented in the case, though it had not

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been canvassed previously, a pertinent question emerges for consideration whatever be the merit of the case canvassed by the judgment debtor as to payment of the decree debt by cheque whether such payment could be recognised and a certification of payment as covered by Order XXI Rule 2 of the CPC by an order of the court is permissible. Order XXI Rule 2 of the CPC reads thus:

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2. Payment out of Court to decree holder:- (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.

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(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 decree holder 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.

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[(2-A) No payment or adjustment shall be recorded at the instance of the judgment debtor unless-

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(a) the payment is made in the manner, provided in Rule 1; or

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(b) the payment or adjustment is proved by documentary evidence; or

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(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.]

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(3) A payment or adjustment, which has not been certified or recorded as aforesaid, shall not be recognised by any Court executing the decree.

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A certification of payment at the instance of the judgment debtor under the above rule as to having made a payment in discharge of the decree debt out of court to the decree holder to be recognised in the execution of the decree by the court, needless to point out, has to be certified as contemplated under the above rule. Such certification of payment in satisfaction of the decree can be made at the instance of the decree holder or that of the judgment debtor. In the case of such certification by the decree holder, no time limit is fixed. But in the case of certification of payment by the judgment debtor, a time limit is prescribed by Article 125 of the Limitation Act. That Article mandates that an application for such certification of payment has to be made by the judgment debtor within thirty days from the date of payment out of court. The facts presented in the case, it is seen, the counsel for the judgment debtor represented before the court that the decree debt had been deposited in court and acting upon such representation, the execution petition was closed. The next day the counsel for the judgment debtor brought to the notice of the court that the representation made earlier was incorrect

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and no such deposit was made. An application had also been moved by the decree holder that the representation as to the deposit made was not correct and the order closing of the execution petition had to be reviewed reviving the proceedings. The execution court in the circumstances presented, reopened the execution proceedings. What transpired during the course of the execution proceedings thereafter has been spelt out in paragraph 4 of the order passed in the previous revision, which had been stated supra. The execution proceedings continued unabated with the decree holder proceeding for settlement of proclamation and for sale of the immovable property of the judgment debtor, perhaps, negativing whatever objections canvassed by the judgment debtor from time to time on the steps so taken for realisation of the decree debt. It was after the settlement of the proclamation the judgment debtor canvassed a case that the decree debt had been satisfied by way of a cheque which had been given to one among the decree holders, the 1^st respondent, in the year 1997, that is, at least three years prior to his filing of the application for recording the certificate of payment, which is stated to have been filed on

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3.7.2000. The learned counsel for the judgment debtor brings to my notice that even prior to filing the application, an affidavit had been filed on 1.6.1998 that there was such payment and discharge of the decree debt. Intimation of such payment out of court by way of an affidavit, needless to point out, has no significance in considering the question whether the application had been moved for certification of payment within time. The facts presented demonstrate in unmistakable terms that the application for certification of payment, that is, E.A.No.402 of 2000, which has given rise to the order impugned in the revision was hopelessly barred. When it was presented before the execution court, it has not been taken note by the court nor any objection thereof was raised by the decree holder at the previous stage would not enure to the benefit of the judgment debtor for more than one reason. Section 3 of the Limitation Act interdicts the court from entertaining any application or suit which is barred by limitation. There is also statutory interdiction under Order XXI Rule 2-A of the Code of Civil Procedure as to satisfaction of the conditions under Rule 2 for certification of payment which is stated to have been made out of court in discharge of

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the decree out of court. The apex court in Badamo Devi and others v. Sagar Sharma ((1999) 6 SCC 30) has held that any payment under the decree made out of court or any adjustment of the decree has to be certified under Order XXI Rule 2 of the CPC, failing which the same would not be recognised by the executing court. Such certification of payment at the instance of the judgment debtor can be made by the court only if the application is filed within the time permitted by law. The law on the point has been settled, and the decision rendered by the Privy Council in Raja Shri Prakash Singh v. The Allahabad Bank Ltd. (AIR 1929 Privy Council 19, in which a certification of payment sought for by the decree holder with reference to the question of limitation was considered still holds the field. Dilating on that point, the Privy Council has held that so far as the certification of payment on the application by the decree holder, there is no period of limitation, but, in the case of the judgment debtor, it is covered by the relevant Article in the Limitation Act. Previously, a period of 90 days under Article 175 of the Limitation Act, 1908 was applicable as and when that decision was rendered which under the present Limitation Act of 1963

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is covered by Article 125 which provides an outer limit of thirty days. The judgment debtor in the present case has moved an application nearly three years after his alleged payment in discharge by way of cheque to one of the decree holders, out of court, towards satisfaction of the decree. That application could not have been entertained by the court and no enquiry thereof was warranted as on the date of its presentation, it was barred by limitation.

