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Pandurang Balkrishna Golvankar Vs. Jagya Bhau Bhagat - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case Number Second Appeal No. 218 of 1919
Judge
Reported inAIR1921Bom411; (1920)22BOMLR1120
AppellantPandurang Balkrishna Golvankar
RespondentJagya Bhau Bhagat
Excerpt:
civil procedure code (act v of 1908), order xxi, rule 2(3) - decree-payment or adjustment of decree-certifying to the court-limitation.;the payment or adjustment of a decree can be certified or recorded by the court under order xxi, rule 2(3| of the civil procedure code, at any time.;eusuffzeman sarhar v. sanchia lal nahatai (1915) i.l.r. 43 cal. 207 followed. - .....v. babaji i.l.r (1895) bom.. under section 258 of the civil procedure code of 1882, unless such a payment or adjustment had been certified as aforesaid, it would not be recognised as a payment or adjustment of the decree by any court executing the decree. in order xxi, rule 2, clause (h) the words art; 'a payment or adjustment, which has not been certified or recorded as aforesaid, shall not be recognizer, by any court executing the decree.'3. under the old code this court has decided that as there was no time fixed within which the decree-holder is bound to certify a payment's made out of court, such, payment could be certified at any time: see tukaram v. babaji. 4. in eusuffzeman sarkar v. sanchia lal nahala i.l.r (1915) cal. 207 it was held that a decree-holder who had received a.....
Judgment:

Norman Macleod, Kt., C.J.

1. A decree was passed in Civil Suit No. 84 of 1906 by which it was ordered that the defendant should give to the plaintiffs sweet paddy Khandis 121/2 in the lump (maunds 245 or Rs. 490-0-0 as its price at the rate of Its. 2 per maund) by instalments commencing in 1907. The decree further directed that in case any two instalments were not paid, the whole decree should be executed at once. The decree-holder filed an application for execution on the 10th September 1917 alleging that the nine instalments from 1907 to 1915 had been paid to him regularly in January of each year as they fell due, and that as two instalments of 1916 and 1917 had not been paid, he asked that the whole decree should be executed. The judgment-debtor denied having made any payments at all, and as none of the alleged payments of the nine instalments had been certified to and recorded by the Court, the question arose whether the Court executing the decree could take notice of the alleged payments.

2. Both Courts have dismissed the plaintiffs application. In the first place a question of limitation arises, whether there is any time fixed for an application to certify a payment made by a decree-holder, as is required by Order XXI, Rule 2. That point arose in Tukaram v. Babaji I.L.R (1895) Bom.. Under Section 258 of the Civil Procedure Code of 1882, unless such a payment or adjustment had been certified as aforesaid, it would not be recognised as a payment or adjustment of the decree by any Court executing the decree. In Order XXI, Rule 2, Clause (H) the words art; 'a payment or adjustment, which has not been certified or recorded as aforesaid, shall not be recognizer, by any Court executing the decree.'

3. Under the old Code this Court has decided that as there was no time fixed within which the decree-holder is bound to certify a payment's made out of Court, such, payment could be certified at any time: see Tukaram v. Babaji.

4. In Eusuffzeman Sarkar v. Sanchia Lal Nahala I.L.R (1915) Cal. 207 it was held that a decree-holder who had received a certain sum of money by way of payment of interest' can either apply to certify payment before execution, or may do so on his application for execution of the decree. In that case, on the 7th February 1906, the plaintiff obtained a decree, and, on the 18th May 1911, he applied for execution. At the time of the application he notified to the Court that he ha 1 received a certain sum on the 19th June 1908 from the judgment-debtor towards interest, and alleged that that execution was not barred by limitation. It was held that the notification to the Court of the receipt of the sum paid by the judgment-debtor was all that the decree-holder had to do in order to certify payment, and Order XXI, Rule 2, of the Code of Civil Procedure did not stand in the way. Therefore if there is no time required for certifying, then the application for execution in this case certifying the payments already made amounted to a certifying under Order XXI, Rule z which the Court was bound to take notice of, and if the payments were disputed, as they Appear to have been done in this case, then the Court should have taken evidence, and come to a conclusion one way or the other whether the payments had actually been made or not. In my opinion, therefore, the decision of the lower appellate Court was wrong. The case must go back, and the Darkhast must be sent back to the trial Court to be disposed of in accordance with law. The appellant will have his costs in this Court and the Court below. Costs in the first Court will be costs in the Darkhast.

Heaton, J.

5. I agree. 1 only wish to add this. Rule 2 of Order XXI provides specifically a way in which a payment or adjustment can be certified. It provides how a Darkhast has to be presented and it provides that the Darkhast must state any payment or adjustment made subsequently to the decree, and the Darkhast has to be verified by the applicant. Therefore, the statements in the Darkhast are certified. They include a statement of payments or adjustments made. Therefore those payments or adjustments are certified. Moreover they would be recorded by the Court in the regular course, because they would be entered in the register of Darkhast. When we come to the case of the judgment-debtor, it is expressly provided that he may make an application to issue a notice. So we have the two methods provided by the Code, the method to be followed by the judgment-debtor and the method to he, followed by the judgment-creditor ; and in the case of the latter there is, as has already been held by this Court, no limit of time within which the adjustment has to be certified. 1 therefore agree that the decision of the lower Court was wrong on a preliminary point and the Darkhast must be sent back to be disposed of in accordance with law.


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