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A. Ahamed Ibrahim Rowther Vs. Allapichai Rowther and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1940Mad534; (1940)1MLJ292
AppellantA. Ahamed Ibrahim Rowther
RespondentAllapichai Rowther and anr.
Cases ReferredDurga Prosad Chamaria v. Secretary of State
Excerpt:
.....relating to the satisfaction of his decree and an appeal would lie. it follows therefore that when alia pichai represented to the district munsif of tuticorin that his own decree pending before 'the district munsif of srivaikuntam had been satisfied, though in fact no satisfaction had yet been recorded, he was doing no more than representing to the court that he had promised the judgment-debtor (who incidentally was himself) that he would record satisfaction of the decree under which the attachment was made. but, realising the danger of this course and perhaps being doubtful of the powers which he proposed to exercise, he inserted in his order a sort of escape clause whereby, if the applicant failed to do that which he had promised, the district munsif was to cancel the order which he..........tuticorin district munsif which was a decree in favour of ahmad ibrahim, the judgment-debtor being alia pichai;(2) o.s. no. 13 of 1932 on the file of the subordinate judge, tuticorin, a decree assigned to k. mohideen, the judgment-debtor the same alia pichai;(3) o.s. no. 95 of 1932 on the file of the district munsif of kumbakonam, a decree assigned to the same alia pichai, the judgment-debtor being ahmed ibrahim who is the decree-holder under no. 1 decree.2. decree no. 3 was transferred for execution to the court of the district munsif of srivaikuntam where the parties lived. the assignee of this decree alia pichai got an order of attachment in srivaikuntam court of no. 1 decree against himself the attachment being effected in february, 1934. on 20th march, 1934, alia pichai as attaching.....
Judgment:

Wadsworth, J.

1. The question to be decided in both the revision petition and the appeal is whether the recording of satisfaction of the decree in O.S. No. 11 of 1931 on the file of the District Munsif of Tuticoiin at the instance of an attaching decree-holder is valid and consequently whether the refusal to record satisfaction of the decree in O.S. No. 95 of 1932 on the file of the District Munsif of Kumbakonam under which the attachment of the Tuticorin decree was made is invalid, so that the latter decree becomes amenable to attachment at the instance of a third decree-holder. The facts are rather complicated and I will endeavour to state them in their simplest form. We are concerned with three decrees:

(1) O.S. No. 11 of 1931 on the file of the Tuticorin District Munsif which was a decree in favour of Ahmad Ibrahim, the judgment-debtor being Alia Pichai;

(2) O.S. No. 13 of 1932 on the file of the Subordinate Judge, Tuticorin, a decree assigned to K. Mohideen, the judgment-debtor the same Alia Pichai;

(3) O.S. No. 95 of 1932 on the file of the District Munsif of Kumbakonam, a decree assigned to the same Alia Pichai, the judgment-debtor being Ahmed Ibrahim who is the decree-holder under No. 1 decree.

