' This appeal is directed against the order dated 7-11-1992 passed by the Executing Court through which the application made by the appellants under Order XXI, Rule 2, C.P.C. Has been rejected.
2. The suit against the appellants for recovery of an ascertained amount was admittedly filed in the year 1976. In this suit this Court through judgment dated 28-5-1988, passed decree in favour of the respondent for the recovery of an amount of Rs,9,97,672,30 as principal amount with interest. The appellants filed appeal before the Supreme Court which was decided on 12-1-1991. According to the impugned order he filed three successive applications seeking review of the judgment of the Supreme Court, as a consequence of which decretal amount was reduced to Rs,7,47,672.30. After such a protracted litigation when the respondent filed an application for execution of decree the appellants came up with an application under Order 21, rule 2, C.P.C. Alleging that the decree had been adjusted through an agreement which was appended with the application according to which a post-dated cheque for an amount of Rs,2,00,000 had been issued in favour of the respondent/decree-holder. Which was encashable on 30-11-1992. An amount of Rs,5,00,000 was alleged to have been paid in cash and further amount of Rs,47,000 was paid through cheque which amount stood credited to the account of the respondent. According to the appellants the respondent was satisfied with the principal amount of Rs,7,47,672.30 and had waived his right to recover any amount on account of interest.
3. The respondent when issued notice and appeared in response thereof categorically denied the adjustment of decree as alleged, receipt of amount of Rs,5,00,000 in cash or a cheque for the amount of Rs,47,000.00 and waiver of right of interest. The learned Executing Court after considering the facts and circumstances of this case came to the conclusion that the application moved by the respondent was not bona fides as the Court was not persuaded to accept the plea that any payment had been made to the respondent, as such, rejected the said application through order, dated 7-11-1992.
4. Under Order 21, Rule 2, C.P.C. It is primarily the decree-holder who is to certify any payment or adjustment of decree to the Court whose duty it is to execute the same whereupon the Court is required to record the same. Under sub-rule (2) of Rule 2 of Order 21 the information regarding payment or adjustment of decree could be laid before the Court by the judgment-debtor also and the Court after issuing show-cause notice to the decree-holder is to proceed to record such payment/adjustment certifying it only in case the decree-holder had failed to show cause against it. The decree-holder in this case appeared in response to a notice issued by the Executing Court and opposed the recording of such adjustment and payment as certified. In my opinion in such a case where the decree-holder denied the payment of any amount under decree or adjustment, and the Court comes to the conclusion from the attending circumstances that the application made by the judgment- debtor was not bona fide or that no payment or adjustment made, could dismiss the application without elaborate inquiry and recording of evidence. The expression used in sub-rule (2) of Rule 2 of Order 21 is that the judgment-debtor may also inform the Court which means the information which was to be made by the decree-holder under sub-rule (1) could also be made by the judgment-debtor from which it follows by implication that this rule is applicable where the judgment-debtor admits the payment of any amount under decree or adjustment of the decree in any other manner otherwise the Court cannot record the alleged adjustment and payment as certified.
5. It has been noticed by the learned Executing Court that in the execution proceedings the decree-holder had made application that the amount of decree should be paid in Court or paid to him through a pay order deposited in the Court. From this the learned Executing Court was right in raising an inference that the decree-holder would not have in the circumstances of this case after fighting the case upto the Supreme Court accepted only the principal amount and waived his right to recover further amount on account of interest granted to him.
6. Learned counsel for the appellants argued that the amount of Rs,47,000 which was paid through cheque has been credited to the account of the respondent which was proof of the fact that the said adjustment had not only been accepted but acted upon. Learned counsel for the respondent who has appeared in response to a notice issued by the appellant under Order 43, C.P.C. Before filing this appeal being appeal against an interim order submitted that after the appellants had requested the Court for recording the adjustment in which he stated that the said amount stood credited to the account of the respondent, the respondent enquired from the Bank from which it transpired that the decree-holder (sic. Should be Judgment-Debtor) himself filled the pay in slip with which a bearer cheque was attached and the said amount was credited to the account of the respondent without any notice to him or knowledge. This was done according to him by the appellants in order to create evidence to make out a false case of adjustment. On coming to know of this the, respondent immediately informed the Bank that the said amount should be returned to the person who deposited it, as such, there was no question of acceptance of the said deposit.
7. The learned Executing Court also compared the admitted signatures of the respondent on the agreement allegedly executed by the respondent and found that they were not tallying with each other.
8. I am also not persuaded to agree with the learned counsel for, the appellants that the respondent had adjusted the decree in the manner as alleged after undergoing agony of protracted litigation and that he would have accepted the principal amount alone waiving his right regarding interest which is much in excess of the principal amount. The respondent alleged the payment of an amount of Rs,5,00,000 in cash and another payment of Rs,2,00,000 through post- dated cheque. It is clear that in order to deprive the respondent of the fruits of the decree he concocted this story. The appellants knew that the execution proceedings are pending before the Court and if they had to make payment of huge amount of Rs,5,00,000 as alleged, in cash, I am at loss to understand as to what prevented them from asking the respondent to appear before the Executing Court and receive the payment of the said amount before the Court as also the post- dated cheque and the other payment of Rs,47,000 which was allegedly made through a cheque deposited in the account of the respondent which would have been a safer course and would have been adopted by a person who was in fact intending to make payment. If the matter had in fact been settled with the respondent, as alleged, the appellants as men of ordinary prudence would have acted in this manner.
9. The order passed by the learned Executing Court impugned in this appeal suffers from no illegality. The appeal has no force which is accordingly dismissed in limine.