Madras High Court
Devaraju Padayachi vs Sivasankara Padayachi on 31 March, 2004
Equivalent citations: 2004(4)CTC699, (2004)4MLJ604
ORDER AR. Ramalingam, J.
1. The civil revision petition has been filed by one Devaraju Padayachi being the decree holder in O.S.No. 791 of 1995 on the file of the Principal District Munsif, Cuddalore against the order passed by the Principal District Munsif, Cuddalore in E.A.No. 768 of 1999 in E.P.No. 8 of 1998 in O.S.No. 791 of 1995.
2. The impugned order is to the effect that the entire decree debt has been discharged by payment of Rs. 15,000 by the judgment debtor viz., Sivasankara Padayachi and consequent issue of receipt dated 25.6.1999 by the decree holder.
3. Aggrieved against such order, the decree holder filed this revision petition on the ground that there was no necessity for out of Court settlement and there was no payment of Rs. 15,000 by the judgment debtor to the decree holder on 25.6.1999 and there was no such receipt issued by the decree holder in favour of the judgment debtor and the said receipt for Rs. 15,000 dated 25.6.1999 itself should be a forged one at the instance of the judgment debtor with the help of the scribe and others and that if really there was a settlement, there was no necessity for the counsel for the judgment debtor to make a representation on 30.6.1999 that the matter was going to be settled and that there was no necessity for the judgment debtor or his counsel to keep quiet without informing the out of Court settlement to the Principal District Munsif, Cuddalore on the other subsequent two hearing dates and that there was no necessity on the part of the decree holder to have talk of settlement when the matter was pending before the Executing Court and that there was nothing to prevent the judgment debtor to get hand writing expert's opinion through the Executing Court to confirm the truth of execution of the said receipt and that the Principal District Munsif need not have assumed the role of an expert and come to the conclusion as if the receipt in question was true and proved.
4. On careful perusal of the plea raised by the decree holder as well as the judgment debtor in the light of oral evidence of the judgment debtor Sivasankara Padayachi and his witnesses Sivanandham, Samidurai, Sanjeevi and also the evidence of the decree holder Devaraju and the documents marked as Exs. R1 to R7 on the side of the decree holder, I am able to see that the Principal District Munsif, Cuddalore seems to have been carried away by the oral evidence of P.Ws. 1 to 4 examined on the side of the judgment debtor and by comparison of the signatures of the decree holder in the disputed receipt and other documents and particularly Ex.R7. In this context, I wish to point out that the admission of the judgment debtor Sivasankara Padayachi in the cross examination is also relevant for the purpose of appreciating the truth and genuineness of the disputed receipt or otherwise. The judgment debtor Sivasankara Padayachi has admitted in the cross examination that E.P. was filed for Rs. 18,426.35 and he appeared through counsel in the E.P. on 20.2.1998 and he filed objections on 10.9.1998 and that after disposal of the appeal, his advocate was getting adjournments for payment of the decree amount and that since he did not pay the amount and appear in Court, arrest was ordered on 7,1.1999 and that from 20.2.1998 till 7.1.1999, he did not pay any amount before the Court and subsequently, he filed petition for setting aside the ex-parte decree and it was also allowed on 30.4.1999 and that both the parties were directed to be present before the Court on 30.6.1999, but, he did not appear before the Court on 30.6.1999 and so, the matter was adjourned to 6.7.1999 and on that date also he did not appear before the Court and that even after the date of payment under disputed receipt there were two or three hearings and in those hearings also he did not inform about the out of Court settlement to the Court in person or through his counsel and so on.
5. The cumulative effect of all these admissions of the judgment debtor goes to show that if really the disputed receipt was in existence for payment of Rs. 15,000 there was no reason for the judgment debtor to keep quiet without informing the same before the Court nor his counsel to keep quiet without informing the out of Court settlement and particularly there was no need for the counsel appearing for the judgment debtor to make a representation on 30.6.1999, that is after the alleged execution of the disputed receipt, as if the matter was going to be settled. In this context, it has to be pointed out that the decree holder, in advantageous position at the stage of getting order of arrest against the judgment debtor, normally cannot be expected to move or concede for out of Court settlement without doing it in the Court itself. Likewise, it is also too much on the part of the judgment debtor to move or concede for out of Court settlement and get the disputed receipt in his favour without resorting to inform such settlement to the Principal District Munsif, Cuddalore in person or through his counsel immediately after such settlement that too when order of arrest was sought for by the decree holder against his and E.P. was pending. No doubt, the judgment debtor and his witnesses have given evidence in support of the disputed receipt as if it is true and executed by the decree holder in their presence for Rs. 15,000. But, the conduct of the judgment debtor in not having disclosed such out of Court settlement immediately to the Court either in person or through his counsel creates very great suspicion upon the evidence of the judgment debtor and his witnesses and particularly the truth and genuineness of the disputed receipt. In such circumstances, I am to point out that if the disputed document and the alleged signature of the decree holder in the receipt are examined by a handwriting expert and opinion is received, it would be easier for the Principal District Musif, Cuddalore to have an opinion about the truth and genuineness of the disputed receipt and the alleged signature of the decree holder therein or otherwise. Such an expert opinion would give much more clarity for arriving at a decision upon the truth and genuineness of the disputed receipt. But, unfortunately, neither the decree holder nor the judgment debtor has taken steps-to get such expert opinion before the Principal District Munsif, Cuddalore. In such circumstances, irrespective of the fact that the Judge can compare the signature, it would be better for the Judge viz., Principal District Munsif, Cuddalore to get the expert opinion after examination of the disputed receipt and comparison of the signature therein with the admitted one of the decree holder which may help further to find out the truth and genuineness of the signature.
6. Accordingly, the order passed by the Principal District Munsif, Cuddalore becomes liable to be set aside and the matter has to be remanded to the Principal District Munsif, Cuddalore for the purpose of fresh disposal after obtaining opinion of the authorized hand writing expert and both the parties are at liberty to take steps to get such expert opinion or the Principal District Munsif, Cuddalore also can direct any of the parties to take such steps as he deems fit and the cost for getting such opinion and examining the expert can be decided by the Principal District Munsif, Cuddalore.
7. In the result, C.R.P. is allowed and the order passed by the Principal District Munsif, Cuddalore is set aside and the matter is remanded to the Principal District Munsif, Cuddalore for fresh disposal of E.A.No. 768 of 1999 according to law in the light of the observation made above. No costs.