RAM CHAND GUPTA Vs. WAZIR CHAND

JUDGEMENT

(1.) THIS execution first appeal has arisen in the following circumstances; Wazir chand decree-holder obtained a decree on 9th of July, 1951, against Ram Chand judgment-debtor for the recovery of a sum of Rs. 10,500/ -. He was also awarded costs which were assessed at Rs. 1,221/2/ -. This decree was obtained on the basis of a claim which one Prabh Dayal had against the judgment-debtor and which was purchased by Wazir Chand for a sum of Rs. 6,000/ -. The case for the judgment-debtor is that after this decree had been passed against him, he contemplated filing an appeal at Simla. But Mr. Ved Vyas, an advocate of Chamba, who is a relation of Ram Chand, being his brother-in-law, and who was also related and intimately known to Wazir Chand decree-holder being the legal adviser of a firm in which Wazir Chand was a partner, tried to persuade Wazir Chand to arrive at a settlement and on 7th of October, 1951 the parties met at Amritsar. There, a settlement is said to have been arrived at by which the decree-holder agreed to accept Rs. 9,500/- in full and final settlement of his decree and out of that Rs. 3,000/- were admittedly paid on that very day. The balance of the amount of Rs. 6,500/- was to be paid as follows:it is a common case of the parties that the first instalment of Rs. 1,000/-was paid in time while the balance of the amount was paid as follows:all these payments were accepted apparently without any demur though there was a provision in the agreement that in case there was a default in payment of any installment, the decree-holder will be entitled to execute and recover the entire balance of the decretal amount. It is further clear from the record that no further payment was made by the judgment-debtor after August, 1953. The decree-holder filed an execution application at Amritsar on 1st of July, 1954. No notice was issued in that application and the same was allowed to be dismissed in default on 7th of August, 1954. The next application was filed on 6th of August, 1956 and the same was also dismissed in default on 24th of August, 1957. Some time later the decree-holder put in another application and got the decree transferred to Kanpur court where some assets, being bank accounts, of the judgment-debtor (who works as a chartered Accountant there) were attached. An objection was taken on behalf of the judgment-debtor in that Court that by virtue of a compromise, the decree was to stand discharged on payment of Rs. 9,500/- and that the entire amount having been paid, nothing was due. This application was however, dismissed on 25th of May, 1957, on the short ground that in view of sub-rule (3)of Rule 3 of Order 21 or the Code of Civil Procedure, the adjustment of the decree, which in this case, had not been certified could not be taken into consideration by the transferee Court.

(2.) ON 12th of October, 1957, the application, out of which the present appeal has arisen, was filed on behalf of the judgment-debtor in the Court of the Senior subordinate Judge which had granted the decree (thereinafter referred to as the parent Court) alleging once again the settlement aforesaid and the fact that the decree had been entirely satisfied. This application purported to be under order 21, Rule 2 of the Civil Procedure Code and S. 151 of the Code, and the prayer made was that after issue of a notice to the decree-holder, the satisfaction of the decree may be certified in view of the compromise and the payment our of Court. In this application details were given to the effect that the compromise was brought about through the intervention of Mr. Ved Vyas advocate, who was a common relation and friend, and that the terms of the settlement were reduced to writing and deposited with one Bhagwan Dass Mahajan, who was an attesting witness. Wazir Chand decree-holder in his reply on 25th of November, 1957 raised two preliminary objections. First that in view of the fact that a similar application under Order 21, Rule 2, filed in the Court of the Civil Judge, Kanpur, had been dismissed on 25th of May, 1957, the matter was res judicata and that the present application did not lie, and, consequently, the parent Court had no jurisdiction to deal with this matter because execution had been transferred to the transferee. Court and was still pending there. On merits it was denied that there had been a compromise as alleged or any compromise whatever, and that the payments received by the decree-holder were towards the decree and not by virtue of any compromise or settlement. He also denied the authenticity or the correctness of a receipt, which has been produced by the judgment-debtor, in which the decree-holder is purported to have acknowledged the payment of the last Rs. 1,000/-and had stated that the was in full and final settlement of the decree. As a result of these pleadings, the executing Court framed the following three issues: (1) Whether the decree has been wholly adjusted as alleged? (2) Whether the present objections are barred by res judicata? (3)Whether this Court has no jurisdiction? before taking up these issues, the learned trial Court suo motu took up the question of limitation. He held that though by virtue S. 36 of the Punjab Relief of indebtedness Act, sub-rule (3) of Rule 2 of order 21 has been omitted, yet the present application being on under Order 21, Rule 2 for certification of the adjustment outside the Court, the same should have been brought within ninety days of the adjustment as provided under Article 174 of the Limitation Act. He, however, went into the other issues and held that there was a compromise as alleged and that the payments had been made in pursuance of the settlement. Yet he held that there was no waiver by the decree-holder and that the defaults were made in the payment of the instalments on due dates and, consequently, the decree cannot be said to have been adjusted. Issue No. 2 was also held against the judgment-debtor. But on issue No. 3 it was held that the Court had jurisdiction to go into the question. In view of this, the application was dismissed but the parties were left to bear their own costs.

(3.) THIS appeal raises a number of points and the counsel for the parties argued each one of them at great length. Before the executing Court as well as here it was vehemently urged that the parent Court at Amritsar had no jurisdiction to deal with the matter because the transferee Court had not yet sent to that Court the certificate with regard to the satisfaction or otherwise of the execution sent to that court. The Court below, however, held that the parent Court retained powers to deal with the matter arising out of execution. This finding was challenged on behalf of the respondent decree-holder. The reliance for this was placed on behalf of the respondent on the wording of S. 38 of the Code of Civil Procedure which runs as follows: "a decree may be executed either by the Court which passed it, or by the Court to which it is sent for execution".