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Mattapalli Raju and ors. Vs. Challa Mahalakshmamma and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1942Mad597; (1942)2MLJ185
AppellantMattapalli Raju and ors.
RespondentChalla Mahalakshmamma and anr.
Cases ReferredRamamurti v. Sitaramayya
Excerpt:
.....had to be paid for the subsequent years. quite clearly this discussion is due to a misunderstanding, for the appellants in their memorandum of calculations concede that interest for the years 1931 to 1933 was payable. we are clearly of opinion that if for the purpose of scaling down a debt embodied in a decree, the court finds it necessary to ascertain what payments have been made towards that decree, the bar in order 21, rule 2, civil procedure code, would not prohibit the proof of payments which have not been certified. but what is clear is that the lower court has not correctly understood the nature of the contention before it regarding the discharge of interest for the year 1929-30. unfortunately the pleadings did not bring out clearly the points really at issue between the parties..........could not prove uncertified payments made towards the decree because of the terms of order 21, rule 2, civil procedure code. we pointed out that section 19 was merely concerned with the amendment of the decree in accordance with the terms of act iv of 1938 and with the addition of a power to the court to enter satisfaction when the scaling down process under the act resulted in the extinction of the decree. then after pointing out that the section is not concerned with execution we proceeded to deal with the proviso which relates to payments made in respect of the decree and. provides that they shall first be applied in payment of all costs as originally decreed and we pointed out that in making these appropriations the trial court is not acting as an executing court and that.....
Judgment:

Wadsworth, J.

1. This appeal arises out of an application under Section 19 of Madras Act IV of 1938 seeking to scale down a compromise decree. The appellants here who are the legal representatives of the deceased first defendant, applied to the lower Court alleging in general terms that the decree obtained by the second respondent and transferred by him to the first respondent, had been satisfied by the payments made if the benefit of Act IV were given to the applicants who were agriculturists. The counter affidavit filed by the first respondent alleged that a substantial amount is still due under the decree and denied that the applicants were entitled to the benefits of the Act. When the case came on before the lower Court the right of the applicants to the benefits of the Act was established and the contentions urged centred round certain specific allegations relating to consideration and interest. We are now only concerned with the allegation of the appellants that the interest due upto 1930 had been satisfied. The rights of the plaintiff-second respondent here were assigned under Ex. A in November, 1929. The deed of transfer says nothing about outstanding interest. It is alleged that in the lower Court the appellants filed certain receipts establishing the payment of the interest due for 1930 and that these receipts were not exhibited owing to an error or misunderstanding in the lower Court. The memorandum of calculations filed on behalf of the appellants clearly assumes that all interest upto the beginning of 1930 was discharged and that interest had to be paid for the subsequent years. The memorandum of calculations filed on behalf of the decree-holder assumes-that interest due for the year 1929-30 had not been paid and this interest was treated as contributing to the amount claimed by the decree-holder. The lower Court in its judgment says nothing about any contention regarding the interest for 1929-30, but proceeds to discuss a contention that interest was not payable for the three subsequent years. Quite clearly this discussion is due to a misunderstanding, for the appellants in their memorandum of calculations concede that interest for the years 1931 to 1933 was payable. It is suggested for the respondents that the lower Court has not considered the question of these uncertified payments towards the interest of 1929-30, because of the implications of a decision of ours in the case of Ramamurti v. Sitaramayya : AIR1941Mad56 . In that case we were concerned with the scaling down of a decree under Sections 8 (1) and 19 of the Act. We dealt with the contention that the petitioner could not prove uncertified payments made towards the decree because of the terms of Order 21, Rule 2, Civil Procedure Code. We pointed out that Section 19 was merely concerned with the amendment of the decree in accordance with the terms of Act IV of 1938 and with the addition of a power to the Court to enter satisfaction when the scaling down process under the Act resulted in the extinction of the decree. Then after pointing out that the section is not concerned with execution we proceeded to deal with the proviso which relates to payments made in respect of the decree and. provides that they shall first be applied in payment of all costs as originally decreed and we pointed out that in making these appropriations the trial Court is not acting as an executing Court and that consequently the provisions of Order 21, Rule 2, Civil Procedure Code, do not bar the petitioner from proving payments which have not been certified in the manner necessary for establishing them in an executing Court and we held that the judgment-debtor can prove payments which have not been certified for the purpose of satisfying the decree regarding costs. Then follows the sentence 'For any other purpose, there is no express provision allowing the petitioner to prove payments made after the decree and not recorded by the Court and it seems to follow that he would have to establish those payments in the ordinary way by getting them certified in Court if he wants them, to be taken into consideration as payments towards the decree.' This sentence is not part of the decision itself and is an observation which perhaps goes further than was necessary for the case or was justified by the view taken on the effect of the statutory provisions. No doubt Section 19 of the Act necessitates the taking into account of all payments made towards the decree, whether certified or not, which affect the scaling down process under the Act. For instance, in order to apply Section 8 (2) and 8 (3) of the Act to a decree-debt, it is necessary to know what payments have been made and the Court conducting this enquiry under Section 19 of the Act, not being an executing Court would not be subject to the prohibition in Order 21, Rule 2 of the Civil Procedure Code. We are clearly of opinion that if for the purpose of scaling down a debt embodied in a decree, the Court finds it necessary to ascertain what payments have been made towards that decree, the bar in Order 21, Rule 2, Civil Procedure Code, would not prohibit the proof of payments which have not been certified. To the extent to which the decision quoted seems to suggest any other view we wish to make it clear that that was not our intention.

2. The appellant has filed a petition to admit in appeal documents relating to those alleged uncertified payments. It is not clear to us that this evidence was positively tendered and rejected in the lower Court. But what is clear is that the lower Court has not correctly understood the nature of the contention before it regarding the discharge of interest for the year 1929-30. Unfortunately the pleadings did not bring out clearly the points really at issue between the parties in this respect and it is probably the fault of those responsible for presenting the appellants' case in the trial Court that the Court misunderstood the nature of the real contention. This is not in our opinion a proper case for admitting this evidence in appeal, but it is a proper case for sending the matter back to the trial Court in order that a finding may be recorded on the question whether any amount was due for interest for 1929-30 having regard to the evidence of payments, whether certified or not which was available.

3. We allow the appeal, but, having regard to the way in which the case was apparently presented before the lower Court, we think it proper that the appellants should pay the respondents' costs in this Court. The application is remanded to the lower Court for fresh disposal in the light of this judgment after recording a finding on the question relating to the interest for .1929-30. Both parties will be permitted to file fresh evidence on this question. The costs in the lower Court to abide by the result. We regret that under the rules we are obliged to allow a refund of the Court-fee paid on the memorandum of appeal. The petition to admit fresh documents in appeal is dismissed.


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