Naina Muhammad Rowther vs Periappa Rowther alias Muhammad Abdul Khadir Rowther

Burn, J.—This is an appeal by the first defendant from an order passed in execution by the learned Subordinate Judge of Dindigul. The

appellant was the 1st defendant in O.S. No. 44 of 1929 which was a suit upon a promissory note. He was one of the executants of the promissory

note. The decree in the suit was passed on the 18th March, 1930. On the 22nd December, 1935 the decree was assigned to the respondent and

E. P. No. 85 of 1938 was filed by the respondent to execute the decree by arrest of the 1st defendant, the present appellant. The first defendant

objected to execution against him. The learned Subordinate Judge overruled his objections and hence this appeal.

The learned Subordinate Judge has held that the defendant''s plea was barred by limitation. He has taken the defendant''s plea as being one of

satisfaction or adjustment of the decree and since he finds that the adjustment or satisfaction had not been certified under Order 21, Rule 2, CPC

within ninety days, he has held that the plea was barred by limitation. The appeal is based upon the plea that the learned Subordinate Judge was

wrong in holding that the defendant''s case was merely one of adjustment of the decree and that therefore the learned Subordinate Judge was

wrong in basing his decision on the question of limitation alone.

The plea of the appellant before the learned Subordinate Judge was that the assignment of the decree to the respondent on the 22nd December,

1935 was virtually an assignment to himself (the 1st defendant). He said that he had found the money to purchase the decree from the original

decree-holder and that Periappa Rowther the nominal transferee was merely a benamidar for himself. He said that he had entered into an

agreement with Periappa Rowther by which Periappa. Rowther undertook not to execute the. decree against him (the first judgment-debtor) but

against the other defendants only. The respondent also agreed, he said, that whenever the 1st defendant should consider it undesirable or unsafe to

keep the decree alive any longer, the respondent would put in an application to enter up satisfaction of the decree. The time had come, the

appellant thought when he filed his counter-statement before the learned Subordinate Judge, for the fulfilment of this agreement and he therefore

called upon the assignee decree-holder to enter up satisfaction of the decree forthwith on the ground that he (the 1st defendant) now considered it

unsafe and inexpedient to keep the decree subsisting. He prayed therefore that the Court would be pleased to record satisfaction of the decree and

dismiss the execution petition.

I am of opinion that the decision of the learned Subordinate Judge is correct, although I do not think it should have been based upon the

question of limitation. It is quite true that the counter-statement filed by the appellant in the Sub-Court contained the allegation that he (the

appellant) had paid to the original decree-holder the value of the decree. If there were a payment of which the appellant desired the executing

Court to take notice, such a plea would of course have been barred by Order 21, Rule 2 which says that no payment out of Court shall be

recognised by the Court executing the decree unless it has been certified by the decree-holder or unless the judgment-debtor has within the proper

time taken the necessary steps to have it certified. The judgment-debtor therefore could not plead that the decree had been satisfied by his

payment of the money to the original decree-holder. He was therefore obliged to fall back upon his plea that he had arranged with his nominee to

enter up satisfaction whenever he should think fit. Now this is an agreement which in my opinion no Court should recognise. The second proviso to

Order 21, Rule 16 says that where a decree for the payment of money against two or more persons has been transferred to one of them, it shall

not be executed against the others. The agreement which the appellant pleads that he made between himself and his nominee was an agreement

that his decree should be executed against the remaining defendants in O.S. No. 44 of 1929. It was therefore an agreement in contravention of the

express provisions of Order 21, Rule 16, second proviso, and as such it was an agreement which cannot be enforced by any Court.

Learned Counsel for the appellant has attempted to contend that his objection to execution was really an objection to the competence of the

transferee decree-holder. He has referred to the cases in which it has been held that a judgment-debtor against whom a transferee decree-holder

seeks execution is entitled in execution to show that the transferee decree-holder is a mere benamidar and even a mere benamidar for himself. He

has therefore attempted to show that his objection was not that the decree had been satisfied but that the transferee decree-holder had no authority

to execute it.

I have already shown however that that was not the plea which he raised in the Sub-Court where he devoted himself wholly to an attempt to

show that his transferee had agreed with him, firstly, to execute the decree against the other judgment-debtors and secondly to enter up satisfaction

of it whenever he should be called upon. I am therefore clearly of opinion that that agreement is one which no Court ought to be asked to

recognise or to enforce, and therefore think that the learned Subordinate Judge was right in rejecting the appellant''s objections to execution,

although I think that his decision was not based upon proper grounds. I would therefore dismiss this appeal with costs.

Mockett, J.

I entirely agree. The decision in Srirama Rao v. Bapayya (1922) 18 L.W. 453 has been cited to us and the observations relevant to this inquiry

are to be found at pages 463 and 464. In that particular case an assignment had been recognised and the learned Judges referring to the remarks

of Lindley, L.J., in Scott v. Brown, Doering, McNab & Co. (1892) 2 Q.B.D. 724 pointed out that when fraud was within the knowledge of the

Court it should not allow a party participating in it to benefit by it. This case is wholly unlike that case. On the face of it there was nothing wrong

with those proceedings but the appellant is asking us to allow the machinery of this Court to be used for the purpose of an elaborate inquiry which

will enable him to establish that he has entered into a fraudulent arrangement with the decree-holder which we are to recognise and in conformity

therewith to record satisfaction of the decree. It seems to me that that is in direct conflict with the principle that the Court will not allow its

processes to be used for the purpose of enforcing frauds at the hands of parties who participated in them.