KANHAIYALAL MANILAL DESAI Vs. YUSUF ALI ALIMOHAMMAD BOHARA

JUDGEMENT

(1.) THIS appeal arises out of execution proceedings. Facts material are that hussainbhai Taherbhai obtained a decree against Usutali who was the principal debtor and also against his surety Hakimuddin in Civil Suit No. 111 of 1945-46 for rs. 1371/-and interest. The decree-holder on his part was indebted to two creditors Saifuddin and Abbasbhai each of whom filed a suit against him. Saifuddin in his suit obtained an order for attachment before judgment in respect of the decree which Hussainbhai Taherbhai had secured in Civil Suit No. Ill of 1945-41. This suit of Saifuddin was decreed for Rs. 345-5. 0. Abbas Bhai also obtained decree for Rs. 601/- after securing attachment of the very same decree in civil suit No. 111 of 1945-46.

(2.) ON 28-8-1953 Hakimuddin the surety in Civil Suit No. 111/1945-46 paid Rs. 601/- to Abbasbhai in discharge of his decretal dues as the decree of Hussainbhai taherbhai against him was under attachment. He secured a receipt of complete satisfaction from him. Ex. D/2 dated 28-8-1953. After about a month later i. e. on 30-9-1953 he paid Rs. 434-5-0 to Saiiuddin and obtained a receipt of complete satisfaction from him too. The appellant Kanhaiyalal claiming to be the assignee of the decree of Hussainbhai Taherbhai under a deed dated 30-6-1953 applied for execution on 6-10-1953 against Yusufali and Hakimuddin. The judgment-debtors contended that they had paid of Rs. 1035/5/- to the attaching decree-holders and consequently they were discharged from all liability. This contention of the judgment-debtors was upheld by the Executing Court and the execution application was dismissed.

(3.) ON appeal it was contended before the appellate Court that the Executing Court could not have recognised payments made outside the court particularly when it was dealing with a proceeding under Order 21, Rule 16 C. P. Code and when these payments were put forward on a notice being issued in that proceeding. These payments it was pointed out were not certified and it was urged that they should not have been recognised. Second contention raised was that the decree outstanding for Rs. 1741/- could not have been satisfied on payment of Rs. 1035/5/ -. The third objection related to inadequacy of stamp and the conduct of the original decree-holder Hussainbhai Taherbhai in demanding payment from the judgment-debtors on 30-7-1953 and the fourth and the last contention was that kanhaiyalal was a scribe of the draft of compromise application dated 14-7-1953 in the suit of Abbasbhai against Hussainbhai Taherbhai and that had the story of assignment dated 30-6-1953 been true he should have retrained from writing the deed of compromise. The assignment consequently was alleged to be fraudulent. The appellate Court held the assignment to be genuine, but according to it since the fact of payments under Ex. D/2 and D/5 was raised on behalf of judgment-debtor Hakimuddin on 2-11-1953 in his reply to the notice under Order 21, Rule 16 there was sufficient prayer for certification and since the dates of payments were 28-8-1953 and 30-9-1953 such prayer for certification was within 90 days as required under Article 174 of the Limitation Act. It was however held that payment of Rupees 1035-5-0 could not bring about satisfaction of the entire decree. Question regarding invalidity of stamp could not have been raised before the appellate Court in view of Section 36. Apart from that there was a finding that the stamps were not improper. On these findings the appeal was partially allowed in respect of the amount which was left in balance in the execution case after entering satisfaction for Rupees 1035-5-0. The execution case was consequently remanded.