HIRAMONY BISWAS Vs. MUSA KHAN

JUDGEMENT

(1.) We are invited in these appeals to consider the legality of order3 made by the Court below in concurrence with the Court of first instance, granting an application by a judgment-debtor to record an adjustment alleged to have been made out of Court. The decrees now under execution were made on the basis of a mortgage on the 22 May, 1900 for Rs. 2,284, the order absolute was made on the 6 July 1901, followed by successive application for execution in the course of which several payments were made by the judgment-debtor. On the 15 September, 1906, the decree-holder presented his 4 application for execution. It is alleged by the judgment-debtor that in the course of proceedings on the basis of this application, on the 22nd July, 1907, there was a verbal adjustment between the parties, to the effect that the decree-holder upon receipt of Rs. 1,300 would certify full satisfaction of the decree. It was not till the 31 August 1908, however, that the judgment-debtor applied to the Court of first instance to record the adjustment in question He alleged that Rs. 325 have been paid by him to the decree holder on the basis of the adjustment, and he prayed for a declaration that upon payment of the balance, that is Rs. 975 the decree might be declared to have been satisfied. The decree-holder admitted receipt of the sum of Rs. 325 which in fact had been certified by him to the Court on the 23 December 1907. He repudiated, however, the alleged adjustment and claimed to be entitled to proceed with execution of the decree for recovery of the balance due thereon. He further contended that the application made by the judgment-debtor could be entertained only under Section 258 of the Code of 1882, and that treated as an application under that section, it was obviously barred by limitation under Art. 173A of the Limitation Act of 1877. This contention was overruled in the Court of first instance, and the judgment-debtor was allowed to deposit Rs. 975 in full satisfaction of the decree. Upon appeal the District Judge has affirmed the decision of the Court of first instance.

(2.) In the present appeal, it has been argued on behalf of the decree-holder that the view taken by the Courts below is erroneous, that Section 258 of Code of 1882 is applicable to proceedings in execution of mortgage-decrees, and that treated as an application made under that section, the application of the judgment-debtor to enforce the alleged adjustment is obviously barred by limitation In our opinion this contention is well-founded and must prevail. The Courts below have sought to support their views by reference to the cases of Hatem Ali Khundkar V/s. Abdul Gaffur Khan 8 C.W.N. 102 and Pramatha Chandra Roy V/s. Khetra Mohan Ghose 29 C. 651, in which it was ruled that Section 253 has no application before an order absolute has been made. Bechu V/s. Bichharam 1 Ind. Cas. 677 : 10 C.L.J. 91. This principle, however, is of no assistance to the judgment-debtor in the present case. Before an order absolute has been made, it is the duty of the Court to determine in respect of what sum the decree-holder is entitled to an order absolute. On this footing the Court is bound to consider any allegations of payment by the defendant in the mortgage suit after the date of the decree nisi, and before the date of the application for an order absolute, though the contrary view has sometime been maintained. [Hakim Singh V/s. Ram Singh 30 A. 248 : A.W.N. (1908) 103 : 5 A.L.J. 272]. Different considerations, however, obviously apply when a payment or an adjustment is alleged to have been made subsequent to the order absolute, in answer to an application by a mortgagee decree-holder to bring the mortgage properties to sale. It is contended by the decree-holder that when an adjustment has been made out of Court, it is clear that the execution Court can be invited to determine the question only under Section 258, Civil Procedure Code. This view is in accordance with that taken by this Court in the case of Kamini Debi V/s. Aghore Nath Mukerjee 4 Ind. Cas. 402 : 11 C.L.J. 91, and by a Full Bench of the Madras High Court in Vaidhinadasamy Ayyar V/s. Samasundram Pillai 28 M. 473 : 15 M.L.J. 126. It has been suggested, however, by the learned Vakil for the respondent that apart from Section 258, it is competent to the Court to consider the question of the truth and validity of an alleged adjustment under the provisions of Section 241, Civil Procedure Code, read with Sec. 89 of Transfer of Property Act, and in support of this view reliance has been placed upon the case of Gadadhar Panda V/s. Shyam Chum Naik 12 C.W.N. 485, which is clearly distinguishable. There no question of limitation arose, and it was consequently unnecessary to decide whether the question of alleged payment might be decided by the Court under Section 258 or under Section 244, Civil Procedure Coda, or under Section 89 of the Transfer of Property Act. [Harish Chandra V/s. Jogobandhu 7 C.L.J. 531 : 12 C.W.N. 282 : 3 M.L.T. 202]. In the case before us the question of limitation obviously arose, and we are of opinion that the section which is properly applicable is Section 258 of the Code of 1882, [Monmohan V/s. Dwarka Nath 7 Ind. Cas. 55]. It is obvious that to enable the judgment-debtor to succeed in the present case he must invite the Court to determine the question of adjustment. If the adjustment is not proved and recorded, the decree-holder continues to be entitled to execute the decree for the balance shown to be due upon the face of the record. It is conceded that the decree-holder has certified payment of the sum of Rs. 325 paid to him in July, August, and September, 1907. The sole question in controversy between the parties is, whether by reason of an agreement alleged to have been made between the parties at that time, the judgment- debtor is entitled to be relieved of his liability under the decree upon payment of a smaller sum than what would otherwise be due under the decree. The contention of the judgment- debtor in substance is that the terms of the decree have been subsequently modified by the agreement of the parties, and that although under the decree the mortgage properties are liable to be sold upon his failure to pay the judgment-debt, yet by reason of a subsequent agreement, the decree-holder is bound to accept from the judgment-debtor a much smaller sum in full satisfaction of the decree. This clearly is a question of adjustment covered precisely by Section 258. Treated as an application under that section there is no question that the application is barred by limitation.

(3.) The result, therefore, is that these appeals must be allowed, the orders of the Court below discharged, and the application to record the adjustment dismissed. The decree-holder is entitled to his costs throughout the proceedings. We assess the hearing fee in this Court at one gold mohur in each case.