Madras High Court
R. Kaliyamoorthy vs Tamil Nadu State Transport Corporation ... on 16 March, 2006
Equivalent citations: (2006)3MLJ51
Author: F.M. Ibrahim Kalifulla
Bench: F.M. Ibrahim Kalifulla
ORDER F.M. Ibrahim Kalifulla, J.
1. The petitioner seeks to challenge the order of the Principal Subordinate Judge made in an application filed under Section 47 of C.P.C., dated 29/9/2005 in E.A. No. 168 of 2004 in E.P. No. 83 of 2003 in M.C.O.P. No. 440 of 1997.
2. According to the petitioner, pending the earlier execution petition, the respondent Corporation deposited a sum of Rs. 1,10,706/- into the Court, pursuant to an order of attachment. The petitioner was also paid a sum of Rs. 1,38,344/- pursuant to the said compensation of Rs. 1,10,706/- deposited by the respondent Corporation and on receipt of the said payment, the Execution Petition itself was not pressed and dismissed. Subsequently, when the petitioner preferred the present execution petition No. 83 of 2003, the respondent Corporation filed the present application in E.A. No. 168 of 2004 contending that the petitioner having agreed to receive the sum deposited in the previous execution petition and thereby did not press the said execution petition in full and final settlement of his claim, it was not open for the petitioner to seek for further execution on the ground that the balance of compensation amount was to be paid by the respondent. The Court below has taken note of the endorsement made on behalf of the petitioner by the counsel on 6/3/2002 in the previous execution petition, wherein, it was tacitly agreed not to press the execution petition in view of the amount agreed to be deposited by the respondent Corporation. The Execution Court therefore, held that it was not open for the petitioner to seek for further execution merely on the footing that only a part satisfaction memo was filed earlier. The said perception of the Court was fully justified.
3. The learned counsel appearing for the petitioner would submit that under Order 21 Rule 2 (2 A) (c) and 3 of C.P.C., the execution Court was not justified in allowing the Section 47 application, inasmuch as the order in the earlier execution petition was not certified or required as per the provisions of Order 21 Rule 2A. A perusal of Order 21 Rule 2 (2A) and 3 disclose that no payment of adjustment can be recorded at the instance of the judgment debtor unless or otherwise the payment or adjustment was admitted before the Court. Therefore, if once any payment of adjustment was admitted on behalf of the decree holder before the Court, on that basis, the execution Court would be perfectly justified in recognising such payment or adjustment. Even strictly applying the above said provision to the case on hand, the execution Court having found as a matter of fact that in the earlier execution proceedings, the counsel for the petitioner agreed to receive the lesser amount in satisfaction of the decree and thereby agreed not to press the execution petition the said payment was admitted on behalf of the decree holder before the Court and therefore, the execution Court relied upon the said fact while allowing the present application filed under Section 47 for rejecting the execution petition now filed on behalf of the petitioner for the balance decree amount. Under Sub Rule 2 (2A) (c) of Order 21, before recording the payment, the Execution Court will have to ensure that the payment so made by the judgment debtor was admitted by the decree holder. Once such payment was recorded in the manner set out above, then, there will be no impediment for the Execution Court to recognise the said payment. In the case on hand, in the prior Execution Petition, the counsel for the petitioner, though claimed to have filed part satisfaction, made a specific endorsement "Execution Petition may be not pressed" after the deposit of Rs. 1,10,706/- made by the judgment debtor pursuant to the order of movable attachment. Thus such an endorsement having been made consciously as provided under Order 21 Rule 2 (2A) (C), the petitioner cannot be permitted to turn around and once again take recourse to a fresh Execution Petition.
4. Having regard to the above stated situations, the present attempt of the petitioner in seeking to challenge the order impugned in this Civil Revision Petition cannot be sustained and the same is dismissed.