IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 28TH AUGUST 2008 / 6TH BHADRA 1930 WP(C).No. 25991 of 2008(T) -------------------------- OS.836/2001 of I ADDL. MUNSIFF COURT, NEYYATTINKARA .................... PETITIONER: ------------ JOHN VICTOR, S/O GEORGE, GUSHA COTTAGE, PONVILA, AYIRAYIL DESOM, KARODE VILLAGE, NEYYATTINKARA TALUK. BY ADV. SRI.G.P.SHINOD SRI.RAM MOHAN.G. SRI.MANU V. RESPONDENTS: ------------- GOPINATHAN, S/O BHASKARA PANICKER, SINDHU SADANAM, THIMETTAKAM, PARASSALA VILLAGE, NEYYATTINKARA TALUK. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ------------------------------- W.P.(C) No.25991 of 2008 ------------------------------- Dated this the 28th August, 2008. J U D G M E N T Petitioner is the judgment debtor in O.S.No.836 of 2001, on the file of Munsiff Court, Neyyattinkara. As per the decree dated, 14.1.2002, petitioner was directed to pay Rs.50,000/= with interest and cost. E.P.No.349 of 2002 was filed for realisation of the decree debt by arrest and detention of the petitioner on 10.10.2002. Petitioner appeared in the execution petition and filed Ext.P3 objection on 3.2.2003. Along with the objection, he produced a receipt dated 25.3.2002, contending that it was a receipt issued by the respondent decree holder, when petitioner paid Rs.50,000/= towards the decree debt. Later, E.A.No.87 of 2007 was filed under Rule 2 of Order XXI of code of Civil Procedure to certify the payment made under the said receipt. That application is seen filed on 22.1.2007. When respondent decree holder contended that he did not receive that amount and payment cannot be certified, E.A.No.111 of 2007 W.P.(C) No.25991 of 2008 2 was filed to sent the document to an expert. Under Ext.P6 order, learned Munsiff dismissed both the applications. This petition is filed under Article 227 of the Constitution of India challenging Ext.P6 order and for a direction to the executing court to adjust the amount covered under Ext.P1 receipt towards the decree debt. 2. Learned counsel appearing for the petitioner was heard. 3. Learned counsel appearing for the petitioner relying on the decision of a learned single Judge of the High Court Andhra Pradesh in J.P.Mohana Rao v. Arava Joshuva Panchalaiah (AIR 1978 AP 345) argued that Section 17(1)(a) of the Limitation Act applies to the facts of the case and as respondent fraudulently did not report the receipt of Rs.50,000/= evidenced by the receipt, the period has to be excluded from computing the period of limitation provided under Article 125 of the Limitation Act, and, therefore, learned Munsiff should have allowed the application. Learned counsel also W.P.(C) No.25991 of 2008 3 argued that learned Munsiff did not properly appreciate the dictum laid down by the Supreme Court in Ram Dass and Others v. Mathura Lal and others (1982 (3) SCC 198). Learned counsel also argued that when along with the objection filed to the execution petition itself, petitioner has produced the receipt, learned Munsiff should have treated the objection as an application to certify payment evidenced by the receipt, and, therefore, the application is within time and respondent decree holder is bound to adjust the payment covered under the receipt. 4. Sub Rule (2-A) of Rule 2 of Order XXI of Code of Civil Procedure mandates that no payment or adjustment shall be recorded at the instance of judgment debtor, unless the payment is made in the manner provided under sub-rule (1) or the payment or adjustment is proved by documentary evidence or 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 of Order XXI before the court. Sub Rule 3 mandates that a payment or adjustment, which has not been certified or recorded shall not be recognised by any Court executing the W.P.(C) No.25991 of 2008 4 decree. Sub-rule (1) provides that where any money payable under a decree of any kind is paid out of court, 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. Judgment debtor is entitled to get the payment certified on the failure of the decree holder to get it recorded, as provided under sub-rule (1) by filing a petition as provided under Sub-rule (2). Sub-rule (2) provides that judgment debtor may inform the Court of such payment of adjustment and apply to the court to issue a notice to the decree holder to show cause on a date to be fixed by the court, why such payment or adjustment should not be recorded as certified and after 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. 5. Therefore, sub-rule (2) mandates an application from the judgment debtor to get the payment certified and such payment should be recorded only after issuing notice to the W.P.(C) No.25991 of 2008 5 decree holder to show cause why payment should not be recorded as certified. Therefore, the argument of the learned counsel appearing for the petitioner that objection filed to the execution petition producing the certified copy without a prayer for certifying the same is to be treated as an application cannot be accepted. 6. Article 125 of the Limitation Act provides the period of Limitation for filing an application to record an adjustment or satisfaction of a decree. Under Article 125, an application is to be made within 30 days and the time would start to run when the payment or adjustment is made. Even according to the petitioner, payment was made on 25.3.2002. Therefore, an application under sub-rule (2) of rule 2 of Order XXI of Code of Civil Procedure should have been filed within 30 days from the date. Even if the argument of the learned counsel for the petitioner that Section 17(1) (a) of the Limitation act applies is accepted and because of the fraud, the period before petitioner could find out the fraud is to be excluded is accepted, when the execution petition was received by the petitioner in October W.P.(C) No.25991 of 2008 6 2002, showing that the decree holder did not exclude any payment, much less, the payment covered under the receipt, petitioner cannot be allowed to contend that he did not disclose the alleged fraud thereafer. In spite of the fact that Ext.P3 objection was filed on 3.2.2003, petitioner did not file an application as provided under sub-rule (2) of rule 2 of Order XXI of Code of Civil Procedure. The application was filed only in 2007. In such circumstances, finding of the learned Munsiff that the payment cannot be certified is perfectly correct and warrants no interference by this Court. If the petitioner has made the payment, the order will not disentitle the petitioner to claim that amount from the decree holder by separate proceedings. Petition is dismissed M.SASIDHARAN NAMBIAR, JUDGE nj.