PANDURANG BALKRISHNA GOLVANKAR Vs. JAGYA BHAU BHAGAT

JUDGEMENT

(1.) A decree was passed in Civil Suit No. 84 of 1906 by which it was ordered that the defendant should give to the plaintiffs sweet paddy Khandis 121/2 in the lump (maunds 245 or Rs. 490-0-0 as its price at the rate of Its. 2 per maund) by instalments commencing in 1907. The decree further directed that in case any two instalments were not paid, the whole decree should be executed at once. The decree-holder filed an application for execution on the 10th September 1917 alleging that the nine instalments from 1907 to 1915 had been paid to him regularly in January of each year as they fell due, and that as two instalments of 1916 and 1917 had not been paid, he asked that the whole decree should be executed. The judgment-debtor denied having made any payments at all, and as none of the alleged payments of the nine instalments had been certified to and recorded by the Court, the question arose whether the Court executing the decree could take notice of the alleged payments.

(2.) Both Courts have dismissed the plaintiffs application. In the first place a question of limitation arises, whether there is any time fixed for an application to certify a payment made by a decree-holder, as is required by Order XXI, Rule 2. That point arose in Tukaram v. Babaji (1895)) I.L.R. 21 Bom. (sic). Under Section 258 of the Civil Procedure Code of 1882, unless such a payment or adjustment had been certified as aforesaid, it would not be recognised as a payment or adjustment of the decree by any Court executing the decree. In Order XXI, Rule 2, Clause (H) the words art; a payment or adjustment, which has not been certified or recorded as aforesaid, shall not be recognizer, by any Court executing the decree."

(3.) Under the old Code this Court has decided that as there was no time fixed within which the decree-holder is bound to certify a payment s made out of Court, such, payment could be certified at any time: see Tukaram v. Babaji.