(Babu) Banarsi Lal and Others vs Borho Sahu

Wort, J.—This is an appeal from an order of the District Judge who dismissed summarily an appeal from the order of the Munsif allowing an objection by the judgment-debtor in an execution case. The case is one of some difficulty, but in spite of that Mr. Lucas, the District Judge, seems to have thought it of little importance and, as I have stated, dismissed the case summarily. It is true that one of the main points which has been argued before me does not appear to have been argued before the lower appellate Court. But it was a point of law which in the circumstances arose and should have been disposed of by the Courts below having regard to the provisions of Order 21, Rule 2, Civil P.C. In dismissing summarily the appeal before him the District Judge in effect dismissed the execution proceedings and recognized an adjustment or compromise of a decree which had not been certified under Order 21. Order 21, Rule 2(3) is mandatory and provides:

A payment or adjustment, which has not been certified or recorded as aforesaid, shall not be recognized by any Court executing the decree.

I understand that to mean (although the point has not been taken) that if there is a question of any payment in satisfaction of the decree or adjustment of the decree which has not been certified, the Court shall refuse to recognize it in an execution proceedings. It has been argued in this case that the Judge of the trial Court was wrong in recognizing the adjustment which in this case is alleged to have been made. There is also a further question which I propose to deal with at once and that is that of the two persons who were judgment-debtors (father and son), the son having died before the present execution, the decree-holders should have given notice under Order 21, Rule 22, which was not done. Order 21, Rule 22, provides:

Where an application for execution is made against the legal representative of a party to the decree, the Court executing the decree shall issue a notice to the person against whom execution is applied for requiring him to show causa.

Now quite clearly O.21, Rule 22, provides for a case where a person against whom execution has been taken out is not on the record of the execution case, or, if he is on the record, execution is being taken out against him as such. The short answer to this point is this: that in this case it is not asserted by the decree-holders that they are taking out execution against the father as heir (if he be that) of the son. The result may be that if the execution proceeds difficulties might arise, but with those difficulties we are not concerned. To repeat what in my judgment is conclusive on this matter, the decree-holders in these execution proceedings are taking out execution against Borho Sahu personally, not against him as the legal representative of his son. Therefore notice under Order 21, Rule 22, is unnecessary. It is obvious that some meaning must be given to Order 21, Rule 2(3):

A payment or adjustment which has not been certified or recorded ... shall not be recognized by any Court executing the decree.

It was faintly argued in the first instance that the Court could recognize or certify this arrangement if proved at the stage at which the matter was when the objection was raised. With that I cannot agree. It would be in a sense repealing the third sub-clause of Rule 2 of the order if that view of the law were taken: in other words, Sub-clause (3) clearly contemplates a certification before the objection is taken to the execution on the basis of an adjustment or payment in satisfaction of the decree, or, to put it in another way, when the executing Court is about the business of execution as such it is too late then to apply for certification under Order 21. It is therefore too late, when objection is taken to the proceedings in execution, to assert that there is an agreement which has not so far been certified. Now the argument by the learned Advocate for the respondents in this case is this: that the arrangement (set out in his petition) was that on the date the payment of Rs. 200 was made, that is to say, on the day that he was arrested, it was agreed that not only the balance of this decree but also another decree should be paid by instalments. Para. 5 of his (the judgment-debtor''s) petition asserted that that arrangement was made and that the decree-holders agreed to that arrangement and agreed to accept these instalments without interest. Before I deal with that I revert for a moment to the other question. Assuming it was an adjustment contemplated by Order 21, Rule 2, this objection could be taken in substance to be an application to certify the payment. Now that will depend in this case upon the question of whether such an application was barred by limitation apart from the other considerations which I have stated. Now in the ordinary circumstances this point not having been raised in its particular form there was no decision by the trial Court on this matter, and, if it became necessary, the case would be remanded to the Judge to come to some finding with regard to this question.

But I am entitled, in the circumstances, to consider the matter u/s 103, Civil P.C., and I adopt that procedure all the more readily in this case because the fact is sufficiently clear from the record. It was the judgment-debtor''s own case that this arrangement was made on the date of payment, that appears in his petition, and from the order-sheet it is found that the payment of Rs. 200 was made on 24th September 1934. As the objection was made in February of the following year, it is clearly barred by the rule of ninety days'' limitation. I again come back to the point of whether this was a payment or adjustment coming within Order 21, Rule 2. Now this point has never been directly decided, but the nearest case is the decision of the Calcutta High Court in Sham Lal Chatterjee v. Hazari Mal (1912) 13 IC 826. Coxe, J., decided that the arrangement which they were there considering was an adjustment within the meaning of Order 21, Rule 2, and therefore certifiable, and that without certification the Court could not recognize it. In the course of his judgment he made this observation:

It may be open to doubt whether a mere agreement to grant time would be an adjustment within the meaning of that section; although, speaking for myself, I should be inclined to think that it would be such an adjustment.

