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Hakim Singh and anr. Vs. Ram Singh - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtAllahabad
Decided On
Judge
Reported in(1908)ILR30All248
AppellantHakim Singh and anr.
RespondentRam Singh
Excerpt:
act no. iv of 1882 (transfer of property act), sections 88 and 89 - civil procedure code, section 250--execution of decree--alleged payment out of court not certified. - - if it was paid out of court and the decree-holder did not certify the payment, the judgment-debtor ought to have taken prompt steps within the time allowed by the limitation act to have the payment recorded as certified but they failed to do so......under section 89 of the act. the judgment-debtors pleaded that they had paid a certain sum to the decree-holder out of court. this was denied by the decree-holder. the court of first instance found the payment proved and made an order absolute for sale to recover the balance due after deduction of the amount paid out of the court. the decree-holder appealed. he pleaded that no payment had been made to him out of court and further that it was not open to the court, having regard to the provisions of section 258 of the code of civil procedure to recognise the payment out of court. without going into the first plea the learned district judge sustained the second plea. the judgment-debtors come here in second appeal. for the appellants it is argued that the provisions of section 258 have no.....
Judgment:

Aikman and Karamat Husein, JJ.

1. The respondent obtained a decree under Section 88 of the Transfer of Property Act against the appellants directing them to pay a sum of money, and in. default ordering that the property mortgaged to the respondent should be sold. The respondent applied for an order absolute under Section 89 of the Act. The judgment-debtors pleaded that they had paid a certain sum to the decree-holder out of Court. This was denied by the decree-holder. The Court of first instance found the payment proved and made an order absolute for sale to recover the balance due after deduction of the amount paid out of the Court. The decree-holder appealed. He pleaded that no payment had been made to him out of Court and further that it was not open to the Court, having regard to the provisions of Section 258 of the Code of Civil Procedure to recognise the payment out of Court. Without going into the first plea the learned District Judge sustained the second plea. The judgment-debtors come here in second appeal. For the appellants it is argued that the provisions of Section 258 have no application to the case. Reliance is placed upon a decision of the Madras High Court, viz., Mallikarjuna Sastri v. Narasimha Rao (1901) I.L.R. 24 Mad. 412 and on a decision of the Calcutta High Court in Hatem Ali Khundkar v. Abdul Ghaffur Khan (1903) 8 C.W.N. 102. The former of these decisions has been overruled by a full Bench of the Madras High Court in Vaidhinadasamy Ayyar v. Somasundram Pillai (1905) I.L.R. 28 Mad. 473. The latter case undoubtedly supports the appellants, but, with all deference to the learned Judges who decided it, we are unable to agree with them. The Full Bench case of the Madras High Court is in point, and is against the appellants, We agree with the view taken in that case. We hold that the money alleged by the judgment-debtors to have been paid out of Court was 'money payable under a decree' within the meaning of Section '258 of the Code of Civil Procedure. If it was paid out of Court and the decree-holder did not certify the payment, the judgment-debtor ought to have taken prompt steps within the time allowed by the Limitation Act to have the payment recorded as certified but they failed to do so. It has been held by this Court in Oudh Behari Lal v. Nageshar Lal (1890) I.L.R. 13 All. 278 and also by the Madras' High Court in Malikarjunadu Setti v. Lingamurti Pantulu (1902) I.L.R. 25 Mad. 244 that applications for an order absolute are applications for the execution of the decree under Section 88. We are of opinion that the learned Judge was right in holding that the Court was precluded by the last paragraph of Section 258 of the Code of Civil Procedure from recognising the alleged payment out of Court. If the view taken by the Calcutta High Court were adopted, it seems to us that the execution of a decree might by delayed by repeated pleas of payment out of Court, and that the Court might have to try what would really be a series of different suits arising out of the original decree. We dismiss the appeal with costs.


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