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Kanhaiyalal Manilal Desai Vs. Yusuf Ali Alimohammad Bohara and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMadhya Pradesh High Court
Decided On
Case NumberCivil Misc. Appeal No. 160 of 1959
Judge
Reported inAIR1964MP221
ActsCode of Civil Procedure (CPC) , 1908 - Order 21, Rules 2 and 16
AppellantKanhaiyalal Manilal Desai
RespondentYusuf Ali Alimohammad Bohara and ors.
Appellant AdvocateM.L. Seth, Adv.
Respondent AdvocateC.B. Sanghi, Adv.
DispositionAppeal dismissed
Cases ReferredUnao Commercial Bank Ltd. v. Mohar Gobind Rai
Excerpt:
- - 1741/- could not have been satisfied on payment of rs. 1035-5-0 which were directed to be entered as satisfied in the decree in favour of hussainbhai taherbhai. it is contended that in as much as the assignment is held to have taken place on 30-6-1953 and was not fraudulent the assignee should have been held to have better rights than the attaching decree-holders to whom payments were made subsequently. 8. as regards the second aspect the position of the assignee of a decree is no better than that of the assignor himself......345-5.0. abbas bhai also obtained decree for rs. 601/- after securing attachment of the very same decree in civil suit no. 111 of 1945-46.2. on 28-8-1953 hakimuddin the surety in civil suit no. 111/1945-46 paid rs. 601/- to abbasbhai in discharge of his decretal dues as the decree of hussainbhai taherbhai against him was under attachment. he secured a receipt of complete satisfaction from him. ex. d/2 dated 28-8-1953. after about a month later i. e. on 30-9-1953 he paid rs. 434-5-0 to saiiuddin and obtained a receipt of complete satisfaction from him too. the appellant kanhaiyalal claiming to be the assignee of the decree of hussainbhai taherbhai under a deed dated 30-6-1953 applied for execution on 6-10-1953 against yusufali and hakimuddin. the judgment-debtors contended that they had.....
Judgment:

V.R. Newaskar, J.

1. This appeal arises out of execution proceedings. Facts material are that Hussainbhai Taherbhai obtained a decree against Usutali who was the principal debtor and also against his surety Hakimuddin in Civil Suit No. 111 of 1945-46 for Rs. 1371/-and interest. The decree-holder on his part was indebted to two creditors Saifuddin and Abbasbhai each of whom filed a suit against him. Saifuddin in his suit obtained an order for attachment before judgment in respect of the decree which Hussainbhai Taherbhai had secured in Civil Suit No. Ill of 1945-41. This suit of Saifuddin was decreed for Rs. 345-5.0. Abbas Bhai also obtained decree for Rs. 601/- after securing attachment of the very same decree in civil Suit No. 111 of 1945-46.

2. On 28-8-1953 Hakimuddin the surety in Civil Suit No. 111/1945-46 paid Rs. 601/- to Abbasbhai in discharge of his decretal dues as the decree of Hussainbhai Taherbhai against him was under attachment. He secured a receipt of complete satisfaction from him. Ex. D/2 dated 28-8-1953. After about a month later i. e. on 30-9-1953 he paid Rs. 434-5-0 to Saiiuddin and obtained a receipt of complete satisfaction from him too. The appellant Kanhaiyalal claiming to be the assignee of the decree of Hussainbhai Taherbhai under a deed dated 30-6-1953 applied for execution on 6-10-1953 against Yusufali and Hakimuddin. The judgment-debtors contended that they had paid of Rs. 1035/5/- to the attaching decree-holders and consequently they were discharged from all liability. This contention of the judgment-debtors was upheld by the Executing Court and the execution application was dismissed.

