Gurusami Goundan vs Sivanmalai Goundan and Others

Jackson, J.—Three persons, Sivanmalai, Chidambara and Amarapathi Goundan, obtained a mortgage decree against one -Ammani Animal.

She sold lands to Palayakottai Pattakkarar, and part of the purchase price was paid by him in satisfaction of the decree. Sivanmalai and

Chidambara were satisfied, and state in their affidavit that nothing more was due. The third decree-holder Amarapathi however assigned his right

to one Gurusami Goundan and he applied to execute the decree by sale of the hypotheca after recognising his assignment.

The Subordinate Judge has found these facts to be true, and we see no reason not to accept his finding. As he says, Amarapathi Goundan got a

final decree fraudulently behind the back of the judgment-debtor and other decree-holders. Accordingly he dismissed the petition and Gurusami

Goundan appeals.

The appellant contends that Ammani Ammal has no right to plead against his application an uncertified adjustment. We entirely agree. It makes

no difference that Gurusami Goundan is not an original decree-holder but his assignee applying for recognition; because it has now been clearly

held by a Full Bench that in such circumstances Order 21, Rule 2 is still operative. Nalam Subramaniam Vs. Devara Ramaswami and Others, .

Nor in our opinion does it make any difference that Ammani Ammal is not pleading a direct payment by herself, but a payment through her vendee,

as satisfaction of the decree. The law in this matter has been left in an unfortunate state. In Rama Ayyan v. Sreenivasa Pattar ILR (1895) 19 Mad.

230 : 5 M.L.J. 218 a single Judge held that if the transaction subsequently pleaded by an adjustment was by some person other than the decree-

holder Order 21, Rule 2 or as it was then Section 258, Civil Procedure Code, would not apply. If A the judgment-debtor transfers property to B

on condition of his paying C the judgment-creditor, then if B as subsequent assignee of the decree from C attempts to execute it A is not debarred

by Order 21, Rule 2 from pleading the uncertified adjustment.

This was approved by one member of the Bench in Ponnusami Nadar v. Letchmanan Chettiar ILR (1911) 35 Mad. 659 : 22 M.L.J. 170 and

dissented from by the other member Mr. Justice Abdur Rahim who held that by the plain language of Order 21, Rule 2 the judgment-debtor would

be precluded from pleading any such adjustment. One of us had occasion to consider the passage in Rama Ayyan v. Sreenivasa Pattar ILR (1895)

19 Mad. 230 : 5 M.L.J. 218 in Gopala Krishna Iyer and Another Vs. Sankara Iyer, and held that as soon as the agreement, no matter whether it

be between judgment-debtor and decree-holder or some one else, is pleaded as an adjustment the mischief of Order 21, Rule 2 is attracted. To

this opinion we adhere and unhesitatingly endorse the view of Abdur Rahim, J., in Ponnusami Nadar v. Letchtnanan Chettiar ILR (1911) 35 Mad.

659 : 22 M.L.J. 170. Therefore Ammani Ammal in this case cannot plead an adjustment which she has not troubled to certify under Order 21,

Rule 2.

But the present case is not entirely between the assignee decree-holder and the judgment-debtor. There are the other two persons in whose

favour the decree has been jointly passed, and in such circumstances the Court is allowed a large discretion under Order 21, Rule 15. For one

decree-holder to be doing the execution on behalf of all is a curious business which may well put the Court upon its guard; and the Code very

sensibly warns the Court to find sufficient cause for allowing the decree to be executed. Under this provision there is no objection to the Court

hearing what the other decree-holders have to say, though no doubt the judgment-debtor even under this section could not plead an uncertified

adjustment. If the other decree-holders say as they say in their present affidavit (16th November, 1928), that the application of their fellow decree-

holder is a fraud, nothing in Order 21, Rule 2 or any other provision of law prevents the Court from disallowing execution, and in this case the

Court has acted quite properly in doing so.

The appeal is dismissed with costs to respondents 1 to 4.