*THE HONOURABLE SRI JUSTICE N.R.L.NAGESWARA RAO + C.R.P.NOS.106 & 1281 OF 2007 % 31-12-2010 # Moram Reddy Shankar Reddy ….Petitioner Vs. $ Annaluru Ramachandra Rao …. Respondent !Counsel for the Appellant : Sri D.Sethu Rami Reddy Counsel for the Respondent: Sri K.Rathangapani Reddy <Gist : >Head Note: ? Cases referred: 1. AIR 1956 SC 359 2. AIR 1972 MAD 107 THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO C.R.P.NOS.106 & 1281 OF 2007 COMMON ORDER:- Both Civil Revision Petitions arise out of the order passed in E.P.No.21 of 2002 in O.S No.115 of 2001 on the file of the court of Junior Civil Judge, Atmakoor. The suit O.S.No.115 of 2001 was filed for recovery of the amount due on a pronote and the suit was decreed on 29-01-2002 and the defendant remained ex parte. Thereafter, the E.P was filed for attachment of the salary and at that stage the Judgment Debtor (JDR) has filed an objection claiming that he paid a sum of Rs.5,000/- on 12-08- 2000, Rs.7,000/- on 20-11-2000 and Rs.8,000/- on 08-04-2001, thus a total sum of Rs.20,000/- towards suit debt and the suit was fraudulently filed and the JDR did not attend the court expecting that the amounts would be given credit. After attachment, he came to know the above fact and sought for deduction of the said amount. While the matter is pending, E.A.No.98 of 2003 was filed for receipt of the documents which are receipts said to have been given by the Decree Holder (DHR) and the documents were received and an enquiry was conducted and the learned Junior Civil Judge ordered that the payments made under the receipts (Exs.R-1 and R-2) shall be given credit and the DHR will be entitled to only the balance of the amount. Aggrieved by the said order in E.A.No.98 of 2003 CRP No.106 of 2007 is filed and against the order in E.P.21 of 2002, CRP 1281 of 2007 is filed. The points that arise for consideration are:- (1) Whether the discharge set up by the JDR can be accepted and receipts produced can be taken into consideration? (2) Whether the order of the lower court suffers from an illegality? (3) To what relief? POINTS:- Evidently, the suit was decreed on 29-01-2002 ex parte and the suit was instituted in the year 2001. The JDR did not contest the suit. The payments claimed under EXs.R-1 and R-2 are dated 08-04-2001 under Ex.R-1 and 12-08-2000 and dated 20-11-2000 under Ex.R-2. Evidently, all the payments claimed by the revision petitioner under the above receipts are prior to the filing of suit. It is not a case where JDR is not aware of the suit. He has received the summons and remained ex parte from the own counter filed by him. His claim that plaintiff promised that the amounts will be given credit does not inspire confidence. Evidently, the present contest of discharge should have been raised in the original suit before the court. When a party did not appear and choose to contest the suit on principles of res judicata, no subsequent plea can be allowed in the same proceedings. In this connection, it is useful to refer to a decision reported in Jai Narain Vs. Kedar Nath([1]) Therefore, the lower court believing on Exs.R-1 and R-2 and giving credit of these amounts is not valid and the court in execution cannot go beyond the decree and give credit to the payments even under Section.47 CPC. In this connection, it is useful to refer to a decision reported in Chetty Vs. Pillai & Co. ([2]). If at all the grievance of the JDR about the payments are not given credit is true, he should have agitated before the court by filing an application to set aside the ex parte decree. As matter stands the court cannot go beyond the decree and consider the payments. Further more, the question of payment after the decree does not arise since if any such payment is made, it should be certified as contemplated under Order XXI, Rule 2 CPC. Therefore, leaving apart from the truthfulness or otherwise of the claim of the JDR, it is clear that the scope of relief is beyond the competency of the court and the learned Junior Civil Judge erred and even invoking the principles under Section 47 CPC, the jurisdiction of the court to go beyond the decree is barred. Therefore, the order of the lower court impugned in CRP No.1281 of 2007 is set aside. The lower court cannot give credit to the payments and the DHR is entitled for the entire amount sofar as the order in E.P.No.21 of 2002 is concerned as per decree ignoring payments prior to decree. More over, the lower court has given an opportunity to the JDR to produce some documents and they have no relevancy in view of the overruling of the objections in the main E.P. Accordingly, CRP 1281 of 2007 is allowed and CRP No.106 of 2007 is dismissed. No order as to costs. _______________________ N.R.L.NAGESWARA RAO,J 31-12-2010 Lr Copy to be marked: Yes TSNR [1] AIR 1956 SC 359 [2] AIR 1972 MAD 107