IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 1ST NOVEMBER 2010 / 10TH KARTHIKA 1932 WP(C).No. 9411 of 2010(O) ------------------------- AGAINST THE ORDER IN EP 82/2007 IN OS.45/2006 of PRINCIPAL SUB COURT, PALAKKAD .................... PETITIONER: --------------- KUTTIKRISHNAN, S/O.CHAMI, AGED 57 YEARS, SREE SAILAM, VADAVANNUR, CHITTUR TALUK. BY ADV. SRI.BINOY VASUDEVAN SMT.P.G.BABITHA RESPONDENT: --------------- BALASUBRAMANIAN, S/O.NANJAPPA GOUNDER, ATTAYAMPATHI, MUTHALAMADA, CHITTUR TALUK. ADV. SRI.SAJAN VARGHEESE K. FOR R THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/11/2010, ALONG WITH OPC NO. 340 OF 2010 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- W.P(C).No.9411 of 2010 and O.P(C).No.340 of 2010 --------------------------------------- Dated this 01st day of November, 2010 JUDGMENT These petitions are in challenge of Ext.P6, order dated March 16, 2010 (in W.P(C).No.9411 of 2010) and Ext.P4(a), order dated December 16, 2009 (in O.P(C).No.340 of 2010) passed by the learned Sub Judge, Palakkad in E.P.No.82 of 2007 in O.S.No.45 of 2006 of that court. Parties are referred, for convenience as in W.P(C).No.9411 of 2010. 2. Respondent (in W.P(C).No.9411 of 2010 obtained a decree for recovery of money against petitioner and alleging that the decreetal amount is not paid, launched execution by filing E.P.No.82 of 2007. In that petition, he prayed for personal execution against petitioner/judgment debtor alleging that in spite of having sufficient means petitioner has not paid the amount due under the decree. In answer to that petition, petitioner claimed that after passing of the decree and before respondent filed the execution petition, the matter was settled and there was adjustment of the decree debt as per an agreement executed between parties on October 20, 2006. It was agreed W.P(C).No.9411 of 2010 and O.P(C).No.340 of 2010 : 2 : between petitioner and respondent that respondent will receive Rs.2,25,000/- in full and final settlement of the decree debt and accordingly on the date of the agreement Rs.2,15,000/- was paid to the respondent. The balance sum of Rs.10,000/- was to be paid when parties filed a joint statement in the court that the matter has been settled between them. It was also stipulated in the (alleged) agreement that in case respondent failed to joint petitioner to file a joint statement in the court, it is open to the petitioner to deposit the balance sum of Rs.10,000/- in court and obtain receipt from the court as if entire decree debt is paid or adjusted. Petitioner along with his counter statement filed an application to summon the original agreement (allegedly) executed between him and the respondent. Respondent denied that there was any such agreement and filed E.A.No.610 of 2009 to send the disputed agreement to the expert for examination. The executing court by Ext.P4(a), order (in O.P(C).No.340 of 2010) dated January 4th, 2010 dismissed that application which is under challenge in O.P(C).No.340 of 2010. The executing court conducted an enquiry into the adjustment pleaded by petitioner (in W.P(C).No.9411 of 2010). Petitioner examined RWs.1 and 2. Ext.X1 is the original agreement (allegedly) executed between parties. Executing court did not accept the version of petitioner W.P(C).No.9411 of 2010 and O.P(C).No.340 of 2010 : 3 : regarding execution of the agreement and payment or adjustment and also observed that in view of Rule 2 of Order XXI of the Code of Civil Procedure (for short, “the Code”) and sub rules thereunder executing court cannot go into the question of payment/adjustment pleaded by petitioner as it was not got certified and consequently rejected contention of petitioner. Warrant of arrest was issued to the petitioner for realisation of the decree amount as claimed in the execution petition on a finding that petitioner has sufficient means. That order is under challenge in W.P(C).No.9411 of 2010. 3. Learned Senior Advocate appearing for petitioner (in W.P(C).No.9411 of 2010 and the respondent in O.P(C).No.340 of 2010) contended that this is not a case where period of 30 days prescribed under Article 125 of the Limitation Act (for short, “the Act”) would apply from the date of payment/adjustment, the counter statement filed by petitioner in the executing court can be treated as an application to record payment/adjustment claimed by him and that in the light of Ext.X1, the period of 30 days prescribed under Article 125 of the Act must begin to run from the date on which petitioner realised the fraud on the part of respondent in not agreeing to file a joint statement in the executing court as regards payment/adjustment. Learned Senior W.P(C).No.9411 of 2010 and O.P(C).No.340 of 2010 : 4 : Advocate has referred to Section 17 of the Act and Ext.X1, agreement. Learned counsel for respondent (in W.P(C).No.9411 of 2010 and petitioner in O.P(C).No.340 of 2010) in response contended that any adjustment or payment as claimed by petitioner ought to have been got certified under sub rule 2 of Rule 2 of Order XXI of the Code within