1. The lower Court's conclusion as to items 2, 3, 7, 8, 9 is based on petitioner's admission in evidence, and we have been shown no reason for dissent. The appeal on this point fails.
2. The remaining argument is as to Exhibit I, and the question is whether it constitutes an adjustment and the Court can take notice of it, if it was never certified to it, as required by Order XXI, Rule 2, Civil Procedure Code. It was a sale by petitioner to the other decree-holder, respondent, of part of the property, which was to be divided; and we have no doubt that the transfer was an adjustment of the decree. On the question whether Exhibit I should have been certified to the Court, several decisions have been quoted regarding the application of Order XXI, Rule 2, to decrees, which, like the case before us, include provision for payment of money as well as for other relief. Of the two cases referred to by the lower Court, it is not clear that the decree in Krishna Hande v. Padmanabha Hande (1913) 25 M.L.J. 412 contained any provision of the former description, and in Abdul Latif Sahib v. Bathula Bibi Ammal (1914) 16 M.L.T. 338, Order XXI, Rule 2, is applied to all decrees under which money is payable; and there is nothing in it to support the restriction of its application proposed by the lower Court to provisions for payment of money. That interpretation of it was in fact rejected in Sethurama Sahib v. Chota Raja Sahib (1917) M.W.N. 327, In the latter case a previous unreported decision of my own is referred to Annamareddi Venkayya v. Annamareddi Ramanna C.M.S.A. No. 11 of 1916 (unreported), but it was founded on a judgment of Sadasiva Ayyar, J., in Kelu Nair v. Meenakshi (1918) 25 M.L.J. 586, the principle of which he statedly reconsidered in Sethurama Sahib v. Chota Raja Sahib (1917) M.W.N., 327. The recant course of decisions of this Court is strongly marked, and in a matter of this nature I should not depart from it except for far stronger reason than is available. In these circumstances, following the case last mentioned, I think that the lower Court should have applied Order XXI, Rule 2, to the adjustment evidenced by Exhibit I. It is said, however, that in fact the decree, so far as the properties dealt with in Exhibit I are concerned, was adjusted at a later date by the presentation by all the parties to it of Execution Application No. 369 of 1913, dated 8th July 1913. That application certainly certifies satisfaction as between the present parties and their brother, the defendant in the suit. But it is not possible to say on the information before us whether it involved any satisfaction as between the present parties, or whether all the properties in Exhibit I being in Schedule A referred to in Execution Application No. 369 of 1913, the division of Schedule A properties between them still has to be effected and the decree in respect thereof remained unexecuted.
3. Again respondent asks for an opportunity to ascertain whether Exhibit I was certified to the Court within the time allowed by Order XXI, Rule 2; and in the absence of any categorical statement by the lower Court on the point, we think that he should be allowed an opportunity to show that there was such certification by production of documentary evidence regarding it.
4. We therefore call on the lower Court to submit findings on the issues:
1. Did Execution Application No. 369 of 1913 effect a valid satisfaction of the decree, so far as it related to immoveable properties, which renders it unnecessary for respondent to prove that Exhibit I was certified to the Court?
2. Was Exhibit I ever certified to the Court and, if so, were the provisions of Order XXI, Rule 2, complied with?
5. Fresh evidence may be taken with reference to the first issue and fresh documentary evidence with reference to the second. The finding should be submitted within six weeks after the re-opening of the lower Court after the midsummer vacation and seven days will be allowed for filing objections.
Seshagiri Ayyar, J.
6. As regards Exhibit I, the learned District Judge was right in holding, on the authority of Kelu Nair v. Meenakshi : (1913)25MLJ586 , that the adjustment relating to the partition of the immoveable properties was not within the mischief of Order XXI, Rule 2. But one of the learned Judges who decided that case has receded from the position taken up by him, following the decision of the learned Chief Justice and Ayling J., in Abdul Latif Sahib v. Bathula Bibi Ammal (1914) 15 M.L.T., 338, and my learned brother, who followed Kelu Nair v. Meenakshi : (1913)25MLJ586 , in Annamareddi Venkayya v. Annamareddi Ramanna C.M.S.A. No. 11 of 1915. is prepared to accept the later view.
7. If the matter were res integra I would have had some hesitation in holding that the words in Order XXI, Rule 2, Clause (1) 'or the decree is otherwise adjusted in whole or in part,' related to portions of a decree in respect of which 'money is not payable.' However, acting on the principle that there should be uniformity on a question of procedure, I follow the two later decisions, namely, Abdul Latif Sahib v. Bathula Bibi Ammal (1914) 15 M.L.T. 338 and Sethurama Sahib v. Chota Raja Sahib C.M.S.A. No. 11 of 1915, and hold that the present case is covered by Order XXI, Rule 2, Clause (1). I agree with my learned brother in his conclusion and direction on the other points argued before us.
8. In compliance with the order contained in the above judgment the District Judge of Ganjam at Berhampur submitted findings on the two issues in the negative and the Court delivered the following
9. The appeal is allowed to the extent that the lower Court's order will be modified by insertion of a direction that the immoveable properties mentioned in Exhibit I should be divided in addition to those already specified. There will be proportionate costs here and in the lower Court.