SITA RAM Vs. CHANDRA BALI

JUDGEMENT

(1.) This is an Execution Second Appeal by the judgment debtor who filed an objection under Section 47, C. P. C. in the proceedings for execution of money decree against him. The decree was for Rs. 1023/- and was passed on compromise in suit No. 270 of 1961. Chandra Bali and Shri Knshan the two brothers were the decree-holders. When the decree was put into execution by Chandra Bali the objection under Section 47, C. P. C. was filed by the decree-holders on the 11th December, 1965. Accord ing to the objection the decree was for Rs. 850/- and it was made payable in instalments, that the sum of Rs. 300/- was paid to the decree holders on the 20th December, 1962 Rs. 125/- on the 15th May, 1963 and lastly Rs. 425/- on the 4th April 1964, and the decree stood satisfied in full. After notice of the objection the counsel for Chandra Bali decree-holder who had moved the execution application stated that he did not appear for the second decree-holder Shri Krishan and that the execution application may nut be treated to have been filed on behalf of Shri Krishan. In the course of the evidence that was led on the objection, Shri Krishan appeared in person and supported the judgment-debtor objector's case that the decree had been satisfied in full and even proved the receipt dated the 4th April, 1964 which he had granted to the judgment debtor for Rs. 425/- paid to him. According to the statement of Shri Krishan, the two amounts of Rs. 300/-and Rs. 125/- were paid to Chandra Bali. The two Courts below have dismissed the objection on the ground that the payment was not certified as recorded by Rule 2 of Order 21 C. P. C. The said rule as it stood at the relevant time runs as follows; "2. (1) Where any money payable under a decree of any kind is paid out of Court, or the decree is oilier wise adjusted in whole or in part to the satisfaction of the decree-holder, the decree-holder shall certify such payment on adjustment to the Court whose duty it is to execute the decree and the Court shall record the same accordingly. (a) The judgment debtor also may inform the Court of such payment or adjustment and apply to the Court to issue a notice to the decree-bolder to show cause, on a day to be fixed by the Court, why such pay ment or adjustment should not be recorded as certified, and if, after service of such notice, the decree-holder fails to show cause why the pay ment or adjustment should not be recorded as certified, the Court shall record the same accordingly. (3) A payment or adjustment which has not been certified or record ed as aforesaid shall not be recognized by any Court executing the decree. " Article 174 of the First Schedule to the Indian Limitation Act 198 Prescribed a limitation of 90 days from the date when the payment or adjustment is made for the issue of a notice under the Code of Civil Procedure to show cause by any payment made out of Court of any money payable under the decree or any adjustment of the decree should not be recorded as certified. There was no specific period of limitation prescribed for recording the pay ment or adjustment of a decree when it was certified by the decree holder him self under clause (1) of Rule 2 of Order 21. The limitation applied only to an application made by a judgment debtor under clause (2) of Rule 2 of Order 2i. Shri Krishan was undoubtedly one of the decree holders. He appeared before the executing Court on oath that the decree had been satisfied. The Court was under clause (1) of Rule 2 or order 21 C. P. C. bound to record the satis faction of the decree on that statement being made before it. Neither of the two Courts below have recorded a finding that the statement made by Shri Krishan was untrue. The decree appears to have been passed jointly in favour of the two decree-holders who were brothers. Tarn not prepared to believe the statement of Chandra Bali denying the receipt of the payment of Rs. 425/-to him. Apart from the fact that Shri Krishan admitted the discharge of the full amount of the decree, the fact of the payment of Rs. 425/- to Chandra Bali was further proved by Rameshwar Dayal, besides judgment debtor Sita Ram himself. It is not possible to say that one of the decree-holders is not entitled to certify payment or satisfaction of the entire decree, and the payment of the sum of Rs 850/-in full satisfaction of the decree having been acknowledged by Shri Krishan one of the two decree-holders in the case it must be held that the payment and adjustment of the decree was duly certified to the executing Court, and the executing Court was bound to record the same. There was under the circumstances no question of allowing the execution to proceed on the ground that the payment or adjustment of the decree had not been certified or recorded. In the result, the appeal succeeds and is allowed with costs. The appellant s objection under Section 47 of the Code of Civil Procedure is allowed and the execution application filed by Chandra Bali the first decree-holder respon dent is dismissed with costs throughout. .