IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 21ST NOVEMBER 2011 / 30TH KARTHIKA 1933 OP(C).No. 98 of 2010(O) ----------------------------------- E.A.3822/2008 IN EP.265/2006 IN OS.222/2005 OF II ADDITIONAL MUNSIFF COURT, THRISSUR .................... PETITIONERS: -------------------- K.P. PAUL, AGED 55 YEARS, S/O.PORINJU, KUTTIKKAT HOUSE, VALLISSERY DESOM, AVINISSERY, THRISSUR DISTRICT. BY ADV. SMT.P.A.ANITHA, SMT.P.R.REENA. RESPONDENT(S): ------------------------- P.K. CHANDRAN, AGED 59 YEARS, PALLIKATTIL HOUSE, P.O.VELAPPAYA, MULANKUNNATHUKAVU, THRISSUR-680 229. BY ADV. SRI.K.R.VINOD THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 21/11/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs OP(C).No. 98 of 2010(O) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE JUDGMENT IN O.S. NO.222/2005 DATED 27/06/2005. EXT.P2: COPY OF THE EXECUTION PETITION E.P. NO.1192/2006 IN O.S. NO.222/2005. EXT.P3: COPY OF THE OBJECTION FILED BY THE PETITIONER IN E.A. NO.3822/2008 IN O.S. NO.222/2005. EXT.P4: COPY OF THE ORDER IN E.A. NO.3822/2008 IN E.P. NO.265/2006 IN O.S. NO.222/2005 DATED 19/08/2010 OF THE MUNSIFF COURT, THRISSUR. RESPONDENT'S EXHIBITS:- NIL. //TRUE COPY// P.S. TO JUDGE rs THOMAS P.JOSEPH, J. ==================================== O.P(C) No.98 of 2010 ==================================== Dated this the 21st day of November, 2011 J U D G M E N T Challenge in this Original Petition is to Ext.P4, order dated August 19, 2010 on E.A. No.3822 of 2008 in E.P. No.265 of 2006 in O.S.No.222 of 2005 of the court of learned Third Additional Munsiff, Thrissur. Petitioner obtained Ext.P1, decree dated 27.06.2005 against the respondent for recovery of money. Petitioner filed E.P. No.1192 of 2006 for realization of the amount. Petitioner sought attachment of the Provident Fund amount of respondent. Respondent objected to the execution proceeding claiming that he had paid Rs.27,877/- to the petitioner on 14.07.2006 and obtained receipt. That receipt was produced in court. Since that receipt was not admitted by petitioner, respondent filed E.A. No.3822 of 2008 to send the same for expert opinion. That application was allowed as per Ext.P4, which is under challenge. 2. It is contended by learned counsel that the alleged payment was on 14.07.2006, there was no certification of the said payment as provided under Rule 2 of Order XXI of the Code of Civil Procedure (for short, “the Code”) and hence the executing O.P(C) No.98 of 2010 -: 2 :- court cannot take into account any such payment even if true. In that view of the matter it was not necessary for the executing court to embark upon an enquiry whether there was any payment as claimed by the respondent on 14.07.2006. It is therefore prayed that Ext.P4, order may be set aside. 3. Learned counsel for respondent asserted that Rs.27,877/- was paid to the petitioner on 14.07.2006 and that petitioner issued the receipt in question. According to the learned counsel, in Ext.P3, objection petitioner preferred to the application to send the receipt for expert opinion no contention is raised that in the absence of certification the executing court cannot take any such payment into account. 4. Rule 2 of Order XXI of the Code deals with the manner of payment of amount to the decree holder outside court. When such payment is made the same shall be certified by the court whose duty is to execute the decree and the court shall record the said payment. Assuming that within the time specified (30 days) petitioner had not filed any application for execution and made any request for certification as above stated, respondent was not without a remedy - he could have moved under sub-rule(2) of Rule 2 of Order XXI of the Code and O.P(C) No.98 of 2010 -: 3 :- requested the court to record payment. Admittedly that is not done within the time specified. 5. It has been held in M.P. Sreevastava v. Veena (AIR 1967 SC 1193), V. Ponnappan v. Vijayan (1991 [1] KLJ 207 – paragraph 6), Padma Ben v. Yogendra Rathore (2006 [3] KLT SN 78 (Case No.110), and Rajan v. Jayashree Nayar (2010 [1] KLT 280) that while Sec.47 of the Code confers power on the executing court the procedure to exercise that power is contained in Rule 2 of Order XXI of the Code and that there is no conflict between the said provisions. Therefore even if the executing court has power under the Sec.47 of the Code to decide any question relating to the execution, discharge and satisfaction of the decree, that power is to be exercised in accordance with Rule 2 of Order XXI of the Code. Unless payment is certified as provided in Rule 2 of Order XXI of the Code the executing court cannot take into account any such payment. This is clear from sub-rule 2A of Rule 2 of Order XXI which states that no payment or adjustment shall be recorded at the instance of the judgment debtor unless payment is made in the manner provided in Rule 1. Sub-rule (3) O.P(C) No.98 of 2010 -: 4 :- of Rule 2 says that a payment or adjustment which has not been certified or recorded as aforesaid shall not be recognised by any court executing the decree. Thus payment allegedly made by the respondent on 14.07.2006 having not been certified by the court either at the instance of petitioner or the respondent as provided in Rule 2 of Order XXI of the Code executing court cannot recognise any such payment even if it be true. 6. Learned counsel requested that respondent may be permitted to move for recording payment of the amount as provided in sub-rule (2) of Rule 2 of Order XXI. That request cannot be allowed since time has run out and the question of condonation of delay in execution under Section 5 of the Limitation Act does not arise and Rule 2 or any other provision does not enable the delay in certification to be condoned. This Court held so in Rajan v. Jayashree Nayar (supra). Hence that request cannot be allowed. 7. In the above view of the matter, it was unnecessary for the executing court to embark upon an enquiry whether as claimed by respondent any amount was paid on 14.07.2006 and much less, to send the document to the expert. Remedy if any available to the respondent was to seek recovery of the amount O.P(C) No.98 of 2010 -: 5 :- allegedly paid on 14.07.2006 by other modes known to law. Original Petition is allowed. Exhibit P4, order is set aside and E.A. No.3822 of 2008 in E.P. No.265 of 2006 in O.S. No.222 of 2005 of the court of learned will stand dismissed. THOMAS P. JOSEPH, JUDGE. vsv