A PEDHANNA CHETTIER Vs. MOOLCHAND

JUDGEMENT

(1.) THIS is an appeal by the decree-holder in an execution case against the defendant judgment-debtor who has got a private settlement certified by the executing Court. The facts are all common ground and the only ground on which the decree-holder has come is that the prayer for certification having been made late it should be ignored and he should be permitted to levy the decretal amount over again, possibly leaving it to the judgment-debtor to pay a second time and then to recover it from the decree-holder by a separate suit.

(2.) THE facts of the case necessary for our purpose are the following: One Pedhanna Chettier of Coimbatore in the Tamilnad State obtained an ex-parte decree against the present respondents Mulchand and others a joint family doing business at Indore. THE decretal amount on the face of it was Rs. 5,750 but as will presently appear it was later on reduced by agreement between the parties to Rs. 2,801. THE decree was transferred for execution to Indore. It turned out that the decree holder of Coimbatore had an attorney at Indore working for him and looking after his interests. That attorney entered into an agreement with the judgment-debtors on 6-7-1965. THE competency of this attorney to enter into such an agreement was questioned by the decree- holder ; but the executing Court has for sufficient reasons held that the attorney was competent; in fact the terms of the agreement were subsequently accepted by the principal. Thus there is no doubt that this agreement was binding on him. THE main lines of the agreement were; First, reduction, subject to one condition to be set out presently, of the claim to Rs. 2,801; second, that the judgment-debtors should pay the decree-holder Rs. 1,000 before 23-12-1966 on failure of which the agreement would stand cancelled ; third, after that date the balance of Rs. 1,800 to be paid in monthly instalments of Rs. 50 and thus liquidated in course of three years; fourth, in the event of four successive defaults in the payment of instalments the entire outstanding amount, that is the amount outstanding out of Rs. 2,801 would become leviable in lump. Now this is a payment or adjustment in terms of Order 21, rule 2, Civil Procedure Code and has in the eyes of law to be certified. Actually the party initially responsible for certifying is the decree-holder; but where the decree- holder out of negligence or with any ulterior purpose fails to do so the judgment-debtor may also take action. This is clear from the wording of the two sub rules:

(3.) THE judgment-debtor's answer is that starting point for limitation of 30 days is not the date of compromise, that is, 6-7-1965 but the last date for the first payment of Rs. 1,000. In fact the agreement itself mentions-