1. This appeal under Clause 10 of the Letters Patent isdirected against an affirming order of the learned Single Judge by which he refused to treat a decres as fullysatisfied and an application for execution of that decree as untenable for that reason.
2. The respondent, who is a younger brother ofthe appellant, filed Civil Suit No. 4-A of 1939 for partition and separate possession of his share in their jointfamily property. In terms of the final decree for partition dated 8 January 1952, the appellant became liable to pay to the respondent a sum of Rs. 36,978/2/3/ inlieu of his share in the property. Thereupon, on 18March 1954, the respondent applied for execution of thatdecree and asked for attachment of the appellant'smoveable and immoveable property. In due course, hisimmoveable property was attached and, on 1 July 1954,a date for sale of the property was fixed and the respondent was directed to pay the fees required for issuing the usual processes. Since the process fees were not paid on the next date, the case was adjourned to 4 November 1954, when the execution application was 'dismissed as not prosecuted' but the attachment was kept alive.
3. It is not now disputed that, prior to this, on 28th June 1954 to be more precise, two agreements, Ex. A-1 and Ex. NA-1, were come to between the parties. the material portions of those agreements are reproduced :
^^gekjk ,d fdrk fMh nhokuh eq- ua- 4 , 39 vnk-Jh fM- tt lk- lkxj dh ckcr cVokjk gs vki ds ij gS ftldh gtjk; vnk- esa pkyw gSfd mlds nkok esa [kpkZ esa geus vkt ds jkst 11]000 vadu X;kjg gtkj :i;k vkilsuxn ysdj ckdh nkok NksM+ fn;k vc bl fMh esa dqN Hkh ckdh ugha ysuk jgkA gdjlhvnk- ls pqdrk esa [kkfjt djkds dqdZ 'kqnk tk;nkn dqdhZ ls NqMk ns;saxsA blkokLrs jlhn pqdrk dh fy[k nh dh lun jgsA**
^^tks fd ekStk cj[ksjk njkfj;h ua- oS- 56rg- jgyh esa tks tehu gekjs o rqEgkjs 'kkeykr uke ls gS rFkk gekjs o rqEgkjsrugk uke ls dkxtkr esa ntZ gS ml dqy tehu dk cVckjk cjkcj nks fgLlkssa esa blhlky ls djk nsosaxsA vxj ge ,slk u djsa rks fMh eq- ua- 4 , 39 vnk- Jh ,sfM- ttlk- lkxj esa 11]000 X;kjg gtkj :i;k clwyh dk fy;k gqvk gh eqtjk ikdj ckdh nkoke; [kpkZ fMh dk iqjh vnkbZ rqe dks djus ds ftEesokj gS pqdrk fMh u le>htkosxhA okLrs fpVBh fy[k nh fd l le>h tkosxhA bl okLrs fpV~Bh fy[k nh fd lUnjgsA**
The first agreement was executed by the respondent and the second was executed by the appellant. The respondent also admitted that he actually received, as shown by Ex. A-1, a sum of Rs. 11,000/-.
4. On 29 July 1957 respondent made a fresh application for execution of the decree after giving credit for Rs. 11,000/- which was paid to him on 28 June 1956. Thereupon, on 4 November 1957, the appellant made an application under Order 21 Rule 2 of the Code of Civil Procedure to this effect: On 28 June 1954, there was, between the parties a compromise by which the respondent accepted and received Rs. 11,000/- in full satisfaction of the decree. The respondent also promised to certify full satisfaction of the decree on the date of hearing and subsequently informed the appellant that he had done so. Since the respondent committed fraud on the appellant, the Court should refuse to execute the decree and dismiss his application for execution.
In answer to this application the respondent pleaded that it was barred by time and added that, by the terms of the compromise dated 28 June 1956, the appellant had undertaken to partition their joint property at villageBarkhera within a certain time and further agreed that if he failed so to do, the respondent could execute the decree after giving credit for Rs. 11,000/-. The respondent denied that he committed fraud and claimed that he was fully entitled to execute the decree for the remaining amount because the appellant did not fulfil his undertaking.
