Karnataka High Court
T S Basavaraj @ S Basvaraju vs C Lakshmi on 6 October, 2010
Author: A.N.Venugopala Gowda
Bench: A.N.Venugopala Gowda
IN THE HIGH COURT OF KARNATAKA AT BANGALORE OATEO THIS THE 6" DAY OF OCTOBER, BEFORE THE HON'BLE MR. JUSTICE A.N.vENuGO.PALAV.GO§A*.OAS'V' I WRIT PETITION No. 22855/2o.io ;g;M:CpC%) To 'V: , I.' BETWEEN: « I I It T.S.Basavaraj @ S. Basvarajuflé S/o.T.S.Shankarappa Aged about 60 years . R/at Lakshmi Lodge " , - ._ . 4"' Main, Gandhénagar '- ' Bangalore. ' ...PETITIONER (By Syrai' "H'a.~;.%;,rj::, H A'Ci~v;.') 1. C. Laksh»mi,:_ , W,/o. G.'-An'a'ntha " Ag'ed__ aboérto »5.6..yea rs _ R,/,at_Co.C-22, KIOCL Colony " _ S.arjapL}ra. Road ._ , Koframa'n.g'a|a II Block Bangjaldre. 2. I ..(f.'«;_S?aantha, W/o.\/.Manohar .. Aged about 42 years R/at No.84, AECS Layout " HAL II Stage, Near Dafoddil School 15"' Cross, Sanjaynagar Bangalore. W:(By"Sri S.V.Ganesh, Adv. for R1 to R7; 3. C. Padma W/o.S. Aswathanarayana Aged about 55 years R/at No.3735, "Beligéri" 2" Stage, Indiranagar Bangalore. 4. C. Liayanthi D/o.N.Chandra Shekaraiah Aged about 29 years. T. 5. c. Balakrishna S/o.N.Chandra S_hekarai_ah"~_ Aged about 27 years. " 3- ' 6. C. Narahari ~- V V' * V S/o.N.Chandra Sh'ekaraiah_j,__ Aged ab0:fi_25 yzeargs.-.V~" " " 7. C. . S/%og.N";~Ch'a%:;d_ra Shea ra'i:ah :Aged'abj'oVut years. _ The respon'dents«4'toy .7 are R/avt_O:d N'o.C-:238'and . New 'i\%o."21.,/l74'v, V' ._i Ag ra hara Street C_-hamgarajna'g'a"r'- 573 313. 8, _ A. ..yVNa'ra._sErnhan ' " S/o"_;v_vN_.C.h'andra Shekaraiah Aged about 31 years R/at*i\lo.896/50, 14"' Cross "!3hTagya Nilaya, Mahalakshmi Layout * Bangalore -- 560 086. ...RESPONDENTS Sri K. Narasimha Murthy, Adv. for R8) This petition is filed under Articles 226 and 2327 of the Constitution of India praying to call for recordstand set--aside the order dated 04.08.2009 passed on I.rA;lx|_o;~-10 under Section 47 and read with Section 151i..«.o.f»CFiC;~in Ex.No.58/2006 on the file of City Civil Judge__at Baiiga-!io'I'*eg' vide Annexure--A and consequently allow.V_theV I.fA~.i\Eo.10_é under Section 47 and read with_Section_--'15?£wof C¥?C., in " E><.E\lo.58/2006, on the file of City; CivilJudge-i'at.__Bangal'ore« by allowing the above writ petition", : This petition coming ori.r'o~.+, prelimlnaryl'hea._ri'n.g..in "B"=:" group this day, the Court madésathe followingz. Respondents / :D~e-crefe obtained a decree dated and arrears of rental V1 interest and cost in O.S.8ti84[iS§g?;gi.vag_%'iwnst«..Vt:ti'e_'petitioner and others. The said decree S34/2005 vide judgment dated 20,»1.;j2;'2i005..V Viurther challenge in Civil Appeal ti.o'i'2-483;/i2.0i0.6 was also unsuccessful. respondents filed E.P.S8/2006. The jud"gme'nt'd'ebtors on their own vacated possession of the V. preniises, in respect of which the said decree had been "passed. The decree holders sought to realise the amount \ /' sv- of Rs.39,1G,259.52 being the mesne profit, costs and interest etc., 3. The petitioner filed I.A.1O to ,_i{é'co}rjd;-.._f__lre,i:i'~«_ satisfaction and discharge of the decretal.