SOMU PATHAR Vs. RENGASWAMI REDDIAR

JUDGEMENT

(1.) Although the point argued is not free from difficulty and I have a doubt whether Section 115, C.P.C, is applicable to the case, I shall express my opinion fully so that, if the matter be taken in appeal, it can be properly dealt with then.

(2.) The petitioners in this case are the judgment-debtors in O.S. No. 333 of 1912. One Rengaswami Reddi obtained in a small cause suit a decree against the decree-holder in O.S. No. 333 of 1912 and attached the decree in the latter suit. That was in August 1914. In December 1915, the decree-holder in O.S. No, 333 of 1912 applied to the District Munsif s Court to enter up satisfaction of his decree. At this time, the attachment at the instance of the decree-holder in the Small Cause Suit had been effected. This application for satisfaetion being entered up was opposed by the attaching decree-holder. In consequence of the opposition by the attaching creditor, the decree-holder in O.S. No. 333 of 1912 withdrew the application. The attachment proceedings were allowed to continue. 1 find from the papers that notice was served upon the 1st defendant in O.S. No. 333 of 1912, the father of the petitioners, and that he stated in person that the decree was satisfied. In these circumstances, it was the duty of the attaching decree-holder to have adduced evidence to show that the decree was not satisfied. I cannot accede to the contention of Mr. Muthia Mudaliar that the burden of proving the bona fides of the certificate is upon the judgment-debtor who said that he had paid the money and the decree-holder who said that he had received the money; and in these circumstances it is upon persons, who allege that the certificate was collusive and was intended to defraud them, to adduce evidence to establish the facts.

(3.) The District Munsif, and in appeal, the District Judge have come to the conclusion that, as the application for satisfaction was withdrawn, it is not open to the petitioners to plead that the decree in O.S. No. 333 of 1912 was satisfied. The learned vakil for the petitioners drew my attention to Order 21, Rule 2, Clauses (1) and (3).