Velayudhan Pillai vs Krishna Pillai

Gangaduara Menon, J.—The assignee-decree-holder is the Appellant. When he took out execution the Defendant contended that the amount due to him in O.S. 257 of 1122 was adjusted towards the decree amount in the present case and that the decree was thus satisfied. This plea was upheld by the execution Court and was confirmed in appeal. Hence this Second Appeal.

The Courts below based their conclusion on C.M.P. 3700/1118 filed by the assignee-decree-holder on 3-6-1118. The Appellant contends that it was only an application under Order 21, Rule 16 to set off the amounts under the cross decrees and not one under Order 21, Rule 2 certifying an adjustment. Though no objection was taken by the Defendant to C.M.P. 7300 of 1118 it appears that it was rejected by the Court on 15-7-1118 on the ground that no application for execution was pending then. It is therefore further argued that since C.M.P. 7300 of 1118 was rejected there is no certification of adjustment as enjoined under law and the decree should be deemed to be alive for purposes of execution. The C.M.P. 3700 of 1118 did not state the specific order or rule of the CPC under which it was filed.

We have carefully read C.M.P. 7300 of 1118 and we are inclined to think that the application was in substance one certifying the adjustment of the decree in the manner pleaded by the Defendants. When once the decree-holder had certified adjustment of the decree, it is not thereafter open to him to execute the decree disregarding such certification. It was the duty of the Court to have recorded satisfaction especially in view of the fact that the Defendant to whom notice was given had taken no objection in regard to that matter. Sub-rule 3 of Order 21, Rule 2 only provides that a payment or adjustment which has not been certified or recorded shall not be recognised by any Court executing the decree. It is significant that the words used are "certified or recorded" and not "certified and recorded". Therefore for the Court to recognise the adjustment, it is sufficient that it is certified and it is net necessary that it shall have been both certified and recorded. It is not open to the Court to dismiss an application by the decree-holder to record satisfaction: vide- Neduri Rajanna Vs. Dontukunti Seshamma and Another, The fact that C.M.P. 3700 of 1118 appears to have been for some reason dismissed will not entitle the decree-holder to execute the decree which he has certified to the Court to have been adjusted.

Therefore we agree with the Courts below in thinking that the decree has been satisfied as contended for by the Defendant and that it can (SIC) longer be executed. The appeal is without (SIC) and is dismissed with costs.