5. The Court of first instance dismissed the application under Order 21, Rule 2 holding 'inter alia' that it was barred by time and that there was no adjustment within the meaning of the said Rule 2 because the compromise was subject to a condition precedent which had not been fulfilled. The learned Single Judge affirmed the finding that the compromise was conditional and the condition was not fulfilled. It appears that the view that, where the decree-holder admitted an adjustment, an application made by the judgment-debtor under Order 21, Rule 2 of the Code of Civil Procedure beyond the period of limitation could not be dismissed was also accepted by the learned Single Judge but he dismissed the appeal mainly on the ground that, in this case, there was no adjustment because the condition had not been fulfilled.
6. We are in agreement with the two Courts below that Ex. A-1 should not be considered in isolation, that it should be read with Ex. NA 1 made on the same day. and that the clear effect of the two taken together is that Rs. 11,000/- paid on 28th June, 1954 was not to be regarded as fully satisfying the decree if the condition therein specified was not fulfilled within the time limited toy the agreement.
7. The first question for consideration is whether the condition specified in Ex. NA-1 was fulfilled. In the view we are taking of the second question, it is, not really necessary to decide the question but we propose to second our opinion out of deference to the long arguments addressed to us. By the terms of the agreement the appellant undertook to partition the entire joint lands at Barkhera in two equal shares and to get the parties placed in possession of their shares. It is not now disputed, though it was disputed earlier that, on 2nd July 1954, the appellant and the respondent signed and exchanged two lists of partition of the lands at Barkhera. One of the lists showing the lands allotted to the appellant is Ex. A-2. The other list given to the respondent was not produced by him. This was because it seems to us that he changed the date of Ex. A-2 to '2-7-1956' and claimed that the two lists were prepared on that date and not in 1954. (Shyama Charan D.H.W. 1, paragraphs 4 and 5).
It is plain enough that, in taking up that position, the respondent sought to show that the appellant did nothing till 2nd July 1956 and that, therefore, he did not carry out his undertaking within the time limited by the terms of the compromise. We can not resist the conclusion that these considerations reveal the respondent in a light most unfavourable to him. In this situation we are of opinion that we cannot place any reliance upon the evidence given by him to help himself.
8. Dwarka Prasad, J.D.W. 1, stated mat the lands at Barkhera were partitioned In accordance with the two lists prepared on 2nd July 1954, that the parties accepted the partition thus made and signed those lists. This evidence was fully supported by Balram J.D.W. 6 and Srriram Patwari J.D.W. 7, who scribed the lists. Balram J.D.W. 6 added that the parties agreed that they would take possession of the lands allotted to them.
9. It is contended that not all lands were actually divided by metes and bounds and the undertaking could not be regarded as fulfilled. It is also urged that the lands which were recorded in the name of the appellant alone were not divided. These were answered by the respondent himself. (Shyama Charan D.H.W. 1, paragraphs 14, 15 and 23). According to his evidence, it was unnecessary to actually divide the lands recorded jointly and that he raised no objection to their being kept undivided in the manner shown in the lists. Also, he had to admit that the lands, which were divided, included the lands recorded only in name of the appellant
10. Two other facts support the conclusion that the parties agreed to divide the Barkhera lands in the manner disclosed by the two lists. The respondent admitted in the witness-box that he donated for 'Bhudan' land recorded in the name of the appellant. A certified copy of the relevant entry in the register maintained under the Madhya Pradesh 'Bhudan Yagna' Act shows that the respondent had donated 30 acres of land. Again, the respondent made a claim for 'nistar' land and he was, by an order dated 27th August 1956, given 5.51 acres cf land for the purpose on the ground that the two brothers had about the same area of separate land.
11. We are also of opinion that, in view of the terms of the agreement and with so much at stake, the appellant was hardly likely to neglect the fulfilment of his, condition which alone could entitle him to claim relief from the obligation of having to pay under the decree over Rs. 26,000/-. In keeping with this was the conduct of the respondent, who did not prosecute his pending execution after the partition evidenced by the two lists. The various mutually destructive statements in relation to this partition, which the respondent made in his evidence, in order to wriggle out of the position created by that partition, lend indirect support to the same conclusion. We find no basis in the agreement dated 28 June 1954 for the argument that the partition had to be made through the Revenue Court by metes and bounds. In our opinion, a partition like the one appearing from the two lists, which was accepted by both the parties, was sufficient fulfilment of the condition specified in the agreement dated 28th June 1954.
