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Alathoor Badrudeen and anr. Vs. Gulam Moideen and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported in(1913)24MLJ541
AppellantAlathoor Badrudeen and anr.
RespondentGulam Moideen and anr.
Cases ReferredTrimbalc v. Hari Laxman
Excerpt:
.....to consider the objection. 485 in many cases the failure to certify would be fraudulent, but notwithstanding the fraud the executing court is bound not to recognize the adjustment. on the facts of that case the judgment was perfectly right if we may say so. 4. we are therefore compelled to refuse to treat the defendants' counter-petition as an application to compel the decree-holder to certify the adjustment and we are unable to hold that the judge was wrong in refusing to enquire into the judgment-debtors' plea for the purpose of holding that the decree had not been satisfied. 5. the other contention of the appellants namely that the judge did not consider his objection that the applicant for execution was not entitled to take out execution solely is in our opinion well founded......september which was within 90 days of the adjustment. the application, no doubt was not in form to compel the decree-holder to certify the adjustment, but to set aside the sale in contravention of it. but as the time for putting in an application to compel the certifying of the adjustment had not elapsed the defect in form might be overlooked, and the question of adjustment enquired into. there are no doubt some observations in the judgment of a somewhat comprehensive character. it is stated that the provisions of section 258 do not preclude the court from enquiring into an adjustment where the decree-holder is guilty of fraud. if the learned judges intended to say that such an enquiry should be made even after the time for taking proceedings to compel the decree-holder to certify the.....
Judgment:

1. This is an appeal against the order of the District Court of North Arcot on an application to execute the decree of that Court in Original Suit No. 24 of 1901. The application was put in by one only of the two plaintiffs in the suit. The judgment debtors (defendants) in their counter petition contended that a sum of Rs. 3400 was paid to the two plaintiffs in complete satisfaction of the whole decree the balance of the amount due to them (plaintiffs) being remitted in defendants' favour. They urged that the two plaintiffs had agreed to certify complete satisfaction of the decree to the Court and subsequently represented to the 1st defendant that they had done so; that the application for execution of the decree was therefore a fraudulent one and should not be allowed by the Court. They also contended that execution should not be allowed in favour of the applicant alone as he was only one of the two decree-holders in the suit. The District Judge was of opinion that he could not recognize the adjustment as it was not certified to the Court. He does not deal in his order with the other objection that execution should not be allowed in favour of one of the decree-holders alone.

2. The judgment debtors' Vakil has argued two points. First, that notwithstanding the absence of any certificate of satisfaction, the District Judge was bound to enquire whether, as a matter of fact the decree had been adjusted between the parties or not; and secondly that the judge was wrong in allowing execution in favour of the applicant alone and that he had failed to consider the objection. We are of opinion that the first contention cannot be supported. Section 258 of the old Procedure Code corresponding to Order XXI Rule 2 of the present code lays down that unless such a payment or adjustment has been certified as aforesaid it shall not be recognised as a payment or adjustment of the decree by any Court executing the decree. When an adjustment has been made it is no doubt the duty of the decree-holder to certify the adjustment to the Court; if he fails to certify it is open to the judgment debtor to take steps to compel him to do so and the law allows him 90 days within which to take such steps. The adjustment in the present in case was in the year 1904. The application for execution was in August 1907. In their counter petition the judgment debtors do not state that they were prevented from knowing of the fraudulent conduct of the plaintiffs by any fraud on their part until within 90 days before the date of their application. Section 258 Clause 3, is imperative that the executing court cannot recognize an adjustment which has not been certified. The clause is certainly applicable where in answer to an application for execution an adjustment is set up by the judgment debtor. See Gadadhar Panda v. Shyam Churn Naik (1908) 12 C.W.N. 485 In many cases the failure to certify would be fraudulent, but notwithstanding the fraud the executing Court is bound not to recognize the adjustment. The alleged misrepresentation that it had been certified in this case does not alter the position.

