THOMAS SKINNER Vs. RAM RACHPAL

JUDGEMENT

(1.) This is a judgment-debtor's first appeal arising out of an order passed in execution proceedings. The facts which have given rise to the appeal before us can very briefly be stated as follows: One Mt. Kishan Dei instituted a suit against Thomas Skinner alias Sultan Mirza to recover possession over some property and mesne profits. On 28 August 1926 the first Court passed a decree in favour of Mt. Kishan Dei for possession and also awarded to her a sum of Rupees 3004.13-6 on account of profits with proportionate costs. Thomas Skinner preferred an appeal to this Court against the decree which had been obtained by Mt. Kishan Dei. During the pendency of the appeal, it appears that Mt. Kishan Dei obtained possession over the property in suit in that case and also made an application for realising the sum for which she bad obtained a money decree and prayed for attachment of three decrees which Thomas Skinner held against one Benarsi Das. This prayer of hers was granted. Subsequently she executed two of these decrees and the finding of the Court below is that a total sum of Rs. 3369-10-0 was paid by Benarsi Das and Mt. Kishan Dei filed certificates in the cases in which the two decrees had been passed certifying the receipt of the above-mentioned amount from Benarsi Das. The result was that these two decrees were declared by the Court to be discharged as fully satisfied.

(2.) The appeal which had been preferred by Thomas Skinner to this Court was partially allowed and it was declared that Mt. Kishan Dei was only entitled to recover from Mr. Thomas Skinner a sum of Rs. 2972. Thomas Skinner had instituted a suit against Mt. Kishan Dei; but after the decree of this Court, it became necessary for him to proceed with the same. He applied to the Court, in which that suit was pending, praying that it should be converted into an application under Section 144, Civil P.C. That was done and the Court in accordance with the provisions of Section 144, Civil P.C., by its judgment dated 21 June 1930, directed that he should be restored possession over the property in suit because of the decree which had been passed by this Court. Mt. Kishan Dei has assigned her rights in the decree which she obtained from this Court to one Ram Rachpal and this man has now made an application for the execution of that decree.

(3.) The application was opposed by the judgment-debtor. It was pleaded by him that nothing was due in respect of the decree which the decree-holder was seeking to enforce. He pleaded that it had been decided inter partes in the decision which the Court gave in respect of his application under Section 144, Civil P.C., that the decree-holder would not be entitled to execute his decree till he had rendered accounts and as no accounts had been rendered, the decree-holder was not competent to execute the decree. The decree-holder took the plea in the Court below that as no application had been made in the Court executing the decree certifying any payment towards that decree within the period prescribed, Rule 2, Order 21, Civil P.C. applies and the judgment-debtor could not be permitted to plead any satisfaction partial or otherwise. The learned Judge of the Court below came to the conclusion that the contention raised by the decree-holder was correct. He held that as no steps had been taken to have the payment made to Mt. Kishan Dei by Benarsi Das oertified, the judgment-debtor in the present case could not be permitted to plead that payment. It is against that order that the present appeal has been preferred by the judgment-debtor.