S A KULATHU AIYAR Vs. VAITHILINGAM AYYAR

JUDGEMENT

(1.) THE appellant before us is the 1 defendant. THE plaintiff sued the defendant 2 in 1914 and got a decree. When he attempted to execute his decree, he was faced with a claim by the defendant 1 based on a sale to him by the defendant 2. THE claim was allowed and the plaintiff sued to set aside the order on the claim. He succeeded in the 1 Court, but failed in appeal, the Subordinate Judge holding inter alia that his decree had been satisfied. In second appeal, Odgers, J., restored the decree of the trial Court. He was of opinion that the plea that the decree had been discharged was not open to the defendant 1.

(2.) THE finding of the 1 appellate Court that the decree had been discharged is, perhaps, not wholly satisfactory. It is however, a finding of fact, which was not objected to in second appeal. So it calls for no further consideration. THEre is a decision of the Allahabad High Court, Tegh Singh V/s. Amin Chand [1883] 5 All. 269 which seems to be exactly in point. THE terms of Sub-rule (3) of Rule 2, Order 21, Civil P. C., are perfectly clear. THEy lay down that an uncertified discharge cannot be recognized by "any Court executing a decree." It follows that a plea of discharge can be taken in a suit, provided of course, that it is not taken by one of the parties to the decree. And that is what was held in the decision above cited. Odgers, J., did not follow that decision, as he thought that he was concerned with parties to the suit. That was not correct, for the defendant 1 was not a party to the suit. Mr. K. V. Krishnaswami Aiyar's argument, if I understood him right, proceeded on these lines. THE plea of discharge was not open to any one in the claim proceedings. THE suit is merely a continuation of the claim proceedings. THErefore, the plea is not open to any one in the suit. THE argument can, I think, be justified only on the hypothesis that the Court which tried the suit was a Court executing the decree and that hypothesis seems to me to be entirely untenable. If it was not such a Court, the plea was open to a person like the defendant 1 who was not a party to the suit in which the decree was passed. I would follow the Allahabad ruling and allow the appeal with costs throughout.