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Abid HusaIn Vs. Kunj Behari Lal - Court Judgment

LegalCrystal Citation
Subject Civil
CourtAllahabad
Decided On
Reported inAIR1939All581
AppellantAbid Husain
RespondentKunj Behari Lal
Excerpt:
.....does amount to such a certification, it is of no legal value as it was made after the controversy had arisen. the petition of objections filed by the judgment-debtor, purporting to be under order 21, rule 2, informing the court that certain payments have been made against the decree, is clearly beyond time. 11. in my opinion, this line of reasoning is perfectly sound and the decision of the lower appellate court is correct......mortgage decree for sale on 28th april 1934. this decree declared that the amount payable to the decree-holder by the judgment-debtor up to a certain day was rs. 788-14-0. this included costs incurred after the passing of the preliminary decree. no future interest was allowed by the decree. the first application for execution filed by the decree, holder is the one giving rise to the proceedings which have culminated in this second appeal. it purports to bear date 15th march 1936 but was filed in court on 17th march 1937. either the year 1936, written on the application for execution in two places and in one place on the 'fardtaliqa' which accompanied it, is a mistake, or the application was actually written out and was ready in march 1936 but, for some reason or other, was not filed.....
Judgment:

Verma, J.

1. This second appeal arises out of execution proceedings. The first Court accepted the objections raised by the appellants but the lower Appellate Court has decided in favour of the decree, holder. The facts, as far as I can ascertain them from learned Counsel and from the record appear to be these. The respondent obtained against the appellant a final mortgage decree for sale on 28th April 1934. This decree declared that the amount payable to the decree-holder by the judgment-debtor up to a certain day was Rs. 788-14-0. This included costs incurred after the passing of the preliminary decree. No future interest was allowed by the decree. The first application for execution filed by the decree, holder is the one giving rise to the proceedings which have culminated in this second appeal. It purports to bear date 15th March 1936 but was filed in Court on 17th March 1937. Either the year 1936, written on the application for execution in two places and in one place on the 'fardtaliqa' which accompanied it, is a mistake, or the application was actually written out and was ready in March 1936 but, for some reason or other, was not filed until a year later in March 1937, when the period of three years was about to expire. In this application the amount recoverable is shown to be Rs. 788-14-0. The first notice which was issued to the judgment-debtor in pursuance of the order of the Court passed on 12th April 1937 was not served and on 13th May 1937, which was the date fixed for the hearing of the case, the decree-holder applied that in addition to the usual notice, a notice by registered post be also sent. The Court granted this application. On 19th May 1937 the decree, holder filed an application stating that on 17th May 1937 he had received a money order for Rs. 50 from the judgment-debtor, that this sum be deducted from the decretal amount, that the judgment-debtor was a travelling apothecary selling medicines in the bazars of various cities, that the address given on the money order receipt for Rs. 50 received on 17th May 1937 was care of Postmaster, Luck-now, and prayed that the notice be sent to that address. The Court acceded to that request and fixed 31st May for hearing. The notices were again not served and the Court ordered on 31st May 1937 that the decree-holder should take necessary steps by 19th July 1937.

2. On 19th July 1937 the judgment-debtor appeared and filed a petition which is headed thus : 'Petition of objections in accordance with Order 21, Rule 2, Civil P.C.... In para. 1 of this application the judgment-debtor stated that there had been an agreement between the parties outside the Court by which they had agreed that the decretal amount would be paid by instalments and that ho, the judgment-debtor, had been acting upon it and had been paying sums of money to the decree-holder now and then in liquidation of the decretal amount. In the subsequent paragraphs, it was stated that the judgment-debtor had paid a total sum of Rs. 470 against the decretal amount, that the decree-holder was quite wrong in praying for the recovery of the entire decree money, and that according to the correct account, after deducting the amount paid, a sum of Rs. 318-14-0 only was due and payable to the decree-holder which the judgment-debtor was prepared to pay. It was prayed that the sum of Rs. 318-14-0 be ordered to be paid by the judgment-debtor to the decree-holder and the proceedings for the sale of the property be 'postponed and cancelled.' Notice of this petition of objections was given to the decree-holder and 4th September 1937 was fixed. The decree-holder appeared on that date and filed an application in reply to the objections of the judgment-debtor. In this application it was stated that

the judgment-debtor immediately after the passing of the decree wanted time to pay the decretal amount and agreed to pay interest at the contractual rate till the whole amount was paid and was all along assuring the decree-holder by numerous letters to pay the full amount out of Court and requesting the decree-holder not to execute the decree and this is the reason why the execution was deferred even after the passing of the final decree for about three years.

