(BABU) BANARSI LAL Vs. BORHO SAHU

JUDGEMENT

(1.) This is an appeal from an order of the District Judge who dismissed summarily an appeal from the order of the Munsif allowing an objection by the judgment- debtor in an execution case. The case is one of some difficulty, but in spite of that Mr. Lucas, the District Judge, seems to have thought it of little importance and, as I have stated, dismissed the case summarily. It is true that one of the main points which has been argued before me does not appear to have been argued before the lower appellate Court. But it was a point of law which in the circumstances arose and should have been disposed of by the Courts below having regard to the provisions of Order 21, Rule 2, Civil P.C. In dismissing summarily the appeal before him the District Judge in effect dismissed the execution proceedings and recognized an adjustment or compromise of a decree which had not been certified under Order 21. Order 21, Rule 2(3) is mandatory and provides: A payment or adjustment, which has not been certified or recorded as aforesaid, shall not be recognized by any Court executing the decree.

(2.) I understand that to mean (although the point has not been taken) that if there is a question of any payment in satisfaction of the decree or adjustment of the decree which has not been certified, the Court shall refuse to recognize it in an execution proceedings. It has been argued in this case that the Judge of the trial Court was wrong in recognizing the adjustment which in this case is alleged to have been made. There is also a further question which I propose to deal with at once and that is that of the two persons who were judgment-debtors (father and son), the son having died before the present execution, the decree-holders should have given notice under Order 21, Rule 22, which was not done. Order 21, Rule 22, provides: Where an application for execution is made against the legal representative of a party to the decree, the Court executing the decree shall issue a notice to the person against whom execution is applied for requiring him to show causa.

(3.) Now quite clearly O.21, Rule 22, provides for a case where a person against whom execution has been taken out is not on the record of the execution case, or, if he is on the record, execution is being taken out against him as such. The short answer to this point is this: that in this case it is not asserted by the decree- holders that they are taking out execution against the father as heir (if he be that) of the son. The result may be that if the execution proceeds difficulties might arise, but with those difficulties we are not concerned. To repeat what in my judgment is conclusive on this matter, the decree-holders in these execution proceedings are taking out execution against Borho Sahu personally, not against him as the legal representative of his son. Therefore notice under Order 21, Rule 22, is unnecessary. It is obvious that some meaning must be given to Order 21, Rule 2(3): A payment or adjustment which has not been certified or recorded ... shall not be recognized by any Court executing the decree.