the period of limitation prescribed under Article 125 of the Act and that the question of application of Sec.17 of the Act does not arise even going by the terms of Ext.X1, agreement. According to the learned counsel at any rate petitioner had notice of execution petition much prior to 16-07-2007 and the counter statement which is now requested to be treated as a request to record payment/adjustment was filed only on 11-10-2007 and hence at any rate it is barred by limitation in view of Article 125 of the Act. 4. Article 125 of the Act prescribes period of limitation for recording adjustment or satisfaction of a decree as 30 days beginning from the date on which payment or adjustment was made. Here, alleged adjustment of the decree was as per Ext.X1 (the execution of which is disputed by the respondent) dated October 20, 2006. Sub rule 1 of Rule 2 of Order XXI of the Code prescribes the procedure for the decree holder to seek certification of adjustment or payment and sub rule 2 of Rule 2 of W.P(C).No.9411 of 2010 and O.P(C).No.340 of 2010 : 5 : the Code says that judgment debtor 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 why such payment or adjustment should not be recorded as certified. Sub rule 2A of Rule 2 is specific that no payment or adjustment shall be recorded at the instance of judgment debtor unless payment is made in the manner stated therein and sub rule (3) says that a payment or adjustment (made out of court) which has not been certified or recorded as aforesaid shall not be recognised by the executing court. No doubt, Sub rules 2A (a) and (b) of Rule 2 states that the payment or adjustment (out of court) could be proved by documentary evidence and Ext.X1 (marked in the executing court) is pressed into service by the petitioner. Assuming so, the question arises whether the bar under Article 125 of the Act which I have stated above applied. Plainly, the counter statement filed on 11-10-2007 even if is taken as a request to record adjustment or payment at the instance of petitioner (judgment debtor) was much after expiry of 30days from the date of alleged payment or adjustment (as per Ext.X1) and hence, no request on the part of petitioner to record or certify payment or adjustment as per Ext.X1 could have been made on 11-10-2007 (when the counter statement was filed) for W.P(C).No.9411 of 2010 and O.P(C).No.340 of 2010 : 6 : the reason that such request came much after the period of 30 days prescribed under Article 125 of the Act. 5. Next question is whether Sec.17 of the Act has application to the facts of the case. That provision relates to the effect of fraud or mistake and states that where, in the case of any suit or application for which a period of limitation is prescribed by the Act, the suit or application is based upon fraud of the defendant or respondent or his agent, period of limitation shall not begin to run until plaintiff or applicant has discovered the fraud or the mistake or could with reasonable diligence have discovered it. Assuming that there was fraud on the part of respondent in not joining petitioner to file a statement in the executing court as regards payment/adjustment referred to in Ext.X1, question is whether petitioner could compute period of limitation from an extended date as claimed by learned Senior Advocate. It is not disputed before me that execution petition was filed on 10-04-2007. That is much after Ext.X1. The filing of execution petition is eloquent indication that respondent is not accepting Ext.X1, agreement or the adjustment/payment referred to therein. Learned counsel on both sides were not able to tell me the date on which notice on the execution petition was served on petitioner. Learned Senior Advocate has submitted that first W.P(C).No.9411 of 2010 and O.P(C).No.340 of 2010 : 7 : appearance of petitioner in the executing court was on 16-07- 2007. Necessarily a copy of the execution petition must have been served on petitioner sometime prior to 16-07-2007 but the counter statement was filed only on 11-10-2007. Therefore even it is taken that petitioner got knowledge of the alleged fraud of respondent in not agreeing to joint hands with petitioner to certify payment or adjustment before the executing court only on 16-07-2007 (the date of his first appearance in the executing court) still, the counter statement having been filed only on 11-10-2007 it could not be taken as a request to record or certify payment or adjustment as provided under sub rule 2 of Rule 2 of Order XXI of the Code as the counter statement was filed much after 30 days from 16-07-2007. Even if I were to accept argument of learned Senior Advocate that Sec.17 of the Act applied, there was no request on the part of petitioner to record or certify payment or adjustment under Ext.X1 within the period of limitation prescribed under Article 125 of the Act even if the period is reckoned from 16-07-2007, the date of first appearance of petitioner in the executing court. If that be so executing court could not, in view of sub rule 3 of Rule 2 of Order XXI