3. In paragraph 4 it was stated:

According to the aforesaid agreement even the full interest after the period of the decree has not been paid up and the objector after deriving advantage wants to resile back from his promise.

4. In para. 2 it is stated that the sum of Rs. 50 was received after the application for execution had been filed, and intimation of its receipt had been given to the Court and it had been prayed that the amount be deducted from the decretal amount. In para. 1 it is urged that the judgment-debtor's objections are barred by Order 21, Rule 2(3), Civil P.C., and Article 174, Limitation Act, and cannot be entertained by the Court. The Court examined the judgment-debtor, the decree-holder and a witness produced by the decree-holder. The judgment-debtor stated that he had paid a sum of Rs. 470 against the decree and that now only a sum of Rs. 318-14-0 was due and that he was prepared to pay that sum at once. In cross-examination he stated that he had sent letters to the decree-holder expressing his inability to pay the decree money for the present. He was questioned as to whether he had agreed to pay interest on the decretal amount but he denied having done so. In a subsequent sentence he speaks of having met the decree-holder once and states that the decree-holder had asked him to pay interest but that he had not agreed to do so. The decree-holder's statement is this:

Since the passing of the decree, Hakim Sahib has paid me against the decree a sum of Rs. 50 and no other sum. The money which Hakim Sahib has sent me since the passing of the decree amounts in all to Rs. 470. Out of this, Rs. 50 is against the decree amount, and the remaining Rs. 420 were sent on account of interest on the decree, as after the passing of the decree there was a contract between me and the judgment-debtor that he would go on paying me interest at the rate of Re. 1-8-0 per cent per mensem on the amount decreed and I would not execute the decree.... I had told the Hakim Sahib that I had to pay interest and that I would charge interest from him, because I was not sure that he would pay the decretal amount soon....

5. In cross-examination he stated that there was no agreement in writing and that the judgment-debtor had not written to him in any of his letters that he would pay interest on the decretal amount. The Munsif passed an order on the same day, i.e. 4th September 1937, accepting the objections of the judgment-debtor. In this order he states that the decree-holder has applied for execution giving credit for Rs. 50 only although it appears that from time to time by money order the judgment-debtor had paid Rs. 470 in all to the decree-holder. He then observes:

The decree-holder certifies that payment to have been made to him and therefore this objection cannot be treated as an application contemplated in Order 21, Rule 2, Sub-rule (2) and Article 174, Limitation Act, has no bearing to this case....

6. A little lower down he again observes : ...as a matter of fact he certifies the payment for which no limitation is fixed.' He further holds that the agreement plead, ed by the decree-holder was, besides being against the terms of the decree, not proved, and that it could not be entertained as it would materially alter the terms of the decree. The reasons given by the learned Civil Judge for his decision are these. He begins by observing that Order 21, Rule 2, Sub-rule (3) provides that a payment or adjustment, which has not been certified or recorded as laid down in Sub-rules (1) and (2), shall not be recognised by any Court executing the decree. He next holds that neither the decree, holder certified the payments nor the judgment-debtor informed the Court of any payments having been made within 90 days from the date of payment. He further observes that the decree-holder no doubt admits the payment of the sums of money mentioned but that

his contention is that the said payments were made towards interest according to an agreement between the parties. This admission of payments under the circumstances cannot be construed as the certification of payments within the meaning of Order 21, Rule 2.

7. He therefore came to the conclusion that the Court executing the decree could not take cognizance of the payments which in his opinion were uncertified. It has been urged by learned Counsel appearing for the appellant that the petition of objections filed by the judgment-debtor on 19th July 1937, containing the information that certain payments had been made to the decree-holder, should not be treated as an application intended to give the information contemplated by Order 21, Rule 2(2) of the Code, and that therefore the bar of Article 174, Limitation Act, should not be held to be applicable. It has been held that an application by the judgment-debtor praying for an adjustment to be recorded need not be a document separate from the objections filed by him on the ground of such adjustment: vide Ganga Dihal Rai v. Ram Oudh : AIR1929All79 . In my opinion, there is no reason for holding that the petition of objections filed by the judgment-debtor in this case was not of the nature contemplated by Order 21, Rule 2(2). As I have stated above, the petition is headed as being one under Order 21, Rule 2 of the Code. That is what the judgment-debtor intended it to be. I see no reason to take his petition in a arise different from that in which he took it; himself. The execution Court also took it in the same sense. The order dated 19th July 1937 on the order-sheet says:.Judgment-debtor has filed objections in accordance with Order 21, Rule 2. Therefore it is ordered that the objection be entered in the miscellaneous register and notice be issued to the opposite party fixing 4th September 1937.

