PITCHAKKUTTIYA PILLAI Vs. DORAISWAMI MOOPPANAR

JUDGEMENT

(1.) This case arises out of an execution petition. The appellants, who were the plaintiffs, obtained a money decree against the respondents in 1919. The 1st plaintiff for himself and as guardian of his minor brothers, plaintiffs 2 and 3, put in an execution petition on 1 September, 1919, to recover the money. The 1st defendant was arrested and brought to Court under a warrant. On the warrant the appellant's vakil endorsed on 4 September, 1919, " Judgment-debtor may be released. Decree fully satisfied." The executing Court however then refused to record satisfaction on the ground that two of the applicants in the execution petition were minors. Neither party took any further steps to have the satisfaction of the decree recorded. On 22nd January, 1920 the 1 plaintiff for himself and as guardian of minor plaintiffs 2 and 3 again applied for execution. The judgment- debtor pleaded that the decree had already been fully satisfied. The executing Court originally proceeded on the question of law only and held that the payment endorsed on the warrant, even if true, was not a payment in law since under Order 32, Rule 6, Civil Procedure Code, the 1 plaintiff was not entitled to receive any money towards the decree on behalf of minors unless and until he had obtained leave of the Court. On appeal the appellate Court called for a finding whether the judgment-debtors had actually paid up as certified on the warrant by the plaintiffs vakil, and, if that payment had been made to the 1 plaintiff, whether he received it as manager of the joint family or not. On this the original Court found that the payment had been made to the 1 plaintiff in his capacity as manager, and these findings were accepted by the Lower Court. The Subordinate Judge then considered whether the 1 plaintiff could receive the money without leave of the Court under Order 32, Rule 6, Civil Procedure Code, and he held that, as managing member he could, and he therefore dismissed the execution petition on the ground that the decree was already fully satisfied. The plaintiffs now appeal.

(2.) It appears to me that the remand of the case by the lower Appellate Court for a decision whether or not the payment was actually made, Avas unnecessary. There is a certificate on the warrant by the plaintiffs authorised pleader that the decree was fully satisfied. Therefore the payment was certified. It is true that the lower Court refused to record it. but Order 21, Rule 2, Civil Procedure Code, does not say that in order that a payment shall be recognized by the Court executing the decree that payment shall be both certified and recorded. The words used are " certified or recorded." There was nothing therefore to prevent the executing Court from at once recognizing the payment and the decree as fully satisfied, unless Order 32, Rule 6, barred the way, while of course the Court was not bound to recognise the payment if that rule stood in the way. What the executing Court had before it was a certificate by a pleader appearing for all the three plaintiffs that the decree was fully satisfied. The execution petition and the order would also bring to its notice that two of the execution petitioners were minors, represented by the 1 plaintiff as guardian and next friend. In such a case I think the executing Court was bound to conclude prima facie that the payment in full satisfaction would have been made to the 1 plaintiff for himself and on behalf of the minors, and there is nothing to rebut that presumption here. In fact, the concurrent finding of fact on the evidence after remand is to the same effect.

(3.) In such circumstances, had the 1 plaintiff not been manager of the joint family of himself and plaintiffs 2 and 3, there can be no doubt that he would have had to obtain leave of the Court before receiving the money on behalf of the minors under Order 32, Rule 6, Civil Procedure Code. The short question then is, does the fact that he was manager absolve him from the necessity of conforming to this rule ?