THE HON’BLE SRI JUSTICE VILAS V.AFZULPURKAR CIVIL REVISION PETITION NO.5188 OF 2007 DATED 1ST JUNE, 2010 BETWEEN Mandala Papamma … Petitioner And Sanapathi Chiranjeevi Patrudu And Another. … Respondents THE HON’BLE SRI JUSTICE VILAS V.AFZULPURKAR CIVIL REVISION PETITION NO.5188 OF 2007 O R D E R This revision petition is preferred by the judgment debtor assailing the order dated 10.09.2007 passed by the learned Senior Civil Judge, Parvatipuram, in E.A.No.194 of 2006 in E.P.No.35 of 2005 in O.S.No.167of 2002 whereby the application filed by her and her son under Order 21, Rule 2(2) read with Section 47 of the Code of Civil Procedure seeking to record adjustment of the decree debt was dismissed. The facts are as follows: The first respondent herein/decree holder obtained a money decree in O.S.No.167 of 2002 on file of the Senior Civil Judge, Srikakulam, against the defendant/ deceased husband of the petitioner. The said suit was not contested by the said defendant in spite of service of summons and later ex parte decree obtained by the first respondent/decree holder was put to execution by him. Since the properties of the petitioner are situated within the jurisdiction of the Senior Civil Judge, Parvatipuram, the execution petition filed by the first respondent/decree holder was transferred to the Court of Senior Civil Judge, Parvatipuram and was numbered as E.P.No.35 of 2005. In the said E.P., the petitioner herein along her son filed E.A.No.194 of 2006 contending that during the shifting of their luggage from the property of the judgment debtor, the daughter of the judgment debtor came across a receipt dated 12.12.2001 (Ex.A.1) executed by the first respondent/decree holder in favour of the judgment debtor acknowledging inter alia that the entire suit debt covered by the promissory note was discharged. It is also alleged that the said receipt was attested by the attestors and as such it was claimed that the deceased judgment debtor had in fact paid a sum of Rs.4,50,000/-to the first respondent/decree holder which comprises of the suit debt as well as payment of further sum of Rs.3,00,000/- which the decree holder had agreed to pay the same to the Life Insurance Corporation of India to discharge the debt due to it by the judgment debtor. The petitioner herein, who is the widow of the judgment debtor, initially got a legal notice dated 30.12.2006 issued to the first respondent/decree holder informing him that in view of the Ex.A.1- receipt, the suit debt stands discharged and that the decree holder was given a further sum of Rs.3,00,000/- which the decree holder agreed to pay the said amount to the Life Insurance Corporation of India to discharge the debt due to it by the judgment debtor but he failed to pay the same to it and therefore, recovery of Rs.3,00,000/- was also sought for. The said notice is followed up by the filing of the present application in E.A.No.194 of 2006 before the Executing Court by the widow of the judgment debtor who is the petitioner herein. In the affidavit filed in support of the said E.A., similar averments, as mentioned in the notice, were made. It was stated therein that the petitioner had in fact filed an application to set aside the ex parte decree obtained by the decree holder along with an application under Section 5 of the Limitation Act seeking condonation of the delay in filing the said application before the Court of the Senior Civil Judge, Srikakulam, in view of the receipt of discharge discovered subsequently. The said E.A. was opposed by the respondent/decree holder denying the allegation of discharge and the receipt-Ex.A.1 produced by the petitioner. It was also stated in the counter that the receipt- Ex.A.1 dated 12.12.2001 is clearly forged and fabricated and all recitals in the receipt are invented mischievously to defeat the claim made in the E.P. The Executing Court thereafter enquired into the E.A. No.194 of 2006 in detail. The petitioner examined herself as P.W.1 and the two attestors and the scribe were examined as P.Ws.2 to 4. The crucial receipt dated 12.12.2001 was marked as Ex.A.1. The respondent/decree holder examined himself as R.W.1. Upon the appreciation of the rival contentions of both sides and the oral evidence adduced by them, the Executing Court dismissed the said application by holding inter alia that the petitioner has failed to substantiate the plea of discharge of the suit debt as it disbelieved the evidence of attestors in as much as the same is contradicting to each other’s evidence. Under the impugned order, the Executing Court also noticed that though the receipt is dated 12.12.2001, the judgment debtor admittedly was bed ridden much before the said date and subsequently within four days of the execution of Ex.A.1 the judgment debtor died. The Executing Court therefore disbelieved the theory propounded by the petitioner that the judgment debtor discharged not only the suit debt but also gave additional sum of Rs.3,00,000/- to the decree holder to discharge the debt due by the judgment debtor to the Life Insurance Corporation of India. Aggrieved by the said order, the petitioner preferred the present revision petition. Heard Sri G.Chandra Sekhara Rao, learned counsel appearing for the petitioner and Sri K.Subrahmanyam, learned counsel appearing for the first respondent. It has been strenuously contended by the learned counsel for the petitioner/judgment debtor that the receipt-Ex.A.1 clearly shows that the deceased judgment debtor had discharged the entire suit debt and the same was acknowledged by the decree holder. He pointed out that a reading of the cross-examination of the decree holder as