12. The only other question for consideration is whether the executing Court could recognise or give effect to the adjustment dated 28th June 1954. The matter is governed by Order 21, Rule 2 of the Code of Civil Procedure which reads:
'(1) Where any money payable under a decree of any kind is paid out of Court, or the decree is otherwise adjusted in whole or in part to the satisfaction of the decree-holder, the decree-holder shall certify such payment or adjustment to the Court whose duly it is to execute the decree, and the Court shall record the same accordingly.
(2) The judgment-debtor also may inform the Court of such payment or adjustment, and apply to the Court to issue a notice to the decree-holder to show cause, on a day to be fixed by the Court, why such payment or adjustment should not be recorded as certified; and if, after service of such notice, the decree-holder fails to show cause why the payment or adjustment should not be recorded as certified, the Court shall record the same accordingly.
(3) A payment or adjustment, which has not been certified or recorded as aforesaid, shall not be recognized by any Court executing the decree.'
On 4th November 1957, when the appellant made his application under Order 21, Rule 2 it was, in view of Art. 174 of the Limitation Act, long barred by time. On that date, the respondent also had not certified the adjustment. That being so, the application had to be, as required by Section 3 of the Limitation Act, dismissed as barred by time.
13 In the application under Order 21, Rule 2 it was alleged that the respondent promised to certify the adjustment and asked the appellant not to attend the hearing of the execution case, that the respondent falsely informed him that adjustment had been certified by the Court and then fraudulently executed the decree and that the appellant came to know of this fraud on 4th November 1957, when he inspected the record. Perhaps these averments were made to claim extension of limitation under Section 18 of the Limitation Act. It is, however, well established that that section is attracted only where there is an active and designed fraud and it had no application when the other party merely remains silent and does not do any act which is designed to prevent knowledge of the cause of action. En this case, the alleged fraud consisted in asking the appellant not to attend the hearing of the case and then telling him that the adjustment had been certified by the Court. The appellant admitted in the witness-box that he did not move the executing Court because he did not think that the respondent would change his position. (Dwarka Prasad J.D.W. 1, para 8). There is also no evidence to show that the respondent asked the appellant not to attend the hearing of the execution case or that he subsequently told the appellant that the adjustment had been certified by the Court. In this situation, the benefit of Section 18 of the Limitation Act is not available to the appellant. We may add that this aspect of the case was not pressed before the learned Single Judge and is also not raised in the grounds of this appeal under the Letters Patent.
(14) It appears that the appellant knew that, long after the limitation had expired, he could not move the executing Court for recording the adjustment as certified. That explains why he worded the relief claimed by him as follows:
'The decree-holder has committed fraud on the judgment-debtor; therefore the Court should refuse to execute the execution application and should not allow fraud to be perpetrated on the Court. It is, therefore, prayed that the execution application be dismissed with costs.'
It is obvious that, since the adjustment was not certified or recorded, no relief could be given to the appellant on the basis of this application.
15. The appellant had also moved the executing Court under Section 476, Criminal Procedure Code for enquiry into an alleged offence under Section 210 of the Indian Penal Code. It is true that Sub-rule (3) of Order 21, Rule 2 does not prohibit such an enquiry. Shriram v. Bajranglal Gokulchand, ILR (1949) Nag 145 : (AIR 1949 Nag 276). It is urged on the authority of certain decided cases that, if, in the course of enquiry, the respondent admitted the adjustment, it could be treated as certified for the reason that there is no limitation for certificationby the decree-holder under Sub-rule (1) of Order 21, Rule 2. We proceed to examine these cases immediately.
16. In Chinna Mummidi Royal v. Raja Somasekara, AIR 1929 Mad 783 (1), the Madras High Court declined to interfere in a case where the executing Court proceeded to ascertain whether certain uncertified but admitted payments were made under a maintenance decree for an earlier period as claimed by the decree-holder or for a subsequent period covered by the execution appilcation as claimed by the judgment-debtor. The reason given by Jackson, J. was:
'it is quite obvious that neither party will be prejudiced by the order of the learned District Judge directing further enquiry; and in the light of Govinda Dass v. Rajah of Karvetnagar, 30 Ind Cas 357 : (AIR 1916 Mad 795 (2)), I am not prepared to uphold the technical objection that the Court is precluded from enquiring into the payments admitted under Order 21, Rule 1.'
