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Sankara Ayyar Vs. Vellayya Moopan - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberSecond Appeal No. 711 of 1958
Judge
Reported inAIR1961Mad283
ActsCode of Civil Procedure (CPC) , 1908 - Order 21, Rule 2
AppellantSankara Ayyar
RespondentVellayya Moopan
Appellant AdvocateT.R. Mani, Adv.
Respondent AdvocateK. Hariharan, Adv.
DispositionAppeal allowed
Cases ReferredIn Gopalasami Naick v. Nammalwar Naick
Excerpt:
.....injury - in present case there is not even any apprehended injury to furnish cause of action for suit - suit not maintainable. - - 275 to the appellant in full satisfaction of the decree and that the appellant having undertaken to report satisfaction of the decree unlawfully failed to do so. the learned district munsif of shencottah dismissed the application of the respondent on 21-12-1954. the matter was taken up in appeal to the district court, quilon, but without success. 338-12-6 as damages caused by reason of his failure to report satisfaction of the decree in o. 1 and that he failed to report satisfaction of the decree in o. but the learned district judge was of opinion that the institution of the suit was not premature and that the cause of action for the suit arose by..........of having paid the money due under the decree but the payment not certified to the court by the decree-holder, is conflicting. one view that has been taken is that he can sue for damages against the decree-holder the moment the decree-holder files an execution petition ignoring the payment received by him.the other view on the question is that the mere filing of the execution petition by the decree-holder will not clothe the judgment debtor with a cause of action to file a suit for damages. but he will get a cause of action only if he suffers damages, which will happen if the decree-holder successfully realises the decree amount from him.7. in viraraghava reddi v. subbakka, i.l.r. mad 697 a full bench of three judges of this court considered the question as regards the proper legal.....
Judgment:

Jagadisan, J.

1. The appellant in this second appeal obtained a decree for arrears of Pattom due to him against the respondent in O. S. No. 233 of 1950 on the file of the District Munsif Court, Shencottah. The date of that decree, a copy of which has been marked as Ex. P.2, is 8-2-1954. On 7-9-1954 the appellant executed a receipt in favour of the respondent, Ex. P. 1 in the case, in which he admitted having received a sum of Rs. 275 in full satisfaction of the decree.

The respondent filed a petition in the District Munsif Court, Shencottah, on 3-11-1954, to enter up satisfaction of the decree alleging that he had paid Rs. 275 to the appellant in full satisfaction of the decree and that the appellant having undertaken to report satisfaction of the decree unlawfully failed to do so. The appellant resisted this application. The learned District Munsif of Shencottah dismissed the application of the respondent on 21-12-1954.

The matter was taken up in appeal to the District Court, Quilon, but without success. The suit, out of which this second appeal arises, was therefore filed by the respondent seeking to recover from the appellant the sum of Rs. 338-12-6 as damages caused by reason of his failure to report satisfaction of the decree in O. S. No. 233 of 1950, though he received the sum of Rs. 275 in full satisfaction of the decree.

This suit was resisted by the appellant on the ground that he did not in fact receive any money, that he executed the receipt Ex. P. 1 at the instance of some arbitrators who promised to show the receipt to the respondent and bring money but who never returned. The suit was also resisted on the ground that it was premature as in fact no execution petition was filed by him to execute the decree in O. S. No. 233 of 1950 and as in fact no damages were suffered by the respondent.

2. The learned District Munsif of Shencotta held that the suit was premature and non-suited the respondent. He did not record any finding on the issue whether in fact the appellant received any money from the respondent.

3. There was an appeal to the District Court of Tirunelveli in A. S. No. 262 of 1957 by the respondent and the learned District Judge reversed the judgment and decree of the trial court. He held on a review of the evidence, that the appellant received a sum of Rs. 275 from the respondent as per the receipt Ex. P. 1 and that he failed to report satisfaction of the decree in O. S. No. 233 of 1950 improperly.