-a'ino:u.nt"~aii--d dismiss the execution petition contendi-ng3th'at.,-after' '~33? judgment debtor handed then'-i<e~,:5 holders on the advice of th_e_l:V"'iri.iel!.,_»wis'h'et$:," the decree holder by name C.BaV|a-lerishiiia 2.ac'c'evp_i'.e:ci*land agreed that, the 15* judgment Vdebtoi"--v.onV account'v_of"*.l,.0sing-lodge, and become u.n.e:mpi§y_ed.":and_V havjingwfno income for his surviv:a'l',b"is'seuied all:?rece'i'pt/conseritletter to the effect that, he gaveclaims. to§Ai<a,rlds_'l'r"nesne profits and arrears of rent, by ujndertaking to",-inAfQrm"nthe matter to the Court and thus remain's"t0*"be paid by the judgment debtors diecretai amount. A receipt said to have been ilssued byiiifialakrishna on behalf of all the decree holders was produced. A' 4. The decree holders filed statement of objections if "and denied the claim made in I.A.10. It was stated that, \ \ C.Baiakrishna has never executed the alleged consent letter and his signature has been forged. It wa's..Vstated that, the parties have been at logger-heads.leye*rf_';s.ln::e_'*_ 1980, relationship between the,,,decree""holders: =and" judgment debtors have been strain-ed :'foar.the..pas't- 2'.?':s,4.ea:r;sié and the alleged consent letter"-i.s. animpossibleC_ac_tV.W '_l.T'heiy prayed for dismissal of -under' rt/kw S.151 CPC, with exemplary co'stis,.., 5. The h4eard_'~ythefjpvarties, found that the V'".'i--?,:J.v7;-7.2007 was filed on of the decree having not been reported irom the date of satisfaction, is barred ljimit.a'tio'i'v1 and that, there is dispute regarding ' ge'nu'iri,ess'"--o'f th'e"'d'o'c'ument. As a result, the application ....
1.11.13 seeking review of the said order was Air*ej---ected by an order dated 21.1.2010. It was clarified Aithlat, the rejection of I.A.10 was on account of bar of 1' vlulimitation. Judgment debtor No.1 has filed this writ /,2'.
petition questioning the order passed on I.A.1O by the execution Court.
7. Sri Harish, learned counsel petitioner, firstly contends that,....I.A.1O_*'Vh'as:'.';Anot,'_'been°' considered in accordance with law. 1'Siecond_iy,_'i'nyyiewifiif the objections filed, there be.i_n'g._disputed.questio'n--..of--~ifact,*»." an enquiry ought to have beAe.nfllie_ld'i.._g Thiirdiy, original consent deed having below has erred in holding that_,"the or'ig'inal has not been filed. Fou__r«th'ly_, qi§iesti.on--..'offvlin':i.tation being a mixed questivoinifiiofir and an ._enqVuiry ought to have been directed and thgerelafte-.r,ii"order on I.A.1O ought to have been. passe'd.,_:'Le.a'._rned counsel submits that, the impugned gré.é'ir SL::ffe~r,s froinifprovcedurai impropriety and is illegal.
" Ganesh, learned counsel appearing for the,__Vres.pond.--eints on the other hand, submitted that, there is su"p.pression of material facts. The filing of I.A.13 seeléing review of the order and its rejection on 21.1.2010 ___has not been stated in the writ petition. timed counsel / ,.
contends that, the petitioner has not approached the Court with clean hands. Further, the findings of the E><ecu_ti.on Court in the impugned order are sound and . with the order passed on eiti1er__,I...A_.1O_--or"'o.n_';v.iV§'A.v13 called for.
