(Mahtha) Madan Singh and Others vs Kumar Kamakhya Narain Singh

Wort, J.—The only question in this case is whether the application for execution was barred by limitation. The learned Judge in the Court below has held that it was not so barred. The short facts are these:

An ex parte decree was made on 12th September 1918, which included a direction that mesne profits should be as certained. The necessity for this inquiry however was obviated by the parties entering into a compromise on 15th January 1921. This was made the subject matter of a petition of that day to the Court. Under that petition the defendants agreed to pay by way of mesne profits a sum of Rs. 5,552-10 in 12 annual instalments of Rs. 462-11-6 on 1st July of each year. By the operation of Order 20, Rule 12, C1. (2) and Order 23, Rule 3 there can be no doubt that it was the duty of the Court to pass a decree giving effect to the compromise. This was omitted however.

We then have the payments made by the judgment-debtor in accordance with the compromise, the last of which was on 5th July 1928. If this payment is to be taken into consideration, there can be no doubt that the application for execution was within time. It is contended however by the appellant that as there was no decree there was nothing to be executed, the only decree which in the circumstances of the case could be executed was the ex parte decree of September 1918 and therefore the application was barred by limitation. Alternatively it is argued that the payments made cannot be regarded as they were not certified, and as they were not certified the Court cannot pay any regard to them.

Two questions therefore arise: one is whether the omission by the Court to prepare the final decree or a decree on the compromise is fatal, and secondly whether it can be said that there was any certification of the instalment payments.

So far as the second question is concerned, it seems to me to be concluded by the decision of their Lordships of the Judicial Committee of the Privy Council in the case of Prakash Singh v. Allahabad Bank Limited AIR 1929 PC 19.

The facts of that case were somewhat different from the facts of this case in that there was no omission there to prepare the final decree as the parties had agreed that the compromise which had been entered into between them should be executed. But it was argued that certain payments which were made in pursuance of the compromise could not be taken into consideration having regard to the fact that the decree-holder had not certified them. Two sets of payments came under their Lordships'' consideration, one about the year 1917 which were certified and others in 1924, which were not certified according to the argument of the judgment debtor.

Their Lordships of the Judicial Committee of the Privy Council pointed out that there was a difference between the certification by the judgment-debtor from that of the decree-holder, that whereas the former was tinder a proper construction of Order 21, Rule 2, an application within the meaning of Article 181, Lim. Act, the certification by the decree-holder under Order 21, Rule 2, Clause (1), could not be held to be an application under that article. As I understand the judgment of their Lordships of the Privy Council it is this:

That a certification by a decree-holder has no period of limitation; it can be made at any time, and, as their Lordships pointed out, without any notice to the judgment-debtor.

If that be the true view of the case, the certification which was necessary under Order 21, Rule 2 was made by the decree-holder in this case in his application for execution on 14th April 1931, that is to say para. 5 of that petition which certified certain payments satisfied Order 21, Rule 2. If that be so, there remains only the question of whether there was a decree which can be executed. If it was necessary to prepare the final decree without which no execution can be taken out, then it is clear that the appellant must succeed. But in order to come to a conclusion on that matter it is necessary to consider Order 20, Rule 12 and Order 23, Rule 3. Had this been an as certainment of mesne profits by inquiry, then the duty of the Court under Order 20, Rule 12, Sub-clause (2) was to pass a decree for mesne profits in accordance with the result of such inquiry.

If on the other hand it was a compromise, as in fact it was in this case, it would be necessary for the Court under Order 23, Rule 3 to record the compromise and pass a decree in accordance therewith. It is obvious from the plain reading of the Code that it was unnecessary for the decree-holder to apply for a decree as such. It was necessary however, for him to bring to the notice of the Court that a compromise had been entered into and the law in that connection was complied with by the petition of 7th January 1921. On that petition being presented it was the duty of the Court to prepare the final decree.

There was an omission of the Court, there was no omission of the parties and the question therefore that remains to be decided is whether by the omission of the Court, injustice should be done to the decree-holder.

Mookerjee, Ag. C.J., in the case of Hemendra Mohan v. Dharani Nath AIR 1921 Cal 381 has referred to the principle laid down by Lord Eldon in the case of Pulteney v. Warren (1837) 11 Bligh (n s) 158 in these words:

If there be a principle upon which Courts of Justice ought to act without scruple, it is this to relieve parties against that injustice ocasioned by its own acts or oversights at the instance of the party, against whom the relief is sought;

and the learned Judge referred to a number of cases in which this principle has been applied. It has been applied also in the case of Chhaganlal Sakarlal Vani Vs. Jayaram Deoraj Thakar, , which was a case of the omission to prepare a final decree in a mortgage action, and it is to be noticed that, that case is a stronger one than the one which we have before us having regard to the fact that under the Code it is necessary for a decree-holder mortgagee to make an application for the preparation of a final decree.

In short, in my judgment, the decree holder in this case should not be deprived of the fruits of his action by the omission, accidental or otherwise, on the part of the Court. Therefore the case must be treated as if the decree had been prepared on the petition of the decree-holder of January 1921.

In my judgment, for the reasons which I have given, it seems to me that the appeal fails and must be dismissed with costs.

Dhavle, J.

I agree. The same conclusion is also indicated by the fact that the appellant is not able to show in what respect he would be better off if the decree-holder were now to be asked to move the lower Court to prepare the final decree, except of course that on that footing his appeal will have to be dismissed with costs.

The omission of the Court to prepare the final decree is therefore a purely formal matter and does not affect the merits of the case as between the parties.