THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR C.R.P. NO. 492 of 2005 Date of order: 9.12.2010 Between: V. Govindarajulu …Petitioner and T. Munuswamy …Respondent THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR C.R.P. NO. 492 of 2005 ORDER: Heard learned counsel for the petitioner. Though the respondent was served long back, nobody appeared for him. CRPMP No. 7737 of 2006 is allowed. The petitioner who is decree holder in EP No. 339 of 1998 on the file of the I-Addl. Junior Civil Judge, Chittoor is aggrieved by the impugned order of the executing Court recording part satisfaction of the decree in favour of respondent herein who is judgment debtor No.1. Brief facts of the case are that the decree holder obtained a decree for Rs.10,069/- against the respondent herein as well as one Chinna Baba in OS No. 222 of 1996. The decree holder filed EP No. 339 of 1998 against the respondent herein alone for recovery of Rs.13,993/- including interest as on 31.3.1997. The respondent claimed that he had paid Rs.6,500/- to the decree holder towards part satisfaction of the decree and to the extent of balance amount, he claims that one Chinna Baba who is judgment debtor No.2 had paid Rs.7250/- to the decree holder which is evidenced by a receipt-Ex.A1 issued by the decree holder in favour of the said Chinna Baba. The respondent herein therefore filed EA No. 367 of 2002 under Order 21, Rule 2 of the Civil Procedure Code to record part satisfaction of the decree by recognizing the said payment allegedly made by the judgment debtor No.2 to the decree holder. The executing court has, on evidence, accepted the respondent’s application. Aggrieved thereby, this revision petition is preferred by the decree holder. As is evident from the brief facts stated above, the entire basis of the present application of the respondent is the alleged payment of Rs.7250/- by the judgment debtor No.2 to the decree holder and the receipt-Ex.A1 said to have been executed by the decree holder in his favour. It is noteworthy that the said judgment debtor No.2 is not a party either to the EP or to the present E.A. and curiously the judgment debtor No.2 has not sought for recording of his alleged part payment, but the respondent/judgment debtor No.1 seeks to record the part payment made by judgment debtor No.2 and claims that by virtue of the said part payment, his liability under the decree shall stand reduced to that extent. The respondent examined himself and alleged attesters of Ex.A1. The decree holder denied the execution of Ex.A1 as well as receipt of any amount from judgment debtor No.2. More importantly, the very marking of Ex.A1 through the respondent was objected to, as the respondent is not, in any way, connected with the said document and the execution of the said document was already denied by the decree holder. The executing court has, however, allowed the marking of the said document and passed the impugned order solely on the said document. The executing court feels that the decree holder should have taken appropriate steps to disprove Ex.A1 by obtaining expert’s opinion to establish that the signature of the decree holder appearing on Ex.A1 is forged. The executing court therefore, proceeded to accept the case of the respondent and recorded part satisfaction of the decree based on the said payment. I am unable to appreciate the view of the executing court primarily for at least two reasons. Firstly, the judgment debtor No.2, though not a party to the EP, was examined as a court witness as C.W.1. He has categorically stated in his evidence that he never paid any amount to the decree holder towards part satisfaction of the decree passed against him. He also denied to have handed over any money receipt to the respondent herein. Even in cross-examination he maintained the said stand. This evidence of judgment debtor No.2 being very relevant, however, was not considered by the executing court. The part payment sand satisfaction said to have been made by the judgment debtor No.2 was, however, accepted by the executing court, though the person paying the amount denies any such payment and obtaining of any such receipt. The finding of the executing court accepting Ex.A1-receipt as evidence of part satisfaction of the decree is, therefore, totally erroneous. Secondly, the executing court has not even considered the probabilities as to any plausible reason for judgment debtor No.2 to pay the amount in question to the decree holder, but hand over the said receipt therefore to judgment debtor No.1, the respondent herein. The present application of the respondent amounts to claim discharge to the extent of the amount allegedly paid by judgment debtor No.2 to the decree holder. It is well settled that the decree being joint and several, the decree holder is entitled to proceed against either of the judgment debtors individually or jointly. That by itself cannot be said to be a collusive act on the part of the decree holder. Even the respondent himself alleges that the decree holder has collusively filed EP only against him, but, at the same time, he wants to press into service the alleged payment by judgment debtor No.2 to the decree holder and the receipt allegedly executed by the decree holder in favour of judgment debtor No.2. This glaring inconsistency also missed the attention of executing court. The impugned order is, therefore, perverse and it is accordingly set aside. EA No. 367 of 2002 shall stand dismissed. The executing Court shall proceed with EP No. 339 of 1998 in accordance with law. The revision petition is accordingly allowed. No costs. _________________________ VILAS V. AFZULPURKAR, J Dt. 9.12.2010 KR