9. In view of the riyvaiilcontentions,ihvthegpolint for A consideration is:
Whether the is_'.i*rrational arzcifliegaifi? it A it '
10. of question, it would be apgjvrolpriaihayto Rules 1 and 2 as weil as Artic':eJ1--23 Act. They read as follows:
"$.47. «(,1')'' "All 'questions arising between the parties t;.o'th_e suit «irxwhich the decree was passed, or their _ representatives and relating to the execution, "discharge or satisfaction of the decree, shall be , d.et«ermin.ed by the Court executing the decree and not by .551 separate suit.
..(2.«} xx (omitted by Amendment Act, 1976 w.e.f. *---- 1.2.1977).
" (3) Where a question arises as to whether any person is or is not the representative of a party, such question shalt, for the purposes of this Section, be determined by the Court.
/' oi"
Explanation~I: For the purposes of this Section, a plaintiff whose suit has been dismissed and a defendant against whom a suit has been diSF_fii__SSed are parties to the suit. 7 Explanation-II: (a) For the purposes of a purchaser of property at a saie in e)-:4ecuVt.i.ori~ofja:
decree shall be deemed to be a partyt.o'ftghe._suit in "
which the decree is passed;
(b) ail questions relating A': the possession of such property to'.s_uch pL:,rch'a.ser or his representative shaii be, deemed__ to._ be Kqiiestions "
reiating to the executEon,l'd_E'scharge'orésatisfiaction of the decree within the Ff}.9'&flifl'g o-fthis section."
O.XXI, C.P.C.:
"R.:l.: (1,). decree shalt be paid as foliowis, rg%3»hf3ely'~:y~ V V "
ha) t_he"Court whose duty it is to * executed' thei'-ideicree, or sent to that Court by "pos"i:a_i 'money__ order or through a bank; or .g(bg) taut of.v"Co'urt",: to the decree-hoider by postal ' " mon'eyV___order or through a bank or by any 'o_ther mode wherein payment is evidenced in 'ewrviting; or i.'r*(Cc)it-'V."gj--.otherwise, as the Court which made the ~~ _ftiecree, directs.
(2__)" Where any payment is made under CE. (a) or Cl. (c) of sub--r. (1), the judgment~debtor shail give notice thereof to the decree--hoider either through the Court (Jr directiy to him by registered post, acknowledgmerxtfidue. /7 I (3) Where money is paid by postal money order or through a bank under clause (a) or clause (b) of sub-rule (1), the money order or payment through bank, as the case may be, shall accurately state the following parti<iu_lars, namely:~
(a) the number of the original in
(b) the names of the parties or".whesr'e 'there are more than twojplaintiffs"ot'_mo're"tha_n "
two defendantsgas the case' may_ be",*the. names of the first two«r'p|'ai_nt.iffs an'd..,tt?re first two de_fenda'rit_s;V_
(c) how the ''money '-v.remitte'd'A§ji's..__to3 adjusted, th'at'"-is to 'say,s.whéther it is towards the _p_rincip.al, interest or costs; (cl) the .n"umberlof"t--h;e sét2<_ecution" case of the Court, wh,e'iée Su'ch"~c[asel is pending; and
(e) the namesan',d"add_.ressjof the payer."
'fR-.-w2;(1) "'1::;W_here'--._'any....money payable under a V d'ecre,e'?».otl--any kind is paid out of Court, or a Cdecreejsofs.salny""l<irid is otherwise adjusted, in V' "whole-or i'n___"pa'rt to the satisfaction of the °«.,ddecree--ho_l'de,_r!, the decree--holder shall certify su.,ch'~payment or adjustment to the Court whose.._©§_Lit'y it is to execute the decree, and the Court shall record the same accordingly. _ " (2); The judgment-debtor or any person who '--V.",j---has become surety for the judgment--debtor ~ ._Ta|so may inform the Court of such payment or adjustment, and apply to the Court to issue a notice to the decree--holder to show cause, on a day to be fixed by the Court, why such payment or adjustment should not be recorded as certified; and if, after service of such notice, the decree--holder fails to show cause why the payment or adjustment should got be recorded /..
10 as certified, the Court shall record the same accordingly.
