Nagu Reddiar vs Veerappa Mudaliar and Another

Seshagiri Aiyar, J.—This is an application by the judgment-debtor in Small Cause Suit No. 97 of 1918 on the file of the Subordinate

Judge''s Court of Tuticorin to record satisfaction. In Small Cause Suit No. 932 of 1917 the second respondent before me obtained a decree

against the decree holder in Small Cause Suit No. 97 of 1918. The decree of the first respondent against the petitioner was dated 9th April 1918.

The second respondent applied for attachment of the decree in Small Cause Suit No. 97 of 1918 on the 10th April 1918. The order was made on

the 22nd April 1918. The petitioner''s case is that without knowledge of the attachment he paid the amount to the decree-holder on the 25th May

1918 and obtained a receipt therefor. He files the receipt in Court and asks that satisfaction may be entered.

The decree-holder in Small Cause Suit No. 97 of 1918 does not appear to oppose this application for satisfaction. It is opposed by the decree-

bolder in Small Cause Suit No. 932 of 1917 on the ground that there was payment by the judgment-debtor and that the transaction was a collusive

one between the decree-holder and the judgment-debtor, The lower Court has come to the conclusion that no payment was made. There is no

finding that the receipt produced is not genuine. Upon that question there is the un-contradicted evidence and I am not prepared to agree with the

learned Vakil for the counter-petitioner that this matter should be remitted for a finding by the first Court. There can be no doubt that if no notice

was given of the attachment under Order XXI, Rule 53, Clause 6, of the CPC the attachment cannot affect any transaction which may be entered

into between the judgment-debtor and the decree-holder, My attention was drawn by Mr. Swaarinadha Aiyar to Order XXI, Rule 2, of the CPC

which suggests that the only party who is competent to object to the recording of satisfaction is the decree-holder. The language of the Order lends

support to this contention. It is also supported by a decision of this Court in Subbiah Pillai v. Alliar Rowther 2 Ind. Cas. 523 where the learned

Judges say that it is open to a decree-holder to give up his claim altogether and if satisfaction is entered up, it will not be open to the attaching

creditor to question the transaction. Mr. Ramabhadra Aiyar has tried to distinguish this case on the ground that in that case there was an actual

record of satisfaction, whereas this is an application to enter up satisfaction. I do not see how the distinction in any way affects the principle to be

applied. Under Order XXI, Rule 2, of the CPC if the decree-holder does not object, the Court is bound to enter up satisfaction. No doubt, if

before the alleged payment an interest has been secured to a third party under the decree the judgment-debtor will be subject to all the equities

enuring to the person to whom such an interest has accrued. That principle has also been recognised in the decision quoted before me. Therefore, I

must hold that, unless it can be shown that prior to the date of the alleged payment, an interest was secured to the second respondent by virtue of

his attachment, it is not open to him to question the entering up of satisfaction of the decree in Small Cause Suit No. 97 of 1918.

The learned Vakil for the petitioner has suggested that there is no evidence to show that there was any notice given to the judgment-debtor. That

is a matter which can be easily ascertained by a reference to the proceedings relating to the attachment. I must, therefore, ask the lower Court to

return a finding on the question whether the petitioner in this case had notice of the attachment, either through Court or otherwise. For this purpose

the Court can send for the records of the case or admit any document that may be produced in support of the contention on either side. In fresh

oral evidence is permitted. The finding will be submitted in sis weeks and seven days are allowed for objections.

In persuance of the order contained in the above judgment the Subordinate Judge of Tuticorin submitted the finding that the petitioner had no

notice of the attachment.

The Civil Revision Petition coming on for final hearing this day after the return of the finding of the lower Court upon the issue referred by this

Court for trial, the Court delivered the following.

JUDGMENT.

I had held already that if the judgment-debtor had no notice, the adjustment will not be affected by the fact that there was a prohibitory order. A

dictum of Sir Abdur Rahim, J., in a case reported as Kuppusami Iyer v. Kuppusami Iyer 48 Ind. Cas. 109 , has now been brought to my notice by

Mr. Ramabhadra Aiyar, which seems to take a different view. I had not this case before me at the last hearing. Oldfield, J., does not appear to

have concurred with Sir Abdur Rahim, J., on this question.

Having regard to the language of Order XXI, Rule 53, Clause 6, I am not satisfied that my view is wrong. I must, therefore, refuse to allow this

question to be re-opened. I concept the finding and direct that satisfaction be recorded as prayed for. The petitioner is entitled to his costs here

and in the Court below.