R.W.1 shows that R.W.1 has deliberately and mala fidely denied his signature on Ex.A.1 and the mala fides are evident from the fact that the decree holder/R.W.1 even denied his signature on the affidavit filed by him in lieu of the chief-examination. The leaned counsel therefore submitted that discharge of the suit debt under the receipt- Ex.A.1 ought to have been believed by the Executing Court in view of the evidence of the attestors as well as the daughter of the judgment debtor, who found the receipt-Ex.A.1. The learned counsel for the first respondent/decree holder, on the contrary, submitted that the very story set up by the petitioner is unbelievable in as much as preceding to the present claim of discharge, different claim petitions were filed on behalf of the judgment debtor. One claim petition was filed by the daughter of the judgment debtor and the other claim petition was filed by a third party claiming to be the purchaser from the judgment debtor. However, on contest, both the said claim petitions were dismissed. Now, when the judgment debtor’s house property was brought to sale, the present E.A. was filed as if the said claim was already discharged. The learned counsel therefore submitted that the Executing Court cannot go behind the decree and as such the present E.A. was rightly dismissed. I have considered the rival contentions of both the parties and perused the material placed on record. The point that falls for consideration is as to whether the discharge pleaded by the petitioner/judgment debtor was entertainable by the Executing Court? It is to be noticed that the adjustment/payment under Ex.A.1 dated 12.12.2001 is for the first time sought to be recorded by approaching the Executing Court by filing the E.A.No.194 of 2006 on 07.12.2006. Apart from the fact that the adjustment said to have been made outside the Court is nearly five years prior to the date of the application, ex facie the said adjustment pleaded by the petitioner did not inspire confidence of the Executing Court. One of the circumstances relied upon by the Executing Court is that the judgment debtor was admittedly bed ridden for several days prior to the date of execution Ex.A.1 and he ultimately died four days immediately after the execution of Ex.A.1. The Executing Court therefore entertained a serious doubt as to how the judgment debtor could raise the monies and obtained a receipt-Ex.A.1 from the decree holder by discharging not only the suit claim but also making payment over and above the same. The second circumstance relied upon by the Executing Court is the contradiction in the evidence of the attestors and particularly the cross-examination of P.W.4 who stated that he never attested or scribed any document at any time and he had no acquaintance with the decree holder and did not know him. The third circumstance relied upon by the Executing Court is that if the son of the Judgment Debtor, who was aged 35 years at the relevant point of time, is said to have called P.W.3 at the time of execution of Ex.A.1, he should have been examined to prove Ex.A.1 as he would be fully aware of the execution of Ex.A.1 dated 12.12.2001. After careful examination of the entire record including the evidence of P.W.1, I am unable to come to a different conclusion than what has been reached by the Executing Court on all the three aspects as mentioned supra. It is also noteworthy that the notice which preceded the E.A.No.194 of 2006 was not marked in the evidence for the reasons best known to the petitioner/ judgment debtor and a perusal of the copy of the said notice dated 30.12.2006 produced before this Court in fact shows that the petitioner is even making a claim for recovery of Rs.3,00,000/- from the decree holder on the ground that in spite of receipt of the said amount from the judgment debtor, the decree holder had failed to pay the same to the Life Insurance Corporation of India to discharge the debt due to it by the judgment debtor. Apparently, the fact that no proceedings for recovery of Rs.3,00,000/- were initiated subsequent to the issuance of legal notice dated 30.12.2006 by the judgment debtor shows that the entire theory as propounded under Ex.A.1 dated 12.12.2001 appears to have been invented only to defeat the suit claim. It was also noticed by the Executing Court that though the petition to set aside the ex parte decree is said to have been filed by the petitioner, the said claim is not set up in her application filed to set aside the ex parte decree. No material is produced before this Court, including the copies of the said applications, to convince this Court that the stand which was taken by the petitioner in the E.A. has been consistently taken in the said application filed to set aside the ex parte decree as well. The learned counsel for the petitioner has failed to establish any perversity in any of the findings recorded by the Executing Court. The evidence, as a whole, is required to be appreciated and the evidence of the decree holder as R.W.1, if read in its entirety, clearly shows that he not only denied Ex.A.1 receipt but also denied the theory of attestation as propounded by the petitioner. I am therefore not inclined to interfere with the impugned order passed by the Executing Court merely on the basis of one stray sentence in the cross-examination of the decree holder/R.W.1 whereunder he denied his signature on the affidavit filed by him in lieu of the chief-examination. In the result, the Civil Revision Petition is devoid of any merit and is accordingly dismissed with costs. ---------------------------------------- VILAS V.AFZULPURKAR, J. 1ST JUNE, 2010 PGS/VGSR