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The learned counsel for the judgment debtor taking note of the insurmountable difficulty in getting over the law of limitation applicable canvassed before me that the application still could be treated as one under Section 47 of the Code of Civil Procedure. The orders passed by the execution court earlier and entertaining of the previous revision challenging that order and the remand order remitting the case for fresh consideration are all highlighted by the learned counsel to contend that at this stage, the question of limitation which had never been raised by the other side cannot be given any moment, and at any rate where the execution court has found that there was payment by way of cheque which is supported

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by the evidence of the forensic expert also it is not proper and correct to hold that the application moved by the judgment debtor is not entertainable. The applicability of the law of Limitation cannot depend upon the omission on the part of the decree holder or even that of the court in taking note of it at the appropriate time during the pendency of the proceedings. The bar under Order XXI Rule 2-A of the CPC is an interdiction against the court from certifying a payment unless it complies with the provisions of law. The argument canvassed by the counsel that the application for certification of payment by the judgment debtor has to be treated as an application under Section 47 of CPC cannot also be appreciated as pointed out by the apex court in the decision referred to above Badamo Devi and others v. Sagar Sharma ((1999) 6 SCC 30). This Court also in Joseph v. Kanakam (2003 (1) KLT 261) has held that Order XXI Rule 2-A of the CPC contains a complete interdict against giving recognition to the payment or adjustment which are not recognised or recorded in the manner provided under that provision within the time limit under Article 125 of the Limitation Act, that is, thirty days from the date of payment or

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adjustment made. So much so, even if the application has to be treated as one under the Section 47 of the Code of Civil Procedure, there can be no certification of the payment under Order XXI rule 2 of CPC in view of the bar of limitation.

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Before concluding, I may also refer to some of the observations made in the previous order while disposing of the earlier revision, which no doubt, cause serious doubt and generate considerable suspicion regarding the payment under the cheque though a different view had been taken by the execution court. This Court has observed that there are suspicious circumstances in the case with regard to the issuance of the cheque taking note the cheque was not given as an account payee, that it could be encashed with a forged signature by any one and that the issuance of the cheuqe was not brought to the notice of the court earlier. When the execution petition was posted for objection, it is also noticed that the judgment debtor in his evidence had also admitted that there was a case pending against him before the Judicial Magistrate Court for forging a bank guarantee and putting the seal. The learned counsel for the petitioner/judgment debtor

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submits that the conviction and sentence imposed in the criminal case referred to in the previous revision had been set aside in revision and the case has been remitted to the appellate court for fresh disposal of the appeal. This Court has also noticed that the Ext.A2 S.B. Account of the judgment debtor produced showed that before and after the date of issuance of the cheque, the judgment debtor had very little amount in that Account. I do not find any reason to doubt the submissions made by the counsel that the conviction entered against him in the criminal case referred to above by virtue of a remand in the revision, is pending consideration before the appellate forum. Whatever that be, in the backdrop of the case presented and what transpired in the execution proceedings that the payment of the decree debt claimed by the judgment debtor by way of a cheque to one of the decree holders, which is disputed by them, but accepted by the execution court is not free from doubt. It is noticed that the execution court has formed a conclusion as to payment by cheque since the forensic report supported the case of the petitioner/judgment debtor and also for the reason that there was no cross examination disputing the genuineness of the

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documents when he was examined before the court. It appears the other material circumstances borne out by the records have not been taken into account by the execution court while appreciating the disputed questions as to payment of the decreetal debt by a cheque by the judgment debtor. The execution court has, however, found that payment of a cheque by the judgment debtor to one of the decree holders cannot be accepted as a valid discharge of the decree, when it had been passed jointly in favour of several decree holders. A payment to a single decree holder can be a valid discharge only where such decree holder has authority to receive it on behalf of the other decree holders. No such authority has been proved in the present case, was the view formed by the execution court for concluding that the payment by cheque by the judgment debtor out of court to one of the decree holders would not absolve him from the liability to discharge the decree debt jointly due to all the decree holders. In the given facts of the case, such questions as to the validity of the cheque, payment to one of the decree holders etc. have got no significance at all as the application for certification of payment had been filed much after the time prescribed and it

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was hopelessly barred by limitation.

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Revision lacks merit and it is dismissed.

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S.S.SATHEESACHANDRAN JUDGE

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