IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 17TH JUNE 2010 / 27TH JYAISTHA 1932 WP(C).No. 18907 of 2010(O) -------------------------- OS.48/2002 of SUB COURT, OTTAPPALAM .................... PETITIONER: --------------- DR.P.S.KRISHNADAS, S/O.SANKARAN EZHUTHASSAN, CHERPULASSERY AMSOM AND DESOM, OTTAPALAM TALUK. BY ADV. SRI.G.SREEKUMAR (CHELUR) SRI.K.RAVI (PARIYARATH) RESPONDENT: --------------- T.P.VENUGOPALAN, S/O.SEETHALAKSHMI AMMA, THEKKEPRAKKOTTUTHODIYIL, ARIYOOR, THEKKUMMURIDESOM, OTTAPALAM AMSOM, OTTAPALAM TALUK. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- W.P.C.No.18907 of 2010 --------------------------------------- Dated this 17th day of June, 2010 JUDGMENT This writ petition is in challenge of Ext.P6, order in E.P.No.20 of 2009 in O.S.No.48 of 2002 of the Court of learned Sub Jude, Ottapalam. Respondent obtained a decree for payment of money and alleging that the amount due under the decree has not been paid, he launched execution. He sought personal execution against petitioner. Petitioner filed counter statement contending that the decree debt has already been satisfied in that he had executed a power of attorney in favour of respondent authorizing the latter to sell his share in Sankar's hospital, Cherpullassery and accordingly respondent sold the share of petitioner and appropriated the sale proceeds which discharged the liability under the decree. Learned Sub Judge was not impressed by that contention and held that any payment not certified either at the instance of petitioner or respondent as provided under Rules 2 of Order 21 of the Code of Civil Procedure (for short, “the Code”) within the time specified under Article 125 of the Limitation Act cannot be taken into account by the executing court and hence petitioner is liable to be proceeded against in execution of the decree. That order is under W.P.C.No.18907 of 2010 : 2 : challenge in this writ petition. Learned counsel for petitioner contended that this is a case where the plea taken by petitioner is not one of discharge of the decree debt but satisfaction of the decree which comes within the mischief of Section 47 of the Code for which period of limitation is three years under Article 137 of the Limitation Act and in that event, certification as provided under Rule 2 of Order 21 is not required. 2. I am afraid, the contentions raised is not tenable. To plead discharge or satisfaction of a decree for money one cannot take recouse to Section 47 of the Code without reference to Rule 2 of Order 21 of the Code. Section 47 of the Code gives power to the execution court while Rule 2 of Order 21 prescribes the procedure (See Ponnappan Vs. Vijayan (1990(1) KLJ 207). Under Rule 2 of Order 21 “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.....”. Sub rule 2 speaks about recording of such adjustment or payment at the instance of judgment debtor. Sub rule 2(A) states that no payment or adjustment shall be recorded at the instance of judgment debtor unless the conditions specified therein are complied. Argument of learned counsel is that what was contended by petitioner in the W.P.C.No.18907 of 2010 : 3 : executing court was not a discharge of the liability but a satisfaction of the decree by other mode which can be proved under Section 47 of the Code and without reference to Rule 2 of Order 21. That argument is not sustainable since as stated in Ponnappan Vs. Vijayan (supra) the question of recording satisfaction or discharge of the debt arises only when if payment if made outside court, it is certified and recorded in the manner stated in Rule 2 of Order 21, be it by the decree holder or judgment debtor. Admittedly no such payment or adjustment of the amount due under the decree has been certified and recorded in the executing court by and at the instance of petitioner or respondent. As such the alleged payment (which itself is disputed by the respondent) cannot be reckoned for the purpose of recording satisfaction or adjustment of amount due under the decree. Executing court is right in rejecting the contention of petitioner. If petitioner has paid any amount as contended by him, his remedy is to institute a suit for realisation of the said amount but that does not prevent respondent/decree holder from proceeding with execution of the decree. Accordingly the writ petition is dismissed. (THOMAS P JOSEPH, JUDGE) Sbna/-