1. On 26th June, 1923, Yellappu Bapanna obtained part satisfaction of her decree to the extent of Rs. 2,500 and in December of the same year she obtained another sum of Rs. 1,000. Both these amounts were certified. On 3rd August, 1924, Rs. 2,520 were paid to her but the payment was not certified. On 10th January, 1929, the decree was transferred to the present appellant by Ex. I. That document recites that two sums of Rs. 2,500 and 2,520 respectively had been collected towards the decree amount, that the decree holder is entitled to execute for the balance, and that she transferred her right to execute to the appellant. Both the trial Court and the lower appellate Court held that on a construction of Ex. I the right transferred to the appellant was to execute for such sum as was due after making the deductions mentioned in the deed. In second appeal Wadsworth, J., was of the same opinion and referred to the possibility that the document of transfer and the filing of E.P. No. 231 of 1929 by the appellant might amount to a certification within the meaning of Order 21, Rule 2. Against this judgment of Wadsworth, J., the present Letters Patent Appeal has been preferred.
2. The main point discussed in this appeal is whether in view of the terms of Ex. I, the appellant is entitled to ignore the uncertified payment. The argument of the earned Counsel for the appellant is that in spite of her admissions the decree^ holder herself could have executed for an amount which included this uncertified payment and that as she had conveyed all her rights under the decree to the appellant, he had the right to ignore this payment in executing the decree. Mr. Venkatarama Raju has argued with great insistency that the Full Bench case of this Court, Subramaniam v. Ramaswami : (1932)62MLJ562 , concludes the matter; but in that case it was only decided that a transferee decree-holder was in no worse a position than the transferor and that the judgment-debtor was prevented by Order 21, Rule 2(3) from relying upon an uncertified payment. It was not considered how far the rights of the transferee-decree-holder would be determined by the terms of the transfer deed or affected by admissions that uncertified payments had been made. The fallacy in the argument of Mr. Venkatarama Raju lies in the supposition that a decree-holder has a right to execute for a sum uncertified which he can transfer to another person. Certainly Sub-rule 3 to Order 21, Rule 2 does not give a right to a decree-holder to ignore any payment against the decree amount. On the contrary, Sub-rule 1 says that he shall certify the payment. The purpose of Order 21, Rule 2(3) which merely prevents the judgment-debtor from pleading an uncertified payment, seems to be to avoid unnecessary delay and to obviate the trial of complicated issues in execution proceedings which might prevent decree-holders from realising promptly the fruit of their decrees. The transfer deed Ex. I expressly states that the decree-holder herself had no right to execute for this sum of Rs. 2,520 that she was entitled to execute only for the remainder, and that it was this right to execute for the remainder that she transferred to the appellant. It was because he could not execute for this uncertified amount that the consideration for the transfer was correspondingly decreased. No authority has been quoted to us for the contention of the earned Counsel for the appellant that the Court is bound to ignore the terms of the transfer deed and the rights that the transferee obtains under the deed. Moreover when examined by the Court on his application to transfer the decree, the appellant admitted that Ex. I gave him the right to execute only for what was due on the decree after deducting this uncertified payment. We therefore hold that the decision of our learned brother on this point was correct.
3. We are also of opinion that his judgment can be supported on the ground that the certification by the decree-holder required by Order 21, Rule 2(i) was given. In Raja Shri Prakash Singh v. Allahabad Bank, Ltd. (1928) 56 M.L.J. 233 : L.R. 56 30 : I.L.R. 3 Luck 684 , a Privy Council case of 1928, the nature of the certification required under Order 21, Rule 2(i) was discussed, and it was held that no application by the decree-holder was required and that even though the certificate was in the form of a petition the certificate was not in fact a petition. Their Lordships held that the rule contemplates a simple procedure, namely, a certificate of payment given to the Court. In Thimma Redai v. Subba Reddiar (1918) 49 I.C. 141, Sadasiva Aiyar, J., says that:
A certificate under Order 21, Rule 2 by the decree-holder in his petition is a sufficient certificate.
4. In Chinna Mummidi Royal v. Raja Somasekara Chikka Royal A.I.R. 1929 Mad. 811, the decree-holder admitted certain payments but stated that the money was used for purposes which did not amount to a discharge of the decree. It was held that:
The fact that the plaintiff has not formally certified the payment but has only incidentally referred to a payment can make no difference.
5. This principle is only in accordance with common sense and equity. A decree-holder who admits to the executing Court that he has received a payment cannot be allowed by that Court to execute his decree for the same amount over again. Such a procedure would make the process of the Court farcical. In Chinnaswami Kavirayer v. Periathambi Butler A.I.R. 1929 Mad. 811 a reference to an uncertified payment was made on an affidavit. It was nevertheless held that such an admission amounted to a certification sufficient to satisfy the requirements of Order 21, Rule 2(1). Eusuffzeman v. Sanchia Lal Nahata I.L.R.(1915) 43 Cal. 207 was a case in which the decree-holder referred to the payment in the execution petition itself; and it was held that such a reference amounted to a certification of the payment. It would appear from the above cases that it does not matter under what circumstances the payment by the judgment-debtor is brought to the notice of the executing Court by the decree-holder. Such bringing to notice is sufficient to satisfy the requirements of Order 21, Rule 2 and to prevent the decree-holder from executing over again for a sum that he admitted having received. It is argued by the earned Counsel for the appellant that even though it may not be necessary for the decree-holder to put in a formal application to record payment, it is at any rate necessary that he should ask the Court to do so. Such a contention is certainly not warranted by any of the decisions above referred to or by any other case to which our attention has been drawn. On the contrary, in Chinna Mummidi Royal v. Raja Somasekara Chikka Royal A.I.R. 1929 Mad. 783 the decree-holder, far from asking the Court to certify the payment, strenuously opposed the certification.
