Ram Prosad Roy vs Kirit Roy

Das, J.—The only question argued before me is whether u/s 47 of the CPC the Court can investigate the question whether the fact of satisfaction of a decree was certified to the Court by the decree holder.

In this case the appellant obtained a decree against the respondent. He put that decree in execution, when he was met with the plea by the respondent that the decree was satisfied and the fact of the satisfaction of the decree was certified to the Court by the decree holder. The petition put in by the decree holder is not forthcoming and the explanation is that it was either misplaced by the Court Amlas or that the decree-holder may have had something to do with it. The lower Appellate Court has on evidence come to the conclusion that the decree holder did certify the fact of the satisfaction of the decree to the Court and that, therefore, execution cannot proceed.

The learned V kil on behalf of the. decree holder urges that the Court should not have gone into that question at alt and that sub Section 3 of Order XXI, Rule 2, prevents the Court executing a decree from recognizing any payment or adjustment which has not been certified or recorded.

The scheme of Order XXI, Rule 2, is not very complicated. First of all there is an obligation on the decree-holder, to certify the payment or adjustment to the Court, whose duty it is to execnte, the decree, and there is also an obligation on the Court to record the same accordingly. Next, if the decree-holder does not certify to the Court, then the section gives power to a judgment-debtor to bring that fact to the notice of the Court, and it gives power to the Court to investigate that matter and if the Court finds that there were such payments as alleged by the judgment-debtor, the Court has power to record the same accordingly. Lastly, it imposes a bar upon a Court executing the decree from recognizing a payment or adjustment which has not been certified or recorded as aforesaid. In my opinion the Court may recognize a payment or adjustment which has been certified but not recorded. It seems to me that sub Section 3 is perfectly clear on this point. Therefore, the position is that the Court finds on an investigation of facts that the decree-holder did certify the fact of such payment to the Court, although it was not recorded by the Court. In my opinion the Court was entitled to go into evidence for the purpose of considering whether the decree-holder did certify the fact of such payment to the Court. The finding of fact that the decree holder did certify such payment to the Court is binding on me in second appeal, and I hold that the Court may recognize such payment although it has not been recorded by the Court.

I would, therefore, dismiss this appeal With costs, which I assess at one gold mohur.