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Nihal Kunwar Vs. Gendo - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported in(1908)ILR30All464
AppellantNihal Kunwar
RespondentGendo
Excerpt:
civil procedure code, sections 244, 258 - execution of decree--uncertified payment out of court--subsequent execution by decree-holder--suit to recover sum paid out of court. - .....which was not so applied. the facts leading up to it are these. on the 18th of february 1902, ram prasad and tulshi ram, the ancestors of the defendant, brought a suit against the plaintiff for recovery of a sum of rs. 2,020 due on a mortgage by sale of the mortgaged property. the suit was compromised on the 19th of march 1902, the provisions of the compromise being that on payment of the sum of rs. 1,750 by the mortgagor without interest, within a year, the suit should not be pressed, but in default of payment of that amount the mortgagees were to be at liberty to obtain an order absolute under section 89 of the transfer of property act. the plaintiff in the present suit deposited a sum of rs. 1,750 on the 20th of march 1903, which was a day late, and this sum was paid to ram prasad.....
Judgment:

John Stanley, C.J. and Banerji, J.

1. This was a suit for the recovery of a sum of Rs. 634-7-0 and interest, which is alleged to have been paid by the plaintiff to the ancestors of the defendant in satisfaction of the balance due on a decree held by them, and which was not so applied. The facts leading up to it are these. On the 18th of February 1902, Ram Prasad and Tulshi Ram, the ancestors of the defendant, brought a suit against the plaintiff for recovery of a sum of Rs. 2,020 due on a mortgage by sale of the mortgaged property. The suit was compromised on the 19th of March 1902, the provisions of the compromise being that on payment of the sum of Rs. 1,750 by the mortgagor without interest, within a year, the suit should not be pressed, but in default of payment of that amount the mortgagees were to be at liberty to obtain an order absolute under Section 89 of the Transfer of Property Act. The plaintiff in the present suit deposited a sum of Rs. 1,750 on the 20th of March 1903, which was a day late, and this sum was paid to Ram Prasad and Tulshi Ram. On the 1st of April 1905, Ram Prasad and Tulshi Ram filed 'an application for an order absolute under Section 89 for Rs 2,375. Again a settlement was come to out of Court on the 4th of May 1903, the plaintiff paying a sum of Rs. 634-7-0 in cash in settlement of the claim and obtaining a receipt therefore. Notwithstanding the receipt of this amount, which represented the balance of the debt, the decree-holders on the 19th May 1903 obtained an order absolute under Section 89. Ram Prasad and Tulshi Earn are dead, and the defendant is their heir. On the 26th of February 1906, the defendant took out execution of the decree', and the plaintiff thereupon filed objections, alleging that she had paid the amount due, and stating that she held a receipt for it. This objection was overruled on the ground that the payment had not been certified under Section 258 of the Code of Civil Procedure, and on the ground that her application was beyond time. Thereupon the present suit was instituted. It is stated, and it is not denied, that the property of the plaintiff has been sold in execution of the decree and the entire amount payable to the defendant has been realized by the sale. The question then is whether or not the plaintiff has any remedy in respect of the sum of Us. 634-7-0, which was paid to Ram Prasad and Tulshi Earn for the purpose of satisfying the balance due at the time, or must submit to the payment of this amount twice over. We think that the lower appellate Court rightly decided that neither Section 244 nor Section 258 of the Code precludes the institution of a suit such as this, and we are supported in this view by several authorities. One is a case in this Court-Shadi v. Ganga Sahai (1881) I.L.R. 3 All. 258, which is on all fours with the case before us. Another is the case of Periatambi Udayan v. Vellaya Goundan (1897) I.L.R., 21 Mad. 409. The same point was decided similarly in this case. We agree with those decisions and dismiss this appeal with costs.


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