8. In my opinion, the Court issued this notice as required by Order 21, Rule 2(2). That being so, Article 174, Limitation Act, clearly applied and the petition was barred by time. Proceeding however on the footing that the petition of the judgment-debtor should not be taken to contain the information required by Order 21, Rule 2(2), the question still remains whether there has been any certification of the payment of the sum of Rs. 420 against the deeretal amount by the decree-holder, for, unless there is such a certification, the payments cannot be recognized by any Court executing the decree. The argument of the learned Counsel for the appellant is that there is such a certification by the decree-holder in his statement in the witness-box before the execution Court. In my opinion, this argument is not well founded for two reasons : (1) the statement, as I read it, does not amount to a certification of the payments having been made against the decretal amount, and (2) even if the statement does amount to such a certification, it is of no legal value as it was made after the controversy had arisen. As to (1) I have quoted the statement above. What the decree-holder admits is that he has received a sum of Rs. 420 in addition to the sum of Rs. 50 which he has already certified, but he does not admit that this was a payment against the decree. What he says is that there was a subsequent agreement to pay interest and that this sum of Rs. 420 was paid on account of that interest. Whether his story as to the subsequent agreement is believed or not--it is significant that the judgment-debtor also in para. 1 of his petition of objections pleads a subsequent agreement--the fact remains that his statement does not amount to an admission that this sum of Rs. 420 was paid against the decretal amount. Suppose in reply to an allegation of the judgment-debtor that he has paid to the decree-holder a certain sum of money against the decree, the decree-holder says : 'Yes, I have received the sum mentioned by the judgment-debtor, but it was on account of the price of a horse' or 'that it was in payment of another debt which the judgment-debtor owed to me,' can it be said that the decree, holder has admitted the payment of the money against the decretal amount? I think not. The statement of the decree-holder quoted above is, in my opinion, of the nature that I have just indicated. The question whether the judgment-debtor as a matter of fact owed to the decree-holder the price of a horse, or another debt, or not is irrelevant. The only question that arises is whether the statement of the decree-holder is of such a nature as to amount to an admission of payment in satisfaction of the decretal amount. A statement that certain sums of money have been received, coupled with an allegation that they were paid on account of interest, not allowed by the decree, but agreed to be paid in consequence of a separate agreement entered into after the passing of the decree, cannot, in my opinion, be an admission that the payments were in satisfaction of the money due under the decree, and cannot therefore amount to a certification. As to (2), I need only refer to the Full Bench case in Joti Prasad v. Sri Chand : AIR1928All629 , and Ram Prasad Ram v. Jadunandan : AIR1934All534 .

9. It has been argued that Article 174 applied [only to the action taken by the judgment-debtor under Order 21, Rule 2(2) and that there is no time limit for a certification by the decree-holder, and cases have been cited in support of this proposition, e.g. Ram Sarup v. Mahomed Ubaidullah Khan : AIR1930All123 . I agree. There must how-ever be a statement or admission by the decree-holder to the effect that payments had been made to him against the decretal amount, and further, such statement must be made before the controversy has arisen and not after the judgment, debtor has filed his objections stating that he has made such payments.

10. It has further been argued that the decree, holder is not entitled to prove the subsequent agreement for the payment of interest and that the Court is not entitled to take cognizance of any such agreement entered into after the passing of the decree. The cases cited in support of this proposition are, Debi Rai v. Gokul Prasad (1881) 3 All. 585 (F.B.), Gobardhan Das v. Dau Dayal : AIR1932All273 and Narendra Bahadur Singh v. Oudh Commercial Bank Ltd. Fyzabad (1934) 21 A.I.R. Oudh 465. None of these cases seems to be quite in point. Assuming however that the argument of the learned Counsel is correct, it seems to me that the lower Appellate Court has not relied on, or given effect to, the subsequent agreement for the payment of interest alleged by the decree-holder. The line of reasoning of the lower Appellate Court is this.

Order 21, Rule 2(3) prohibits the Court from recognizing any payments which have not been certified. The petition of objections filed by the judgment-debtor, purporting to be under Order 21, Rule 2, informing the Court that certain payments have been made against the decree, is clearly beyond time. So far as the decree-holder is concerned, he has never certified any such payments. His statement in the witness-box does not amount to any admission of the payment of Rs. 420 against the decretal amount. The Court cannot therefore recognize the payments mentioned by the judgment-debtor.

11. In my opinion, this line of reasoning is perfectly sound and the decision of the lower Appellate Court is correct. Accordingly, I dismiss this appeal with costs. Leave to appeal under the Letters Patent is granted.


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