1. This is a judgment-debtor's appeal. On 12th of October 1923, the appellant had borrowed Rs. 1,000 from the Mufassil Bank Ltd., Gorakhpur, on a promissory note. On 15th December 1925, the Bank instituted a suit for recovery of the principal amount together with interest. As a result of certain negotiations an instalment decree was passed against the appellant on 25th January 1926. It was agreed that Rs. 250 should be paid by the debtor to the creditor on 25th January 1926 and that the balance, namely, Rs. 1,005 was payable in two equal instalments of Rs. 502-8-0 on 30th June 1926, and 31st December 1926.
2. On 25th January 1926, before the decree was passed the appellant paid to the respondent Rs. 250. On 18th June 1926, the judgment-debtor paid Rs. 264-10-0 to the decree-holder. On 11th March 1927, the decree-holder applied for execution of his decree for recovery of Rs. 846-2-0 principal and interest by the arrest of the judgment-debtor. This application was subsequently sought to be amended by a petition dated 9th June 1927, because of a miscalculation as to the amount of interest. On 13th April 1927, the judgment-debtor paid to Babu Nawal Kishore Rs. 581 on account of the second instalment.
3. The judgment-debtor contended that in the evening of 25th January 1926, he had paid Rs. 250 to the decree-holder in part satisfaction to the decree and that the decree-holder was not entitled to execute the decree for this amount. He also contended that the payment of this sum had been duly certified in Court under Order 21. Rule 2, Civil P.C. and that the decree-holder was bound by the order of the Court certifying the payment.
4. The learned Munsif accepted the contention of the judgment-debtor and dismissed the application for execution.
5. The learned Additional Subordinate Judge of Gorakhpur has by his judgment dated 18th October 1927, reversed the decree of the Additional Munsif and directed that execution should proceed according to law.
6. This appeal relates to Rs. 250 only forming part of the first instalment which was payable by the judgment-debtor on 30th June 1926.
7. The judgment-debtor contends that he paid the aforesaid sum of Rs. 250 out of Court in the evening of 25th January 1926, after the instalment decree had been passed and he relies upon an order passed by the executing Court on 19th June 1926, as an order recording a certified judgment under Order 21, Rule 2, (2), Civil P.C.
8. On 18th June 1926, the judgment-debtor applied to the Court in writing that after deducting Rs. 250 already paid by the judgment-debtor on 25th January 1926, he is depositing Rs. 264-10-0 being the balance due for the first instalment together with interest upto 30th June 1926, and prays that the aforesaid sum be paid to the decree-holder. This application further stated that the receipt for Rs. 250 was attached thereto. The application bears an endorsement of the decree-holder's pleader that he has received Rs. 264-10-0 on account of the first instalment.
9. This application on the very face of it is not an application within the purview of Order 21, Rule 2(2).
10. Where money payable under a decree is paid out of Court and the payment has not been certified by the decree-holder, it is open to the judgment-debtor to inform the Court that such payment has been made. The procedure which has to be followed in such cases is (1) that the judgment-debtor is to apply to the Court to issue a notice to the decree-holder to show cause, on a date to be fixed by the Court, why such payment should not be recorded as certified; (2) if after service of notice no cause is shown by the decree-holder the Court shall record the same accordingly.
11. Article 174. Lim. Act, prescribes that notice should be issued within 90 days of the date of the payment.
12. The alleged payment is said to have been made on 25th January 1926. The application of the judgment-debtor, dated 18th June 1926, even if treated as an application for issue of notice under Order 21, Rule 2, is clearly time barred. As a matter of fact it is not an application of that description. No notice was issued to the decree-holder to show cause nor a date was fixed for this purpose.
13. The order dated 19th June 1926, is somewhat peculiar and runs thus:
An application as regards the payment of the first instalment was put up today, and the decree-holder verified the payment. It is, therefore, ordered that a mark be made in the original register and it be forwarded to the record room for being filed.
14. The learned advocate for the appellant has not been able to refer this Court to any statement of the decree-holder on the record verifying the payment of the entire amount due on account of the first instalment. The only statement on the record is the endorsement made by the pleader for the decree-holder as regards the payment of Rs. 264-10-0. The order in question does not purport to be an order recording the certification of payment of the disputed amount.
15. The lower appellate Court was, therefore, justified in holding that the payment of the debatable sum was not certified by the Court executing the decree.
16. Under Order 21, Rule 2, Clause (3) a payment which has not been certified or recorded shall not be recognized by any Court executing the decree.
17. The executing Court therefore was bound to ignore an uncertified payment and was bound to proceed with the execution on the basis of no such payment having been made. The object of the legislature in enacting Sub-clause (3), Rule 2, was to ensure diligence on the part of persons interested in the payment and to save the time of the executing Court being wasted by evidence of doubtful value being produced to prove payment. This rule though wholesome proves disastrous to unwary judgment-debtors and is not unoften a weapon of oppression in the hand of an unscrupulous decree-holder. The rule is very clear and however undesirable the consequence may be in individual cases, the rule has to be given effect to.
18. The Courts below were not justified in trying the issue whether the alleged payment was or was not made by the judgment-debtor. When the payment has not been certified and recorded, it has to be ignored by the Court executing the decree and the decree must be enforced without allowing any deduction in favour of the judgment-debtor.
19. There was no question in issue between the parties about the payment of the specific sum now in dispute and the order of the Court dated 19th June 1926, cannot be treated as an order under Section 47, Civil P.C., relating to the execution or satisfaction of the decree qua this amount. The said order, therefore, does not operate as res judicata. The learned advocate for the appellant did not argue that the application dated 18th June 1926, must be taken to have been jointly made by the judgment-debtor and the decree-holder and that the executing Court was competent to record a payment at the instance of the decree-holder untrammelled by the bar of limitation. The case has been rightly decided by the lower appellate Court in its legal aspect. I affirm the decision of the Court below and dismiss this appeal with costs.