RANCHHOD MATHURDAS Vs. KANCHANLAL CHUNILAL

JUDGEMENT

(1.) THIS appeal arises out of execution proceedings. On March 10, 1939, one Hiralal obtained a preliminary mortgage decree against the appellant Ranchhod and another, and the decree was made final on October 28, 1942, for the recovery of Rs. 5,250 and costs by sale of the mortgaged property. Subsequently the decree was assigned by the decree-holder Hiralal to respondent No. 1, Kanchanlal, by a registered sale-deed, dated August 20, 1942. Kanchanlal then presented this darkhast to recover Rs. 6,674 due under the decree by the sale of the mortgaged property in the hands of the appellant. The appellant resisted the darkhast on the ground that the assignee was not entitled to execute the decree as he was only a benamidar for him. The appellant alleged that he had got the decree adjusted; with the original decree-holder Hiralal for Rs. 5,000, that as he had no money to pay the amount in cash to Hiralal, he requested respondent No. 1, who is his wife's cousin, to advance Rs. 5,000 as a loan to him at four and a half per cent. per annum as interest and that respondent No. 1 paid the amount to the decree-holder and by way of security got the decree assigned to himself for that amount. It was then agreed that the decree should be treated as satisfied as soon as the appellant paid him Rs. 5,000 with interest and the expenses incurred in the execution of the assignment deed, amounting to Rs. 100, within a period of two years. He, therefore, contended that respondent No. 1 had no right to execute the decree, but the executing Court disallowed that contention on the ground that it was barred under Order XXI, Rule 2(3), of the Code of Civil Procedure, since the alleged adjustment of August 20, 1942, lad not been certified to the Court within three months. The sale of the mortgaged property was, therefore, ordered and the appellant has appealed against that order.

(2.) THE executing Court has not considered the appellant's contention on its merits and has recorded no finding whether there was any adjustment as alleged by him and whether respondent No. 1 had obtained the assignment of the decree for the appellant himself by way of security for the amount advanced by him for payment to the original decree-holder Hiralal. Frima facie respondent No. 1 is the assignee of the decree and as such he is entitled to execute the decree under Order XXI, Rule 16, of the Code of Civil Procedure. In Raghunath Govind v. Gangaram Yesu(1923) I. L. R. 47 Bom. 643: S. C. 25 Bom. L. R. 474 it was held by a division bench of this Court that when an application is made to the Court which passed the decree by a transferee or an assignee of the decree from the original decree-holder under Order XXI, Rule 16, the application is made to the Court as a Court which passed the decree, and not as a Court which is executing the decree, so that in such proceedings it is open to the judgment-debtor to plead an uncertified payment or adjustment. But this decision has now been overruled by a full bench in Krishna Govind v. Moolchemd Keshavchand (1941) 43 Bom. L. R. 751 F. B. and by the Privy Council in Bhavani Shankar Joshi v. Gordhandas Jamnadas (1943) L. R. 70 I. A. 50: S. C. 46 Bom. L. R. 228. It is now well settled that the Court hearing the application of an assignee of a decree under Order XXI, Rule 16, is an executing Court and is bound, in virtue of Order XXI, Rule 2(3), not to recognise payment or adjustment which has not been certified to the Court as required by Order XXI, Rule 2(1) and Rule 2(2). THE lower Court is, therefore, right in refusing to allow the appellant to plead or prove that the decree was adjusted and was fully satisfied by payment of Rs. 5,000 to the original decree-holder.

(3.) WE respectfully agree with this view, which has been endorsed by the Privy Council in Bhavani Shankar Joshi v. Gordhandas Jamnadas. It follows, therefore, that although under Order XXI, Rule 2(3), the appellant cannot be permitted to prove that there was an adjustment of the decree and that he had satisfied it by paying Rs. 5,000 to the original decree-holder, by reason of his failure to certify the adjustment and satisfaction to the Court, yet on an application by the transferee of the decree to execute the decree under Order XXI, Rule 16, it is open to the appellant to plead and prove that the transferee is a benamidar for him and cannot, therefore, execute the decree against him. The assignment of the decree virtually to the judgment-debtor, though nominally in the name of the benamidar, has the effect of merging the decree-holder and the judgment-debtor and rendering the decree incapable of execution against the judgment-debtor. If the appellant succeeds in proving this contention of his, then respondent No. 1 cannot execute the decree against him, though he may seek his remedy to recover from him Rs. 5,000 admittedly advanced by him, together with interest, etc. The lower Court has not considered this aspect of the case and has not allowed the appellant to prove that respondent No. 1 is his benamidar and, therefore, not entitled to execute the decree against him.