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Mehbunissa Begum Vs. Mehmedunissa Begum - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case Number First Appeal No. 194 of 1923
Judge
Reported inAIR1925Bom309; (1925)27BOMLR403; 95Ind.Cas.687
AppellantMehbunissa Begum
RespondentMehmedunissa Begum
Excerpt:
.....recognise such payment.;under order xxi, rule 2 (3), of the civil procedure code 1908, the court executing a decree is barred in limine from considering any allegation that a payment not certified has been made. ;gharry v. gowrya (1921) 23 bom. l.r. 981 and ganesh v. yeihmmt (1922) 25 bom. l.r. 247, followed.;hansa v. bhawa (1915) 18 bom. l.r. 22 and trimbank v. hart laxman (1910) 12 bom. l.r. 686, overruled. - [couto; m.l. pendse, jj.] in the first instance the order passed under s. 132(5) is an order of a summary nature and does not conclude the rights of the petitioners, because while passing the assessment order, it is always open to the petitioners to point out that the assets recovered in the search were not undisclosed to point out that the assetsrecovered in the search were not..........relied on the decision in hansa v. bhawa (1915) 18 bom. l.r. 22 where it was held that a court executing a decree could deal with the question whether uncertified payments had as a matter of fact been made or not. judgment was given in accordance with the opinion expressed by heaton j. in trim-back v. han laxman : (1910)12bomlr686 which was obiter for the purposes of the decision in that case, as the executing court had held that the party executing the decree was estopped from disputing that payments had been made, and the high court in appeal held that the decision was wrong.4. i am of opinion that the decision in hansa v. bhawa : (1910)12bomlr686 cannot be supported.5. the words in order xxi, r, 2 (3), are too plain to admit of any other construction than that the court executing.....
Judgment:

Norman Macleod, Kt., C.J.

1. The plaintiff applied for execution of a decree passed on June 28, 1916, claiming against defendant No. 1 only, the four instalments which had become payable for the years 1917-18 to 1920-21. After the darkhast was issued defendant No. 1 died and his representatives were placed on the record. They put in a written statement in which they pleaded that though the plaintiff had recovered the amount to the extent of the shares of all the defendants except the deceased defendant No. 1, he had presented the darkhast for the recovery of the whole of the amount due under the instalments fixed by the decree without giving credit for the amount recovered therein that the plaintiff had dishonestly presented the darkhast for the whole of the amount and had made n false affirmation and so sanction should be granted for instituting legal proceedings against him, and that he should be made to give credit in the suit for the amount recovered by him.

2. It is admitted that these payments had not been certified according to the provisions of Order XXI, Rule 2 (1) and (2). Accordingly the learned Judge held, following the decisions of this Court in Gharry v Gowryn : (1921)23BOMLR981 and Ganesh v. Yeshwant (1922) 25 Bom. L.R. 247 that such payments could not be recognized.

3. The appellants have relied on the decision in Hansa v. Bhawa (1915) 18 Bom. L.R. 22 where it was held that a Court executing a decree could deal with the question whether uncertified payments had as a matter of fact been made or not. Judgment was given in accordance with the opinion expressed by Heaton J. in Trim-back v. Han Laxman : (1910)12BOMLR686 which was obiter for the purposes of the decision in that case, as the executing Court had held that the party executing the decree was estopped from disputing that payments had been made, and the High Court in appeal held that the decision was wrong.

4. I am of opinion that the decision in Hansa v. Bhawa : (1910)12BOMLR686 cannot be supported.

5. The words in Order XXI, r, 2 (3), are too plain to admit of any other construction than that the Court executing a decree is barred in limine from considering any allegation that a payment not certified has been made, The party alleging such a payment may have a remedy, but not before the Court executing the decree.

6. On the question whether the written statement of the legal representatives of the deceased first defendant can be treated as an application to record the alleged payments, 1 agree with the remarks of my brother Shah.

7. The appeal, therefore, must be dismissed with costs.

Shah, J.

8. After consideration of the arguments and the conflicting rulings. I am of opinion that in view of the provisions of Order XXI, Rule 2, Sub-rule (3), the executing Court cannot recognise any payment not certified or recorded as provided in Sub-rules (1) and (2) of the same rule. The wording of Sub-rule (3) is quite clear and admits of no escape therefrom on such general considerations as have been referred by Heaton J in Trimback v. Hari Laxman : (1910)12BOMLR686 and accepted in Jlansa v. Bhawtt (1915) 18 Bom. L.R. 22. Such considerations may afford a sufficient ground to modify the provisions of Sub-rule (3) or to repeal article 174 of the Indian Limitation Act so as to make it permissible to the judgment-debtor to apply at any time to have the payment recorded. But they cannot afford any sufficient ground for refusing to give effect to the plain and unambiguous words of the sub-rule in question.

9. With great respect, I think that the view taken by the Court in the later decision referred to in the referring judgment in correct

10. As regards the question whether the written statement of the legal representatives of defendant No. 1 can be treated as an application to record the alleged payments the difficulty is that even treating it as an application for that purpose it is beyond time : and there is no ground of exemption mentioned in the application. The only ground suggested by the learned counsel for the applicants is that under Section 18 of the Indian Limitation Act, on the ground of fraud exemption could be claimed. It is difficult to deal with a suggestion of this nature in the absence of any specific allegation of fraud and to decide whether Section 18 can help the appellants. It may be possible for the appellants on a proper application to have the alleged payments recorded by the Court under rule 2 of Order XXI. I express no opinion on that point.

11. I am satisfied that, having regard to the allegations in the written statement, it is not reasonably possible to allow the appellants' contention of to exemption from limitation on the special ground that by means of fraud they were kept away from the knowledge of their right to make an application to have the payments certified.

12. I agree, therefore, that the appeal should ho dismissed with coats.

Crump, J.

13. I agree that there is no doubt or difficulty about the point referred to the Full Bench and that the answer must be that the Court executing the decree cannot in any case recognize an uncertified payment. I also agree that in this case it is not possible to treat the written statement of the judgment-debtor as an application to certify the payment made within the period allowed by law.


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