DIN DAYAL Vs. SARNAM SINGH AND OTHERS

JUDGEMENT

(1.) This second appeal aries out of an application made under Sec. 47 of the Code of Civil Procedure. In brief, the facts of the case are that the appellant obtained a preliminary decree for sale on the basis of a mortgage against Sugriv Singh and Lalla on the 10th August, 1938. The decree was made absolute on the 5th February, 1942. In 1943 the decree -holder applied for execution of the decree and on the 6th December, 1943 the judgment debtor Sugriv Singh filed an application under Secs. 8 to 10 of the U.P. Debt Redemption Act for amendment of the decree. On the 7th December, 1943 Sugriv Singh and Mst. Bitola Kuer executed a sale -deed of the mortgaged property in favour of Gulab Singh, who was respondent No. 1 in the appeal, but whose name has now been struck off and his sons have been brought on the record. Under the sale -deed, Gulab Singh was to discharge the decretal amount and a sum of Rs. 540 was left with him for payment of the decree. On the 16th December, 1943 Gulab Singh paid Rs. 536/7 to the decree -holder in full discharge of the decree. The amount was paid in presence of the court. Nearly a month after this satisfaction of the decree, the decree was ordered to be amended under the U.P. Debt Redemption Act by an order dated the 15th January, 1944. The decretal amount having been reduced by Rs. 90, the judgment -debtor got this amount from Gulab Singh and Gulab Singh filed an application under Sec. 47, C.P.C. for an order for the repayment of that amount, against the decree -holder. Two objections were taken to this application. The first objection was that the application was not maintainable under Sec. 47, C.P.C., inasmuch as Gulab Singh's purchase was void, he having failed to obtain permission from the Sub -Divisional Officer for the purchase of this property. The second objection was that Gulab Singh was not legally entitled to recover the amount from the decree -holder.

(2.) The learned Munsif held that the objection was maintainable under Sec. 47, C.P.C. but that Gulab Singh was not entitled to file it, because the sale deed in his favour was void, and he could not be said to be a party to the decree within the meaning of the word as used in Sec. 47, C.P.C. He did not enter into the merits as to whether Gulab Singh was legally entitled to recover this amount from the decree -holder or not. Gulab Singh filed an appeal, which came up for hearing before the Civil Judge of Mainpuri, and the learned Civil Judge held that an application like this raised a question of the discharge or satisfaction of the decree and also that the learned Munsif was wrong in holding that Gulab Singh had no right to make that application. His view was that Gulab Singh had purchased the property and was recognised as the purchaser of the property, and, under all the circumstances of the case, he must be taken to be a legal representative of the judgment -debtor. He thought that the amount had actually been paid by Gulab Singh in the capacity of a judgment -debtor and Gulab Singh could, therefore, file an application for its refund under Sec. 47, C.P.C. On the merits, he was of the opinion that the equities were in favour of Gulab Singh, because the amount of Rs. 90 had been paid in excess of the decree, and the decree -holder must repay this amount to Gulab Singh who had actually made the overpayment.

(3.) In this appeal before me, the learned counsel for the appellant has urged that the provisions of Sec. 9(4) of the U.P. Debt Redemption Act are applicable to the facts of this case and those provisions clearly lay down that the debtor was not entitled to a refund of any sum already paid by him. The contention of the learned counsel is that the decree was amended under the provisions of Secs. 8 and 9 of the U.P. Debt Redemption Act and sub -sec. (4) of Sec. 9, therefore, applies to the case, and the wording of this sub -section is very clear. The difficulty in this case has arisen on account of the fact that the entire decree had been discharged before the order of its amendment was passed. The decree had been discharged on the 16th December, 1943 by payment of the entire decretal amount by Gulab Singh to the decree -holder, and the order of amendment was passed on the 15th January, 1944 reducing the decretal amount by Rs. 90. It is obvious that if any of the parties had brought it to the notice of the court, seized of the amendment application, that the decree had been discharged in full, the court would have refused to amend the decree and, as a matter of law, it was bound to do so, because there would then have been no decree in existence, which could be amended, the decree having been discharged by the payment of the entire decretal amount. Both the parties, however, omitted to bring to the notice of the court this important fact with the result that the decree was amended after it had been paid up in full.