IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 1ST JULY 2010 / 10TH ASHADHA 1932 CRP.No. 322 of 2010() --------------------- EA 402/2000 IN EP 557/1996 IN OS.529/1994 of ADDL.SUB COURT, NORTH PARAVUR .................... REVN. PETITIONER(S)/RESPONDENTS/DECREE HOLDERS -------------------------------- 1. P.P.PRABHAKARAN, S/O.PAPPU, PUTHENPURACKAL HOUSE, MAZHUVANNOOR VILLAGE, KUNNATHUNADU TALUK. 2. SUBASH CHANDRABOSE, S/O.PAPPU, PUTHENPURACKAL HOUSE, MAZHUVANNOOR VILLAGE, KUNNATHUNADU TALUK. 3. BARATHI, W/O.PRABHAKARAN, PUTHENPURACKAL HOUSE, MAZHUVANNOOR VILLAGE, KUNNATHUNADU TALUK. 4. DEVAKI, W/O.PAPPU, PUTHENPURACKAL HOUSE, MAZHUVANNOOR VILLAGE, KUNNATHUNADU TALUK. BY ADV. SRI.K.S.BABU SMT.N.SUDHA RESPONDENT(S): PETITIONER/JUDGMENT DEBTORS ------------------------------------------ 1. SALU VARGHESE, S/O.VARGHESE, MAPPILAMALIL HOUSE, P.O.NELLAD, KUNNATHUNADU TALUK, ERNAKULAM DISTRICT. 2. REGHU, S/O.PAPPU, PUTHENPURACKAL HOUSE, MAZHUVANNOOR VILLAGE, KUNNATHUNADU TALUK. THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 01/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- C.R.P.No.322 of 2010 -------------------------------------- Dated this the 1st day of July, 2010. ORDER Petitioners are decree holders executing decree in O.S.No.529 of 1994 of the court of learned Additional Sub Judge, North Paravur. That is a decree for payment of Rs.1,27,908/- with interest at the rate of 12% per annum and cost. The suit was decreed on 12.12.1995 against respondent No.1. Petitioners filed E.P.No.587 of 1996 on 17.09.1996. Respondent No.1 appeared and has been requesting time for payment of amount due under the decree. While so in the year 2000, respondent No.1 filed E.A.No.402 of 2000 to record full satisfaction contending that on 30.07.1997 he had paid Rs.1,60,000/- to petitioner No.1/decree holder No.1 and that wiped off liability under the decree. That was opposed by decree holders contending that there is no such payment and that documents produced by respondent No.1 in support of his contention are not genuine. Executing court conducted an enquiry and held that petitioner No.1 did receive Rs.1,60,000/- from respondent No.1 on 30.07.1997 but that payment was not certified as required under Order XXI Rule 1 (3) of the Code of Civil Procedure (for short, “the Code”). E.A.No.402 of 2000 was dismissed. Respondent No.1 challenged that order in C.R.P.No.629 of 2001 in this Court. That petition was allowed by this Court and the matter was remitted to executing court for fresh decision. After remand further evidence was recorded. Executing court again came to the conclusion that petitioner No.1 CRP No.322/2010 2 received Rs.1,60,000/- from respondent No.1 but that payment cannot be reckoned for purpose of recording full satisfaction of the decree debt since payment was not certified under Order XXI Rule 1(3) of the Code. Accordingly E.A.No.402 of 2000 was dismissed. That is under challenge in this Writ Petition at the instance of the petitioners to the extent of the finding entered by executing court that petitioner No.1 received Rs.1,60,000/- from respondent No.1 on 30.07.1997. Learned counsel for petitioners contended that finding entered by the executing court is not correct, nor supported by any evidence and is merely relying on the expert opinion which ought to have been rejected. It is also contended by learned counsel that executing court has not followed the directions contained in the order in C.R.P.No.629 of 2001. 2. I may refer to the directions issued by this Court while disposing of C.R.P.No.629 of 2001 as per order dated 17.08.2005. Executing court had found that Ext.A1, a letter allegedly issued by petitioner No.1 to respondent No.1 wherein he has admitted receipt of Rs.1,60,000/- is the result of forgery. This Court while disposing of Civil Revision Petition observed that the said finding was based on a comparison of the disputed signature with the admitted signature of petitioner No.1, when petitioners disputed signature in Ext.X1, cheque burden was on respondent No.1 to show that the said cheque was encashed by petitioner No.1. This Court pointed out that at the time alleged payment was made respondent No.1 had not brought up that matter to the notice of executing court. It is accordingly that the order was set aside and matter was CRP No.322/2010 3 