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Sankara Nambiar Vs. Kanara Kurup - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported in(1898)8MLJ175
AppellantSankara Nambiar
RespondentKanara Kurup
Cases ReferredBaba Mohamed v. Webb
Excerpt:
.....which lays down any corresponding procedure for certifying the satisfaction of decrees for immoveable property, specific moveables and so forth. immoveable property is so different in its nature from money, and the difficulty of tracing and of proving or disproving an alleged payment of money is so much greater than the difficulty of proving an alleged delivery of immoveable property that the legislature may well have made a special provision in the case of money, which was thought unnecessary in the case of immoveable property......of an agreement of the nature mentioned in section 257-a, the decree-holder shall certify such payment or adjustment to the court whose duty it is to execute the decree.the judgment-debtor may also 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 due service of such notice, the decree-holder fails to appear on the day fixed, or having appeared fails to show cause why the payment or adjustment should not be recorded as certified, the court shall record the same accordingly.unless such a payment or adjustment has been certified as aforesaid, it shall not be recognized as a payment or adjustment of.....
Judgment:

1. The plaintiff obtained a decree for the surrender of land in O. S. No. 168 of 1893. On the 3rd September, 1896, the 2nd defendant, alleging that defendants had surrendered the land to the plaintiff in March 1894, asked the District Munsif to record an order stating that the decree-holder had obtained possession of the land.

2. The District Munsif, after enquiry, recorded a finding that the land had been surrendered. The District Judge, on appeal, observed that the application was one made under Section 258, Code of Civil Procedure, and that under Article 173-A of Schedule III of the Limitation Act, such an application must be made within 90 days of the delivery of possession. He, therefore, dismissed the application as barred by limitation.

3. The 2nd defendant appeals on the ground that Section 258 applies only to cases in which the decree is for money, not for land, as in the present case; and the questions for decision are whether Section 258, Code of Civil Procedure, refers only to decrees for money, or is applicable also to decrees for possession of immoveable property, and, if the former, whether the District Munsif had any power in execution to hold the enquiry and make the order which he did on the 2nd defendant's petition ?

4. It seems to us that the language of Section 258 and its position in the Code indicate that it refers only to the execution of decrees for money.

5. Under the general heading 'Of the mode of executing decrees,' the Code deals separately with the various kinds of decrees that have to be executed. It begins with decrees for money and deals with them in Sections 254 to 258. It then deals (Section 259) with decrees for specific performance and restitution of conjugal rights, then (Sections 261-2) with decrees for execution of conveyances and endorsement of negotiable instrument, lastly (Section 263-5) with decrees for immoveable property.

6. Section 257 enacts that 'All money payable under a decree shall be paid as follows, namely:

(a) into the Court whose duty it is to execute the decree; or

(b) out of Court to the decree-holder; or

(c) otherwise as the Court which made the decree directs.

7. Then Section 257-A lays down that an agreement to give time for the satisfaction of a judgment-debt shall be void unless made for consideration, &c.;

8. Then follows Section 258 which runs thus:-

If any money payable under a decree is paid out of Court, or the decree is otherwise adjusted in whole or in part to the satisfaction of the decree-holder, or if any payment is made in pursuance of an agreement of the nature mentioned in Section 257-A, the decree-holder shall certify such payment or adjustment to the Court whose duty it is to execute the decree.

The judgment-debtor may also 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 due service of such notice, the decree-holder fails to appear on the day fixed, or having appeared fails to show cause why the payment or adjustment should not be recorded as certified, the Court shall record the same accordingly.

Unless such a payment or adjustment has been certified as aforesaid, it shall not be recognized as a payment or adjustment of the decree by any Court executing the decree.

9. The opening words of the Section 'If any money payable under a decree is paid out of Court' evidently refer back to Section 257.

10. Clause (b) and the next words of Section 258 'or the decree is otherwise adjusted in whole or in part,' &c.;, refer back to the other clauses of Section 257 and to 257-A. But Section 257 and 257-A deal only with decrees for money. Moreover, in the second line of Section 258 the words 'the decree' clearly refer to the decree mentioned in the preceding line, which is a decree under which money is payable.

11. Thus the language of the Section appears to us to be applicable only to decrees under which money is payable, and the position of the Section in the Code supports the same view.

12. The District Judge held that Section 258 was applicable to the present application and relied on the case Baba Mohamed v. Webb, I. L. R., 6 C., 786 but the decision in that case was based on the words of Section 258 of Act X of 1877 which the learned Judges considered to correspond to in all material respects and to convey the same meaning as, Section 206 of the prior Civil Procedure Code (Act VIII of 1859) which, in their opinion, manifestly dealt with the adjustment of any decree.

13. No doubt the words in Section 206 of Act VIII of 1859 are very wide. They are 'no adjustment of a decree in part or in whole shall be recognised by the Court unless,' &c.;

14. In the Act of 1877, however, the chapter on the execution of decrees was greatly expanded and in some respects altered, and the language of Section 258 was again altered when the present Code was passed, and we do not think that any decision as to the meaning of Section 206 of the Code of 1859 can give much guidance in construing the very different words of Section 258 of the present Code. It is suggested that Section 258 must apply to cases like the present, since there is no other Section of the Code which lays down any corresponding procedure for certifying the satisfaction of decrees for immoveable property, specific moveables and so forth. We do not think that this argument is conclusive. Immoveable property is so different in its nature from money, and the difficulty of tracing and of proving or disproving an alleged payment of money is so much greater than the difficulty of proving an alleged delivery of immoveable property that the Legislature may well have made a special provision in the case of money, which was thought unnecessary in the case of immoveable property. If it was intended that Section 258 should apply to decrees of all kinds, we should certainly have expected its language to be general instead of being so strictly limited as it is.

15. We think, then, that Section 258 was inapplicable to the present case, and, therefore, the limitation of 90 days prescribed in Article 173 of the Limitation Act in regard to that Section had no application.

16. It is, however, admitted that if Section 258 is inapplicable, there is no other Section which expressly authorizes the Court to deal with such an application as that made by the defendant in this case. We do not, however, think that the absence of express authority in the Code is any proof that the District Munsif had no jurisdiction to deal with the application. The Code does not contain an exhaustive statement of every act which may be done by the Courts. No doubt, where the Code provides a specified procedure in any matter the Courts are bound to follow the Code, but in matters not dealt with by special provisions of the Code, the Court may act under the general provisions of the Code. Under Section 244 the Court has a general authority to make orders determining any questions which arise between the parties to the suit and relating to the satisfaction of the decree. We think that the District Munsif had authority under that Section to deal with the question raised by the defendant.

17. We must, therefore, set aside the order of the District Judge with costs in this and the lower appellate Court, and remand the appeal to the District Judge for decision on the merits.


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