Somu Pathar and Another vs Rengaswami Reddiar and Another

Seshagiri Aiyar, J.—Although the point argued is not free from difficulty and I have a doubt whether Section 115, C.P.C, is applicable to the

case, I shall express my opinion fully so that, if the matter be taken in appeal, it can be properly dealt with then.

The petitioners in this case are the judgment-debtors in O.S. No. 333 of 1912. One Rengaswami Reddi obtained in a small cause suit a decree

against the decree-holder in O.S. No. 333 of 1912 and attached the decree in the latter suit. That was in August 1914. In December 1915, the

decree-holder in O.S. No, 333 of 1912 applied to the District Munsif''s Court to enter up satisfaction of his decree. At this time, the attachment at

the instance of the decree-holder in the Small Cause Suit had been effected. This application for satisfaetion being entered up was opposed by the

attaching decree-holder. In consequence of the opposition by the attaching creditor, the decree-holder in O.S. No. 333 of 1912 withdrew the

application. The attachment proceedings were allowed to continue. 1 find from the papers that notice was served upon the 1st defendant in O.S.

No. 333 of 1912, the father of the petitioners, and that he stated in person that the decree was satisfied. In these circumstances, it was the duty of

the attaching decree-holder to have adduced evidence to show that the decree was not satisfied. I cannot accede to the contention of Mr. Muthia

Mudaliar that the burden of proving the bona fides of the certificate is upon the judgment-debtor who said that he had paid the money and the

decree-holder who said that he had received the money; and in these circumstances it is upon persons, who allege that the certificate was collusive

and was intended to defraud them, to adduce evidence to establish the facts.

The District Munsif, and in appeal, the District Judge have come to the conclusion that, as the application for satisfaction was withdrawn, it is not

open to the petitioners to plead that the decree in O.S. No. 333 of 1912 was satisfied. The learned vakil for the petitioners drew my attention to

Order 21, Rule 2, Clauses (1) and (3).

The first clause makes it the duty of the decree-holder to certify the payment, and when that application is before the Court the Court is directed

to record satisfaction, Clause (3) says that a payment or adjustment which has not been certified or recorded shall not be recognised by the

executing court thereby implying that if there is either a certificate by the decree-holder or the recording of satisfaction by the court, the executing

court is bound to take notice of the fact. The decision in Tarah Nath v. Natabar (1915) 21 C.L.J. 632 which I respectfully follow holds that a mere

certificate is enough to enable the judgment debtor to plead that the decree has been satisfied. As myself and Kumara-swami Sastriar, J., held in

Lodd Govindoss v. Raja of Karvetnagar (1915) 29 M.L.J. 219 when once a Court is seised of an application to enter up satisfaction, it is bound

to make an enquiry and see whether the decree has been satisfied, I do not think that the Court will be justified under the circumstances in allowing

the application to be withdrawn.

It seems to me that in this case, the Courts below ought to have made an enquiry whether the application to enter up satisfaction was made bona

fide and whether the payment alleged to have been made by the judgment-debtor to the decree-holder in O.S. No. 333 of 1912 was actually

made. In my opinion, this is an irregularity which will warrant the interference of this Court u/s 115, C.P.C. What the Courts below have done is

practically to refuse to exercise the powers given to them under Order 21, Rule 2. That would amount to a refusal to exercise the jurisdiction

vested in them. I am free to confess that Section 115 can be invoked in this case. Some Judges may hold that this is straining the language of

Section 115, I have always held that where-ever there is injustice done in the exercise of jurisdiction the High Court should interfere. Therefore I

incline to the view that Section 115 is applicable to this case, I would reverse the orders of the Courts below and send the case back to the District

Munsif for proper enquiry regarding the question whether the payment was really made by the judgment debtor to the decree holder in O.S. No.

333 of 1912, and, if so, whether there was any subsisting interest capable of being attached by the attaching decree-holder. Costs will abide the

result.