Radha Kant Lal vs Musammat Parbati Kuer

Jwala Prasad, J.—This appeal is directed against the order of the Subordinate Judge of Gaya, dated the 15th of May 1920, passed in execution proceedings.

The decree which was put in execution was obtained by the opposite party respondent on the 7th of October 1915 for Rs. 50,621-11-0 on the basis of a simple bond. The decree-holder bad also in his favour a mortgage-bond for Rs. 20,000 executed by the judgment-debtor on the 29th of September 1908. The money-decree in question was for the first time put in execution on the 3rd of August 1918, and was registered as Execution Care No. 446 of that year. The execution was dismissed on the 14th December 1918 for want of proper execution. The present execution was put in on the 19th of September 1919. The husband of the decree-holder is her mukhtear am and the execution petition is, therefore, signed and verified by him on behalf of his wife.

On the 3rd of March 1920 the judgment-debtor filed two petitions of objection to the execution of the decree: one u/s 47 and the other under Order XXI, Rule 2 of the Code of Civil Procedure. They were separately numbered but were disposed of by one and the same order of the Subordinate Judge, inasmuch as the point involved in both the petitions was the same.

In short, the objection of the judgment-debtor is based upon an agreement between the parties set forth in paragraphs 3 and 4 of the objection petitions. In those paragraphs it is stated that on the 24th of March 1916 the parties came to a settlement with regard to both the claims of the decree-holder; one bated upon the mortgage-bond and the other based upon the money-decree in question. In terms of the settlement it was agreed that, the judgment-debtor should at once pay the decree holder Rs. 38,000 covered by the mortgage-bond, and as regards the claim under the decree, after remitting the compound interest, etc, the amount of the decree was reduced to Rs. 50,532. It was agreed that the judgment-debtor would pay up that sum by December 1917, and that after the receipt of the entire amount, the decree-holder would certify (he payment into Court, failing which the judgment-debtor would apply to the Court for recording the payment made by him. In case of the entire sum of Rs. 50,532 not having been paid as agreed, upon by December 1917, the decree holder would be entitled to interest at the rate of 8 annas per cent, per mensem on the unsatisfied portion of the said sum. In paragraph 4, the judgment-debtor stated that he paid on different dates, from the 24th of March 1916 up to the 30th of September 1917, several sums of money aggregating to Rs. 47,000. As to the balance it is stated that on account of the fraud of his servant it was not paid in time and that he was ready to pay the same and, as a matter of fact, has, under the Court''s order, deposited the same in Court by means of challans. The Court refused to investigate into the allegations set forth in the aforesaid paragraphs 3 and 4 of the objection petition, on the ground that the adjustment and the payment of the decree as alleged therein could not he recognized by the executive Court by virtue of Order XXI, Rule 2(3) of the Code of Civil Procedure, and hence any inquiry into the allegations of the judgment-debtor was useless. It is not disputed that the entire sum to which the decree-holder was entitled under the decree was not paid either upon the calculation of the claim arrived at under the decree, or the same said to have been agreed upon, namely, Rs. 50,532, under the alleged agreement of the judgment-debtor. Under the alleged agreement, the entire sum of Rs. 50,532 was to be paid up by December 1917. This entire sum was not paid up by Descmber 1917, and consequently the decree-holder had a right to execute the decree.

