IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 21ST JULY 2008 / 30TH ASHADHA 1930 CRP.No. 554 of 2008() --------------------- AGAINST THE ORDER DATED 05/07/2008 IN EP 169/2006 IN OS.757/2002 of PRL.M.C., KOCHI .................... REVN. PETITIONER: ------------------ M.H.HANIS, ADVOCATE, S/O.N.M.HAMSA, CC.20/500, MANAKKAL HOUSE, NAMBIAPURAM ROAD PALLURUTHY PO., KOCHI-6. BY ADV. SRI.K.RAMAKUMAR (SR.) SMT.SMITHA GEORGE SRI.MANU TOM RESPONDENTS: ------------- RAMACHANDRAN , BUSINESS, S/O.LATE P.DAMODARA MENON, SUDARSANA, THEKKUMBHAGOM VILLAGE, THEKKUMBAGOM, TRIPUNITHURA, PIN-682301., AND PROPRIETOR, DHANASREE ENTERPRISES. DD TEX WORLD, MARKET ROAD ERNAKULAM-11. BY THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 21/07/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ------------------------------- C.R.P.No.554 of 2008 ------------------------------- Dated this the 21st July, 2008. O R D E R Judgment debtor in O.S.No.757 of 2002, on the file of Munsiff Court, Kochi, is the petitioner. Respondent is the decree holder. Execution petition was filed by the respondent for sale of the attached property. In the execution petition, petitioner contended that he had paid the entire amount due under the decree and produced a receipt in support of the discharge. Decree holder disputed Ext.B1 receipt produced by the petitioner. Under the impugned order dated, 5.7.2008, executing court did not certify or record the payment evidenced by Ext.B1 holding that receipt was not issued by the petitioner and that amount was not paid as claimed by the petitioner. Executing court also found that respondent is entitled to realise the amount by sale of the attached property. The order is challenged in this petition filed under Section 115 of Code of Civil Procedure. CRP. No.554 of 2008 2 2. The learned senior counsel appearing for the petitioner was heard. 3. The learned senior counsel argued that under clause (b) of sub-rule (1) of Rule 1 of Order XXI of Code of Civil Procedure, money payable under the decree can be paid out of court to the decree holder by postal money order or through a bank, or by any other mode wherein payment is evidenced in writing. Rule 2 of Order XXI provides for recording or certifying the payment and when petitioner has produced Ext.B1 receipt establishing the payment, executing court should have accepted the payment and closed the execution petition. Learned Senior counsel also argued that in any case the observations in paragraph 19 of the order casting aspersions on the petitioner was unwarranted in the facts and circumstances of this case, and are to be expunged. 4. Though clause (b) of sub-rule (1) of Rule 1 of Order XXI of Code of Civil Procedure enables a judgment debtor to make payment due under the decree out of court either by postal money order or through a bank, or by any other mode wherein payment is evidenced in writing, Rule 2 of Order XXI mandates that such payment CRP. No.554 of 2008 3 has to be recorded or certified as provided under the said Rule. Sub- rule (3) of Rule 2 of Order XXI mandates that a payment or adjustment, which has not been certified or recorded, as provided under sub-rule (1), sub-rule (2) or sub-rule (2-A) of Rule 2, shall not be recognished by any court executing the decree. 5. Under sub-rule (1), where any money payable under a decree of any kind is paid out of court, 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. Sub-rule (2) of Rule 2 enables the judgment debtor to inform the Court of such payment or adjustment, and apply to the court to issue a notice to the decree holder to show cause, on a day to be fixed by the Court, why such payment or adjustment should not be recorded as certified, and if, after service of such notice, the decree holder fails to show cause why the payment of adjustment should not be recorded as certified, the Court shall record the same accordingly. Sub-rule (2-A) of Rule 2 provides that no payment or adjustment shall be recorded at the instance of the judgment debtor unless, the payment is made in the manner provided in Rule 1, or the payment of adjustment is proved by documentary evidence, or the payment or adjustment is admitted by, CRP. No.554 of 2008 4 or on behalf of, the decree holder in his reply to the notice given under sub-rule (2) of Rule 1 before the Court. Therefore, unless the payment out of Court is recorded as provided under sub-rule (1) of Rule 2, at the instance of the decree holder, or is certified by the Court, as provided under sub-rule 2 of Rule 2 at the instance of the judgment debtor on an application filed as mentioned under sub-rule (3) of Rule 2, executing court shall not recognise any such payment. Admittedly, the payment alleged under Ext.B1 receipt was not recorded as provided under sub-rule (1) of Rule 2. The payment was also not certified as provided under sub-rule (2) of Rule 2. Therefore, the payment evidenced by Ext.B1, even if made, cannot be recognised by the executing court as mandated under sub-rule (3) of Rule 2. In such circumstances, I do not find any reason to interfere with the impugned order. 6. The learned senior counsel submitted that in any case the observations made against the judgment debtor that he cheated the decree holder, and being an Officer played fraud, are all unnecessary for the purpose of decision in the execution petition, and hence the observations are to be expunged. On going through the order, the observations made in paragraph 19 of the impugned order CRP. No.554 of 2008 5 are unnecessary and irrelevant for deciding the dispute involved in the execution petition. In such circumstances, those observations are expunged. If petitioner has made any payment out of court which is not recorded under sub-rule (1) or certified under sub-rule (2) of Rule 2 of Order XXI of Code of Civil Procedure, remedy of the petitioner is to institute a suit for damages for refund of the said amount. Petitioner is at liberty to seek the remedy. Petition is dismissed. M.SASIDHARAN NAMBIAR, JUDGE nj.