But the learned District Judge was of opinion that the institution of the suit was not premature and that the cause of action for the suit arose by reason of the mere failure on the part of the appellant to report satisfaction of the decree, as it was incumbent upon him to do so under the provisions of Order XXI, Rule 2 C. P. C. He accordingly granted a decree in favour of the respondent for a sum of Rs. 275, the amount which the appellant had received in terms of Ex. P. 1, together with interest thereon at 6 per cent per annum from 7-9-1954 till date of payment. Hence this second appeal has been preferred by the defendant in the suit.

4. The finding of the learned District Judge that the appellant received a sum of Rs. 275 as per Ex. P. 1 in full satisfaction of the decree in O. S. No. 233 of 1950 is correct and is supported by the evidence on record. The learned counsel for the appellant was not able to challenge this finding of fact successfully. I am of opinion that on the evidence on record the only conclusion possible is that the appellant received a sum of Rs. 275 from the respondent and passed the receipt Ex. P. 1. I affirm that finding of fact recorded by the teamed District Judge,

5. The short point for consideration is whether the suit can be maintained on the facts admitted or proved. It is now common ground that the appellant has not taken any steps to execute the decree in his favour in O. S. No. 233 of 1950; The defendant (appellant) averred in the written statement that the decree in O. S. No. 233 of 1950 itself is the subject matter of an appeal. It is not known whether the appeal has been disposed of or not. But as stated already the appellant has not put the machinery of the executing court in motion to collect the decree amount in O. S. No. 233 of 1950 from the respondent taking advantage of the fact that the payment of Rs. 275 remains uncertified.

6. The judicial opinion on this question of maintainability of a suit by an aggrieved judgment debtor, who finds himself in the unhappy predicament of having paid the money due under the decree but the payment not certified to the court by the decree-holder, is conflicting. One view that has been taken is that he can sue for damages against the decree-holder the moment the decree-holder files an execution petition ignoring the payment received by him.

The other view on the question is that the mere filing of the execution petition by the decree-holder will not clothe the judgment debtor with a cause of action to file a suit for damages. But he will get a cause of action only if he suffers damages, which will happen if the decree-holder successfully realises the decree amount from him.

7. In Viraraghava Reddi v. Subbakka, I.L.R. Mad 697 a Full Bench of three Judges of this court considered the question as regards the proper legal basis of suits of this description. Kindersley J. observed as follows at p. 400:

'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.'

8. The other two learned Judges, Turner C. J. and Muttuswami Aiyar J. put the position thus:

'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.'

9. In Sriramulu v. Dalayya, 16 M.L.J. 54 the headnote is as follows :

'An agreement was entered into between the decree-holder and the judgment-debtor by which the decree-holder undertook to certify satisfaction of the decree to court on receipt of a certain amount from the judgment debtor. The judgment debtor paid the amount to the decree-holder, but the decree-holder without entering satisfaction on the decree applied for execution. As soon as notice of the application was served on the judgment debtor, but before any steps were actually taken to execute the decree, the judgment debtor instituted the suit for recovery of the sum paid by him to the decree-holder in terms of the agreement;

Held : that the suit was not maintainable.'

10. The judgment of the High Court merely-affirmed the view taken by the learned Subordinate Judge whose judgment is reported in full. It is pointed out by the learned Subordinate Judge in that case that the mere filing of an execution petition will not afford a cause of action to the disappointed and aggrieved judgment debtor. The following observation of the learned Subordinate Judge which was approved by the High Court may be quoted :

'The defendant has merely applied for execution but he may not execute the decree at all; by mere application for execution he derived no benefit; nor had the plaintiff incurred any loss. It may be that before the defendant seriously attempts to-recover the decree debt again, plaintiff may become insolvent and the defendant may be able to recover nothing. The case would be different if there was an agreement on the part of the defendant to pay back the sum to the plaintiff, if the payment were not certified to the court but no such agreement is alleged for the plaintiff. Plaintiff is not without other remedy as he may bring a suit for a declaration that the decree has been completely satisfied.

