SHAIKH DARSAN ALI Vs. BABU SURAJ MAL

JUDGEMENT

(1.) This is an appeal by the judgment-debtor who resisted the decree-holder's application for execution on the ground that he had paid the decree, holder Rs. 325 out of Court. The lower Courts held that the bulk of the payments were alleged to have been made at a time which made it impossible to recognize them in execution proceedings under Sub-rule (3), Rule 2, Order 21, Civil P.C., and that none of the payments had been proved in fact. The learned advocate for the appellant has endeavoured to argue that the matter in dispute between the parties falls not within Order 21, Rule 2, but within Section 47, Civil P.C., so that there could be no question of the limitation of ninety days applied by the lower Courts under Art. 174. This contention is rested on the ground that the decree was an instalment decree, that the judgment-debtor was to pay certain sums by certain dates and that the decree holder was to be entitled to execute only in the event of default in respect of any instalment. It is argued that before the decree-holder could be permitted to execute, it was necessary for him to show that there had been a default in respect of some instalment and that therefore this was not a case where it was necessary for the judgment-debtor to show that he had paid. The words of Sub-rule (3) of Order 21, Rule 2, are however far too clear to permit us to accept this contention, whether the onus of proving payments lay on the judgment-debtor or of proving default lay on the decree-holder (a point to which reference will be made again). What the sub-rule provides is that: A payment or adjustment, which has not been certified or recorded as aforesaid, shall not be recognized by any Court executing the decree.

(2.) On this wording the attempt to take the case out of Order 21, Rule 2, and bring it within Section 47 cannot be supported: Radha Kant Lal V/s. Mt. Parbati Kuar A.I.R.1921. Pat. 135 and Harihar Prasad Singh V/s. Bhubneshwari Prasad Singh The learned advocate has endeavoured to find support for his contention in Wali Shah V/s. Bihari Lal A.I.R.1926.Lah. 641 in which Dalip Singh, J. purporting to follow Ligraj Patjosi V/s. Mahadeb Ram A.I.R.1926. Cal. 62 seems to have held that it was permissible for a, judgment, debtor to prove that certain con. ditions on which a decree depended had been complied with irrespective of Order 21, Rule 2, Sub- rule (3).

(3.) The report in Wali Shah V/s. Bihari Lal A.I.R. 1926 Lah. 641 is however obscure and differs from the report of the same case in Wali Shah V/s. Bihari Lal A.I.R.1926. Lah. 641. The obscurity is enhanced by the fact that the learned Judge considered Ligraj Patjosi V/s. Mahadeb Ram A.I.R.1918. Cal. 62 "to be directly in point." In this last case, however, it appears that the decree provided that the defendant was to carry out certain terms and to notify com. pliance to the Court, that he did so, and that when the decree-holder objected and the Court of first appeal directed an investigation under Order 21, Rule 2, Mookerjee, J., with whom Beachcroft, J. agreed, held that the judgment-debtor's "application is clearly not one under Sub- rule 2 of Order 21 and no action ought to have been taken thereon."