3. We have been invited by the learned Vakil for the appellants to treat the judgment debtors' counter petition as an application to compel the judgment creditors to certify the adjustment. We might be inclined to accede to this request if there was anything before us to show that the counter petition was put in within the time allowed to the judgment debtors by the Limitation Act. Their petition was put, in more than three years after the date of the adjustment and we cannot assume that they were not aware of the fraud more than 90 days before the date of the application, even if we could assume that they were at first kept from the knowledge of the fraud in not certifying the adjustment by the conduct of the decree-holders. Mr. Krishnaswami Aiyar has relied on certain cases in support of his contention. The first of these is Ramayyar v. Ramayyar I.L.R. (1897) M. 356 There the adjustment was in August 1893; the sale by the decree-holder in contravention of the terms of the agreement was on the 1st September and the judgment debtor's petition to set aside the sale was on the 21st September which was within 90 days of the adjustment. The application, no doubt was not in form to compel the decree-holder to certify the adjustment, but to set aside the sale in contravention of it. But as the time for putting in an application to compel the certifying of the adjustment had not elapsed the defect in form might be overlooked, and the question of adjustment enquired into. There are no doubt some observations in the judgment of a somewhat comprehensive character. It is stated that the provisions of Section 258 do not preclude the Court from enquiring into an adjustment where the decree-holder is guilty of fraud. If the learned judges intended to say that such an enquiry should be made even after the time for taking proceedings to compel the decree-holder to certify the adjustment has elapsed, then with all deference to them we are unable to concur in that view. On the facts of that case the judgment was perfectly right if we may say so. On the other hand in Ganapathy Aiyar v. Chenga Reddy I.L.R. (1905) M. 312 and Vee-rappa Chettiar v. Arumugam Poosari (1907) 17 M.L.J. 527 relied on by the judge as in Periatambi Udayan v. Vellayya Goundan I.L.R. (1898) M. 409 it was held that the Court could not enquire into an adjustment not certified to the Court according to law. In the last of the cases referred to above, more than two years had elapsed after the adjustment of the decree before it was brought to the notice of the Court, and it was held that in those circumstances the Court could not enquire into the plea5 of adjustment. The decision in Bamayyar v. Ramayyar4' apparently did not commend itself to the learned judges who decided that case. In Veerappa Chettiar v Arumugam Pusari I.L.R. (1897) M. 356 that case was again doubted. One other case was relied on for the appellants, namely Gadadhar Panda v. Shyam Churn Naik (1908) 12 C.W.N. 485 But that case really does not support the appellant. For there the allegation of the judgment debtor was that he was kept in ignorance of the facts making it necessary for him to take proceedings to compel the certifying of the adjustment until some time within 90 days of his bringing it to the notice of the Court. Reference was also made to the judgment of Heaton J. in Trimbalc v. Hari Laxman : (1910)12BOMLR686 That learned judge no doubt, was of opinion that Section 258 merely raises a presumption of non-adjustment when it has not been certified to the Court and that it is open to the Court to enquire into a plea of adjustment whenever it might be raised. For the reasons already stated 'we are unable to concur with the learned judge. Justice Chcmdavarkar did not concur in the view taken by Heaton J. in that case.

4. We are therefore compelled to refuse to treat the defendants' counter-petition as an application to compel the decree-holder to certify the adjustment and we are unable to hold that the judge was wrong in refusing to enquire into the judgment-debtors' plea for the purpose of holding that the decree had not been satisfied.

5. The other contention of the appellants namely that the judge did not consider his objection that the applicant for execution was not entitled to take out execution solely is in our opinion well founded. Section 231 of the old Code corresponding to order XXI Rule 15 of the new Code explicitly lays down that execution in favour of one only of several joint decree-holders can be allowed only if the court sees sufficient cause for allowing the decree to be executed on an application made by one alone of them; and then it is the duty of the Court to pass such orders as it deems necessary for protecting the interests of the persons who have not joined in the application.

6. It is contended for the respondents that the 2nd plaintiff did not appear though notice was issued to him on the 1st plaintiff's application and that we must take it that the judge did consider his objection and held that this was a fit case for allowing execution in favour of. one of the two decree-holders. We are unable to uphold his argument. The judgment of the lower Court does not show that the judge being aware of the discretion vested in him by Section 231 intended to exercise it in favour of the applicant after considering the circumstances of the case.

7. We must therefore reverse the order of the District judge and remand the execution petition to him for fresh disposal according to law in the light of the above observations. The costs of this appeal will abide the result.


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