SHYAMLAL JAGNANI Vs. SUNDER SINGH

JUDGEMENT

(1.) This is a miscellaneous appeal by the decree-holder. On 11-2-1965, he got a money decree for Rs. 10,991/- and put the same in execution in Execution Case No. 29 of 1968. First Appeal No. 125 of 1965 was filed by the defendant but the same was dismiss sed for default and attempts for its restoration also failed. On 21-1-1969, the respondent judgment-debtor filed a petition in the executing court stating that in September, 1968, on account of the intervention of certain persons, the decree-holder agreed to accept a total sum of Rs. 5,500/- in full satisfaction of the entire decretal dues including costs and interest in instalments and a prayer was made for recording this adjustment between the parties by the court. On notice being issued to the decree-holder, he took the objection for recording the adjustment in question, inter alia, on the ground of limitation. The decree-holder had also challenged the correctness of the case of adjustment of the decree as alleged by the judgment-debtor, and the court below has accepted the case of the judgment-debtor that there was an agreement between the parties to accept a sum of Rs. 5,500/- only, as alleged by the judgment-debtor, towards the entire decretal dues and having accepted the case of the judgment-debtor, has allowed the prayer for instalment and fixed an yearly instalment of Rs. 1,375/-.

(2.) Mr. J.C. Sinha, learned counsel appearing for the appellants, has challenged the correctness of the order only on one question, namely, that the executing court committed an error of law in recording the alleged adjustment of the decree after the period of limitation. This contention of the learned counsel is of much substance and must prevail for the following reasons.

(3.) Order 21, Rule 2 of the Code of Civil Procedure prescribes a special procedure for recording any payment made under a decree or certifying any adjustment in whole or in part. The decree-holder himself may inform the Court to the above effect and for him there is no period of limitation. Such steps can also be taken by a judgment-debtor and he may apply to the Court jfor recording such payment or adjustment. In the case of an intimation by the decree-holder, the certification need not be after any notice to the judgment-debtor and the Court automatically records the information which is a mere ministerial act However, if the judgment-debtor has not been given prior notice of the same, it may be open to him to raise a dispute regarding its accuracy and the matter can be decided Jby the Court concerned. In the case of such an intimation by the judgment-debtor, the Court is bound to issue a notice to the decree-holder before recording the information to show cause as to why such payment or adjustment should not be recorded as certified. This does not remain a mere ministerial act, as in the case of an information by the decree-holder, but becomes a regular judicial proceeding, and a Court has to adjudicate on this question. For filing such an application on the part of ttie judgment-debtor, the Limitation Act prescribes a time limit Under the old Limitation Act, Article 174 allowed a period of 90 days from the date of the alleged payment or adjustment, whereas under the new Limitation Act. Article 125 allows only 30 days time to him. Admittedly, according to the case of the judgment-debtor himself, the alleged adjustment in question was made beyond the period prescribed under either of the Articles of the Limitation Act and, therefore, the question of limitation for certifying the adjustment in question was very much rele- vant for consideration of the executing Court.