BALAKRISHNAMMA Vs. NANDESAM

JUDGEMENT

(1.) The appellant filed a petition under Order 21 Rule 2 and Sec. 151 of the Code of Civil Procedure to record full satisfaction of the decree in O. S. 42/36 on the file of the District Munsif, Sompet, and report part satisfaction of the decree in O. S. 13/1929 on the file of Sub Court, Berhampur. The 1st respondent herein obtained a decree in O. S. 42 of 1936 against the 2nd respondent on the 21st of September 1936. This was transferred to the Sub Court, Srikakulam, for execution. Prior to this decree, the 2nd respondent herein and another obtained a decree against the present appellant in O. S. 13 of 1929 on the file of Sub Court, Berhampur. The decree-holders here had their decree transferred to the Sub Court, Stikakulam. It was alleged for the appellant that the 1st respondent in execution of his decree attached the interest of the 2nd respondent in the decree in O. S. 13 of 1929, obtained against the appellant, and the latter paid a sum of Rs. 2,908-8-0 to the 1st respondent on 25-1-1951 out of court. It is to certify this payment that the petition out of which this appeal arises was filed.

(2.) This application was opposed by the 2nd respondent on two grounds: (1) that it was not open to the attaching decree-holder to certify a payment received out of court; and (2) that the 1st respondent could not attach the decree in his favour as the decree was barred on the relevant date.

(3.) The trial court while holding that the attaching decree-holder was entitled to execute the attached decree-until it got barred under Sec. 48 C. P. C. dismissed the petition on the ground that it was not competent for an attaching decree holder to receive payment out of court and therefore any payment made outside the court could not have the effect of giving a discharge to the judgment-debtor under the attached decree. In support of the conclusion on the 2nd question, the lower court relied on a judgment of Justice Wads worth in Ahmed Ibrahim Rowther v. Allapichai Routher.