1. This is a second appeal raising a curious point. On 4th March 1937 the appellant obtained a decree against the respondent for some Rs. 1600 and on 17th March he began execution proceedings against the respondent for the purpose of obtaining his arrest. On 8th April notice was served on the judgment-debtor to show cause why he should not be arrested and 16th April was fixed as the day for hearing that application. Two days however before the hearing, a sum of Rs. 825 was paid by the judgment-debtor to the decree-holder. It is not quite true to say that this sum was 'paid,' because it was provided only as to Rs. 400 in cash the remaining Rs. 425 taking the form of a transfer to the decree-holder of certain property of that value. On 16th April, the day fixed for the hearing of the arrest-matter, the decree-holder did not turn up and it was dismissed for default. Pausing at that point, the inference is irresistible that the effect of the payment made on the 14th was that the decree-holder no longer pressed his execution application and was content to let it go by default.
2. The next thing that happened was that on 24th April, under Order 21, Rule 2(2) the judgment-debtor applied to the Court to have it 'recorded as certified' that be had paid Rs. 825 in full satisfaction of the decree, I pause to observe that it is a little curious that the judgment-debtor should have made his application at so early a stage. As I read the Rule, the normal procedure one would expect is for the judgment-debtor to apply only upon default being made by the decree-holder under para. (1). The order however in this case was inverted, for on 27th April, the decree-holder made an application under para. (1) of the same Rule certifying that the payment had been made and asking that it might be recorded as a part satisfaction of the decree. The combined effect of these two applications was obviously to raise a serious issue between the judgment-debtor and the decree-holder as to whether the decree had been satisfied or not. In due course, the Munsif of Meerut considered the matter and came to the conclusion that the Rs. 825 which had been provided were received by the decree-holder in full satisfaction of the decree. He came to that conclusion with the assistance of a receipt given by the decree-holder, which I shall have to examine a little more closely in a moment and of certain evidence given by the debtor and another witness to the effect that there had been an oral agreement between the parties that the judgment-debt should be satisfied by the Rs. 825. On first appeal to the learned. Second Civil Judge of Meerut, he took the same view and dismissed the appeal, agreeing with the Munsif.
3. In those circumstances, the matter has come before me in second appeal. I regret that I take a view which is different to the one taken in the Courts below. The point, though a small one, admits of two views. But I think myself that both the learned Judges in the Courts below were wrong in finding, on the materials before them, that the payment was a full satisfaction of the decree. I propose now to look at the receipt which was given. It is a document consisting of a printed form torn out of a book. It has five columns: one for the number, another for the date, another for the amount of money paid and the name of the payer, another for the purpose of showing on what account payment is made and the fifth for the signature of the payee. In the document, as filled up in this case, there appears in col. 2 the date and there also appear these words, which have given rise to all the trouble: 'Received the whole amount.' That is an English translation of the Urdu words 'kul wasul paya.' It does not, to my mind, matter very much whether you translate them as 'received the whole amount' or 'received the entire amount' or 'received in full.' Then in the next column are the words: 'On account of one decree No. 442 of the year 1936....' followed by the title of the decree. The words 'on account of' are a translation of the Urdu 'babat,' which possibly might more accurately be translated as 'in relation to' or 'in respect of.' Then col. 4 says this:
The sum of rupees eight hundred and twenty-five (Rs. 825). For the amount of rupees four hundred and twenty-five have received two sale deeds. Rupees four hundred (Rs. 400) received in cash.
And finally in col. 5 is the signature and the stamp. Now what is said about this is that the words in col. 2 'received the whole amount' mean that the Rs. 825 which had been paid were in full satisfaction of the decree. I do not myself think that that is the natural meaning of these words in the context in which we find them. If they had been intended to mean that the Rs. 825 in respect of which the receipt was being given were in full satisfaction of the decree, not only would it have been quite simple to say so, but it would have been quite inaccurate to say that 'the whole amount had been received.' The very reverse was the case. The whole amount (meaning thereby the full amount of the decree) had not been received. The only thing that had been received in full was the Rs. 825. When therefore we find the words 'received the whole amount,' then, unless we are going to attribute something that is untrue to them, we must take them to refer to the only thing that had been received, namely the Rs. 825. But it is pointed out to me that there are the words 'the whole amount' and it is said 'the whole amount' must mean the decree. I do not think that that is necessarily so, if it be borne in mind that the sum of Rs. 825, for which the receipt was given, was not all paid in cash. Part of it was satisfied by the transfer of property representing a sum equivalent to Rs. 425. What I think the parties intended to express by the words in column 2 is that, notwithstanding that part of what was actually received was property, nevertheless the whole sum of Rs. 825 was to be taken to be received.
4. In my opinion, what is contained in column 3 supports this view. If the receipt was one given in full satisfaction of the decree, I cannot conceive how the parties could express themselves in column 3 by saying that it was 'on account of' or 'in respect of' the decree. Surely they would have said 'in satisfaction of' the decree. For these reasons I am inclined to think that on a true construction of the receipt itself, it does not support the view that the sum was given in discharge of the decree. One has to consider also the circumstances in which this occurred. The judgment-debtor is endeavouring to put upon the document a construction which would involve the release by the decree-holder of nearly half the debt. It seems to me that if he wishes to establish that his creditor has released him of half of what is due, he ought to do it by a far less ambiguous document than this. Moreover, we have to bear in mind also that the payment was made on 14th April, two days before the hearing of the arrest application. And what is more natural than that the judgment-debtor, in order to forestall his immediate arrest, should pay his creditor something on account.
5. That does not quite complete the matter, because I am told that evidence has been led in the first Court, and has been believed by the learned Munsif, to the effect that there was an express agreement that the Rs. 825 should be taken in full satisfaction of the debt. In my opinion, when this payment was made the parties chose to reduce to writing, in the form of the receipt, what it was they meant and what were the terms upon which the judgment-debtor was paying his money. It was, I think, a 'disposition of property' reduced to writing and they intended to convey the terms on which the Rs. 825 were paid, by the words 'received the whole amount.' If that view is right, then Section 91 applies, and it is to the document and nothing else that one can look to find out what the parties meant. My attention has been drawn to Section 167, Evidence Act. That, however, has, in my view, no application here, because, if one considers the matter independently of the oral evidence given in the Court below, there is insufficient evidence upon the construction of the document itself to support the conclusion at which the learned Judge has arrived. It is said again that in second appeal this is a question of fact and cannot be gone into. It is true that the question whether or not the money was paid is a question of fact. Also, in a sense, it is a question of fact whether it was paid in satisfaction of the debt or not. But the true construction of the receipt, upon which the whole matter depends, is not a question of fact, but is a question of law. And, finally, it is urged by Mr. Panna Lal that on second appeal I should not discard the evidence given in the Courts below upon the ground that it was improperly received. I think however that in a case such as this, in which I think that evidence has been admitted which ought not to have been admitted and where, if that evidence had not been admitted, the decision might have been different, I ought not to allow myself to be prevented from coming to the conclusion which I think to be the right one. For these reasons, I propose to allow this appeal and to set aside the finding of the learned Munsif and to declare that in the events which have happened and upon a true construction of the receipt dated 14th April 1939, the decree No. 442 of 1936 has been satisfied only to the extent of Rs. 825. The appellant will be entitled to his costs. Permission to file a Letters Patent appeal is refused.