MT CHAMPI BAI Vs. PEAREY LAL

JUDGEMENT

(1.) THIS is a second appeal arising out of execution proceedings. A decree was passed by the Additional Subordinate Judge of Banda on 16 July 1930. The Court of the Additional Judge was abolished on 30 March 1932. Another Additional Judge was appointed on 16 March 1933. The application for execution of the decree of 16 July 1930 was made to the Additional Subordinate Judge. The question before him was whether the decree had been certified. The allegation of the judgment-debtor was that the decree-holder had certified the adjustment of the decree to the Subordinate I Judge on 19 August 1933. The Additional Subordinate Judge held that the certification was of no effect because the Court of the Subordinate Judge was not the proper Court in which the adjustment of the decree should be certified and because the Subordinate Judge had not passed an order recording the adjustment of the decree. He dismissed the objection of the judgment-debtor. On appeal the learned District Judge held that the Additional Subordinate Judge had no jurisdiction in the matter. He also pointed out that it was unnecessary in order that the certification of adjustment should have effect that there should be any specific order by the Court. He allowed the appeal and directed that the application for execution should be returned to the decree-holder for presentation in the proper Court, i.e. the Court of the Subordinate Judge. 3. It is argued here in second appeal that the learned District Judge was wrong in saying that the Additional Subordinate Judge had no jurisdiction to deal with the application for execution because the decree had originally been passed by the Additional Subordinate Judge when there was such an officer posted to that district. It seems to me that the question depends upon the special or general orders which may have been passed under the provisions of Section 13, Sub-section (2), Bengal, Agra and Assam Civil Courts Act (No. 12 of 1887). An Additional Court is usually only a temporary Court established to enable another Court to dispose of the business before it. There was an Additional Judge in this District up to 30 March 1932. Thereafter there was no Additional Judge. Another Judge was appointed a year later on 15 March 1933. I have examined the notification appointing him and it appears that the local jurisdiction assigned to him by the Local Government under Sub- section 1 of Section 13, Bengal, Agra and Assam Civil Courts Act, was the same as the local jurisdiction assigned to the Subordinate Judge. That being so, the question whether any particular civil business was cognizable by him or by the Subordinate Judge would depend upon orders passed by the District Judge subject to any general or special orders passed by this Court. It cannot be said that the Court of the Additional Subordinate Judge created on 15 March 1933 was the same Court as that which existed up to 30 March 1932 and that it was a Court which was conducting business independently of the Court of the Subordinate Judge. Ordinarily, in this province, one would assume that the orders would be that the Additional Court would dispose of business transferred to it by the Subordinate Judge or by the District Judge. That however is a matter of no importance. THIS Court in second appeal cannot set aside the decree of the lower Appellate Court unless it can be shown that that decree was wrong. 4. Learned Counsel for the appellant has not been able to tell me what orders were passed by the District Judge under the provisions of Sub- section 2, Section 13 or what general orders have been passed by this Court in respect of these matters. That being so, I am not in a position to say that the finding of the learned District Judge in this appeal was wrong. It cannot be said that the execution of all decrees passed by the Additional Subordinate Judge when-ever the Court of Additional Subordinate Judge existed in this district should be executed by an Additional Subordinate Judge subsequently appointed. It may be that the orders governing this matter are that all plaints and applications should be presented in the Court of the Subordinate Jud e and that he should either transfer them or that he should report to the District Judge that some of them should be transferred to the Court of the Additional Judge. As I am not in a position to Bay that the decree of the Court below is wrong, I must uphold it. 5. The decree-holder in this case had contended that the alleged certificate said to have been granted by him was obtained by fraud. That is a question which has not yet been decided and remains still to be decided. The question of law whether the certificate if not obtained by fraud was of no effect merely because the Court passed no order upon it has been decided by the learned District Judge against the decree- holder. There is no doubt that the decision on the question of law is right. 6. THIS matter has recently been before a Bench of this Court in Rup Narain Singh V/s. Duniya Dayal Sahu Ecn. F.A. No. 392 of 1936 and it was there held that a certificate presented by a decree-holder does not cease to operate to the benefit of the judgment-debtor merely because the Court has passed no order recording the satisfaction of the decree. The provisions of Order 21, Rule 2, are to the effect that no Court executing a decree shall recognize a payment or adjustment which has not been certified or recorded under the provisions of that Rule. The Rule contemplates either a certificate by the decree-holder that the adjustment has been made or an order by the Court on the application of the judgment-debtor to the effect that the decree has been adjusted. It is certainly stated in Sub-rule 1 to Rule 2 that where the decree- holder certifies the adjustment of the decree, the Court shall record the same accordingly but it has been held by this1 Court in the case to which I have referred] that the record contemplated is merely an order that the certificate of the decree-holder shall be placed upon the record. Where the decree-holder certifies the adjustment, the Court to whom the certificate is supplied is not required to go into the question whether there has or has not been an adjustment as stated. The certificate of the decree-holder is sufficient and all that the Court need do is to say that that certificate shall be kept upon the record of the proceedings. Sub- rule 2, Rule 2, of Order 21, contemplates an application by the judgment-debtor that the decree has been certified, When the judgment-debtor makes an application of that kind it is of course necessary for the Court to go into the question whether his allegations are or are not true. When the Court is satisfied that they are true it will then record the satisfaction of the decree. The result is that there is no force in this appeal and I dismiss it with costs.