The question then is whether the decree-holder san exeeute the decree for the sum claimed by her as due under the decree, or she is bound to give credit for the sums alleged by the judgment-debtor to have been paid to her from time to time from the 24th of Marsh 1916 to the 13th of September 1917. The decree-holder is, no doubt, doubt to state, in his verified petition for execution, the amount due under the decree under Order XXI, Rule 11(g) of the Code. She denies there being any payment or adjustment of the decree and states in the petition for execution that the entire sum under the decree is due to her and that nothing was paid by the judgment debtor. It was also incumbent upon the decree holder to certify to the Court whish passed the decree any adjustment of the decree in'' whole or in part, or any sum of money paid by the judgment debtor towards the satisfaction of the decree under Order XXI, Rule 2(1). There is no time prescribed either in the CPC or by the Law of Limitation for a decree holder to certify to the Court any adjustment or payment made by the judgment debtor. So it was the bounden duty of the decree-holder to state, in the execution petition, under Clause (e) of Rule 11 as to what payments were made by the judgment-debtor, out of Court, in order to show clearly what sum was due under the decree for which she sought execution, The decree-holder has not certified to the Court under Order XXI, Rule 2, nor has she set forth any payment made by the judgment debtor towards the decree, in the execution petition. Therefore, the Executing Court upon the execution petition of the decree-holder has to assume that no payment out of Court was made by the judgment-debtor and that there was no adjustment of the decree either in whole or in part. The judgment-debtor also did not inform the Court of the adjustment of the decree, or the payments alleged by him in his objection petition within the period of 90 days fixed by Article 174 of the First Schedule to the Limitation Act, whereat under Order XXI, Rule 2(1), an obligation is cast upon the decree-holder to certify any payment or adjustment of the decree. It is permissible to the judgment debtor also under Clause (2), to inform the Court of such a payment or adjustment, and then the Court after necessary enquiry is required is required the said payment or adjustment. The judgment-debtor did not make any application under the said clause within the prescribed period and now his right to apply is barred by limitation. His application under Order XXI, Rule 2, is, therefore, not maintainable at this stage. The result is that the alleged payment or adjustment has not been certified by the decree-holder or recorded by the Court under Order XXI, Rule 2. The alleged adjustment or payment cannot consequently be recognized by the Executing Court. Clause (3) of Order XXI, Rule 2, is clearly precise upon the point. It says:

A payment or adjustment whish has not been certified or recorded as aforesaid shall not be recognized by any Court executing the decree.

The agreement of the 24th of Marsh 1913 reducing the amount of the decree from Rs. 50,621-11-0 to Rs. 50,532 was not certified or recorded under Order XXI, Rule 2. If it was an adjustment; the time for hiving it reorganized in the Executing Court has now long expired, It is, however, said that the said agreement is not an adjustment of the decree and consequently Order XXI, Rule 2, does not bar the cognizance of the Court by reason of its not haying been certified or recorded within the prescribed period. The agreement clearly reduces the amount of the decree by reason of certain arrangements between the parties, whereby the claims under the mortgage bond were also settled. Such an agreement cannot be anything else than an adjustment of the decree and, as a matter of fast, it is sought to be enforced by the judgment-debtor as an adjustment by seeking to reduce the amount of the claim under the decree to the sum specified in the said agreement. The agreement was not anted upon and the judgment-debtor failed to pay up the entire sum by December 1917 as was clearly stipulated for in the agreement. Therefore, the obligation east upon the decree-holder, by the agreement, to certify payment did not arise, inasmuch as the entire sum was not paid. The agreement in itself does not bar the execution of the decree. On the other hand, it clearly says that in the event of any portion of the decree remaining unsatisfied, the decree holder would be entitled to charge interest at the rate of 8 annas per sent, per mensem. Therefore, the portion of the agreement relating to the reduction of the claim under the decree is not enforceable now.

