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Periatambi Udayan Vs. Vellaya Goundan and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Judge
Reported in(1898)ILR21Mad410
AppellantPeriatambi Udayan
RespondentVellaya Goundan and anr.
Cases ReferredRama Ayyan v. Sreenivasa Pattar I.L.R.
Excerpt:
civil procedure code - act xiv of 1882, section 258 a--adjustment out of court--subsequent execution by decree-holder--suit to recover money paid on adjustment. - .....decree is otherwise adjusted in whole or in part to the satisfaction of the pay ment to decree- decree-holder, or if any payment is made in pursurance of an holder. agreement of the nature mentioned in section 257a, the decree- holder shall certify such payment or adjustment to the court whose duty it is to excute the decree.the judgement-deptor also may 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 failsti appear on day fixed, or having appeared fails to show cause why the payment or adjustment should not be recorded as certified, the court shall.....
Judgment:

1. The finding is that the money was paid in full discharge of the judgment-debt, the first defendant undertaking to enter up satisfaction. No satisfaction was entered up and no application to compel the first defendant to fulfil his undertaking was made by plaintiff within sixty days of the payment. It was; therefore, not competent to the executing Court to determine whether the payment had been made or not. The only course open to the plaintiff was that which he followed, viz., to bring a suit for the amount. The fact that no application was made by the plaintiff within sixty days distinguishes the present case from Guruvayya v. Vudayappa I.L.R. 18 Mad. 26. As the Courts there held that it was open to the plaintiff to seek relief in execution, it must be taken that the application was made within sixty days, though the report does not expressly state this. In the case of Rama Ayyan v. Sreenivasa Pattar I.L.R. 19 Mad. 230. the person relying on the adjustment was not entitled to make any application under Section 258

[Section 258--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

Pay Ment to decree- decree-holder, or if any payment is made in pursurance of an

holder. agreement of the nature mentioned in Section 257A, the decree-

holder shall certify such payment or adjustment to the Court whose duty it is to excute the decree.

The judgement-deptor also may 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 failsti appear on 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.

No such payment or adjustment shall be recognized by any Court unless it has been certified as aforsaid.]

2. We must, therefore, dismiss the petition with costs.


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