Skip to content


Viraraghava Reddi Vs. Subbakka - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Judge
Reported in(1882)ILR5Mad397
AppellantViraraghava Reddi
RespondentSubbakka
Cases ReferredArunachella Pillai v. Appavu Pillai
Excerpt:
.....of decree--remedy of judgment-debtor when creditor fails to certify satisfaction. - - but the decree-holder failed to certify that satisfaction to the court under section 258, civil procedure code, and four months afterwards she applied for and obtained execution, an application made by the plaintiff for an order compelling the decree-holder to certify being dismissed as too late. where the creditor on receiving the money has promised to certify the payment to the court, and has failed to do so, i think that a suit would lie on the promise--gunamani dasi v. it is difficult to bring the case within the english action for money had and received upon a consideration which has failed; 188. 10. but section 258 of the code expressly makes it the duty of the decree-holder to certify to the..........certain paddy and dry grains out of court in satisfaction of a decree against him; but the decree-holder failed to certify that satisfaction to the court under section 258, civil procedure code, and four months afterwards she applied for and obtained execution, an application made by the plaintiff for an order compelling the decree-holder to certify being dismissed as too late. the plaintiff then brought the present suit to recover the paddy and grain which he had delivered in the first instance, and the question is, whether such a suit is maintainable.2. section 258 of the civil procedure code imposes on a decree-holder, who has received payment in satisfaction out of court, the duty of certifying such payment to the court. the judgment-[398]debtor also may apply to the court.....
Judgment:

Kindersley, J.

1. The plaintiff in this suit is stated to have delivered certain paddy and dry grains out of Court in satisfaction of a decree against him; but the decree-holder failed to certify that satisfaction to the Court under Section 258, Civil Procedure Code, and four months afterwards she applied for and obtained execution, an application made by the plaintiff for an order compelling the decree-holder to certify being dismissed as too late. The plaintiff then brought the present suit to recover the paddy and grain which he had delivered in the first instance, and the question is, whether such a suit is maintainable.

2. Section 258 of the Civil Procedure Code imposes on a decree-holder, who has received payment in satisfaction out of Court, the duty of certifying such payment to the Court. The judgment-[398]debtor also may apply to the Court within fifteen days to have the payment certified. Then follows the provision, 'no such payment or adjustment shall be recognized by any Court, unless it has been certified as aforesaid.'

3. Section 244 of the Code enacts that questions regarding mesne profits which may arise in execution shall be determined by order of the Court executing the decree, and not by a separate suit; and also 'any other questions relating to the execution, discharge, or satisfaction of the decree.' The question is whether these two sections of the Civil Procedure Code operate so as to bar the present suit.

4. Under the corresponding sections of the Civil Procedure Code, 1859, and of Act XXIII of 1861, a case of this kind was discussed by a Full Bench of this Court, Arunchella Pillai v. Appavu Pillai 3 M.H.C.R. 188 when a majority of the judges held that such a suit was not maintainable, Scotland, C.J., and Innes, J., dissenting. I understand the opinion of Mr. Justice HOLLOWAY to have been that the first payment could not be recovered, because it was due under the decree; and the second could not be recovered, because it was ordered by the Court Marriot v. Hampton 7 T. R. 269 : 2 L.C. 405.

5. The difficulty arises from the final clauses of the sections of the Code already noticed, the one enjoining the settlement of questions of satisfaction by an order in the course of execution, and not by a separate suit; the other prohibiting the recognition in this manner of any payment not certified. Those two sections occur in that part of the Code which lays down the procedure to be followed in the execution of decrees; and taking them as relating to that object, I think that they may reasonably be construed in this way. As a general rule, questions relating to the satisfaction of a decree shall be settled by an order made in the course of execution, and not by a regular suit; but no Court shall settle a question of satisfaction by an order made in execution, unless such satisfaction shall have been duly certified.

6. Speaking of the corresponding sections of the old Procedure Code, Sir Colley Scotland, C.J., in the case already referred to, said, 'Both sections can consistently have full operation given to them, and, reading them together, I think I am bound to put [399] upon them the construction that an adjustment out of Court cannot be made a question in execution between the parties for determination by order of the Court, and is consequently not a matter to which the prohibition of a separate suit applies.'

7. The new Procedure Code allows the party who has paid his money out of Court, to move the Court to issue notice to the decree-holder to show cause why such payment should not be recorded as certified; but the Limitation Act allows only fifteen days for the debtor to take this step; and it would be hard if there were no other remedy. It is a maxim of law that there can be no wrong without a remedy. And I think it would require an enactment in the plainest language to deprive a debtor, who by the fraud of his creditor has been made to pay his debt twice, of his common law right to recover against him on the ground of fraud. It has been pointed out that the rule in Marmot v. Hampton 7 T.R. 269 : 2 L.C. 405 proceeds on the grounds that the party proceeded against has had the opportunity of defending himself, although he may not have been prepared at the time with the means of doing so successfully.

8. But in the class of cases now under consideration the debtor is precluded by positive enactment from proving in the course of execution his payment made out of Court. What, then, is his remedy? Where the creditor on receiving the money has promised to certify the payment to the Court, and has failed to do so, I think that a suit would lie on the promise--Gunamani Dasi v. Prankishori Dasi 5 B.L.R. 223 Davolata v. Ganesh Shastri I.L.R. 4 Bom. 295 Motee Lal Mookerjee v. Khandhai Lall l N.W.P. 155 Soojun Mundul v. Woozeer Mundul 6 W.R. Civ. Ref. 20 Bhugoban Tantee v. Gobind Chundrr Roy 9 W.R. Civ.210.

9. It is not clear from the case stated whether there was such a promise in the present case. Where there has been no promise, the question appears to me more difficult. It is difficult to bring the case within the English action for money had and received upon a consideration which has failed; because, though the debtor probably may rely upon the creditor certifying the payment, the consideration for the payment is the decree. See per Holloway, J., in Arunachella Pillai v. Appavu Pillai 3 M.H.C.R. 188.

10. But Section 258 of the Code expressly makes it the duty of the decree-holder to certify to the Court any payment made out of Court in satisfaction of a decree, and if the decree-holder, either by fraud or by negligence, fails to discharge that duty, and by reason of such failure the debtor has to pay his debt a second time, I am of opinion that a suit would lie against the decree-holder on the ground of his fraud or negligence. In the present case the plaint may not be in proper form, but I would allow it to be amended.

Charles A. Turner, Kt., C.J. and Muttusami Ayyar, J.

11. This case falls to be decided under Act X of 1877 as it stood before the Amendment Act of 1879 was enacted.

12. The suit now pending is not brought to recover money levied under a decree, nor is it a suit to recover money paid and accepted in satisfaction of a debt due. It is a suit to recover damages for the breach of the implied promise to certify the payment to the Court and thereby make it effectual in execution. The consideration for which the delivery was made has wholly failed owing to the negligence or misconduct of the decree-holder.

13. For the wrong which the plaintiff has suffered, he cannot be debarred his remedy by action unless it is taken away expressly or by necessary implication.

14. The 258th section, which prohibits such Court from recognizing the delivery as a plea in bar of execution, does not prohibit the maintenance of such a suit, nor in our judgment do the terms of Section 244. There is no longer any question whether the money was paid in satisfaction of the decree. It is admitted that it has not been duly applied to that purpose. The question relates not to the execution of the decree, but to a contract which formed no subject of enquiry in the suit and could not form a subject of inquiry in execution of decree.

15. We assent to the conclusion of our honourable colleague.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //