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Dattatraya Kashinath Chhatre Vs. Vithaldas Bhagwandas Darbar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberFirst Appeal No. 90 of 1941
Judge
Reported in(1941)43BOMLR1022
AppellantDattatraya Kashinath Chhatre
RespondentVithaldas Bhagwandas Darbar
DispositionAppeal dismissed
Excerpt:
.....order xxi, rule 2; order xxxii, rule 7--'or,' interpretation of--mortgage decree--application by decree-holder to record adjustment--minor judgment-debtors--dismissal of application for want of prosecution--execution of decree by decree-holder whether permissible.;in order xxi, rule 2, sub-rule (3), of the civil procedure code, 1908, the disjunctive 'or' must be read as the conjunctive 'and.';mt. champi bai v. pearey lal [1938] a.i.r. all. 116, disapproved.;where some of the judgment-debtors are minors, the court, before recording an adjustment under order xxi, rule 2(1), of the civil procedure code, is bound, under order xxxii, rule 7, of the code, to satisfy itself that the compromise is for the benefit of the minors.;arunacheltam chetty v. ramamdhm chetty and alameht achi (1905)..........for a sum of rs. 81,000 odd, which was made payable by instalments. on november 19, 1937, the decree-holder made an application to the court, which is exhibit 1, asking the court to record an adjustment, the terms of the adjustment being that in satisfaction of the decree, the decree-holder was to take certain immoveable properties. at the same time an application was made to the court for sanction of the compromise on behalf of defendants nos. 3, 4 and 5, who were minors. notices were issued, but eventually on february 24, 1038, the application to record the compromise was dismissed for want of prosecution. the present darkhast was issued on february 7, 1939, and the learned first class subordinate judge of bijapur has held that it is entitled to proceed. hence this appeal.2. the.....
Judgment:

John Beaumont, C.J.

1. This is an appeal raising a question in execution. In the year 1936 the respondent obtained a decree against the appellants for a sum of Rs. 81,000 odd, which was made payable by instalments. On November 19, 1937, the decree-holder made an application to the Court, which is exhibit 1, asking the Court to record an adjustment, the terms of the adjustment being that in satisfaction of the decree, the decree-holder was to take certain immoveable properties. At the same time an application was made to the Court for sanction of the compromise on behalf of defendants Nos. 3, 4 and 5, who were minors. Notices were issued, but eventually on February 24, 1038, the application to record the compromise was dismissed for want of prosecution. The present darkhast was issued on February 7, 1939, and the learned First Class Subordinate Judge of Bijapur has held that it is entitled to proceed. Hence this appeal.

2. The contention of the appellants is that the application of November 19, 1937, was a certification of an adjustment under Order XXI, Rule 2(1), Civil Procedure Code, 1908, which became binding immediately on presentation, that the fact that it was not recorded by the Court is irrelevant, and that it was not competent for the decree-holder to withdraw the application. The argument would, I think, have been the same even if the judgment-debtor had agreed that the application should be withdrawn; the appellants' contention being that as soon as such an application is presented to the Court, that disposes of the decree, which cannot afterwards be executed.

3. The question turns primarily on the construction of Order XXI, Rule 2, Sub-rule (1) provides:

Where any money payable under a decree of any kind is paid out of Court, or the decree is otherwise adjusted in whole or in part to the satisfaction of the decree-holder, the decree-holder shall certify such payment or adjustment to the Court whose duty it is to execute the decree, and the Court shall record the same accordingly.

An application under that rule being made by the decree-holder is prima facie an application against his own interest; he is admitting that he has received part payment or something less than the whole claim in satisfaction of the decree, and, therefore, it is not surprising to find that no duty is cast upon the Court to consider whether the arrangement is a proper one or not. But at the same time the dutyi is imposed upon the Court of recording the certificate. In my opinion, although the Court is not concerned to consider the merits of the adjustment, it is concerned to consider whether the arrangement to be recorded is an adjustment, that is to say, a legal adjustment. To put an illustration, which I put in the course of the argument, supposing a decree-holder were to come forward and say 'the judgment-debtor has agreed in satisfaction of my foregoing the decree to give me his daughter in marriage.' That is not an extravagant illustration, having regard to the habits of some of the backward classes in this country, but it is obvious that in such a case no Court would record such an arrangement; the Court would be bound to hold that it was not a legal adjustment. In my opinion, further, where, as here, some of the judgment-debtors are minors, the Court is bound under Order XXXII, Rule 7, to satisfy itself that the compromise is for the benefit of the minors before recording it. I feel no doubt that that duty is cast upon j the Court before it records an adjustment under Sub-rule (1) of Order XXI, Rule 2(2), and that view has been taken by the High Court of Madras in Arunachellam Chetty v. Ramanadhan Chetty and Alamelu Achi (1905) I.L.R. 29 Mad. 309, by the Allahabad High Court in Kastori Singh v. Pati Ram [ : AIR1940All16 , and by the Rangoon High Court in Veerappa v. Veluswami [1933] A.I.R. Ran. 186.

