- (1.) This revision petition arises out of an order passed by the executing Court, whereby Objections of the judgment-debtor filed under Section 47 of the Code of Civil Procedure were accepted and in consequence thereof, execution application was dismissed.
(2.) In brief, the facts are that a decree for possession in respect of 87 kanals 17 marlas was passed in favour of one Davinder Kumar and against four persons namely Ratti Ram, Lakhi Ram, Chhota Ram and Chandan. Against that decree, an appeal was filed before the District Judge, where the matter was compromised. As per the compromise, decree was passed for the land measuring 28 kanals 9 marlas instead of 87 kanals 17 marlas. The order in the appeal, on the basis of compromise, was passed on 9.1.1973. On 29.7.1976, the decree-holder filed an execution application against Chandan, who then in response to the notice filed Objections. His main objection was that he was required to pay Rs. 12,000/- to the decree-holder, which he paid in instalments. He further stated that the decree-holder being a litigant minded person never issued any receipt in token of receipt of the amount. The decree-holder denied the averments made in the objection petition. On the pleadings of the parties, the executing Court framed the following issues :- (1) Whether the decree has been satisfied as alleged in the objection petition ? O.P. Petitioner (2) Whether a copy of the decree-sheet was not attached with the execution; If so, what is its effect ? (3) Relief. An additional issue was also framed on 16.4.1981, which is : ''1-(a) Whether the execution is not maintainable on the ground that all the J.Ds. have not been made parties.'' In support of their contentions, the decree-holder as well as the judgment- debtor examined some witnesses. On the appreciation of evidence brought on record, the trial Court found that the decree-holder after the decision of the appeal, compromised the matter with the judgment-debtor, and in that compromise, the judgment-debtor paid the amount of his share and, therefore, decree with regard to that share stands satisfied. The executing Court also found that the decree-holder sought to execute the decree only with respect to share of Chandan judgment-debtor on the plea that the other judgment-debtors have satisfied their part of the decree. In view of this finding, objection petition was accepted and consequently, execution application was ordered to be dismissed. It is this order which is being challenged by the decree-holder in the present revision petition.
(3.) Mr. S. C. Sibal, Sr. Advocate, appearing for the petitioner, contended that the executing Court was not justified in accepting the oral testimony of the witnesses with regard to payment of the amount. According to him, under sub-rule (3) of Rule 2 of Order 21 of the Code of Civil Procedure, the payment which has not been certified or recorded as provided under sub-rule (2-A), cannot be recognised by any Court executing the decree. He also referred to the statement of the witnesses to show that the payment was not made by the judgment-debtor.;