remitted to the executing court for fresh decision. After remand further evidence was recorded. Now as it stands there is the evidence of respondent No.1 as PW1 and manager of the drawee bank as PW2. PW3 is the expert. Ext.A1 is the letter dated 30.07.1997 allegedly issued by petitioner No.1 to respondent No.1. Ext.A2 is the passbook of respondent No.1 with the bank of PW2. Ext.X2 is copy of statement of account of respondent No.1 in the drawee bank. These documents is produced to show that Ext.X1, cash cheque dated 30.07.1997 for Rs.1,60,000/- was encashed by the bearer on the same day. Ext.X3 is the report of PW3, the handwriting expert. Petitioner No.1 gave evidence as RW1. He denied that Exts.X1 and A1 contained his signature. Now question is whether executing court was justified in finding that the sum of Rs.1,60,000/- was paid by respondent No.1 to petitioner No.1. 3. So far as recording of full satisfaction is concerned, executing court found that even if payment alleged is accepted that is not sufficient to record full satisfaction in so far as there is no recording of payment as required under Order XXI Rule 1(3) of the Code. Regarding that finding petitioners are not aggrieved and it is not required for me to go into that question in this revision petition. 4. Respondent No.1 in his evidence as PW1 stated that on 30.07.1997 he issued Ext.X1, cash cheque to petitioner No.1 and he produced Ext.A2 to prove that the said cheque was encashed by petitioner No.1. Encashing of Ext.X1, cash cheque on the relevant day is proved by Exts.A2 and X2 and the evidence of PW2. Then the question is whether that cheque was CRP No.322/2010 4 given to petitioner No.1 and he encashed it. Signatures in Ext.A1 and on the back of Ext.X1 are disputed by petitioner No.1 in his evidence as RW1. PW3, the expert examined the disputed signatures in Exts.X1 and A1 with the specimen signatures of petitioner No.1 and reported that the disputed signatures on Exts.A1 and X1 are that of the author of the specimen signatures. PW3 has given evidence in that line. Ext.X3, the report corroborates his evidence. Court below has observed that there is no reason to disbelieve PW3. It is in the light of the above evidence that the executing court came to a conclusion that sum of Rs.1,60,000/- was paid to petitioner No.1 on 30.07.1997. 5. Now I shall refer to the circumstances relied on by the learned counsel. One is that if payment was made on 30.07.1997, respondent No.1 would not have waited until 2000 to file E.A.No.402 of 2000 to record full satisfaction on the strength of that payment. That circumstances was referred to by this Court while disposing of C.R.P.No.629 of 2001. But I must bear in mind that this Court said so at a time when there was no evidence comparing the disputed signatures in Exts.A1 and X1. Instead executing court after perusing of the disputed and admitted signatures observed that Ext.X1 was signed by petitioner No.1. Now that is not the situation. There is the evidence of PW3 which is corroborated by Ext.X3. When it is proved that signatures in Ext.A1 and on the back of Ext.X1 that of petitioner No.1, mere fact that payment on 30.07.1997 was not brought to the notice of executing court until 2000 is not by itself sufficient to rebut the evidence of PW3, the expert. Regarding payment, CRP No.322/2010 5 respondent No.1 also given evidence as PW1. It is in these circumstances that executing court found in favour of payment of the amount to petitioner No.1 on 30.07.1997. 6. I must bear in mind that function of the revisional court is not reappraisal of the entire evidence. Consideration of the evidence is required only to ensure that the subordinate court has not committed any illegality, irregularity or impropriety in arriving at the conclusion. It is for that limited purpose that I have referred to the evidence discussed in the order under challenge. Having gone through order under challenge and heard the learned counsel I do not find reason to enter a different finding regarding payment of Rs.1,60,000/- to petitioner No.1 on 30.07.1997. No illegality or irregularity is committed by the executing court in entering that finding. As such no interference is required at the instance of petitioners. Resultantly this revision petition fails. It is dismissed. THOMAS P.JOSEPH, Judge. cks