1. This is a defendant's application in revision under Section 25, Small Cause Courts Act. It arises in the following circumstances. The applicant Jagdeo Dube obtained a decree against the opposite party Deoki Nath Tewari on 23rd November 1933 from the Court of Small Causes at Deoria. Deoki Nath Tewari came to Court with the allegation that he fully discharged that decree by making three payments, one of Rs. 92 on 27th June 1934, another of Rs. 50 on 12th November 1934 and the last one of Rs. 41-6-6 on 1st Chait Sudi 1935. He alleged that the applicant Jagdeo Dube to whom those payments were made had agreed to get them certified in accordance with the law by the execution Court but failed to do so in spite of repeated requests made by the plaintiff. Thereupon the plaintiff instituted a proceeding on 30th May 1935 under Order 21, Rule 2, Civil P.C., for getting those payments certified by the execution Court. In the course of that proceeding the applicant Jagdeo Dube admitted the first and the last payments but denied the second payment of Rs. 50 as alleged by the plaintiff. The Court however found that only one of the three payments, that is the last one, was within 90 days of the application and was consequently the only payment that could be certified under the law. It therefore proceeded to pass an order certifying that payment but refusing to certify the other two. It was in consequence of this order that Deoki Nath Tewari instituted the suit out of which the present implication in revision arises. In this suit ho claimed to recover the sum of Rs. 92 representing the first payment and also the sum of Rs. 50 representing the second payment which had been denied by the applicant in the circumstances stated above. The learned Small Cause Court Judge has decreed the claim with the following brief order:
I have heard parties. The case is very dear. The plaintiff paid Rs. 183 to the defendant and when the defendant was called upon by the execution Court he denied having got Rs. 80. Hence the plaintiff is entitled to the sum. The issue is decided accordingly.
2. This decree is challenged by the applicant on the ground that the plaintiff had no cause of action and his suit was premature. This contention is obviously sound and must prevail. It is admitted by the plaintiff himself that the alleged payments were made towards a decree which had been passed against him in favour of the applicant. The applicant has not put his decree into execution and has not recovered anything from the plaintiff over and above the payments which, according to his allegations, were made by him towards the satisfaction of the decree. It is difficult in these circumstances to understand what cause of action the plaintiff had for bringing the suit. The mere fact that the applicant denied a particular payment of Rupees 50 which according to the plaintiff was made to him could not possibly give a cause of action to the latter, even if it is assumed for the purposes of argument that the denial was false. Nor could the refusal of the Court to certify the payments at the request of the plaintiff on the ground that the period prescribed by the law for getting them certified had expired, afford any cause of action to the plaintiff. In my judgment the suit is in substance a suit for damages for breach of contract though no damages have in fact resulted so far. The plaintiff will have a cause of action only if the defendant puts the decree into execution and realizes any amount from the plaintiff over and above the payments alleged to have been made by him. It is evident that if the plaintiff had sought only a declaration that the decree had been satisfied his suit would have been barred under Section 47, Civil P.C. It is obviously anomalous therefore that he should be allowed a decree for recovering the payments alleged to have been made by him. I do not wish to say anything as to whether any legal defence would or would not be open to the applicant if he puts his decree into execution and realizes any money from the plaintiff and thus drives the latter to institute a suit for recovering the payments made by him. For the purposes of this revision it is enough to hold that the plaintiff's suit was clearly pre-mature and should not have been decreed. The result therefore is that I allow this application in revision with Costs throughout and setting aside the decree of the Court below dismiss the plaintiff's suit.