MAZUMDAR RAMAKRISHNA RAO Vs. MAZUMDAR BALAKRISHNA RAO

JUDGEMENT

(1.) The lower Court s conclusion as to items 2, 3, 7, 8, 9 is based on petitioner s admission in evidence, and we have been shown no reason for dissent. The appeal on this point fails.

(2.) The remaining argument is as to Exhibit I, and the question is whether it constitutes an adjustment and the Court can take notice of it, if it was never certified to it, as required by Order XXI, Rule 2, Civil Procedure Code. It was a sale by petitioner to the other decree-holder, respondent, of part of the property, which was to be divided; and we have no doubt that the transfer was an adjustment of the decree. On the question whether Exhibit I should have been certified to the Court, several decisions have been quoted regarding the application of Order XXI, Rule 2, to decrees, which, like the case before us, include provision for payment of money as well as for other relief. Of the two cases referred to by the lower Court, it is not clear that the decree in Krishna Hande v. Padmanabha Hande (1913) 25 M.L.J., 412 contained any provision of the former description, and in Abdul Latif Sahib v. Bathula Bibi Ammal (1914) 16 M.L.T., 338, Order XXI, Rule 2, is applied to all decrees under which money is payable; and there is nothing in it to support the restriction of its application proposed by the lower Court to provisions for payment of money. That interpretation of it was in fact rejected in Sethurama Sahib v. Chota Raja Sahib (1917) M.W.N., 327, In the latter case a previous unreported decision of my own is referred to Annamareddi Venkayya v. Annamareddi Ramanna C.M.S.A. No. 11 of 1916 (unreported), but it was founded on a judgment of Sadasiva Ayyar, J., in Kelu Nair v. Meenakshi (1918) 25 M.L.J., 586, the principle of which he statedly reconsidered in Sethurama Sahib v. Chota Raja Sahib (1917) M.W.N., 327. The recant course of decisions of this Court is strongly marked, and in a matter of this nature I should not depart from it except for far stronger reason than is available. In these circumstances, following the case last mentioned, I think that the lower Court should have applied Order XXI, Rule 2, to the adjustment evidenced by Exhibit I. It is said, however, that in fact the decree, so far as the properties dealt with in Exhibit I are concerned, was adjusted at a later date by the presentation by all the parties to it of Execution Application No. 369 of 1913, dated 8th July 1913. That application certainly certifies satisfaction as between the present parties and their brother, the defendant in the suit. But it is not possible to say on the information before us whether it involved any satisfaction as between the present parties, or whether all the properties in Exhibit I being in Schedule A referred to in Execution Application No. 369 of 1913, the division of Schedule A properties between them still has to be effected and the decree in respect thereof remained unexecuted.

(3.) Again respondent asks for an opportunity to ascertain whether Exhibit I was certified to the Court within the time allowed by Order XXI, Rule 2; and in the absence of any categorical statement by the lower Court on the point, we think that he should be allowed an opportunity to show that there was such certification by production of documentary evidence regarding it.