(ZA) No payment or adjustment shall be recor_ded'~..at the instance of the judgment~debtor unIes:.:..._--,'_'» ~ V "
(a) the payment is made in the maynneir, in R.1; or
(b) the payment or adj=ustme,nt'4"asis' documentary evidence;Vor'-_
(c) the payment or adjp'stment'.is' "by, or if on behalf of, the decree.-,h0lder.. in his} reply to the notice given ,u'ndei' sup-r. (2')'~oi R. 1 or before the €oV:L;rt.'._ " "
(3) A payment or~--adjustrnen't'wh'ic.h"has not been certified,«or'~-recorded}as,"'~a'foresa'id, shall not be recogn_i:é_ed ,by_.any.Co.u rt _executi'n"g"the decree." is to ensure that, all question"reiatin'g..,_to--l..'e.>re'cu'tion, discharge or satisfaction of the decree smii be."'det-erlmined only by the execution Court . to *a'vo'i'cl,fimultiplilcity of proceedings. 0.21 CPC deals awllithllthré':--A.eVxecru,t.i~on of decrees. R.1 makes it ciear that, there lS\'.l'l'O_Vli"»OAl{,)rl'l for frivolous pleas of payment of money K"'=._V"*u_nder"avriioney decree. The payment of money due under ,:."»aV"d.er.'ree can be paid by any of the 3 modes specified b ...tifierein and any other mode of payment is not recognised. E /' I .
11 The 3 modes are (a) depositing the money in the Court or sent to that Court by postal money order or through a bank; (b) direct payment through postal money order. or through a bank or by any other mode wherein evidenced in writing and (c) any such mann.erV_"asVvtAhIef Court . passes the decree directs. The sgeconyd' deals with payment outside the «Court and- alleged in the instant case fall's'w%ith_in mode. The decree holders have 'd4_é'nied'_VA receilot/consent letter and have alleged same.'is§fijal--'se and forged. R.2 cases decree is satisfied or adjusted not only deals with the money decree but._als,ox'a_ of all kinds. The Rule not only of Vpaym-en_t____of money under a money decree, but i aisowadgjustrnent of any other kind of decree. Sub-rule (1) 'provides ti:-atg;;.'Vwhere a decree is so satisfied or adjusted, 3 theuxdecreel holder shall certify such payment or adjustment tolithge Court which is to execute the decree and the Court Aishlalll record the same accordingly. Sub--rule (2) provides Vwthat, in case of such payment/adjustment, the decree K,»
-F5 12 holder may also inform the Court of such payment or adjustment and request to record and certify the same. If any such information is laid before the Court, shall issue notice to the decree holder to show:~-causeI""wfivy.jC~ such payment or adjustment be recorded If CA"
the decree holder appears and :"djen:'iAes':the. adjustment, the Court shall'lrri'ak_e nAe'ce_ssaVry,_ehq'u~i.ry"and'-C' pass orders. Sub-rule (2A)i.---pxrovid-es that--,-_pa,yment or adjustment which can b'el'recos_rvcVte:d o"rsi.'certified under R.2 is only a paymentjyvhich listVmade.:in.:a_V_niVanVne'r provided under R.1 or or adjustment is admitted by the decree'holderj-i,n"the--i.C'o-urt" or in his reply to the notice given unde_rdlsub?r_ule' R.1 of 0.21. Sub~rule (1) of declarei____pHayment or adjustment has not been ' certifiCed*or«recorded as contemplated by the said rule shall ho.t*--.bev'reap-gifrisled by any Court executing the decree. 'g1h2':. Article 125 of the Limitation Act provides a peri'od of 30 days for applying to the Court for recording adjustment or satisfaction of the decree-\;rom the date of /' w,» 13 payment or adjustment. There is no provision for extending the said period. Since by virtue of sub~ruIe (3) of R.2 of 0.21 cieciares that payment or adjustmeJntV_i»'tiii:ri.i.ch has not been certified or recorded as contemp_|.atediw»'.b',r__th.e_"' _ said Ruie shall not be recognized Jbyany _Co'u-r1t'_Vve$<'ecLi,tino ''= 'V the decree. Any payment or adj'»!,IStifi'ie.l;it Ai'i0ti.'cert"ified recorded in accordance with*R'.«--2V of is i1'0"p,jayme.nt adjustment in iaw.