6. The circumstances under which we are asked to find that there was a certification by the transferee decree-holder of this payment of Rs. 2,520 are that in 1929 the appellant filed E.A. No. 231 of 1929 (Ex. A) asking the Court to recognise the transfer. The appellant therein asked the Court to peruse the E.P. records and after examining the deed of transfer to issue notice to the defendants under Order 21, Rule 16 and then to recognise the transfer. He also requested the Court to transfer the decree under Section 39, Civil Procedure Code, to the District Munsiff's Court, Kovvur, for further execution. In our opinion this was sufficient to draw the attention of the Court to the deed of transfer, in which there was a recital that this sum of Rs. 2,520 had been paid and that the right conferred by the decree-holder on the appellant was one to execute for such amount as might be due after deducting that payment and another.
7. The earned Counsel for the appellant has also put forward a further argument that the judgment-debtor's claim to have his payment recognised is barred by res judicata, because he made no mention of this payment either during the execution proceedings in 1926 (where the decree-holder had deducted only the two sums of Rs. 2,520 and Rs. 1,000) or in 1929 when execution proceedings were initiated by the appellant. It has often been pointed out by this Court that Section 11 does not apply to execution proceedings; but for the same reasons that Section 11 became necessary for controlling the trial of suits it has been necessary to apply the same or similar principles to execution proceedings. Caution has however to be exercised in applying the principle of constructive res judicata to execution proceedings. It can only apply to cases where the Court could not have acted as it did if the judgment-debtor had successfully raised the points which are sought to be held by this principle against him. In general, a Court cannot order execution unless it is satisfied (i) that the petitioner has a right to execute; (ii) that the judgment-debtor is liable to satisfy the decree; (iii) that the decree is executable; and (iv) that it is not barred by limitation. If therefore an executing Court orders execution to proceed it must be presumed to have held that all these conditions are satisfied. If a judgment-debtor with due notice of the proceedings fails to raise any objection on any of these grounds it must be held by the principle of constructive res judicata that his failure to do so has the same legal effect as if it had been raised and decided against him. The mere fact that the sum for which the decree is sought to be executed is not the correct amount due by the judgment-debtor to the decree-holder would not prevent execution from proceeding, and so the failure of a judgment-debtor to dispute at the first opportunity the correctness of the figure would not bar him by the principle of constructive res judicata from raising that point in subsequent proceedings or at some later stage of the same proceedings. The whole question of the operation of the principle of constructive res judicata to execution proceedings has been very carefully discussed by Pakenham Walsh, J., in Ulaganatha v. Alagappa A.I.R. 1929 Mad. 903 and in Azhagappa Chetti v. Ramanathan Chettiar (1932) 64 M.L.J. 629 . In Azhagappa Chetti v. Ramanathan Chettiar (1932) 64 M.L.J. 629 he says:
There is ample authority for instance that where execution is taken out for an amount greater than that mentioned in the decree, failure to appear by the defendant would not act as res judicata and prevent him from showing in subsequent proceedings that that amount is not due.
8. Pakenham Walsh, J., also refers to Kalyan Singh v. Jagan Prasad I.L.R. (1915) 37 All. 5898, which is a decision to the same effect. We have also seen an unreported judgment, C.M.S.A. No. 2 of 1929, also by Pakenham Walsh, J., in which it was sought to weaken the effect of the words above quoted by referring to certain other expressions used in the same judgment, from which it might be argued that the above quoted principle was of limited application. The learned Judge repelled this argument and held that it was of general application and would apply to all cases where the judgment-debtor failed to object to the amount set out in the execution petition.
9. So far the earlier execution petition is concerned, Ex. B, E.A. No. 913 of 1926, it is clear that the judgment-debtor could not effectively put forward the plea of payment because the Court could not take account of any such payment. His failure to raise a point that could not in any way help him could not subject him to the bar of res judicata. As pointed out earlier, it is only points that if raised successfully would have modified the orders of the Court that can possibly operate as res judicata. The earned Counsel for the appellant claims to have a stronger case with regard to the conduct of the judgment-debtor at the time of the originating of the proceedings in 1929; for as Ex. A, read with the transfer deed, amounts to a certification, then if the judgment-debtor had drawn the attention of the Court to the fact that the decree-holder admitted the payment, satisfaction for the uncertified payment would presumably have been recorded. Even here however the principle of constructive res judicata would not apply, because the judgment-debtor could not have influenced the conduct of the Court in those proceedings. Some amount still remained due under the decree, even though full credit had been given for all the payments. The Court was therefore bound to acknowledge the right of the appellant to execute the decree, and, as the property against which the decree had to be executed was situated within the limits of another Court, to transfer the decree. The judgment-debtor was not therefore precluded by the principle of constructive res judicata from raising the plea of payment at a later stage in those proceedings, after the decree had been transferred.
10. The Letters Patent Appeal therefore fails and is dismissed with costs.