R M A R A R M ARUNACHALA CHETTIAR, BR AGENT SUBRAMANIAM CHETTIAR,ATTACHING CREDITOR Vs. PANCHALI PADAYACHI

JUDGEMENT

(1.) The petition was filed under Section 115, Civil Procedure Code. This is a mistake. I have allowed it to be amended into a revision petition under Section 25 of the Provincial Small Cause Courts Act.

(2.) Under Order XXI, Rule 2(3) of the Civil Procedure Code a payment or adjustment which has not been certified or recorded shall not be recognised by any Court executing the decree. It is admitted in this case that the satisfaction of the decree in April 1917, as now pleaded by the respondent, was neither certified to, nor recorded by, the Court of the Subordinate Judge of Mayavaram which passed the decree. But it is said that both the original decree-holder and the judgment-debtor intimated to the District Munsif of Tiruvalur in reply to the notice issued by him by way of attaching the Mayavaram decree, that the decree was satisfied. Obviously, this does not satisfy the requirements of Order XXI, Rule 2 and ought not to have been considered by the Subordinate Judge. The respondent relies on Rama Ayyan V/s. Sreenivasa Pattar (5), Trimback Ramkrishna V/s. Hari Laxman (6), Subbia Pillai V/s. Alliar Rowthar 2 Ind. CAs. 523 : 5 M.L.T. 72, Ponnusami Nadar V/s. Letchmanan Chettiar 12 Ind. Cas. 637 : 35 M. 559 : 22 M.L.J. 170 : 10 M.L.T.442 : (1911) 2 M.W.N. 568, Lodd Govinda Doss V/s. Rajah of Karvetnagar 30 Ind. Cas. 357 : 29 M.L.J. 219, Nagu Reddiar V/s. Veerappa Mudaliar 61 Ind. Cas. 815 : 13 L.W. 34, The first case has been dissented from by Abdur Rahim, J., in Ponnusami Nadar V/s. Letchmanan Chettiar 12 Ind. Cas. 637 : 35 M. 559 : 22 M.L.J. 170 : 10 M.L.T. 442 : (1911) 2 M.W.N. 563 whose view is against the respondent's contention. The other learned Judge in Punnusami Nadar V/s. Letchmanan Chettiar 12 Ind. Cas. 637 : 35 M. 559 : 22 M.L.J. 170 : 10 M.L.T.442 : (1911) 2 M.W.N. 563 Sundara Aiyar, J., held that the arrangement in that case could be pleaded not as an adjustment or satisfaction of the decree but merely to show that the assignment of the decree was a sham. The decision in Budrudeen V/s. Gulam. Mohideen 12 Ind. Cas. 562 : 36 M. 357 : 10 M.L.T. 393 (1911) 2 M.W.N. 473 : 24 M.L.J. 541 shows that the views of Sundara Aiyar, J., are equally inconsistent with Rama Ayyan V/s. Sreenivasa Pattar (5). The decision in Trimback Ramkrishna V/s. Hari Laxman (6), so far as Heaton, J., is concerned, was disapproved in Budrudeen V/s. Gulam Mohideen 12 Ind. Cas. 562 : 36 M. 357 : 10 M.L.T. 393 (1911) 2 M.W.N. 473 : 24 M.L.J. 541. In Lodd Govinda Doss V/s. Rajah of Karvetnagar 30 Ind. Cas. 357 : 29 M.L.J. 219 the learned Judges held that the decree-holder did, in fact, intimate to the Court an adjustment but the Court had to enquire into the extent of the adjustment. In Subbia Pillai V/s. Alliar Rowther 2 Ind. CAs. 523 : 5 M.L.T. 72 there was a record of satisfaction before the attachment of the decree, In Nagu Reddiar V/s. Veerappa Mudaliar 61 Ind. Cas. 815 : 13 L.W. 34 there was an application for recording satisfaction by the judgment-debtor in time to, the Court which passed the decree though after the application for attachment but before actual attachment. In the case before me there was no application by the respondent to the Court of the Subordinate Judge of Mayavaram until the present counter petition (8 March 1920), three years after the actual attachment.

(3.) The cases in Mathar Dravia Sahaya Ela Nidhi Co. V/s. Subramania Pillai 40 Ind. Cas. 889 : 5 L.W. 641, Anantha Rama Aiyar V/s. Kumaraswami Pandaram 54 Ind. Cas. 922 10 L.W. 179, Krishna Aiyar V/s. Savurimuthu Pillai 50 Ind. Cas. 584 : 42 M. 338 : 36 M.L.J. 376 : 9 L.W. 448 : (1919) M.W.N. 248 show that the decision in Budrudeen V/s. Gulam Mohideen 12 Ind. Cas. 562 : 36 M. 357 : 10 M.L.T. 393 (1911) 2 M.W.N. 473 : 24 M.L.J. 541 is good law. That Order XXI, Rule 2 equally applies to a plea by way of defence is shown by Budrudeen V/s. Gulam Mohideen 12 Ind. Cas. 562 : 36 M. 357 : 10 M.L.T. 393 (1911) 2 M.W.N. 473 : 24 M.L.J. 541. The cases relied on by the respondent Sri Kishan Lal V/s. Kashmiro 34 Ind. Cas. 37 : 31 M.L.J. 362 : 20 C.W.N. 957 : (1916) 1 M.W.N. 433 : 3 L.W. 523 : 14 A.L.J. 1236 (P.C.), Deodhari v. Dayanand 35 Ind. Cas. 610, do not bear on Order XXI, Rule 2 of the Civil Procedure Code. I, therefore, reverse the order of the Subordinate Judge holding the alleged satisfaction cannot be recognised and direct that the execution petition of the petitioner be taken up and disposed of according to law.