GOPALASAMI NAICK Vs. NAMMALWAR NAICK

JUDGEMENT

(1.) Appellants chief contention is that plaintiff can have no cause of action until money has been recovered from him in execution. In Viraraghava Reddi v. Subbakka (1882) I.L.R. 5 M. 397 a similar suit was held by the majority of this Court to be one to recover damages for the breach of the implied promise to certify the payment to the Court and thereby make it effectual in execution. The third Judge, no doubt, based the right of suit on the failure to discharge a statutory duty. The two views are very similar, but the former is, I think, more accurate, for the duty of certifying satisfaction imposed by the Code of Civil Procedure can be performed at any time, and no period is prescribed for its performance, whereas if the cause of action be held to be the breach of an implied covenant not to execute the decree, any application for execution would be a breach of the covenant, and would give a right to sue for damages. I think therefore that plaintiff had a cause of action, when the execution application of 1910 was filed, but a suit on that cause of action would now be barred under Article 115 of the Limitation Act. As plaintiff cannot act upon this breach of the covenant, he relies upon a subsequent breach in 1913, treating the first breach as condoned and in this view his suit is within time.

(2.) Treating the suit as one for damages the measure of damages is not necessarily the sum paid by plaintiff in satisfaction of the decree together with subsequent interest, for that is the maximum amount of damages that plaintiff could suffer if the decree were actually executed and plaintiff could only claim that sum if it were actually recovered from him. In the present case it is necessary to consider how far plaintiff has been damaged by the filing of the execution application which is the breach of covenant complained of. He would be entitled to all expenses incurred by him in defending the claim, and also to compensation for any moral or mental worry caused by the fact that an executable decree is unlawfully kept alive, and steps may be taken against the judgment-debtor at any moment. I therefore agree in the order proposed by my learned brother. Krishnan, J.

(3.) The facts necessary for the decision of this Second Appeal may be briefly stated as follow. A mortgage decree was obtained by the father of defendants 1 and 2 against the plaintiff and his sons in 1906. In 1907 plaintiff paid Rs. 500 towards this decree; this payment though denied by defendants has been found to be true by both the Lower Courts. Plaintiff alleged a further payment of Rs. 40 but that has not been proved. Without certifying the payment of Rs. 500 and without graving credit for it defendants applied for execution for the whole decree amount, first in July 1910 and then again in June 1913. In July 1914 plaintiff brought this suit praying that the defendants may be directed to certify payment or to pay back the amount paid with interest at 18 per cent. The Lower Courts disallowed the first prayer; the Munsif held that it could be granted only in execution proceedings under Order XXI, Rule 2, Civil Procedure Code; and no objection was taken to this view in the Appellate Court. The Munsif had dismissed the suit in toto as barred by limitation but the District Judge has given a decree for Rs. 500 and interest at 18 per cent, as claimed