ELLIS ENAS PAVLOO GHARRY Vs. KITTER PHILIP GOWRYA

JUDGEMENT

(1.) This is an application for execution of a decree which directed that the suit property should be partitioned amongst the sharers. The defendants alleged that the plaintiff had compromised on the 22 September, 1919, and in pursuance of the compromise they had paid plaintiff Rs. 4,600, while Rs. 400 were yet to be paid in full satisfaction of the plaintiff's claim. It is admitted that the compromise was not recorded, therefore the plaintiff says that the Court executing the decree in the absence of any certificate cannot recognise the adjustment. The Subordinate Judge decided in favour of the plaintiff and directed that the papers should be sent to the Commissioner and the Collector for the partition of the property

(2.) It has bean argued that Order XXI, Rull 2 only applies to decrees for money. The words are where any money payable under a decree of any kind is paid out of Court, or the decree is otherwise adjusted." These words do not seem to me to confine the provisions of the rule to money decrees. Clearly any decree is provided for. A decree may provide for the payment of money or for any kind of relief other than the payment of money. But if either money paid or the decree is otherwise adjusted, then the payment or adjustment must be certified. That is the duty of the person in whose favour the payment is made or the adjustment is arrived at. If that person does not perform his duty, then the opponent may inform the Court of such payment or adjustment, and apply to the Court to issue a notice to the decree-holder to show cause why such payment or adjustment should not be recorded as certified, and the period of limitation for that application is thirty days under Art. 174 of the Indian Limitation Act. But, as was decided in Pandurany V/s. Jagya, (1920) 22 Bom. L.R. 1120 there is no limitation for the decree-holder who can certify a payment or adjustment up to the time that he applies for execution. But the principle of the rule is that the Court executing the decree shall not be troubled with any disputes between parties with regard to any payment or adjustment unless the same has been duly recorded and certified. Otherwise in execution proceedings there would be endless disputes as to how far execution should proceed. In this case it is alleged that the plaintiff has received a certain sum of money in satisfaction of the share which she would otherwise get in partition. She denies having received the money. Her allegation seems to be that the other sharers have sold some of the property, and did not allow her a share in it. Whatever the real truth may be, those questions cannot be dealt with by the Court executing the decree. If there is case of fraud, then the party defrauded will have his right of action. As far as I can see the provisions of Order XXI, Rull 2 would be entirely defeated if we once permitted an uncertified adjustment of a decree to be discussed in execution proceedings. In my opinion the decision of the lower Court was right and the appeal must be dismissed with costs.

(3.) If the plaint properties or any of them have been sold so that the partition proceedings can no longer go on, then the Court in charge of the execution proceedings will have to decide what is the proper course to follow, whether to direct that the parties entitled to partition should get the sale proceeds brought into Court and divide them, which would of course be the simplest way of settling the matter, or to relegate the parties to separate suits. However, we are not concerned with this question at present. All that we are concerned with in that the Court executing the decree must proceed with the execution. Shah, J.