The only question, therefore, is, as already stated, whether the payments, on the several dates, of large sums of money amounting to Rs. 47,000 from the 24th of March 1916 to the 13th of September 1917 can be re-opened in the execution proceedings. Such a question can, no doubt, arise u/s 47 of the CPC as a question relating to the execution discharge or satisfaction of the decree, but in order to avail of Section 47, it must be shown that the Executing Court was bound to recognize the payment. That is to say, if the payment was certified or recorded under Order XXI, Rule 2, and was not given credit in the execution proceedings, the judgment-debtor could have it enquired into u/s 47 of the Code; but, when the right to have the payment recorded is barred by limitation, I do not think that Section 47 can at all some to the relief of the judgment-debtor. The provisions in the law seem to me to be plain. It has also received judicial pronouncements and it appears to me that t is concluded by the authorities Ram Doyal Banerjee v. Ram Hari Pal 20 C. 32 : 10 Ind. Dec. 23 Jogendra Nath Sarkar v. Probhat Nath Chatterjee 21 Ind. Cas. 926 : 19 C.L.J. 126 : 19 C.W.N. 650, Krishna Aiyar v. Savurimuthu Pillai 50 Ind. Cas. 584 : 42 M. 338 : 36 M.L.J. 376 : 9 L.W. 443 : (1919) M.W.N. 248, Biroo Gorain v. Jaimurat Koer 13 Ind. Cas. 63 : 16 C.W.N. 923 : 16 C.L.J. 174, Trimback Ramkrishna Ranade v. Hari Laxman Ranade 7 Ind. Cas. 940 : 34 N. 575 : 12 Bom. L.R. 686, Hansa Godhaji Marwadi v. Bhawa Jogan Marwadi 33 Ind. Cas. 232 : 40 B. 353 : 18 Bom. L.R. 22, Imam-ud-din Khan v. Bindabasini Prasad 55 Ind. Cas. 890 : 5 P.L.J. 70 : 1 P.L.T. 149, Sukhdei Kumari v. Rat Bahadur Mahamaya Prasad Singh 45 Ind. Cas. 765, Ghasi Ram v. Dalel Singh 45 Ind. Cas. 222 : O.L.J. 92 and Man Mohan Karmakar v. Dwarka Nath Karmakar 7 Ind. Cas. 55 : 12 C.L.J. 312.

Reliance has been placed upon the observation of Heaton, J., in the case of Trimback Ramkrishna Ranade v. Hari Laxman Ranade 7 Ind. Cas. 940 : 34 N. 575 : 12 Bom. L.R. 686, His view was, however, not followed in the cases of Jogendra Nath Sarkar v. Probhat Nath Chatterjee 21 Ind. Cas. 926 : 19 C.L.J. 126 : 19 C.W.N. 650 and Biroo Gorain v. Jaimurat Koer 13 Ind. Cas. 63 : 16 C.W.N. 923 : 16 C.L.J. 174. The view expressed by Heaton, J., in the case of Trimback Ramkrishna Ranade v. Hari Laxman Ranade 7 Ind. Cas. 940 : 34 N. 575 : 12 Bom. L.R. 686 was given effect to in the latter case of that Court in Hansa Godhaji Marwadi v. Bhawa Jogaji Marwadi 33 Ind. Cas. 232 : 40 B. 353 : 18 Bom. L.R. 22. No doubt it imposes great hardship upon the judgment-debtor when the actual payment made by him is not recognized in execution proceedings and the decree-holder is allowed to execute the entire decree in spite of such payments. In the opinion of Heaton, J., in spite of the provisions in Order XXI, Rule 2(3), it was the duty of the decree-holder to execute the decree only for the sum that was justly due to him and he, having failed to disclose to the Court the payments made by the judgment debtor, in the execution petition filed by him, upon which the Court is set in motion, is guilty of fraud upon the Court, and that the Court would be chary in allowing him to take advantage of his fraudulent execution. As observed above, this view found favour with Scott, C.J., of the same Court, who, along with Heaton, J., was party to the case of Hansa Godhaji Marwadi v. Bhawa Jogaji Marwadi 33 Ind. Cas. 232 : 40 B. 353 : 18 Bom. L.R. 22. The view seems to have been recognised in another way in the case of Ghasi Ram v. Dalel Singh 45 Ind. Cas. 222 : 5 C.L.J. 92. In that case the decree-holder, in spite of the decree having been satisfied out of Court, levied execution and purchased the property at the auction sale. In a suit for redemption brought by the judgment-debtor against the mortgagees it was pleaded that the equity of redemption had vested in the said auction-purchaser (Bhikham Singh), who was also impleaded as defendant in the case Bhikham Singh claimed the equity of redemption under his purchase. It was held that inasmuch as the decree in execution whereof he purchased the property was satisfied out of Court, he committed fraud upon the Court by suppressing the fact of payment and that the entire execution proceedings and the sale were tainted with fraud and were null. It was held that the payment or adjustment not certified under Order XXI, Rule 2, did not relieve the decree-holder from the responsibility and the obligation of setting forth, truly and fully, all the payments received by him towards the satisfaction of the decree, in the execution proceedings. The point really arose in that case in another suit, and not in the execution proceedings. It is true that Order XXI, Rule 2, does not at all extinguish the right of the judgment-debtor arising from the adjustment of the decree or payment made by him towards the satisfaction of the decree. It may be recognized by Courts. Order XXI, Rule 3, only bars the recognition of such payment or adjustment by the Executing Court. If, however, the judgment-debtor is prevented by the fraud of the decree-holder and by a fraudulent assurance given to him that he would certify or had certified the payment which he was bound to do under Clause (1) of Order XXI, Rule 2, a question might arise whether in spite of the judgment-debtor''s not having informed the Court within the time prescribed, it would not be open to him to get rid of the provision of Order XXI, Rule 2, Clause (3), by reason of the fraud committed by the decree holder in the initiatory stage, namely, at the time of the adjustment or the payment. But that question does not arise in the present case, inasmuch as no fraud of any kind has been alleged in the petition whereby the judgment'' debtor was prevented from having his payment recorded in Court under Order XXI, Rule 2(2). As it has not arisen, I need not discuss this point or give any opinion.

