# Desh Raj Singh /objector v. Smt. Vandana Chaudhary

- **Citation:** (2006) 1 ILRA 149
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-01-10
- **Case number:** First Appeal No. 23 of 2006
- **Bench:** K.N. Ojha
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/desh-raj-singh-objector-v-smt-vandana-chaudhary-40648
- **Pages:** 5

## Headnote

Code of Civil Procedure Order 23 rule 2
and 3-Execution of Decree-family court
judgment-the judgment Debtor-had to
pay Rs.1,40,000/- judgment debtor an
practicing Advocate in civil Court-taken
plea that entire amount has been paid
out
of
the
Court-neither
any
documentary
evidence
produced-no
Payment made through cheque either in
favor of decree holder or the execution
court-nor such application filed within 30
days-for certification of payment-heldexecution court shall not recognize any
un certified payment.

Held: Para 10

The law has been laid down in the above
cited Sultana Bengums's case by Hon'ble
Apex Court that Order XXI Rule 3 places
a restraint on the exercise of that power
by providing that the executing court
shall not recognize or look into any
uncertified payment of money or any
adjustment of decree. If any such
adjustment or payment is pleaded by the
judgment-debtor before the executing
court the later in view of the legislative
mandate has to ignore it if it has not
been certified or recorded by the court.
Case law discussed:
1988 ALJ 1200
AIR 1997 SC-1006

## Text

1 All] Desh Raj Singh V. Smt. Vandana Chaudhary
149
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.01.2006

BEFORE
THE HON'BLE K.N. OJHA, J.

First Appeal No. 23 of 2006

Desh Raj Singh
...Appellant/objector
Versus
Smt. Vandana Chaudhary ...Respondent

Counsel for the Appellant:
Sri Anil Kumar Sharma

Counsel for the Respondent:
Sri M.K. Gupta

Code of Civil Procedure Order 23 rule 2
and 3-Execution of Decree-family court
judgment-the judgment Debtor-had to
pay Rs.1,40,000/- judgment debtor an
practicing Advocate in civil Court-taken
plea that entire amount has been paid
out
of
the
Court-neither
any
documentary
evidence
produced-no
Payment made through cheque either in
favor of decree holder or the execution
court-nor such application filed within 30
days-for certification of payment-heldexecution court shall not recognize any
un certified payment.

Held: Para 10

The law has been laid down in the above
cited Sultana Bengums's case by Hon'ble
Apex Court that Order XXI Rule 3 places
a restraint on the exercise of that power
by providing that the executing court
shall not recognize or look into any
uncertified payment of money or any
adjustment of decree. If any such
adjustment or payment is pleaded by the
judgment-debtor before the executing
court the later in view of the legislative
mandate has to ignore it if it has not
been certified or recorded by the court.
Case law discussed:
1988 ALJ 1200
AIR 1997 SC-1006

(Delivered by Hon'ble K.N. Ojha, J.)

1. Heard learned counsel for the
parties and have gone through the record.

2. Instant appeal has been preferred
against order dated 16.12.05 passed by
Addl. District Judge, court no.13, Agra
whereby the application 4-C and 12-C
moved by appellant judgment debtor
Desh Raj Singh under Order 21 Rule 55,
58 and 59 CPC was rejected and objection
8-C filed by decree holder Smt. Vandana
Chaudhary was allowed.

3. The fact of the case as disclosed
from the record is that Smt. Vandana
Chaudhary filed suit no.660 of 1991 Smt.
Vandana Chaudhary v. Desh Raj Singh
under section 13 of Hindu Marriage Act
for divorce. It was decided on 31.8.01.
The suit was decreed on the condition that
in case Rs.1,40,000/- is paid to the
appellant by the respondent the marriage
will stand dissolved. According to Desh
Raj Singh Rs.1,40,000/= which includes
Rs.1 Lakh for permanent maintenance and
Rs.40,000/- as valuation of articles
belonging to the respondent-decree holder
was given to her on 9.11.01. Smt.
Vandana Chaudhary executed the receipt
on the same day. But again she moved
application for execution. According to
the appellant this amount was withdrawn
from his Account No. 2664, which was
being maintained in Canara Bank but
Smt. Vandana Chaudhary denied to have
received any such amount and has moved
for
recovery
of
Rs.1,40,000/-
and
therefore the application was moved to
Stay the execution. Prayer was made to
the court below to obtain signature of
Smt. Vandana Chaudhary and send the
150 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
signature alleged to have been executed
on the receipt an specimen signature to
the hand writing expert so that it may be
ascertained as to whether she had really
received Rs.1,40,000/- from the appellant
on 9.11.01. Being rejected instant appeal
has been filed. A copy of the receipt vide
paper No. 32 and 32 A has been filed and
there are three witnesses of the receipt.

