Civil Revision No.1344 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.1344 of 2010(O&M) Date of Decision 04.03.2011 Harbans Kaur and others ...... Petitioners VERSUS Daya Devi and others ...... Respondents CORAM:- HON'BLE MR. JUSTICE A.N.JINDAL Present: Mr.Rahul Chhatwal, Advocate, for the petitioners. Ms.Ekta Thakur, Advocate, for the respondents. ***** A.N.JINDAL, J: This petition assails the order dated 15.02.2010 (Annexure P- 12), passed by the Civil Judge (Senior Division), Chandigarh, dismissing the application for stay of execution proceedings, moved by the petitioners- judgment debtors (herein referred as 'the petitioners'). Earlier a decree for possession and mesne profits was passed on 30.09.2003, as a result of which the possession of the premises was delivered to the decree-holders in part satisfaction of the decree. However, rent w.e.f. 01.06.2000 till 31.12.2000 @ Rs.1600/- per month alongwith interest @ 12% per annum which comes to Rs.12,000/- and damages w.e.f. 01.05.2001 @ Rs.3200/- per month till handing over the possession, which comes to Rs.1,69,728/-, was due against the defendant Gurdev Singh (since deceased), represented by the petitioners. The petitioners have further submitted that they had compromised with the respondents-decree holders (herein referred as 'the decree holders') for a sum of Rs.1,30,000/- and had paid Rs.95,000/- to the son of Nar Singh-decree holder in the month of Civil Revision No.1344 of 2010 2 December, 2007 and the balance amount of Rs.35,000/- was agreed to be paid in the month of March, 2009. On 21.03.2009, counsel for the decree holder received a sum of Rs.5,000/- on behalf of the decree holder from Iqbal Singh one of the petitioner. Now, the petitioners are ready to make the payment of Rs.30,000/- i.e. remaining amount of mesne profits due against them. In reply to the petition, respondents-decree holders through their counsel submitted that upon issuance of warrants of attachment of the property of the petitioners on 18.11.2009 as well as 19.11.2009, the possession of the property was taken. However, the petitioners failed to pay the amount of mesne profits to the tune of Rs.1,69,728/-. The petitioners never paid a sum of Rs.95,000/- to anybody including the son of decree- holder, therefore, question of balance amount being Rs.35,000/- does not arise. It was further submitted that on 21.03.2009, the judgment-debtor had offered to pay a sum of Rs.5,000/- only during the execution proceedings but the decree-holders never agreed to receive the said amount and he has also not made any statement in this regard. As regards the amount of Rs.95,000/-, the learned counsel for the petitioners submits that the judgment debtor had paid this amount of Rs.95,000/- to the decree-holder in the presence of Sampuran Singh. No document in the shape of any receipt or other writing has been produced on record to establish this fact. Even the affidavit of Sampuran Singh has not been produced on record to establish the fact if payment of Rs.95,000/- has been made in his presence. The petitioners have further placed reliance upon the statement of Iqbal Singh, one of the petitioner, dated 09.03.2009 which reads as under:- Civil Revision No.1344 of 2010 3 “I admit the payment in the case towards Decree Holder. I will make the part payment in the next Lok Adalat i.e. 21.03.2009. The balance payment (entire) of the decretal amount will be made in the first week of May, 2009 in the Court. From the said statement, it is clearly indicated that Iqbal Singh- petitioner has admitted that the entire payment of decretal amount was due against him. He has further stated that he would pay the same in the month of May, 2009. The other statement of Iqbal Singh dated 21.03.2009 reads as under:- “I have paid Rs.5,000/- today to the counsel for D.H. I will pay the remaining amount in the sum of Rs.30,000/- (Thirty thousand only) on the next date of hearing.” In response to this statement, learned counsel for the respondents has referred to the statement of Sh.Vishal Singh, counsel for the Decree holder, wherein he has admitted having received an amount of Rs.5,000/- and accepted the statement of Iqbal Singh but this statement does not prove if the remaining payment of Rs.95,000/- has already been made by the petitioners to the decree holders. No statement of the decree-holder has been recorded during execution which could show if he had accepted Rs.95,000/- or other amount of the decree outside the Court. Rather the order dated 21.03.2009 passed by the Court indicates that the decree holder had received a sum of Rs.5,000/- from the judgment debtor and the remaining payment was to be made by 07.05.2009. The order dated 07.05.2009 is further proof of the fact that only Rs.30,000/- were not due against the judgment debtor but some more amount was also due against Civil Revision No.1344 of 2010 4 the petitioners. As such, the decree holder refused to receive the said amount and agitated that he would receive the entire amount of the decree not only Rs.30,000/-. All this goes to show that except Rs.5,000/-, no other payment is proved on record. Today, learned counsel for the petitioners has placed on record a challan receipt of Rs.30,000/- payable to decree holders which would be adjusted on receipt of the same by the decree holder. Dismissed. However, decree holders would be at liberty to withdraw the amount of Rs.30,000/- deposited in the trial Court/Executing Court, which would be adjusted against the amount due against the petitioners. (A.N.Jindal) Judge 04.03.2011 mamta-II