In the case there relied upon, payments were admitted but it was contended that they were appropriated, not towards the decree, but towards the expenses of management. In Chinnaswamy Kavirayer v. Periathambi Butler, AIR 1929 Mad 811, the question was whether, for purposes of limitation, a decree-holder could take advantage of a payment admitted by him. In A. Bapanna v. I. Ven-gayya, AIR 1937 Mad 511, a decree was transferred and in the document of transfer certain payments were admitted and the transferee of We decree was entitled to execute it for the remainder and he also admitted that fact. In Ramnath Sarma v. Baidyanath Chatterji, AIR 1954 Cat 620, reliance was placed upon the case of Chinna Mummial Royal, AIR 1929 Mad 783 (1) (supra) and it was held that, when the decree-holder admitted having signed the agreement showing the adjustment but there was a dispute between the parties about the terms of that adjustment, the executing Court could proceed to determine what the terms of the adjustment were. This is what the Calcutta High Court stated:
'In our view, the correct order to make would be to dismiss the objection filed by the respondent before the lower Court. The lower Court should have held that the adjustment not being certified and the application, which in effect asks the Court to record the said adjustment, having been made more than ninety days from the date of the said adjustment, the same could not be entertained by the Court. But the decree-holder having admitted before the Court and thereby brought to the notice of or certified to the Court that there was an agreement between the parties adjusting the decree and having admitted that he signed the document, on which the judgment-debtor also relied, the Court should have held that the decree-holder had certified the adjustment to the Court and should have proceeded to record the said adjustment under Order 21, Rule 2, Sub-rule (1). In such proceedings the lower Court should have gone into the question as to what the terms of the adjustment were.'
17. The cases of Chinnaswami Kavirayer, AIR 1929 Mad 811 (supra) and Alluri Bapanna, AIR 1937 Mad 511 (supra), are clearly distinguishable on facts. Thus only the other two cases support the appellant. In the case of Chinna Mummidi Royal, AIR 1929 Mad 783 (1) (supra). Jackson J. took the view that the objection grounded on Sub-rule (3) of Order 21, Rule 2 was merely technical and that, if the dispute relating to uncertified payments were investigated, neither party was likely to be prejudiced. Another reason given in the Calcutta case, which followed the Madras case, is this. When, in such a case, the decree-holder admits that he has signed an agreement, he certifies 'that there has been an agreement adjusting the decree'. In our opinion these reasons are not sound. In Harihar Prasad Singh v. Bhubneshwari Prasad Singh, ILR 15 Pat 422 : (AIR 1936 Pat 270), a Division Bench of the Fatna High Court stated :
'As Rankin, C. J. observed in the Full Bench decision in Lakshanchandra Naskar v. Ramdas Mandal, ILR 57 Cal 403 : [AIR 1929 Cal 374), the legislature could not inenacting Order 21, Rule 2, have been ignorant that decrees will be executed despite unrecorded adjustments and that such cases would commonly, if not necessarily, raise a question of fraud; and the Rule was introduced, as Dawson Miller, C. J. said in Mt. Sukhdei Kumri v. Mahamaya Prasad, 48 Ind Cas 765 : (AIR 1918 Pat 278), with the very object of avoiding in execution proceedings disputes between the parties, and frequently long enquiries, as to what sums had or had not been paid out of Court in satisfaction of the decree.'
