B MURARI LAL Vs. SRAGHUBIR SARAN

JUDGEMENT

(1.) This is an appeal by the assignee of a decree against the order passed by the Court below holding that the decree which he had purchased has been satisfied by the judgment-debtors. The facts which have given rise to this appeal put briefly are as follows : There was a partition suit fought between Sahu RaghubirSaran and others and Raja Ram and others. On 28 February 1929, the dispute between the parties was compromised, one of the stipulations being that Sahu Raghubir Saran and others would pay a sum of Rs. 5,000 to Raja Ram, Raj Kishan and Bhagwati Sarup decree-holders. It would appear that after the passing of this decree, Bhagwati Sarup separated from the other two decree-holders who were allotted the decree in question under which Sahu Raghubir Saran and others were to pay a sum of Rs. 5,000. On 23 June 1931, Raja Ram and Raj Kishan executed a deed of assignment under which they assigned the rights in the entire decree to Murari Lai, appellant. In the deed of assignment it was stated that a sum of Rs. 700 had been realized and the balance was still due on account of the aforesaid decree. On 4 February 1932, Murari Lai made an application containing two prayers. He informed the Court that he had purchased the decree and asked that his name should be substituted in place of the names of the original decree- holders. The other prayer was that he should be allowed to recover the amount due on the decree which according to him was a sum of Rs. 4,300 on account of principal and Rs. 731 on account of interest. Sahu Raghubir Saran and others, the judgment-debtors, resisted this application on the plea that the entire amount due under this decree had been paid by them to the original decree-holders and therefore nothing was due. One of the payments is said to have been made on 28 February 1929 in cash. As regards the other payment of Rs. 1,700 we do not know the date. It is agreed between the parties that these alleged payments were not certified as they should have been under Rule 2, Order 21, Civil P.C. The learned Subordinate Judge held that the payments were proved by the judgment- debtors and that it was open to them to prove the payment which had not been certified. He therefore dismissed the application of the appellant on the ground that the decree had been satisfied. The present ap-paal has been preferred by the appellant against that order. Rule 2, Order 21, relates to the payments made towards the satisfaction of decreas, Sub-clause (1), Rule 2, Order 21, says that where any money payable under a decree of any kind is paid out of Court, or the decree is otherwise adjusted in whole or in part to the satisfaction of the decree-holder, tha decree-holder shall certify such payment or adjustment to the Court whose duty it is to execute the decree, and the Court shall record the same accordingly.

(2.) This is applicable to the case in which the decree-holder makes an application certifying that a payment has been made to him towards the satisfaction of a decree. In such a case there is no question of limitation. It is open to the decree, holder to make an application admitting the receipt of the amount at any time he likes. Clause (2) of this rule says that the judgment debtor also may inform the Court of sucti payment or adjustment, and apply to the Court to issue a notice to the decree- holder to show causa, 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. Clause (3) says that a payment or adjustment, which has not been certified or recorded as aforesaid,shall not be recognized by any Court executing the decree.

(3.) Art. 174, Schedule 2, Lim. Act, prescribes the period within which the judgment-debtor should make his application in respect of the payment alleged to have been made towards the satisfaction of the decree. Such an application has to be made within a period of 90 days. If this is not done, no Court executing the de. cree will recognize the payments said to have been made. Of course, it is open to the judgment-debtor, if his application for recognizing the payment has been dismissed, to sue the decree-holder and to recover the amount which he may have paid. But so far as the Court executing the decree is concerned, he will not be allowed to prove that he had made a payment, if the application to that effect is not made within a period of 90 days. The learned Counsel for the appellant has argued before ua that as in the present case the judgment-debtor did nob make an application asking the Court to certify the payments alleged to have been made within 90 days, the Court below was wrong in going into the question as to whether or not the payments had been made. It appears to us that this contention is correct and must therefore prevail. The other side has relied ona ruling : Baghunath Govind V/s. Gangaram Yesu A.I.R. 1923 Bom. 404. This ruling is based on the view taken by the Madras High Court in two rulings reported in, Ponnusami Nadar V/s. Letchmanan Chettiar (1912) 35 Mad. 659 and B. Bamayya V/s. N. Krishna Murti A.I.R. 1917 Mad. 590. Rule 16, Order 21 enacts that where a decree has been transferred, the transferee may apply for execution of the decree to the Court which passed it or the decree may be executed in the manner and subject to the same conditions, as if the application were, made by such decree-holder.