Therefore, the only question is whether the neglect of duty by the decree-bolder to certify the payment or the judgment debtor''s own laches to come to Court in time to have the payment recorded bars the latter from having an enquiry made, as to the payments made by him, in the execution proceedings, Dawson Miller, C.J., in the case of Sukhdei Kumari v. Rai Bahadur Mahamaya Prasad Singh 48 Ind. Cas. 765 observed as follows: "It may possibly be a hardship in such cases if in fact the money has been paid or the decree otherwise adjusted. We have no doubt, however, that the rule was introduced with the very object of avoiding in execution proceedings disputes between the parties and frequently long enquiries as to what sums had or had not been paid out of Court in satisfaction of the decree." Chandavarker, J., in the case of Trimback Ramkrishna Ranade v. Hari Lakman Ranade 7 Ind. Cas. 940 : 34 N. 575 : 12 Bom. L.R. 686 tried to solve this difficulty and to relieve the judgment-debtor of the hardship by penalizing the decree-holder for his fraudulent action. He suggested that "in dealing with the darkhast (execution petition) it will be competent for the Subordinate Judge to consider whether, apart from the appellant''s right to execute the decree in spite of his deed, his conduct in seeking execution has been fraudulent so as to render him liable to a criminal prosecution. Fraudulent executions of decrees must be discouraged by the Courts whenever they come to their notice; and decree holders, who enter freely into adjustments outside the Court and do not certify them as required by law, but fraudulently apply for execution ignoring the adjustment, should be dealt with under the Criminal Law, It will also be competent for the Subordinate Judge, in dealing with the darkhast, to consider, whether u/s 258 of Act XIV of 1882, the respondent''s plea of adjustment outside the Court, put in as a defence to the darkhast, can be treated as notice to the Court of the adjustment, satisfying the provisions of the section regarding certification so as to warrant the Court in holding that the decree, having been wholly satisfied according to law, is no longer capable of execution." He refrained from expressing any opinion upon this point.

Upon the law as it is, and upon the trend of the decisions, it is not possible to give relief to the judgment debtor in such cases by reason of the stringent rule of Order XXI, Rule 2(3). It will, however, be a matter of great regret that the decree-holder in the present in spite of having received money failed to certify payment in Court as was his duty under Order XXI, Rule 2, and that she now files a verified petition alleging that no payment was made. This Court can very well draw the attention of the lower Court to the allegation of the judgment-debtor set forth in his objection petition that a large sum of money, approaching nearly the entire sum due under the decree, was paid up and that she, the decree-holder, was taking great risk in executing the decree without giving credit for the payments. The Court cannot do more than this.

The appeal is, therefore, dismissed. In the circumstances there will be no order as to costs.

Adami, J.

I agree.