of the Code recognise any payment or adjustment allegedly made under Ext.X1. W.P(C).No.9411 of 2010 and O.P(C).No.340 of 2010 : 8 : 6. Sec.47 of the Code also cannot come to the rescue of petitioner. No doubt, any dispute between the parties to the proceeding or their representatives as referred to in the said provision and relating to the execution, discharge or satisfaction of the decree has to be decided by the executing court and not by a separate suit. The decisions in M.P.Shreevastrava Vs. Veena (AIR 1967 SC 1193) and P.Ponnappan Vs. Vijayan (1990(1) KLJ 270) are authorities for the proposition that there is no antithesis between Sec.47 and Rule 2 of Order XXI of the Code in that the former (Sec.47) confers power on the executing court to decide the dispute while the latter (Rule 2 of Order XXI) prescribes procedure and the manner in which dispute regarding payment/adjustment is to be resolved. Hence de hors Rule 2 of Order XXI of the Code petitioner cannot take resort to Sec.47 of the Code so far as recording or certifying of payment or adjustment as the case may be. 7. It is seen from the impugned order in W.P(C).No.9411 of 2010 that executing court has conducted an enquiry whether alleged payment or adjustment was correct. In my view there was no scope for conducting such an enquiry for the reason which I have stated above. When the request for recording or certifying payment or adjustment could not have been W.P(C).No.9411 of 2010 and O.P(C).No.340 of 2010 : 9 : entertained executing court could not, and need not have ventured to conduct a worthless enquiry as I think, it is not the function of the court to conduct an enquiry which is worthless and cannot resolve the dispute involved. Hence all findings entered by the executing court as to the genuineness of Ext.X1 and alleged payment or adjustment thereby has to be vacated. 8. It is pointed out by learned Senior Advocate appearing for petitioner that petitioner has already filed suit for recovery of the amount (allegedly) paid to the respondent as per Ext.X1 and that such a suit is maintainable as held in C.K.Xavier Vs. Bhagaraj Singh (1987 (1) KLT 385). The Division Bench of this court has taken the view that in such a situation a separate suit for recovery of the amount at the instance of judgment debtor is not barred. 9. In the light of what I have stated above, it was not necessary to send Ext.X1 to the expert for opinion as regards the enquiry that executing court had to conduct. It follows that dismissal of E.A.No.610 of 2009 for the reason I have stated above (and not for the reason stated by the executing court) requires no interference. I make it clear that it will be open to the parties to agitate on genuineness of Ext.X1 and the alleged payment/adjustment in the suit said to be instituted by the W.P(C).No.9411 of 2010 and O.P(C).No.340 of 2010 : 10 : petitioner and as provided under law. 10. What remained for consideration is whether executing court is correct in issuing warrant of arrest to the petitioner. Learned counsel for respondent has read the counter statement filed by the petitioner and pointed out that there was no dispute in the counter statement regarding means of petitioner. If that be so, I do not find reason to interfere with the order issuing warrant of arrest to the petitioner. However, having regard to the facts and circumstances of the case I am inclined to give three months' time to the petitioner to pay the amount due under the decree. I also make it clear that observations which I have made above for dismissal of W.P(C).No.9411 of 2010 will not stand in the way of petitioner pursuing his remedy in the suit said to be instituted for recovery of the amount. If any request for stay/injunction in the matter of execution of the decree in O.S.No.45 of 2006 is made by the petitioner in the suit said to be filed by petitioner that court shall consider such request on its merit after hearing both sides and pass appropriate orders. Resultantly these petitions are disposed of in the following lines: W.P(C).No.9411 of 2010 and O.P(C).No.340 of 2010 : 11 : W.P(C).No.9411 of 2010 (i) Writ petition is dismissed with the observation that enquiry conducted by the executing court as regards alleged payment or adjustment and due execution of Ext.X1, agreement was unnecessary and hence findings entered by the executing court as to such payment or adjustment and genuineness of Ext.X1 are set aside. (ii) Petitioner is granted three (3) months' time to discharge liability under the decree. During the period of said three months the warrant of arrest issued to the petitioner will stand in abeyance. O.P(C).No.340 of 2010 In the light of my finding that enquiry conducted by the executing court was unnecessary and since the finding as regards truth of payment or adjustment and genuineness of Ext.X1 have been set aside and left open for decision in other appropriate proceedings, dismissal of E.A.No.610 of 2009 does not call for interference. Hence O.P(C).No.340 of 2010 will stand closed. (THOMAS P JOSEPH, JUDGE) Sbna/-