AWADH NARAIN THAKUR Vs. BINDESHWARI THAKUR

JUDGEMENT

(1.) This is an application by the decree holder, at whose instance Execution Case No. 17 of 1963 was started in the Court of the Special Execution Mun-aif, Muzaffarpur. Opposite party No. 1, Bindeshwari Thakur, was one of the judgment debtors and he filed an application in the executing court on the 4th (c)f February, 1964 stating that he paid a sum of Rs. 375 to the decree holder on the 17th of December, 1963 and that an adjustment to the extent of that amount should be made. It may be stated that no notiee of this application, was served on the decree holder. What happened was that a copy of the application by the judgment debtor was served on the lawyer for the decree holder. The court thereafter started a miscellaneous case, being Miscellaneous Case No. 27 of 1964, and it was adjourned from the 4th of February, 1964 to the 8th of February, 1964, when certain defects were ordered to be removed and also for statement of address. On the 21st of February, 1964 statement of address was filed and other defects were also removed. Then, it was ordered that the case should be put up on the 6th of March, 1964 for disposal. On the 6th of March the judgment debtor filed hazri, but the decree holder did not appear, and the court ordered that the miscellaneous case should be put up for final hearing on the 11th of March, 1964. On the 11th of March also the case was not taken up, and it was ordered to be put up on the 23rd of March, 1964. On that date Bindeshwari Thakur, Judgment debtor was examined as A. W. 1 and Gouri Shanker Sahi as A. W. 2, and order was passed on the 24th March, 1964 allowing the miscellaneous case, holding that the amount of Rs. 375 was in fact paid by the judgment debtor to the decree holder. The court proceeded ex parte on the ground that although copy of the application was served on the lawyer for the decree holder no step was taken on his behalf.

(2.) " Mr. Baidyanath Jha appearing in support of the petition challenging the correctness of the order passed by the learned Special Execution Munsif has raised a number of questions. The main point, however, on which reliance has been placed by Mr. Jha is that in terms of Order 21, Rule 2, of the Code of Civil Procedure it was the mandatory duty of the court to issue a notice to the decree holder fixing the date of hearing of the miscellaneous case, calling upon him to show cause why the payment alleged to have been made by the judgment debtor would not be certified under Order 21, Rule 2 of the Code. Only when such a date would be fixed and notice of it would be served on the decree holder would it be within the jurisdiction of the court to proceed to hear it in presence of the parties. Mr. Jha has urged that once Order 21, Rule 2, in terms, refers to notice being issued to the decree holder, mere service of notice on the lawyer, even assuming that notice wag served on the lawyer for the petitioner could not be held to be sufficient compliance with the requirement of Rule 2, Order 21. He has drawn my attention to certain observation in the judgment of the Calcutta High Court in Ligraj v. Mahadeb Ram, AIR 1918 Cal 62. In that case, no doubt, the facts were different, out it has been observed that there may be an application by the judgment debtor. Where he makes such an application for entering up satisfaction in whole or in part, it should contain a prayer for issue of notice to the decree-holder to show cause why the adjustment should not be recorded as certified. In fact, Order 21, Rule 2 itself, in terms, provides that, and, therefore, no authority is necessary for supporting the contention of Mr. Jha that the judgment-debtor should "apply to the Court to issue a notice to the decree-holder to show cause, on a day to be fixed by the Court, why such payment or adjustment should not be recorded as certified; and if, after service of such notice, the decree-holder fails to show cause why the payment or adjustment should not be recorded as certified, the Court shall record the same accordingly."

(3.) Mr. Ray has, however, urged that whatever view may be taken by this Court in regard to the merits of the matter and, even assuming that the Court was not right in proceeding with the miscellaneous case without notifying to the decree holder the date of hearing, the remedy, however of the decree-holder would be by way of an appeal against the order passed by the learned Execution Munsif and not to make an application under Section 151 of the Code of Civil Procedure. Learned Counsel for the parties have been at pains to support their respective contentions as to whether such an order would be covered by Section 47 and as such appealable, as was held by a Division Bench of this Court in Jadunandan Singh v. Sheonandan Prasad Singh, ILR 1 Pat 644 = (AIR 1922 Pat 276), or it would be an order under Order 21, Rule 2 of the Code, plain and simple, and no provision being made for an appeal from that order under Order 43, Rule 1, such an order with regard to adjustment will not be appealable. The point is of some nicety as to whether where the judgment-debtor pleads complete adjustment of the decree and as such disposal of the execution case, it would be one covered by Section 47, but other payments of partial nature would be covered only by Order 21, Rule 2, and as such not appealable. Since, in the circumstances of the present case, the application may be disposed of on other considerations, it seems not necessary for me to pursue that point.