When this is the object of providing that uncertified payment or adjustment cannot be recognised by the Court executing the decree and it is debarred 'in limins' from considering any allegation that a payment or adjustment not certified has been made, there can be no escape from that position. The general consideration mentioned by Jackson, J. may afford sufficient grounds for modifying Sub-rule (3) or repealing Article 174 of the Limitation Act but they cannot, while that sub-rule stands, afford good grounds for refusing to give effect to it. The present case itself is an example of the protracted nature of controversies which, if the salutary principle recognised and enacted in Sub-rule (3) were disregarded, the Court executing the decree would be required to investigate and determine. In the Calcutta case, it was assumed that when the decree-holder admitted that he signed an agreement, he certified that there was an agreement adjusting the decree, In our opinion, the mere admission that there was an agreement to adjust a decree does not amount to an admission or certification of an effectuated adjustment, if an authority is required, we may refer to Meghraj v. Kesarimal, ILR (1947) Nag 197 : (AIR 1948 Nag J5), where Pollock, J. observed at page 200:
'Agreements to compromise a claim to execute a decree may be divided into three classes, In the first class of agreement the decree-holder agrees to give up all his rights under the decree on the judgment-debtor's doing something or the other, and there is no adjustment until the judgment-debtor has done whatever he promised. The second class of agreement is where the decree-holder agrees to give up all his rights under the decree in return for a promise by the judgment-debtor to do something cr the other; on the recording of such an adjustment, the decree becomes fully satisfied and the decree-holder can enforce the fulfilment of the judgment-debtor's promise only by a separate suit, It has in some cases been doubted whether such an agreement termed an 'executory agreement', could amount to an adjustment of the decree, but it is now well settled that it can : see for example Ramanarasu v. Venkata Reddi, ILR 56 Mad 198 : (AIR 1933 Mad 28), Udham Singh v. Atma Singh, ILR (1941) Lah 383 : (AIR 1941 Lah 149) (FB) and Kalyanji Dhana v. Dharamsi Dhana and Co., AIR 1935 Bom 303, where the point has been discussed at length, and also the Oudh Commercial Bank, Ltd. v. Bind Basni Kuer, ILR 14 Luck 192 : (AIR 1939 PC 80). The third class of agreement is one in which the parties agree that the decree shall be modified in some way or other and that the decree-holder shall be entitled to execute the decree as modified but not the original decree. The question of the class in which the compromise falls is a question of fact.'
In this case, as in the Calcutta case, the agreement fell in the first class because it contemplated that, before it ripened into an effective adjustment, the judgment-debtor had to do something or the other. There was, therefore, no adjustment until the judgment-debtor did what he promised to do. In this situation mere acceptance by the decree-holder of the fact of making the agreement, without more, could not be regarded as equivalent to certification of the adjustment or as giving jurisdiction to the Court executing the decree to embark upon an enquiry to ascertain whether the judgment-debtor had fulfilled his promise. As we would show in a moment, the language employed in the relevant provision fully supports this view.
18. Sub-rule (1) of Order 21 Rule 2 does not contemplate any enquiry. On the other hand, the pre-condition for a decree-holder certifying an adjustment is that 'the decree is otherwise adjusted in whole or in part to the satisfaction of the decree-holder'. In our opinion, this sub-rule envisages a voluntary certification by the decree- holder When the decree is adjusted to his satisfaction and excludes, otherwise than by means of an application under Sub-rule (2), any enquiry to ascertain if there was any adjustment to the satisfaction of the decree-holder. This is particularly so, when the decree-holder is resisting the claim that the decree was so adjusted. It has been held that a decree-holder is entitled to withdraw his application for recording an adjustment before the adjustment has, been recorded. Dattatraya Kashinath v. Vithaldas Bhag-wandas, ILR [1942} Bom 132 : (AIR 1942 Bom 59) and ILR (1947) Nag 197 : (AIR 1948 Nag 35) (supra). This can be explained only on the view taken by us about the true meaning of Sub-rule (1). In conclusion we may refer to Abid Husain v. Kunj Beharilal, AIR 1939 All 581, where it was held that, to be a certification of payment by the decree-holder, the statement or admission by him must be to the effect that the payment was made to him against the amount due under the decree and not an admission or payment against any other claim, which is disputed by the judgment-debtor. It will be seen that this is contrary to the view taken in the case of Chinna Mummidi Royal, AIR 1929 Mad 783 (1) (supra).
19. In the view we have taken, the respondent cannot be regarded as having certified the adjustment under Sub-rule (1) of Order 21, Rule 2. That being so, this appeal must fail though for reasons different from those given by the learned Single Judge.
20. The result is that the appeal is dismissed, in the special circumstance of this case, we direct the parties to bear their own costs throughout.