4. When the appeal was filed Sri
Pankaj
Agrawal
Advocate
opposed
admission of the appeal and placed
reliance on order 21 Rule 2 and 3 CPC. It
is submitted that if payment of decretal
amount is made outside the court, there is
a mandatory provision that it will be taken
to be really paid if the payment is certified
by the decree holder to the court whose
duty is to execute the decree and the court
shall record the execution or satisfaction
of the decree. It is submitted that since in
this case even though it is said payment of
Rs.1,40,000/- was made on 8.11.01 but
never any application was moved by
judgment debtor that such heavy amount
was paid outside the court. No such
application was moved by judgment
debtor within 30 days and decree holder
uptil now, rather decree holder denies
receipt of such money and therefore
execution of the decree should not be
stayed.

5. The objection alongwith affidavit
was filed by decree holder Smt. Vandana
Chaudhary in court below containing the
fact that decree dated 30.8.01 was passed
by the Principal Judge Family court, Agra
in civil suit No.608 of 1991 Smt. Vandana
Chaudhary v. Desh Raj Singh. On the
basis of compromise the amount of
Rs.1,40,000/- was to be paid within one
month. She waited upto 18th March, 2002
but not even a single penny was paid to
her. Therefore, she moved execution
application no. 6/02 Smt. Vandana
Chaudhary v. Desh Raj Singh in the court
of Principal Judge, Family court, Agra
which was transferred to the District
Judge, Agra. In the court of the District
Judge, Agra it was marked Execution No.
4 of 2004. The execution court passed
order for attachment of the property of the
appellant. Smt. Vandana Chaudhary has
no means of livelihood she was left by
Desh Raj Singh and that is the reason she
filed
application under section 125
Cr.P.C. for maintenance. Desh Raj did not
appear in the case. It was decreed exparte
but only Rs.14,000/- was given tow her
Rs.18,000/- has not been given even till
today. Desh Raj Singh is an Advocate in
civil court, Agra and he got a forged
receipt prepared. It was also deposed in
the affidavit of Smt. Vandana Chaudhary
that there is Account of Family court,
Agra in the branch of State Bank of India,
Nagar Mahapalika, Agra and in such
compromise matter the money is to be
deposited in the court which should have
been deposited in the State Bank of India,
Nagar Mahapalika, Agra branch, Agra.

6. Desh Raj Singh is an Advocate he
had no problem to issue cheque in the
name of the court which would have been
deposited in the State Bank of India and
there would have been documentary
evidence that the money was given to
Smt. Vandana Chaudhary through process
of the court. The learned counsel for the
respondent decree holder submitted that
when he is an Advocate in civil court such
heavy amount could not be given outside
the court merely on receipt when the
parties are contesting the case between
them since last 14 or 15 years and even
the whole amount of maintenance which
was granted under section 125 Cr.P.C. by
1 All] Desh Raj Singh V. Smt. Vandana Chaudhary
151
the court, was not given by the judgmentdebtor. It is submitted for the respondent
that when the relations between the
parties are so tense and they had no faith
on each other, the judgment-debtor is
illiterate person having no knowledge
about the proceeding of the case. If really
he had paid Rs.1,40,000/- he would have
deposited the amount through cheque in
the court with the prayer that it be given
to the decree holder rather than cash
would have been given through receipt. It
is also submitted that mere issue of
cheque was sufficient rather than to
encash it from Bank and then give it to
Smt. Vandana Chaudhary.

