MADAN MOHAN LAL Vs. ASA RAM

JUDGEMENT

(1.) This is an execution second appeal and arises in the following circumstances : The appellant, Madan Mohan Lal, applied as the purchaser of it, for execution of a decree for money which has been passed in favour of Poona Mai against Asa Ram. The transferee made an application for execution under Order 21, Rule 16, Civil P.C. As directed by that rule, a notice was issued to the judgment-debtor to show cause why the decree should not be executed at the instance of Madan Mohan Lal. The judgment-debtor pleaded that he had satisfied the decree by payment out of Court to the decree-holder, Poona Mai, before Poona Mai transferred the decree to Madan Mohan Lal. The Courts below have held that this alleged payment was actually made to Poona Mai and that therefore the decree was satisfied and there was no decree for Poona Mai to transfer to Madan Mohan Lal. In this Court it is contended that the alleged payment of Asa Ram to Poona Mai was never certified or recorded and that therefore it was not open to the Courts below to take cognizance of the alleged payment. It is common ground that when the objection was preferred by Asa Ram, ninety days had expired from the date of the alleged payment. Order 21, Rule 2, Sub-rule (3) lays down that: a payment or adjustment, which his not been certified or recorded as aforesaid, shall not be recognized by any Court executing the decree.

(2.) If this provision of law be applicable, it seems to be clear to us that Asa Ram was never in a position to urge before the Court below that he had satisfied the decree. It is however argued before us that although when a decree is being executed a judgment debtor would be precluded frompleading payment if the alleged payment has not been certified to or recorded, yet when a transferee asks for execution of decree it is open to the judgment-debtor to raise such a plea. This argument is sought to be founded on para. 2, Rule 16, Order 21, Civil P.C. This paragraph runs as follows: Provided that, where the decree...has been transferred by assignment, notice of such application shall be given to the transferor and the judgment-debtor, and the decree shall not be executed until the Court has heard their objections (if any) to its execution.

(3.) It is urged that when a transfer is to be recorded, the judgment-debtor can raise any objection that he may. If this view be correct, this provision would militate against the provision in Sub-rule (3), Rule 2, Civil P.C. In our opinion, there is no discrepancy between the two provisions. The judgment-debtor by Rule 16 is allowed to raise any objection, and this means that he shall be allowed to raise any objection which may be heard by the Court. If the judgment-debtor is precluded by law from raising objection, it cannot be said that Rule 16 permits him to raise such an objection.