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Madan Mohan Lal Vs. Asa Ram and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1934All445
AppellantMadan Mohan Lal
RespondentAsa Ram and anr.
Excerpt:
- - the judgment-debtor pleaded that he had satisfied the decree by payment out of court to the decree-holder, poona mai, before poona mai transferred the decree to madan mohan lal. the courts below have held that this alleged payment was actually made to poona mai and that therefore the decree was satisfied and there was no decree for poona mai to transfer to madan mohan lal. 2. if this provision of law be applicable, it seems to be clear to us that asa ram was never in a position to urge before the court below that he had satisfied the decree......executed at the instance of madan mohan lal. the judgment-debtor pleaded that he had satisfied the decree by payment out of court to the decree-holder, poona mai, before poona mai transferred the decree to madan mohan lal. the courts below have held that this alleged payment was actually made to poona mai and that therefore the decree was satisfied and there was no decree for poona mai to transfer to madan mohan lal. in this court it is contended that the alleged payment of asa ram to poona mai was never certified or recorded and that therefore it was not open to the courts below to take cognizance of the alleged payment. it is common ground that when the objection was preferred by asa ram, ninety days had expired from the date of the alleged payment. order 21, rule 2, sub-rule (3) lays.....
Judgment:

Mukerji, J.

1. This is an execution second appeal and arises in the following circumstances : The appellant, Madan Mohan Lal, applied as the purchaser of it, for execution of a decree for money which has been passed in favour of Poona Mai against Asa Ram. The transferee made an application for execution under Order 21, Rule 16, Civil P.C. As directed by that rule, a notice was issued to the judgment-debtor to show cause why the decree should not be executed at the instance of Madan Mohan Lal. The judgment-debtor pleaded that he had satisfied the decree by payment out of Court to the decree-holder, Poona Mai, before Poona Mai transferred the decree to Madan Mohan Lal. The Courts below have held that this alleged payment was actually made to Poona Mai and that therefore the decree was satisfied and there was no decree for Poona Mai to transfer to Madan Mohan Lal. In this Court it is contended that the alleged payment of Asa Ram to Poona Mai was never certified or recorded and that therefore it was not open to the Courts below to take cognizance of the alleged payment. It is common ground that when the objection was preferred by Asa Ram, ninety days had expired from the date of the alleged payment. Order 21, Rule 2, Sub-rule (3) lays down that:

a payment or adjustment, which his not been certified or recorded as aforesaid, shall not be recognized by any Court executing the decree.

2. If this provision of law be applicable, it seems to be clear to us that Asa Ram was never in a position to urge before the Court below that he had satisfied the decree. It is however argued before us that although when a decree is being executed a judgment debtor would be precluded from pleading payment if the alleged payment has not been certified to or recorded, yet when a transferee asks for execution of decree it is open to the judgment-debtor to raise such a plea. This argument is sought to be founded on para. 2, Rule 16, Order 21, Civil P.C. This paragraph runs as follows:

Provided that, where the decree...has been transferred by assignment, notice of such application shall be given to the transferor and the judgment-debtor, and the decree shall not be executed until the Court has heard their objections (if any) to its execution.

3. It is urged that when a transfer is to be recorded, the judgment-debtor can raise any objection that he may. If this view be correct, this provision would militate against the provision in Sub-rule (3), Rule 2, Civil P.C. In our opinion, there is no discrepancy between the two provisions. The judgment-debtor by Rule 16 is allowed to raise any objection, and this means that he shall be allowed to raise any objection which may be heard by the Court. If the judgment-debtor is precluded by law from raising objection, it cannot be said that Rule 16 permits him to raise such an objection.

4. Then it is urged for the respondents that there is a distinction between a Court which passes a decree and the Court which executes a decree. This argument, in our opinion, is not sound. Rule 16, Order 21 requires that a transferee must apply for execution to the Court which passed the decree. This means that if a decree has been transferred for execution to another Court, that is to say, to a Court other than the Court which passed it, the transferee, in order to have execution, must go to the Court which passed the decree, and he would not be heard in a Court to which the decree has been transferred for execution. The provision contained in Rule 16 does not mean that the Court, which passed the decree and to which an application has to be made for execution by a transferee of the decree, ceases to be an execution Court. Indeed, the application of the transferee must be an application for execution of the decree. On the language of the statute, therefore we are of opinion that the contention of the appellant is sound. Coming to authority, it appears that the Bombay High Court in Raghunath Govind v. Ganga Ram Yesu A.I.R. 1923 Bom. 404 held on the authority of two Madras cases that it was open to a judgment-debtor to plead payment in answer to an application for execution by a transferee of the decree, although time had expired for pleading a payment under Article 174, Schedule 1, Limitation Act. The Madras High Court has by a subsequent Full Bench decision, namely Subramanyam v. Ramaswami : AIR1932Mad372 dissented from their previous judgments on which the learned Judges of the Bombay High Court relied. In this Court there is a decision which is yet unreported of two learned Judges in Murari Lal v. Raghubir Saran reported in : AIR1934All209 . In which it was held that the Madras Full Bench view was preferable to the Bombay view taken in Raghwnath Govind v. Ganga Ram Yesu A.I.R. 1923 Bom. 404. We are in entire agreement with the decision of our Court. In the result, we allow the appeal, set aside the order of the Court below and direct that the appellant's application be accepted by the Court of first instance and the execution be proceeded with. The appellant will have his costs throughout.


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