RADHAKISSEN CHAMRIA Vs. DURGA PROSAD CHAMRIA

JUDGEMENT

(1.) THE question for decision in this appeal is whether the holder of al certificate under the Bengal Public Demands Recovery Act (Bengal Act III of 1913) who has attached a decree passed in favour of his judgment-debtor and has applied under Section 19 of the Act for its execution, is competent, as the representative of the holder of the attached decree, to adjust such decree with the judgment-debtors thereof for a sum smaller than the amount of the decree. THE statutory provisions requiring construction in this appeal are contained in Order XXI, Rules 2 and 53, of the Code of Civil Procedure (Act V of 1908), and the said Section 19 of the said Act.

(2.) ORDER XXI, Rule 2, is in these terms: (1) Where any money payable under a decree of any kind is paid out of Court, or the decree is otherwise adjusted in whole or in part to the satisfaction of the decree-holder, the decree-holder shall certify such payment or adjustment to the Court whose duty it is to execute the decree, and the Court shall record the same accordingly. (2) 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-holder to show cause, on a day to be fixed by the Court, why such payment or adjustment should not be recorded as certified; and if, after service of such notice, the decree-holder fails to show cause why the payment 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 recorded as aforesaid, shall not be recognised by any Court executing the decree.

(3.) APPELLANTS 1 and 2 are brothers and respondent 1 (hereinafter called " the respondent") is their step-brother. Appellant 3 is the mother of appellants 1 and2.