4. But Mr. Coyajee for the appellants relies strongly on a decision of a single Judge of the Allahabad High Court in second appeal in Mt. Champi Bai v. Pearey Lal : AIR1938All116 . In that case it was, no doubt, held that the fact that a Judge had wrongly declined to record an adjustment under Sub-rule (1) would not prejudice the judgment-debtor, and that the Court in execution was entitled to act upon the certificate, although not recorded. The view of the Court depended on Sub-rules (2) and (3) of Order XXI, Rule 2. Sub-rule (2) enables the judgment-debtor to apply to the Court to certify the adjustment, where the decree-holder has omitted to do so; and, as such an application is prima facie in the interest of the applicant, and not, like an application under Sub-rule (1), against his interest, the rule naturally provides that the Court shall serve notice upon the decree-holder to show cause why the adjustment should not be certified, and if the decree-holder fails to show cause, then only is the Court required to record the adjustment as certified. Then Sub-rule (3) provides:--

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

The view of the Allahabad High Court, relying on the use of the disjunctive 'or' between 'certified' and 'recorded ', was that 'certified' means certified under Sub-rule (1), and 'recorded' means recorded under Sub-rule (2); but that ignores altogether the obligation imposed on the Court under Sub-rule (i) to record the adjustment, and it seems to me that that construction of Order XXI, Rule 2, would defeat to a large extent the purpose of the rule. The purpose'of the rule appears to be to ensure that an executing Court can either act upon the decree in the form which it originally took, or, if there has been an adjustment, it can act upon an adjustment recorded by the Court. So that the execution Court is not concerned to go into disputes as to whether the decree has been adjusted, and if so, on what terms. It has the record of the Court. But if all that is required is a certificate of the adjustment under Sub-rule (1), and, be it noted, there is nothing to show that the adjustment must be certified in writing under that sub-rule, it is obvious that the execution Court may be called upon to decide disputed questions as to whether there has been a certification of adjustment, and, if so, what were the terms of the adjustment. In my opinion, such a construction is against the meaning of the rule, and I think that, to give effect to the words of the whole rule, the disjunctive 'or' in Sub-rule (3) must be read as the conjunctive 'and'. I think further that the view taken in Mrs. Champi Bai v. Pearey Lal (supra) is not consistent with the cases, to which I have referred, as to the duty of the Court, where a minor is concerned, to satisfy itself that the adjustment is for the benefit of the minor before it allows such an adjustment to be recorded.

5. In my opinion, therefore, the adjustment not having been recorded, the decree stands.

6. It would be possible, I think, to dispose of this appeal without going as rfar as that, because even if a certificate alone, without any record by the Court, is a sufficient compliance with Sub-rule (I), I can see nothing in that sub-rule to prevent the decree-holder withdrawing his application before it is recorded. There is nothing in the sub-rule which says that the moment a certificate is presented, it becomes binding for all time, and that the parties cannot change their minds and withdraw from the compromise. However, I feel no doubt myself that the Court is not, under Sub-rule (1), a mere recording machine; it has to satisfy itself that the adjustment, which it is asked to record, is a legal adjustment.

7. We were referred to a recent decision of the Privy Council in Prakask Singh v. Allahabad Bank Ltd., in which this rule was discussed; but all that their Lordships held there was that an application under Sub-rule {1) to record an adjustment was not an application within the meaning of art. 181 of the Indian Limitation Act. That has nothing to do with the case with which we have to deal.

8. I may mention, merely as illustrating the danger of recording an adjustment in a case in which minors are interested without seeing that it is to their benefit, that when this appeal first came before this Court the respondent offered to adhere to the compromise, and we thereupon directed that the matter should be considered by the guardian ad litem of the minors, and that, if he approved of the compromise, he should make an affidavit to that effect. He was not prepared to say that he thought the compromise beneficial to the minors.

9. In my opinion, there is no substance in the appeal, and it must be dismissed with costs.

10. Rule in Civil Application No. 239 discharged with cost.


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