It is not necessary in this case to fall back upon the words of the Court in that case as it is asserted by the judgment-debtor in this case that not only was it an agreement to give time, but it was also an agreement to relinquish the interest which the decree-holders would otherwise be entitled to. Again in Rajah of Kalahasti v. Venkatadri Rao 1927 Mad. 911, there was an appeal by the judgment-debtor and the question which came to be decided was whether by reason of Section 92, Evidence Act, an agreement which was not contemplated by Order 21, Rule 2, that is to say, an agreement which did not extinguish the decree as such but which varied or modified a decree, could be proved having regard to the section of the Evidence Act to which I have referred. They there took a view different from the Calcutta High Court and also from that of one of the learned Judges of the Allahabad High Court and held that in any event any agreement made, barring in any way the decree-holder''s right to execution to be recognized by the Court, must be certified. In a case reported in Venkataswami v. Kotilingam 1926 Mad 184, Wallace, J., as he then was, was considering the question of whether an agreement in the form of a composition scheme under which a decree-holder was to accept 80 per cent of his debt, was an adjustment of a decree and therefore certifiable and came to the conclusion that it was, as according to the decision of the learned Judge the decree did not become executable in full. The learned Advocate appearing on behalf of the respondents argues that if the decree-holder is entitled hereafter to execute his decree, it is not an adjustment within the meaning of Order 21, Rule 2. I trust I have not misunderstood the argument, but as it appeared to me, it was an argument, to express it in other words to this effect; if at any time the decree-holder could execute any decree, it was not an adjustment under Order 21, Rule 2. That argument in any event cannot be accepted for obvious reasons. It is an agreement which is certifiable under Q. 21, Rule 2 although only a part of the decree has been paid. That is obvious from the plain reading of the rule. That is the first answer to the argument advanced. Again the case which would assist the respondents most in this respect is the decision in Venkataswami v. Kotilingam 1926 Mad 184, to which I have already referred. But there the decision was no more than this: that if the decree was executable in full there could be no adjustment within the meaning of Order 21., Rule 2. But the learned Judge deciding the other case did not contemplate or did not say that if the decree could be executed at all there was no adjustment within the meaning of Order 21. Now there is the other decision in Ramanarsu v. Venkata Reddi 1933 Mad 28 to the effect that an agreement which extinguishes a decree as a whole or in part is an adjustment within the meaning of the rule, and:

A promise to do something in future is legal consideration, and there is no legal impediment in the way of a decree-holder accepting a mere promise that the judgment-debtor will do something at some future date as a legal and immediate adjustment in satisfaction of his decree.

I am reading for the moment from the head-note in that case which accurately states the effect of the judgment of the Court. I have already said and repeat that there is no definite decision on this point by any Court and the possible explanation of that is this: that in most of the cases I have referred to, objection has been advanced by the decree-holder in the first instance asserting that the agreement made is not certifiable under Order 21, Rule 2. In this case we have an agreement on the judgment-debtor''s own showing which has certainly affected the decree-holders'' right to execute if that agreement can be proved. The question is whether it answers to the description of an adjustment under Order 21, Rule 2: It is true that the decree-holders under the agreement are not entitled to execute a decree but it is also obvious that they cannot execute their decree immediately nor could they execute the full decree in the sense that the interest has been remitted. I must say that I do act feel disposed to hold that under these circumstances it is not an adjustment. It has been stated by a number of Judges in many cases that the obvious policy of the legislature is to prevent a controversy during execution proceedings as to whether the dispute between the parties has been settled, and it seems to me that the legislature enacting Order 21, Rule 2 has used words which are of the widest implication. Reference has been made not merely to payment but a payment of a part or a whole. As I have already said it appears to me that the words used are wide enough to contemplate the agreement alleged in this case. As the adjustment was not certified under the rules of the CPC (O. 21, Rule 2), the trial Court should have dismissed the objection as the law prohibits a Court to recognize any such payment or adjustment.

It seems to me that the decisions of the Courts below were wrong and they must be set aside and the appeal allowed. As the point was not taken in the exact form in which it was argued before me, there will be no costs. The judgment-debtors of course in the circumstances will get credit for Rs. 200 admitted to have been received by the decree-holders.