13. Indisputedly', "'i1_;;\,.'~.\,Icci';::i.0 fldafte,d'»» 10.07.2007 was filed by the .Vpetiti_0ne'rVV'borne';3Q.'«i'0._,_2(§07{.,'ttwherein it was statedV'i't'hat,,. hari'de'd..,o*-Jerthe'"i<eys of the premises to the de.cre.e ' to the petitioner, C.Ba|a_krish"n.a "/0wd'ecr~.e>e"~~--hoIder, issued a receipt/consent ggiiving upV"a~!--i---«"'cIaims towards mesne profits and arrrT_ears'--v.or',,'re.,n't'-'and as such, nothing remains to be paid tow'ards_the._d:ecreta| amount. As a resuit the execution is fuily ~satisfied and hence, it was prayed to record full "«i:V'_satis:_faction. Decree holders have filed detailed objection statement dated 13.12.2007. \Q /3 A 14
14. Upon consideration, the execution court has held that, any adjustment or satisfaction of the"-ld'ecr'-ete entered into between the parties to the proceedings, should be reported_to..thejcourt.[with,i4n33'0 days from the date of alleged having been filed on 30.10.200'?...after"ab0u_t00?/2":rn"onths, is-it barred by limitation. _i\io dou,btV,.:"it_a'i~s'o rec0~rd,ed,.f§that, the document produced and cannot be looked into. l%i0w'eve'r,':'r'uthe orders on I.A.No.13, :_.ti1§'e_ rsplecifically observed that, account of the bar of limitatlfln.-.' .
.15. it0"Abccort]-i._nQ~.to'the petitioner, the receipt/consent ~"'.,...,|ett:e'}< was.__issue'd"b--y«r'C.Balakrishna on 15.04.2007. The V7,'effi'dav'it,;"in"i.support of I.A.No.10 is dated 10.07.2007. Fiowever,.'i.i§....iSio.10 was filed only on 30.10.2007. In view X_of Article;_ 1025 of the Limitation Act, 1963, the application A to have been filed within 30 days. I.A.No.10 having not been filed within time, the exec§:ng court is barred / I 15 under Order 21 Rule 2(3) of CPC from recognizing the aiieged adjustment/satisfaction of the decree.
16. The trial court has noticed the down in catena of decisions and has rightiyy_,a'iriy'eci"
conclusion that I.A.No.10 is barred Sri Harish contends that, the questiori of gV|.ivri+..i'tati'on'i'3 mixed question of fact and there'~i3eii1g dispute with regard to dates supra'; no enquiry in the matter is cailed for. 'i
17. In ifhé'ji;:i~¢.3se"1iofiRAJAybPA'-"v3--;ww'iKRISHNAPPA AND soNsygA'I:~;..1974':*i;ARiNAiAKA_""5"1j and K.C.PILLAPPA vs. M.MUNV"I'.yR'E.DE)YV(fiit'I:i2_:_1v£§VSi9..:iYi-YSORE 155), it has been held that, _payment"aHe'ged-.{y"rhade by the judgment debtor not ""*«.._'ha'Jii:i9;'gggbeen reco'r*ded and certified in accordance with cannot be recognised by the executing 'x__made beyond 30 days of payment. \9 Ciouuirti because; the application alleging such payment was / I u 16
18. The admitted fact is that, I.A.No.10 was--fiied beyond 30 days from the date of the waiver/adjustment. Hence the trial court "
option than to dismiss I.A.No.1O irrview thetéartwtunideig it Order 21 Rule 2(3) of cpc. In ""t.he5.A.A_circuirhsta.nvces',i.:"the1._ impugned order is neither irrationai n'or._ iiiegai for '' any interference in the superytisoryijuri-»sdictioni.» In the result, the of merit and shailstand it it it it The against each other from 1980. has"5'éVén filed in 2006.
More than elapsed. In the circumstances, th"e~ eixecution rt is directed to expedite fufrtheréproicee-dinivgys aniditfispose of the execution petition as There shVa.ii'n~.otV; be any order as to costs. Sd/-3 Iudge