This case clearly lays down that even the filing of an execution petition will not be sufficient as the gist of the cause of action for the suit is damages and no plaintiff can recover damages from the defendant unless he proves actual loss or injury. In 'In the matter of Medai Thalavoi Kaliani Anni', I.L.R. Mad 545 the facts were as follows. The defendant obtained a decree against the plaintiff's father. The plaintiff sent to the defendant Rs. 200 by money order stating in the coupon attached thereto that the amount should be credited towards the debt due by the plaintiff's father.

The defendant received the amount but fraudulently applied to execute the decree for the whole amount. The plaintiff objected to such execution, but his objection was resisted on the ground of limitation. Hence the plaintiff sued to recover from defendant Rs. 214 being the principle and interest due. The High Court held that the suit was maintainable. At p. 546 Subrahmania Aiyar J. observed as follows:

'In the present case, after receiving payment, out of court, the judgment creditor not only did not certify payment but also applied for the execution of the decree as if there had been no payment out of court. I must, therefore, hold that there was a cause of action,'

11. In Gopalasami Naick v. Nammalwar Naick, 80 M.L.J. 175 : (A.I.R. 1919 Mad. 773), the FullBench decision in I.L.R. Mad 397 & 16 MadLJ 54, were considered. The view taken was that)when a decree-holder omits to certify payment received outside court to the court; and applies to execute the decree, he commits a breach of the implied contract which gives rise to a cause of actionto a suit for damages by the judgment debtor andthat the filing of the execution petition in itselfgives rise to a cause of action, though no moneymay have been realised. It must be pointed outthat this view is in conflict with the view taken bythe Bench in 16 M.L.J. 54 : (At p. 774 of AIR), Krishnan J. observed asfollows:

'The nature of a suit like the one before us was considered by a Full Bench of this High Court in I.L.R. Mad 397, and though Kindersley J. was of opinion that the suit should be taken as based on the ground of fraud or negligence on the part of the decree-holder in not certifying the payment to court as he was under a statutory obligation to do, the majority consisting of Turner C. J. and Muthu swami Aiyyar J. considered it to be 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. I am prepared to follow the view of the majority that the suit is really one for damages for breach of implied contract. When a decree-holder receives from the judgment debtor money outside court in payment of the decree amount, if there is no express agreement between the parties at the time, it may properly be held that the decree-holder does so under an implied promise that he would certify that payment as required by law and that he would not execute the decree any more for the amount op realise the amount again in execution. If this is the implied contract, as I think it is, the breach will give rise to a cause of action; and it is clear that the decree-holder commits a breach as soon as he files his execution petition claiming the same amount again. It seems to me therefore that the filing of the execution petition in itself gives a cause of action though no money may have been realised; and successive applications will give rise to successive breaches and fresh causes of action......'

12. It is not necessary for me to decide in this case as to which of the views, whether the view expressed in 16 M.L.J. 54 or the view expressed in 36 M.L.J. 175 : (A.I.R. 1919 Mad. 773) is correct. In this case the decree-holder admittedly has not even filed an execution petition. It is therefore obvious that the respondent can have no cause of action at all to maintain the suit at this stage. It may be that the appellant may not choose to execute the decree hereafter or it may be that even if he files an execution petition he will not be able to recover anything from the respondent.

It is inconceivable that a suit for damages can be maintained without proving any loss or injury. 'Damages are the recompense given by process of law to a person for the wrong that another has done him.' Halsbury Vol. II, 3rd Edn. P. 216. I have no hesitation in holding that on the principle of the decided cases set out above, the present suit is not maintainable. There is not even a threatened or apprehended injury to furnish a cause of action for the suit.

13. In the result, the second appeal is allowed. The judgment and decree of the learned District Judge are set aside and those of the learned District Munsif are restored. The parties will bear their respective costs throughout.


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