7. In 1988 ALJ 1200 Shanti Prasad
Jain v. M/s Badri Prasad Biraj Bhan it
has been held by this Court that under
order 21 Rule 2 the judgment debtor has
been given an opportunity for making an
application showing satisfaction. For
making such an application there is
limitation of 30 days under Article 134 of
Indian Limitation Act 1963. When no
such application was made by the
judgment-debtor for several years, it
cannot be said that the judgment-debtor
had really paid for the satisfaction of the
decree. Besides it the application was
barred by time and it could not be
considered under Order 21 Rule 2 CPC.
The fact of the cited case applies to the
fact of the instant case.

8. In AIR 1997 SC 1006 Sultana
Begum v. Prem Chand Jain it was laid
down by Hon'ble the Apex Court that:-

"Interpreting
the
provisions
of
Section 47 and Order XXI Rule 2 in the
light of the above principles, there does
not appear to be any antithesis between
the two provisions. Section 47 deals with
the power of the court executing the
decree while order XXI, Rule 2 deals with
the procedure which a Court whose duty
it is to execute the decree, has to follow in
a limited class of cases relating to the
discharge or satisfaction of decree either
by payment of money (payable under the
decree) out of Court or adjustment in any
other manner by consensual arrangement.
The general power of deciding questions
relating
to
execution,
discharge
or
satisfaction of decree under section 47
can thus be exercised subject to the
restriction placed by Order XXI, Rule 2
including sub-rule (3) which contain
special provisions regulating payment of
money due under a decree outside the
Court or in any other manner adjusting
the decree. The general provision under
section 47 has, therefore, to yield to that
extent to the special provisions contained
in Order XXI, Rule 2 which have been
enacted to prevent a judgment-debtor
from setting up false, or cooked up pleas
so as to prolong or delay the execution
proceedings. Thus, though it is open to
the parties to adjust or compromise their
rights under the decree but if it amounts
to adjustment of decree, it must be
reported to the Court whose duty it is to
execute the decree so that that Court may
record or certify the same. If it is not
done, the Court before whom the
execution proceedings are initiated will
proceed to execute the decree.

Where in an execution proceedings
of a decree of eviction, the tenant took the
objection
on
the
ground
that
the
possession was already delivered by him
to the power of attorney holder of the
landlord who again permitted him to
continue in possession as a licensee,
however,
such
fact
of
delivery
of
possession was not recorded and certified
as provided by Order 21 Rule 2, order of
152 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
the executing Court in refusing to execute
the decree for eviction of the tenant on the
ground that possession having been
delivered to the landlord's attorney, the
decree, to that extent, stood satisfied, was
erroneous."

9. It was also held in this case that
the judgment-debtor may set up a false
case of compromise if it take place
outside the court or decree is executed
outside the court. It is in order to prevent
such judgment-debtor that Order 21 Rule
2 has been enacted so that is such
compromise or creation of fresh tenancy
has not been recorded, the judgmentdebtor be not encouraged to initiate
another round of litigation under section
47 Cr.P.C.

10. In instant case Smt. Vandana
Chaudhary is contesting case against here
husband judgment-debtor Desh Raj Singh
since the year 1991 when she filed case
under section 125 Cr.P.C. it was decreed
but only part payment was made and part
amount is still to be paid. Thus the parties
have no faith on each other. Their
relations are strained. Such a long
litigation is evidence of the fact that if any
payment is made outside the court, it may
give birth to further litigation. In such
circumstance if any payment is made in
normal course, it will be made through
documentary evidence or through the
process of the court when Desh Raj Singh
is an Advocate he has Account in the
Bank as is evident from the record,
normally he would have issued cheque in
favour of the court or Smt. Vandana
Chaudhary so that it could have been
given to Smt. Vandana Chaudhary.
Therefore considering the facts and
circumstances of this case it cannot be
believed that Rs.1,40,000/= was paid
outside the court and receipt was
obtained. The mandatory provision Order
XXI Rule 2 CPC prohibits the judgmentdebtor to take the plea to payment if the
judgment-debtor fails to move application
in the court concerned that payment was
made to the decree holder even though
payment is said to have been made on
9.11.01 but no application was moved by
the judgment-debtor in the court that he
had paid Rs.1,40,000/- and fact be
recorded by the court when the judgmentdebtor is an Advocate at the same place
there was no hurdle in moving such
application to the court. It shows that such
application was not moved because really
payment was not made that is why when
execution application No. 6/02 was
moved in the family court it was
transferred to the court of District Judge
and process for attachment started. The
objection
was
raised
by
moving
application 4-C and 12-C. The law has
been laid down in the above cited Sultana
Bengums's case by Hon'ble Apex Court
that Order XXI Rule 3 places a restraint
on the exercise of that power by providing
that
the
executing court
shall not
recognize or look into any uncertified
payment of money or any adjustment of
decree. If any such adjustment or payment
is pleaded by the judgment-debtor before
the executing court the later in view of the
legislative mandate has to ignore it if it
has not been certified or recorded by the
court.

