Sultan Moideen Rowthan vs Savalayammal and Another

The finding is that the sum of Rs. 1000 was paid by the defendant to Appaji Chetti one of the two decree-holders. This finding is however not sufficient for the disposal of the case. A further finding is also necessary as to what was the share to which Appaji Chetti was entitled as between him and the 1st plaintiff Savalayammal, and the payment made to Appaji Chetti can be held valid only to the extent of the share to which he is entitled. Cf. Tarruch Chunder Bhuttacharjee v. Divendro Nath Sanyal I. L. R 9 C 831, with the decision in which case we agree. As to the contention that the application made by Savalayammal for execution of the whole was premature, we are unable to rule that the first instalment was paid in conformity with the directions contained in the decree.

The payment was not certified by Appaji Chetti to have been received by him on behalf of both the judgment-creditors, and it appears that he applied the whole money to his own use. Having regard to Section 231 of the Code of Civil Procedure, a payment out of court to one of several judgment-creditors, but not certified by him as having been received or applied by him for the benefit of all, cannot be regarded as made in satisfaction of the decree, except for the purpose of determining what order should be passed u/s 281.

The District judge should therefore ascertain what is the share due to Appaji Chetti, and giving credit for the amount thus ascertained execute the decree in favour of Savalayammal for the . balance. If Appaji Chetti''s share should exceed Rs. 1000, the District Judge will of course make such order as may be necessary to protect his interest with regard to the excess. Costs to abide and follow the result.