CRP/106/2007 of Moram Reddy Shankar Reddy, Vs Annaluru Ramachandra Rao, on 31 December 2010

COMMON ORDER:-

Both Civil Revision Petitions arise out of the order passed inE.P.No.21 of 2002 in O.S No.115 of 2001 on the file of the court of JuniorCivil Judge, Atmakoor.

The suit O.S.No.115 of 2001 was filed for recovery of the amountdue on a pronote and the suit was decreed on 29-01-2002 andthe defendant remained ex parte. Thereafter, the E.P was filed forattachment of the salary and at that stage the Judgment Debtor (JDR)has filed an objection claiming that he paid a sum of Rs.5,000/- on 12-08-2000, Rs.7,000/- on 20-11-2000 and Rs.8,000/- on 08-04-2001, thus atotal sum of Rs.20,000/- towards suit debt and the suit was fraudulentlyfiled and the JDR did not attend the court expecting that the amountswould be given credit. After attachment, he came to know the above factand sought for deduction of the said amount. While the matter is pending,E.A.No.98 of 2003 was filed for receipt of the documents which arereceipts said to have been given by the Decree Holder (DHR) and thedocuments were received and an enquiry was conducted and the learnedJunior Civil Judge ordered that the payments made under the receipts(Exs.R-1 and R-2) shall be given credit and the DHR will be entitled toonly the balance of the amount. Aggrieved by the said order in E.A.No.98of 2003 CRP No.106 of 2007 is filed and against the order in E.P.21 of2002, CRP 1281 of 2007 is filed.

The points that arise for consideration are:-

(1) Whether the discharge set up by the JDR can be acceptedand receipts produced can be taken into consideration?and receipts produced can be taken into consideration?

(2) Whether the order of the lower court suffers from anillegality?illegality?

(3) To what relief?

-POINTS:

Conclusion

was instituted in the year 2001. The JDR did not contest the suit. Thepayments claimed under EXs.R-1 and R-2 are dated 08-04-2001 underEx.R-1 and 12-08-2000 and dated 20-11-2000 under Ex.R-2. Evidently,all the payments claimed by the revision petitioner under the abovereceipts are prior to the filing of suit. It is not a case where JDR is notaware of the suit. He has received the summons and remained ex partefrom the own counter filed by him. His claim that plaintiff promised thatthe amounts will be given credit does not inspire confidence. Evidently,the present contest of discharge should have been raised in the originalsuit before the court. When a party did not appear and choose to contestthe suit on principles of res judicata, no subsequent plea can be allowedin the same proceedings. In this connection, it is useful to refer to adecision reported in Jai Narain Vs. Kedar Nath([[1]])Therefore, the lowercourt believing on Exs.R-1 and R-2 and giving credit of these amounts isnot valid and the court in execution cannot go beyond the decree andgive credit to the payments even under Section.47 CPC. In thisconnection, it is useful to refer to a decision reported in Chetty Vs. Pillai& Co. ([[2]]). If at all the grievance of the JDR about the payments are notgiven credit is true, he should have agitated before the court by filing anapplication to set aside the ex parte decree. As matter stands the courtcannot go beyond the decree and consider the payments. Further more,the question of payment after the decree does not arise since if any suchpayment is made, it should be certified as contemplated under OrderXXI, Rule 2 CPC. Therefore, leaving apart from the truthfulness orotherwise of the claim of the JDR, it is clear that the scope of relief isbeyond the competency of the court and the learned Junior Civil Judgeerred and even invoking the principles under Section 47 CPC, thejurisdiction of the court to go beyond the decree is barred. Therefore, theorder of the lower court impugned in CRP No.1281 of 2007 is set aside.The lower court cannot give credit to the payments and the DHR isentitled for the entire amount sofar as the order in E.P.No.21 of 2002 isconcerned as per decree ignoring payments prior to decree. More over,the lower court has given an opportunity to the JDR to produce somedocuments and they have no relevancy in view of the overruling of the objections in the main E.P.

Accordingly, CRP 1281 of 2007 is allowed and CRP No.106 of 2007

is dismissed. No order as to costs.

_______________________

N.R.L.NAGESWARA RAO,J

31-12-2010Lr Copy to be marked: Yes

TSNR

[1]AIR 1956 SC 359[2]AIR 1972 MAD 107