3. On appeal it was contended before the appellate Court that the Executing Court could not have recognised payments made outside the court particularly when it was dealing with a proceeding under Order 21, Rule 16 C. P. Code and when these payments were put forward on a notice being issued in that proceeding. These payments it was pointed out were not certified and it was urged that they should not have been recognised. Second contention raised was that the decree outstanding for Rs. 1741/- could not have been satisfied on payment of Rs. 1035/5/-. The third objection related to inadequacy of stamp and the conduct of the original decree-holder Hussainbhai Taherbhai in demanding payment from the judgment-debtors on 30-7-1953 and the fourth and the last contention was that Kanhaiyalal was a scribe of the draft of compromise application dated 14-7-1953 in the suit of Abbasbhai against Hussainbhai Taherbhai and that had the story of assignment dated 30-6-1953 been true he should have retrained from writing the deed of compromise. The assignment consequently was alleged to be fraudulent. The appellate Court held the assignment to be genuine, but according to it since the fact of payments under Ex. D/2 and D/5 was raised on behalf of judgment-debtor Hakimuddin on 2-11-1953 in his reply to the notice under Order 21, Rule 16 there was sufficient prayer for certification and since the dates of payments were 28-8-1953 and 30-9-1953 such prayer for certification was within 90 days as required under Article 174 of the Limitation Act. It was however held that payment of Rupees 1035-5-0 could not bring about satisfaction of the entire decree. Question regarding invalidity of stamp could not have been raised before the appellate Court in view of Section 36. Apart from that there was a finding that the stamps were not improper. On these findings the appeal was partially allowed in respect of the amount which was left in balance in the execution case after entering satisfaction for Rupees 1035-5-0. The execution case was consequently remanded.

4. The assignee Kanhaiyalal has now preferred this appeal in respect of the amount of Rs. 1035-5-0 which were directed to be entered as satisfied in the decree in favour of Hussainbhai Taherbhai. It is contended that in as much as the assignment is held to have taken place on 30-6-1953 and was not fraudulent the assignee should have been held to have better rights than the attaching decree-holders to whom payments were made subsequently.

5. This contention when analysed has two-fold aspects. One is that it was not competent for the judgment-debtor of the attached decree to pay off the decree debt outside the Court and thereby be relieved of the burden. Second is that since the assignment was of an earlier date than the date of payment the assignee is not bound by any payment made by the judgment-debtor of the attached decree.

6. Both these aspects of the contention have no force. As regards the first the decision of their Lordships of the Privy Council in Radhakisen v. Durga Prasad, AIR 1940 P C 167 is a complete answer. In that case the question which arose for consideration before their Lordships was whether the holder of a certificate under the Bengal Public Demands Recovery Act who attached a decree passed in favour of his judgment-debtor and had applied under Section 19 of the Act for its execution is competent as the representative of the holder of the attached decree to adjust such decree with the judgment-debtor thereof for a smaller sum than the amount of the decree. Their Lordships on examination of the provisions of Order 21, Rule 2 and Order 21, Rule 53 and Section 19 of the Bengal Public Demands Recovery Act and certain decisions including the one reported in Unao Commercial Bank Ltd. v. Mohar Gobind Rai, AIR 1930 All 659, observed :

''Their Lordships are therefore in agreement with the view of the High Court that respondent 2 had no right to adjust the attached decree in the manner pleaded by the judgment-debtor and that the adjustment cannot be recorded under Order 21, Rule 2. There is, however, one matter in which the view of the High Court requires correction. It was contended before the High Court, that the interpretation which the High Court and the Board have placed on the material sections would have the effect of depriving the judgment-debtor of his right to pay off the judgment-debt amicably out of Court and thereby prevent execution. The High Court appears to have been of opinion that it would have this effect iand that the remedy lay in the judgment-debtor paying the decretal amount into Court, under Order 21, Rule 1 (a). Their Lordships do not share this view. They are of opi. nion that the receipt by the attaching decree-holder of the decretal amount out of Court amicably is only a mode of executing the decree.'

7. It is thus plain from these observations that payment outside the Court made by the judgment-debtors of the attached decree to the attaching decree-holders, on being certified has the effect or satisfying the decree to the extent of such payment.

8. As regards the second aspect the position of the assignee of a decree is no better than that of the assignor himself. It is not proved in this case that the judgment-debtor of the attached decree namely Hakimuddin, who made the payment to the attaching decree-holders under receipts Ex. D/2 and D/5 had any notice of assignment dated 36-6-1953. It was therefore competent for him to pay to the attaching decree-holders outside the Court amicably that being only a mode of execution. Moreover the assignee of the decree only obtained the right title and interest of the assignor subject to such limitations and restrictions as the assignor himself was subject by reasort of the attachment of the decree in his favour. There was no doubt no separate application made for certification but the reply made by Hakimuddin in answer to the notice under Order 21, Rule 16. C. P. Code on 2-11-1953, i. e., within ninety days of such payments can properly be regarded as such application and since the payments can fairly be held to be established the plea of the judgment-debtors that they are not liable to the extent of such payment is correct. Their liability for the balance however remains and that part of their contention is untenable.

9. The decision of the Court below is therefore correct and the appeal ought to be dismissed with costs.


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