K CPILLAPPA Vs. MMUNIREDDY

JUDGEMENT

(1.) The petitioner obtained a decree against the respondent in O. S. No. 150/52-53 on the file of the lower Court. The respondent claiming that he has paid the decree amount in full, filed Misc. Case No. 249 of 1955 under Order XXI Rule 2 of the Code of Civil Procedure for entering up satisfaction of the decree. This application was opposed as having been filed beyond the period of limitation prescribed therefore under Article 174 of the first schedule of the Limitation Act. In view of this opposition the respondent did not press that application. Subsequently he filed the present application. Mis. Case 356/1955, out of which this revision arises.

(2.) This subsequent application purports to be one made under Sections 47 and 151 of the Code of Civil Procedure and the prayers are to enter full satisfaction of the decree in O. S. 150/52-53 and to convert the application into a suit. The lower Court taking the view that Section 47 of the Code permits a proceeding under that section to be converted into a suit, subject only to any objection as to limitation or jurisdiction, has allowed the respondent's request and treated the Mis. Case as a suit. Regarding jurisdiction, the lower court observes that the question whether the suit must continue in the lower court or he sent to some other court will be determined after the proceeding is treated is a suit. The revision petition is directed against this order of the lower court converting the Mis. Case into an original suit.

(3.) There can be no doubt that the order of the lower court is manifestly wrong and that the respondent has entirely misconceived his remedy. The argument on behalf of the respondent is that when a judgment debtor who has satisfied the decree out of court discovers that the decree-holder has not certified the satisfaction to the court as required by Order XXI Rule 2 (1) after the period of 90 days prescribed by Article 174 of the Limitation Act he, the judgment-debtor, can apply to the Court under the provisions of Section 47 and that for such an application, he would have the benefit of the longer period of limitation prescribed under Article 151 of the Limitation Act. Having made such an application, the argument proceeds, he can ask the executing Court to convert the application into a suit because as an executing court it is prohibited by Sub-rule (3) of Rule 2 of Order XXI from recognizing the uncertified payment. This argument is based on a series of fallacies. In the First place an application by a judgment-debtor under Sub-rule (2) of Rule 2 of Order XXI undoubtedly raises the Question of satisfaction of the decree which has got to be determined as between the judgment-debtor and the decree-holder; this would ho a matter for determination by the executing Court under Section 47 of the Code; thus it is clear that such an application would come within the ambit of Section 47, whether it is filed before or after the expiry of 90 days from the date of satisfaction. When a period of limitation is expressly provided for such an application under Article 174 of the Limitation Act, there is no scope for invoking Article 181 which applies solely to an application for which no period of limitation is provided elsewhere in the schedule of the Limitation Act. It is not open, therefore, to a judgment-debtor to get over the period of limitation prescribed by Article 174 of the Limitation Act by simply omitting to cite Order XXI Rule 2 (2) at the head of his application. Secondly once it is conceded, as it has to be, that the question raised by the application is one relating to satisfaction of a decree, Section 47(1) expressly requires that it shall be determined by the executing Court and not by a separate suit. When, therefore, an executing Court finds that it is prevented from recognising an uncertified satisfaction of the decree by reason of Order XXI Rule 2 (3), all that it can do is to refuse to recognize the satisfaction and dismiss the application. If, however, it converts the application into a suit, it is really permitting the applicant (judgment-debtor) to agitate by way of suit a question as to satisfaction of a decree which in terms of Section 47(1) could only be determined by the executing Court on application made to it by any of the parties to the decree or their representatives. In other words, it is permitting the judgment-debtor to do something which Section 47 expressly prohibits him from doing. In effect the executing Court is not converting an application into a suit, but converting itself into an original court or a trial court, which is certainly not what Sub-section (2) of Section 47 permits. That sub-section is intended only to prevent inconvenience and injustice caused by bona fide mistakes as to the nature of the remedy originally chosen, when such mistake is discovered at a late stage in the proceedings or in appellate or other superior courts. It is not intended to save trouble to careless litigants, who choose the wrong remedy and their mistake is discovered or pointed out sufficiently early. It is certainly not intended to help a litigant to evade express provisions of the Statutes of limitation and procedure, as obviously the respondent herein, intended to do.