Shaikh Darsan Ali vs Babu Suraj Mal

Dhavle, J.—This is an appeal by the judgment-debtor who resisted the decree-holder''s application for execution on the ground that he had paid the decree, holder Rs. 325 out of Court. The lower Courts held that the bulk of the payments were alleged to have been made at a time which made it impossible to recognize them in execution proceedings under Sub-rule (3), Rule 2, Order 21, Civil P.C., and that none of the payments had been proved in fact. The learned advocate for the appellant has endeavoured to argue that the matter in dispute between the parties falls not within Order 21, Rule 2, but within Section 47, Civil P.C., so that there could be no question of the limitation of ninety days applied by the lower Courts under Article 174. This contention is rested on the ground that the decree was an instalment decree, that the judgment-debtor was to pay certain sums by certain dates and that the decree holder was to be entitled to execute only in the event of default in respect of any instalment. It is argued that before the decree-holder could be permitted to execute, it was necessary for him to show that there had been a default in respect of some instalment and that therefore this was not a case where it was necessary for the judgment-debtor to show that he had paid. The words of Sub-rule (3) of Order 21, Rule 2, are however far too clear to permit us to accept this contention, whether the onus of proving payments lay on the judgment-debtor or of proving default lay on the decree-holder (a point to which reference will be made again). What the sub-rule provides is that:

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

On this wording the attempt to take the case out of Order 21, Rule 2, and bring it within Section 47 cannot be supported: Radha Kant Lal v. Mt. Parbati Kuar A.I.R.1921. Pat. 135 and Harihar Prasad Singh and Others Vs. Bhubneshwari Prasad Singh and Others, The learned advocate has endeavoured to find support for his contention in Wali Shah v. Bihari Lal A.I.R.1926.Lah. 641 in which Dalip Singh, J. purporting to follow Ligraj Patjosi v. Mahadeb Ram A.I.R.1926. Cal. 62 seems to have held that it was permissible for a, judgment, debtor to prove that certain con. ditions on which a decree depended had been complied with irrespective of Order 21, Rule 2, Sub-rule (3).

The report in Wali Shah v. Bihari Lal AIR 1926 Lah. 641 is however obscure and differs from the report of the same case in Wali Shah v. Bihari Lal A.I.R.1926. Lah. 641. The obscurity is enhanced by the fact that the learned Judge considered Ligraj Patjosi v. Mahadeb Ram A.I.R.1918. Cal. 62 "to be directly in point." In this last case, however, it appears that the decree provided that the defendant was to carry out certain terms and to notify com. pliance to the Court, that he did so, and that when the decree-holder objected and the Court of first appeal directed an investigation under Order 21, Rule 2, Mookerjee, J., with whom Beachcroft, J. agreed, held that the judgment-debtor''s "application is clearly not one under Sub-rule 2 of Order 21 and no action ought to have been taken thereon."

This was the decision in Ligraj Patjosi v. Mahadeb Ram A.I.R.1918. Cal. 62 and it does not seem to have any bearing on the facts in Wali Shah v. Bihari Lal A.I.R.1926. Lah. 641 so far as one can ascertain them from the report. It may be that the learned Lahore Judge had in mind the following observations in Ligraj Patjosi v. Mahadeb Ram A.I.R.1918. Cal. 62

The proper course for the plaintiff is to apply for execution of the decree if his case is that the terms of the decree have not been faithfully carried out by the defendant. If such application is made, it will be open to the defendant to show that he has, as a matter of fact, carried out the terms of the decree. The Court will then be in a position to consider whether the terms of the decree have been carried out.

There is no reference in these observations to Order 21, Rule 2, or to limitation under Article 174. The point about limitation under this Article, it is true, was raised on behalf of the decree-holder in Ligraj Patjosi v. Mahadeb Ram A.I.R.1918. Cal. 62 but it was overruled on the ground that "the proceedings have been throughout misconceived." It seems to me therefore that in that case there was no pronouncement that when the decree-holder would apply for execution, the defendant''s objection would not be barred under Article 174 if Order 21, Rule 2 were applicable in the circumstances.

The contention of the learned advocate that the onus was on the decree-holder to make out his right to proceed in execution by establishing that the defendant was in default is plainly opposed to the ruling in Radha Kant Lal v. Mt. Parbati Kuar, A.I.R.1921. Pat. 135 that when no payment or adjustment of a decree has been certified under Order 21, Rule 2 and where the verified application for execution does not state under Order 21, Rule 11(e) that any payments have been made, but under Order 21, Rule 11(g) the decree-holder applies for execution of the entire amount awarded by the decree, the executing Court has to assume that there has been no adjustment of the decree either in whole or in part, and cannot, after the lapse of the period fixed by Article 174, Limitation Act, permit the judgment-debtor to plead any adjustment, or, it may be added, payment, under Order 21, Rule 2(2). The decree in the case before us required the judgment-debtor to pay Rs. 1100 in certain instalments, and in the event of his default empowered the decree-holder to proceed in execution. The alleged payments were therefore payments of "money payable-under" the decree within the meaning of Order 21, Rule 2. Wali Shah v. Bihari Lal A.I.R.1926. Lah 641 was not a case of payments at all.

It may sometimes be difficult to distinguish between conditions precedent to the decree-holder taking out execution and adjustments of a decree or payments towards satisfaction of a decree.

The decision in Wali Shah v. Bihari Lal A.I.R.1926. Lah. 641 apparently turned on such a distinction. There is no room for such a distinction in the present case, nor can the judgment-debtor be permitted to evade Order 21, Rule 2(3) by giving to these payments towards satisfaction of the decree the name of conditions precedent to the decree-holder taking out execution. No payment towards the satisfaction of a decree: for money can be recognized by the executing Court unless it is certified or recorded under the rule, and no decree-holder is entitled to realize any money by execution 1 if he has been already paid out of Court, entirely irrespective of whether or not the decree provides for instalments with execution in default. Where the decree makes such provision and the decree-holder applies for execution, it must be taken that his case is that default has been made and the judgment-debtor will have to meet it by proving payment, a positive fact within his knowledge. As this will have to be done in the executing Court, the bar of Order 21, Rule 2(3) will come into play, and it is impossible to evade it by invoking Section 47, as I showed in some detail in Harihar Prasad Singh v. Bhubneshwari Prasad Singh A.I.R.1936. Pat. 270: see also Imamuddin Khan v. Bindubasini Prasad A.I.R.1920. Pat. 833

So far therefore as the bulk of the payments--the first four payments in alleged) satisfaction of the first two instalments are concerned, it must be held that it is not open to the executing Court to recognize them in any way. As regards the two later payments, there are concurrent findings of fact against the appellant.

The learned advocate for the appellant has endeavoured to show that these findings are contrary to law, because the lower Court declined to compare the signature on the receipt put forward by the appellant with an admitted signature of his. It is difficult to see any error of law in the lower Courts'' expressing their inability as laymen to arrive at a conclusion merely on a comparison of handwriting.

It was for the appellant to produce evidence to the satisfaction of the Courts of fact, and this he clearly failed to do. I may add that we have looked at those signatures in this Court and that in our opinion, it would have been surprising, if any Court with any sense of responsibility could on a comparison of those signatures have come to the conclusion that they were the work of one and the same man.

I would dismiss the appeal with costs.

Yarma, J.

I agree.