1. The facts of this appeal are simple. According to the Subordinate Judge the point has not come before the High Court before. The facts are that the plaintiffs obtained a decree in the High Court against the defendant on June 27, 1930, and on September 2, 1930, on the application of the plaintiffs, the decree was transferred to the Sholapur First Class Subordinate Judge's Court for execution through the District Court. Immediately on the decree being transferred to the First Class Court at Sholapur, the plaintiffs made an application for execution, and the judgment-debtors contended that there had been an adjustment between them and the plaintiffs in Bombay prior to the transfer of the decree for execution to Sholapur. The transfer was on September 2, 1930, and the alleged adjustment was on the same day as the decree, viz., June 27. The First Class Subordinate Judges of Sholapur held that he had no jurisdiction to go into the question of whether this adjustment had been made or not, because the alleged adjustment had taken place before the transfer of the decree to Sholapur. He, therefore, declined to enter into the question, and did not go into the merits, and ordered execution to proceed. The judgment-debtors have appealed.
2. The question of the adjustment is covered by Order XXI, Rule 2, of the Civil Procedure Code, which provides in paragraph (1) that:-
Where any money payable under a decree of any kind is paid out of Court of the decree is otherwise adjuster 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 thesame accordingly.
And it has been held both by this Court and by all the other High Courts that there is no limitation during which the decree-holder may certify; he may certify at any time: see Pandu rang v. Jagya ILR (1920) 45 Bom. 91 : 22 Bom. L.R. 1120. As regards the judgment-debtor, his case is covered by paragraph (2). ' The judgment-debtor also ' under paragraph (2) ' may inform the Court of such payment or adjustment, and apply to the Court to issue a notice to the decree-holder to show cause, on a day to be fixed by the Court, why such payment or adjustment should not be recorded as certified.' Under Article 174 of the Indian Limitation Act the period of limitation for such an application by the judgment-debtor is ninety days from the date of the payment or adjustment. The question is to what Court should this application be made by the judgment-debtor. Under paragraph (I) of Order XXI, Rule 2, the application by the decree-holder should be made to the Court whose duty it is to execute the decree, and in paragraph (2) the words used are ' the Court' which must have the same meaning as in paragraph (I), that is, the Court whose duty it is to execute the decree. The question then is whose duty was it to execute the decree at the time this application was made Under Section 42 of the Civil Procedure Code, the Court executing a decree sent to it shall have the same powers in executing such decree as if it had been passed by itself. Now, at the time when this application was made, on September 6', the Court whose duty it was to execute the decree was the Sholapur Court, to whom the High Court had transferred the duty of executing the decree, and the Sholapur Court had the same powers in executing the decree as if it had been passed by itself. The view taken by the learned Subordinate Judge and which the learned Counsel for the respondents has endeavoured to support, namely, that the application for certifying the payment should be made to the High Court, altogether overlooks the fact that the period of limitation provided by the Indian Limitation Act is such that in many cases the decree would already have been transferred to another Court for execution before the period of limitation had expired. If the law had been that an application to have an adjustment out of Court certified had to be made on the very day the adjustment was made, the matter might be different. But since the law provides a lengthy period of limitation for the judgment-debtor, ninety days, it is obvious that in a great many Cases the execution by that time will have gone from the Court which passed the decree to some other Court to which the decree has been transferred for execution. The cases quoted by the lower Court have no application to the point before us. The case in Mehbunissa Begum v. Mehmedunnisa Begum ilr (1924) 49 Bom. 548 : 27 Bom. L.R. 403. is entirely irrelevant, as it deals with Clause (3) of Order XXI, Rule 2, which says that ' a payment or adjustment which has not been certified or recorded as aforesaid, shall not be recognized by any Court executing the decree,' and has no reference whatever to the question of the certification or recording of a payment made out of Court, which is dealt with by Clauses (1) and (2) of the same rule.
3. In these circumstances there cannot be the slightest doubt that the Court executing the decree, which is the Court at Sholapur, is the only Court which had the power to inquire into the alleged payment or adjustment, and that it was its duty to have done so, the application being admittedly made within the period of limitation.
4. The order of the lower Court will, therefore, be set aside, and the case remanded with a direction to the Court to inquire into the alleged adjustment on the merits. The respondents will pay the costs of this appeal.
5. I agree.