A AHAMED IBRAHIM ROWTHER Vs. ALLAPICHAI ROWTHER

JUDGEMENT

(1.) The question to be decided in both the revision petition and the appeal is whether the recording of satisfaction of the decree in O.S. No. 11 of 1931 on the file of the District Munsif of Tuticoiin at the instance of an attaching decree-holder is valid and consequently whether the refusal to record satisfaction of the decree in O.S. No. 95 of 1932 on the file of the District Munsif of Kumbakonam under which the attachment of the Tuticorin decree was made is invalid, so that the latter decree becomes amenable to attachment at the instance of a third decree-holder. The facts are rather complicated and I will endeavour to state them in their simplest form. We are concerned with three decrees: (1) O.S. No. 11 of 1931 on the file of the Tuticorin District Munsif which was a decree in favour of Ahmad Ibrahim, the judgment-debtor being Alia Pichai; (2) O.S. No. 13 of 1932 on the file of the Subordinate Judge, Tuticorin, a decree assigned to K. Mohideen, the judgment-debtor the same Alia Pichai; (3) O.S. No. 95 of 1932 on the file of the District Munsif of Kumbakonam, a decree assigned to the same Alia Pichai, the judgment-debtor being Ahmed Ibrahim who is the decree-holder under No. 1 decree.

(2.) Decree No. 3 was transferred for execution to the Court of the District Munsif of Srivaikuntam where the parties lived. The assignee of this decree Alia Pichai got an order of attachment in Srivaikuntam Court of No. 1 decree against himself the attachment being effected in February, 1934. On 20 March, 1934, Alia Pichai as attaching decree-holder without transferring his own decree to Tuticorin or taking out execution of the decree which he had attached applied to the District Munsif of Tuticorin under Section 151 of the Civil Procedure Code to record satisfaction of decree No. 1 against himself by setting off against this decree, No. 3 decree of which he had obtained an assignment. It will be noticed that in form this was an application to set off two decrees which were not before the same Court, the applicant calling in aid Section 151, Civil Procedure Code, because the procedure under Order 21, Rule 18 was not available to him, he not having got his Own decree transferred to the Court which was executing the attached decree against himself. Before orders were passed upon this application to record satisfaction, Mohideen the assignee of decree No. 2 passed by the Subordinate Judge of Tuticorin against Alia Pichai attached decree No. 3 whichVas then on the file of the District Munsif of Srivaikuntam. On 24 September, 1935, the District Munsif of Tuticorin passed an order on the application to record satisfaction by setting off the decree assigned to Alia Pichai against the decree under which he was the judgment] debtor. In his order the learned District Munsif observes that Alia Pichai certified satisfaction of his own decree - which of course could not be done except in the Court which had jurisdiction over that decree. He also observes that the application does not come under Order 21, Rule 18, but he considers that under Order 21, Rule 53 an attaching decree-holder has power to report satisfaction of the attached decree and he therefore passes an order which in my opinion is open to serious criticism. He records satisfaction of the attached decree to the extent covered by the amount of the attaching decree, but adds a proviso that the applicant shall within six weeks report to the proper Court full satisfaction of the attaching decree and if he fails to make such a report the order recording satisfaction will stand vacated. That is to say, in effect the learned District Munsif of Tuticorin passed a conditional order recording satisfaction. In pursuance of this order Alia Pichai on 2nd October, 1935, filed a satisfaction memorandum before the District Munsif of Srivaikuntam in respect of the decree of which he had taken an assignment which decree was already under attachment by Mohideen the holder of decree No. 2--Mohideen opposed the application to record satisfaction. The learned District Munsif of Srivaikuntam held that Alia Pichai was not entitled under Order 21, Rule 53 to act as the representative of the holder of the decree which he had attached except for the purpose of execution, that the recording of satisfaction by means of what was in fact an adjustment of that decree was invalid and that satisfaction of Alia Richai's own decree could not be recorded because of the pending attachment and because there was no valid satisfaction of the Tuticorin District Munsif's Court decree. Against the order pas ed by the District Munsif of Tuticorin two appeals were filed, one by Mohideen and the other by Ahmed Ibrahim and against the order passed by the District Munsif of Srivaikuntam an appeal was filed by Alia Pichai. All three were heard together by the Subordinate Judge who held that the order of the District Munsif of Tuticorin recording satisfaction of Ahmed Ibrahim's decree by reason by the adjustment of the amount due under Alia Pichai's decree was valid.

(3.) I have now before me a Civil Revision Petition filed by Mohideen and an appeal by Ahmed Ibrahim both canvassing the correctness of the same appellate order. I do not think it necessary to discuss at length the question whether the proper remedy is one by appeal or one by revision. It seems to me that so far as Ahmed Ibrahim is concerned the question is one clearly between the parties relating to the satisfaction of his decree and an appeal would lie. So far as Mohideen is concerned the contest is between an attaching decree-holder and the holder of the decree attached. Prima facie it is not one between parties arrayed on opposite sides in the suit and the proper remedy is revision.