Dev Singh vs Subhash Chandra

S. Samvatsar, J.

Heard.

This revision is tiled by the judgment-debtor against the order dated 4-4-2003 passed by the Executing Court whereby the Court below has rejected his objection as to the executability of the decree.

The brief facts of the ease are that a decree, for recovery of Rs. 11,000/- is passed in favour of the respondent decree-holder. The decretal amount is to be paid as per the terras of the decree in two instalments. As the said installments are not paid the decree-holder filed execution proceedings. In the said execution proceedings an objection was raised by the judgment-debtor stating that, lie has already paid the amount to the decree-holder, hence the decree cannot be executed. The Court below rejected the objection relying on the provisions of Order 21, Rule 2 sub-clause (3) of the CPC by Stating that since the payment is not certified in accordance with the provisions of Order 21, Rules 1 and 2 CPC the same cannot be recognised.

Learned counsel for the applicant has submitted that the view taken by the Executing Court is without jurisdiction. For this purpose he relied upon a judgment of Apex Court in the case of M.P. Shreevastava Vs. Mrs. Veena, and on a Division Bench decision of this Court in the case of Bherulal Vs. Ramautar, In both these cases it was held that the judgment-debtor can oppose the decree by saying that he has already satisfied the decree without certification. The scope of Order 21, Rule 2, CPC and objection u/s 47, CPC are quite different and objections without certification of the execution of the decree can be gone into by the Executing Court. In both these cases to decree was passed prior to the amendment in the CPC and the decree put into execution prior to the amendment in the CPC in the year 1976 which has come into force from 1-2-1977. By the said amendment sub-clause (3) is incorporated under Order 21, Rule 2, CPC which provides that a payment or adjustment which has not been certified or recorded as provided by Rules 1 and 2 shall not be recognised by any Court executing the decrees. Thus, this proviso is introduced which creates a bar against executing Court to recognize any payment which is not certificated as provided by Rules 1 and 2, CPC in the light of the said proviso, the decisions referred by the learned counsel for the petitioner, have no application in the present case.

In the present case the decree is passed after aforesaid amendment in the CPC hence I do not find any jurisdictional error in the impugned order. The revision is, therefore, dismissed with no orders .as to costs.