Gurusamy Goundan vs Sivanmalai Goundan and Others

Three persons Sivamalai, Chidambara and Amarapathi Goundan obtained a mortgage decree against one Ammani Animal. She sold lands to Palayakottai Pattakarar, 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 Gurusarni Goundan and he applied to execute the decree by sale of the hypothecs after recognising his assignment.

The Subordinate Judge has found these facts to be true, and we fee 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 Animal 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 XXI, Rule 2 is still operative: Nalam Subramanyam 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 sate. In Rama Ayyan v. Srinivasa Pattar 19 M. 230 a single Judge held that it the transaction, subsequently pleaded by an adjustment was by some person other than the decree-holder, Order XXI, Rule 2 or as it then was 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 sub subsequent assignee of the decree from C attempts to execute it A is not debarred by Order XXI, Rule 2 horn pleading the uncertified adjustment.

This was approved by one member of the Bench in Ponnusami Nayar v. Letchmanan Chettiar 12 Ind. Cas. 657 : 35 M. 659 : 10 M.L.T. 442 : (1911) 2 M.W. N. 568 : 22 M.L.J. 170 : 12 Cri.L.J. 567 and dissented from by the other member Mr. Justice Abdur Rahiin who held that by the plain language of Order XXF, Rule 2 the judgment debtor would be preclude ed from pleading any such adjustment. One of us had occasion to consider the passage in Rama Ayyan v. Srinivasa Pattar 19 M. 230 and 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 someone else, is pleaded as an adjustment the mischief of Order XXI, Rule 2 is attracted. To this opinion we adhere and unhesitatingly endorse the view of Abdur Rahim, J., in Ponnusami Nadar v. Letchmanan Chettiar 12 Ind. Cas. 657 : 35 M. 659 : 10 M.L.T. 442 : (1911) 2 M.W. N. 568 : 22 M.L.J. 170 : 12 Cri.L.J. 567. Therefore Ammani Ammal in this case cannot plead an adjustment which she has not troubled to certify under Order XXI, 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 he court is allowed a lasrge discretion under Order XXI, 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 uucartified 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 ii a fraud, nothing in Order XXI, 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 Nos. 1 to 4.