BUDDHU LAL Vs. RAJA PERTABGIR

JUDGEMENT

(1.) This appeal on behalf of the decree-holder arises out of the execution proceeding started by him. The decree-holder filed a suit against the respondent-judgment debtor for a sum of Rs. 3319-11-0 on 18th Mehar 1350 Fasli. The respondent, through his written statement dated 22nd Aban 1351 Fasli admitted the claim of the decree-holder to the extent of Rs. 2031-0-2 only and requested the Court to give him six months time to pay that amount. The respondent did not pay that amount. Subsequently, on 15th Dai, 1353 F. when the case came up for hearing before the trial Court, the appellants lawyer and the appellant himself, who was present in Court, requested the Court to grant a decree against the respondent to the extent of the amount already admitted by him under Order XII, Rule 6 (1), C. P. C. with interest from the date of the suit till realisation. Accordingly, the trial Court on 15th Dai, 1353 F. granted a decree to the extent of Rs. 2031-0-2 with interest till payment, at the rate of 6 per cent per annum and with that order terminated the suit proceedings. The appellant preferred an appeal and contended that whereas his suit was for the recovery of a sum of Rs. 3319-11-0, the trial Court only decreed the suit to the extent of Rs. 2031-0-2 and did not give any direction or proceed further with the rest of his claim which was still in dispute. This defect was conceded by the learned counsel for the respondent in the appellate court. Accordingly, on 1st Farwardi, 1353 F. the appeal was allowed and the case was remanded with the direction, that the trial Court should proceed with the rest of the claim of the appellant. After remand on 26th Khurdad 1353 F. the trial Court passed another decree in favour of tile appellant on the admission of the respondent for the balance of the claim.

(2.) It may at this stage be stated that before the aforesaid order of the appellate Court, the appellant had already filed an execution petition on 8th Bahman 1353 F. for Rs. 2031-0-2 i.e., the amount decreed on 15th Dai, 1353 F. On this petition, attachment was ordered. However, as the appellant did not deposit the necessary costs, this E. P. was dismissed for non-prosecution. Subsequently, the appellant filed another E. P. on 14th Khurdad 1356F. In column 3 of the E. P., the date of the decree is shown as 26th, Khurdad 1353 F. Column 5 shows that on 18th Thir. 1355 F. the judgment-debtor (respondent) paid Rs. 1250.00out of court. In column 6 it is stated that this was the first E. P. Column 7 mentions the amount of the decree recoverable as Rs. 3319-11-0 and in column 10, the decree-holder requested the Court to order execution to the extent of Rs. 2199-1-3 after deducting Rs. 1250.00 shown in column

(3.) Notice was ordered On this petition to the judgment-debtor, who appeared and filed his reply on 18th Shehrewar, 1358 F. admitting the payment of Rs. 1250.00 but stating that this amount was paid to the decree-holder towards the second decree, namely the decree passed on 26th Khurdad, 1353 Fasli. A further plea was taken that the E. P. was barred by limitation. The appellant in his rejoinder denied that the payment was made towards the second decree and stated that it was made towards the first decree. Ten days after the second execution petition i.e. 24th Khurdad, 1355 F. the appellant filed a petition for amendment of the decree stating that on the admission of a part of the claim by the respondent a decree was first passed to the extent of Rs. 2031-0-2 by the trial Court; on appeal the case was remanded and the respondent admitted the whole claim of the appellant, namely, Rs. 3319-11-0, therefore the original decree should be amended accordingly. This petition was dismissed for default. Subsequently, on 28th Sherrewar, 1356 F. another petition was filed by the appellant with the same request. Notice was issued to the respondent-judgment-debtor who appeared and objected to the proposed amendment. The executing Court rejected this petition holding that there were two separate decrees and the decree-holder should file two separate execution petitions. 3. As stated earlier, two objections were raised with regard to the E. P. of 14th Khurdad, 1356 F. The first related to the payment and the other to limitation. In so far as the first point is concerned, the executing Court held that when the decree-holder himself had not stated in the execution petition that the amount was paid towards the first decree, the very fact that he attached the copy of the decree of 26th Khurdad, 1353, is sufficient to come to the conclusion that the payment was towards the second decree. The contention of the learned counsel for the appellant is that the executing Court was not justified in coming to that conclusion without taking evidence on the disputed point. We do not agree with the contention of the learned counsel. In the execution petition, the appellant simply stated that Rs. 1250.00 were received out of court. The respondent (judgment-debtor) while admitting the payment of Rs. 1250.00 stated that he had paid that amount towards the second decree and raised the question of limitation as regards the first decree. The appellant for the first time in his rejoinder came with the plea that this amount was paid towards the first decree. The record does not disclose that he ever offered to lead evidence. On the other hand, it would appear that he was prepared only to argue on merits. Both the Courts, relying on the entry in column 5 of the execution petition dated 14th Khurdad, 1356 F., the copy of the decree of 26th Khurdad, 1353 F. attached to it, and also the fact that since he had on an earlier occasion applied for the amendment of the decree and that on 28th Aban, 1356 F. that point was decided against him in appeal and had become final, found that the appellant could not now, say that the amount of Rs. 1250.00 was paid towards the second decree. We do not find anything wrong in this conclusion. The appellant did not press this point not did he ask the Court to allow him to produce evidence in this regard; on the other hand, he merely requested for time for arguments thereby implying, that he had no evidence to lead. Besides the appellant did not object to the Decision of the trial Court in the first appeal on the ground that no opportunity was given to lead evidence, but only when he came in second appeal he has raised this-plea. The Courts below having regard to the conduct of the appellant and the other circumstances were right in coming to that conclusion It is significant to note that this point was not pressed even at the time of the reference. This is a belated attempt and an after-thought. Consequently, it has no merits.