Ram Das Sahu and Others vs Sukhdeo Ram

Manohar Lall, J.—This is an appeal by the defendant who was a decree-holder having, obtained the decree on 19th September 1929, against the plaintiff for a sum of Rs. 368 besides costs. The judgment-debtor under the decree has been found to have paid three sums, namely Rs. 100 on 1st, September 1930, two sums of Rs. 50 on 3rd February 1932, and 13th July 1932 under an agreement or understanding with the decree-holder that he would certify these sums towards the decree. Under that, impression the judgment-debtor paid a further sum of Rs. 177 on 17th September 1932, which was the balance according to him then due under the decree. This, amount of Rs. 177 was certified as having, been received by the decree-holder, the judgment-debtor being under the impression that the whole of the decree has thus-been satisfied. But he was surprised to find that the defendant had taken out execution of the decree ignoring the payment of Rs. 200 stated above.

His property was put up for sale for realization of this amount and about 1st December 1934 the plaintiff had to deposit the money, that is Rs. 200 over, and thus saved his property from sale. It is obvious therefore that the injury to the plaintiff accrued about 1st December 1934, when he obtained the right to bring a suit for damages to recover the sums if 1 such a suit was maintainable. The defence to the action was that the earlier amount was paid by the plaintiff to the defendant), not in discharge of his liability in part under the decree of September 1929, but for some other antecedent debts due on handnotes or other rookas. This defence has been concurrently disbelieved by the Courts below who have awarded a decree for a sum of Rs. 200 besides interest in the sum of Rs. 83 and costs.

In appeal it is argued that such a suit as not maintainable; but there is a long current of authorities to the contrary which is to be found in Mulla''s well-known Commentary, Edn. 10, at pp. 694 and 695. It is well settled now that if A executes a decree notwithstanding a payment made by a judgment-debtor B, the latter can maintain a suit against A to recover damages for breach of contract represented by this adjustment or payment.

The reason for the rule is that the executing Court is debarred from looking into the question of payment if it is not certified under Rule 2 and if B is compelled to pay in execution of the decree the full amount of the decree over again, he is entitled to recover back that sum from the decree-holder as damages. My attention was drawn to the case in Abdul Hamid v. Dhani Duadh A.I.R (1938) Pat. 41 where the facts were entirely different. In that case the suit was brought to enforce a pre-decree arrangement by which the decree-holder undertook to give credit for certain payments, but in spite of those payments being made a decree had been passed. That was an entirely different case, because the question of whether the decree was correctly passed or not is no longer open to controversy in a subsequent suit. The matter is res judicata; and further as Lord Carson pointed out as was noticed in that judgment:

That so long as the judgment or decree stands, any sum recovered under the decree or judgment cannot be recovered back in a fresh suit whilst the judgment under which it was recovered remains in force upon the ground that the original decree or judgment must be taken to be subsisting and valid until it is reversed or superseded by some ulterior proceeding.

5.In the present case the plaintiff did not want and does not want the decree to be set aside or reversed, nor does he pray that any money which has been received thereunder should be paid back to him. All he wants is to recover damages for the loss which he has suffered in having to repay the sum of Rs. 200 twice over in breach of the agreement entered into between him and the defendant. The cause of action arose on 1st December 1934, and the present suit therefore is within time having been instituted on 3rd January 1935. The only question which appears to me on which the appellant can have any relief is the question of interest.

The Courts below have not given any basis for allowing the amount of Rs. 83 as claimed by the plaintiff. It appears from the plaint that the amount of Rs. 83 was calculated by the plaintiff on the basis that the cause of action accrued to him on 2nd September 1930, for Rs. 100, 4th February 1932 for Rs. 50 and 14th July 1932, for the last payment of Rs. 50. This obviously was incorrect. I therefore vary the decree of the Courts below on the question of interest and direct that the plaintiff do recover from the defendant besides the sum of Rs. 200 interest at the rate of 6 per cent, only to be calculated from 1st December 1934.

The plaintiff will also recover proportionate costs in all the Courts on this amount which will now be determined in pursuance of my order. The appeal is dismissed except with regard to the matter which has been indicated.