In view of above discussion if the
court below has rejected the application of
the appellant there is no illegality in the
order.

Appeal is dismissed as the admission
stage.

Appeal dismissed.
---------
1 All] Devendra Kumar Tiwari V. Union of Indian and others
153
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.01.2006

BEFORE
THE HON'BLE ARUN TANDON, J.

Civil Misc. Writ Petition No. 18371 of 2004

Devendra Kumar Tiwari
...Petitioner
Versus
Union of India and others ...Respondents

Counsel for the Petitioner:
Sri J.P. Singh
Sri Sudhir Solanki

Counsel for the Respondents:
Sri B.N. Singh
Sri K.C. Sinha
Sri N.C. Nishad
S.S.C.

U.P. Intermediate Education Act-1921Section 7 (7)-Date of Birth recorded in
High School certificate-held-conclusive
and final-under the provisions of Section
79 to 81 of the Evidence Act.

Held: Para 11

The High School examination certificate
issued
by
the
Madhyamik
Shiksha
Parishad U.P., Allahabad, records the
date of birth of the petitioner as
13.12.1985. Under the provisions of
Section
7
(7)
of
the
Intermediate
Education
Act,
the
result
of
the
petitioner has been declared in the
official gazette. In view of the aforesaid
facts read with Section 79 to 81 of the
Evidence Act, the High School certificate
produced by the petitioner is to be taken
to be factually correct, unless and until
established by some cogent evidence to
be otherwise. The respondents have
disclosed no material to doubt the
correctness of the date of birth as
mentioned in the High School certificate
nor they could have insisted upon the
petitioner
to
get
himself
medically
examined.
Even
the
report
of
the
Radiology Specialist which is based on
mere presumption drawn from certain
biological
examination
records
the
approximate age of the petitioner as
more than 20 years only. The report even
if accepted did not establish that the
petitioner was beyond the maximum age
limit prescribed. There is hardly any
appreciable difference in the date of
birth as recorded in the High School
certificate viz. a viz. the age presumed
under the report of the Radiology
Specialist.

(Delivered by Hon'ble Arun Tanodn, J.)

1. Heard Shri J.P. Singh on behalf of
the petitioner, Shri N.C. Nishad on behalf
of respondents.

2.

Director
Recruitment,
Recruitment Office Amethi, Sultanpur
published
an
advertisement
inviting
applications for recruitment in Indian
Army selections whereof were scheduled
to take place at Allahabad between
16.1.2004
to
23.1.2004.
Under
the
advertisement, candidates belonging to
the district of Sultanpur, Rae Bareily and
Kaushambi were required to appear at
Allahabad New Cantt. On 19th and 20th of
January, 2004.

3. Petitioner being a permanent
resident
of
Kaushambi
accordingly
appeared for selections at Allahabad for
Soldier (G.D. Category). It is stated that
after physical examination the petitioner
also
participated
in
the
written
examination,
the
petitioner
was
successful. Vide telegram dated 9th
March, 2004 the petitioner was required
to report at the Branch Office at Amethi
with all original documents. In the
original certificates produced by the
petitioner his High School examination