2. Decree No. 3 was transferred for execution to the Court of the District Munsif of Srivaikuntam where the parties lived. The assignee of this decree Alia Pichai got an order of attachment in Srivaikuntam Court of No. 1 decree against himself the attachment being effected in February, 1934. On 20th March, 1934, Alia Pichai as attaching decree-holder without transferring his own decree to Tuticorin or taking out execution of the decree which he had attached applied to the District Munsif of Tuticorin under Section 151 of the Civil Procedure Code to record satisfaction of decree No. 1 against himself by setting off against this decree, No. 3 decree of which he had obtained an assignment. It will be noticed that in form this was an application to set off two decrees which were not before the same Court, the applicant calling in aid Section 151, Civil Procedure Code, because the procedure under Order 21, Rule 18 was not available to him, he not having got his Own decree transferred to the Court which was executing the attached decree against himself. Before orders were passed upon this application to record satisfaction, Mohideen the assignee of decree No. 2 passed by the Subordinate Judge of Tuticorin against Alia Pichai attached decree No. 3 whichVas then on the file of the District Munsif of Srivaikuntam. On 24th September, 1935, the District Munsif of Tuticorin passed an order on the application to record satisfaction by setting off the decree assigned to Alia Pichai against the decree under which he was the judgment] debtor. In his order the learned District Munsif observes that Alia Pichai certified satisfaction of his own decree - which of course could not be done except in the Court which had jurisdiction over that decree. He also observes that the application does not come under Order 21, Rule 18, but he considers that under Order 21, Rule 53 an attaching decree-holder has power to report satisfaction of the attached decree and he therefore passes an order which in my opinion is open to serious criticism. He records satisfaction of the attached decree to the extent covered by the amount of the attaching decree, but adds a proviso that the applicant shall within six weeks report to the proper Court full satisfaction of the attaching decree and if he fails to make such a report the order recording satisfaction will stand vacated. That is to say, in effect the learned District Munsif of Tuticorin passed a conditional order recording satisfaction. In pursuance of this order Alia Pichai on 2nd October, 1935, filed a satisfaction memorandum before the District Munsif of Srivaikuntam in respect of the decree of which he had taken an assignment which decree was already under attachment by Mohideen the holder of decree No. 2--Mohideen opposed the application to record satisfaction. The learned District Munsif of Srivaikuntam held that Alia Pichai was not entitled under Order 21, Rule 53 to act as the representative of the holder of the decree which he had attached except for the purpose of execution, that the recording of satisfaction by means of what was in fact an adjustment of that decree was invalid and that satisfaction of Alia Richai's own decree could not be recorded because of the pending attachment and because there was no valid satisfaction of the Tuticorin District Munsif s Court decree. Against the order pas ed by the District Munsif of Tuticorin two appeals were filed, one by Mohideen and the other by Ahmed Ibrahim and against the order passed by the District Munsif of Srivaikuntam an appeal was filed by Alia Pichai. All three were heard together by the Subordinate Judge who held that the order of the District Munsif of Tuticorin recording satisfaction of Ahmed Ibrahim's decree by reason by the adjustment of the amount due under Alia Pichai's decree was valid.

3. I have now before me a Civil Revision Petition filed by Mohideen and an appeal by Ahmed Ibrahim both canvassing the correctness of the same appellate order. I do not think it necessary to discuss at length the question whether the proper remedy is one by appeal or one by revision. It seems to me that so far as Ahmed Ibrahim is concerned the question is one clearly between the parties relating to the satisfaction of his decree and an appeal would lie. So far as Mohideen is concerned the contest is between an attaching decree-holder and the holder of the decree attached. Prima facie it is not one between parties arrayed on opposite sides in the suit and the proper remedy is revision.

4. The main question is whether the order of the District Munsif of Tuticorin in effect setting off one decree against the other is a valid order. It is common ground that this order cannot be justified as one falling within the provisions of Order 21, Rule 18. Nor does it purport to have been passed that rule. It is contended that the Code does not contemplate any procedure for setting off one decree against another unless both the decrees are within the jurisdiction of the same Court so that they fall within Order 21, Rule 18. (Vide Ponnusami Nadar v. Doratsami Aiyar I.L.R.(1909) I.L.R. 32 Mad. 336.) No doubt this is a correct proposition in the sense that there is no express provision in the Code authorising the Court itself to set off one decree against another unless both the decrees are before the Court. There is however provision in the Code for recording satisfaction by way of adjustment out of Court and an adjustment out of Court may be by means of the setting off of one decree against another if there is no legal objection to this course. Provided that Alia Pichai was legally entitled to adjust the decree which he had attached by setting off against it the decree assigned to him, the fact that this adjustment does not come within the provisions of Order 21, Rule 18 would not of itself bar the recording of satisfaction.

5. Now it is undeniable that an executing Court has no power to record satisfaction of a decree over which it has no jurisdiction and a report to the executing Court of satisfaction of some decree pending before another Court will be of no effect. It follows therefore that when Alia Pichai represented to the District Munsif of Tuticorin that his own decree pending before ' the District Munsif of Srivaikuntam had been satisfied, though in fact no satisfaction had yet been recorded, he was doing no more than representing to the Court that he had promised the judgment-debtor (who incidentally was himself) that he would record satisfaction of the decree under which the attachment was made. Looked at in this way it seems to me apparent that Alia Pichai was asking the District Munsif of Tuticorin to record not an actual satisfaction of the decree of that Court, but a prospective satisfaction of the decree. Having regard to the powers of the Tuticorin Court, all that Alia Pichai could do was to represent that he was willing to record satisfaction of his own decree if the District Munsif of Tuticorin would accept that as a sufficient discharge of the decree against himself. The District Munsif of Tuticorin treated as done that which the applicant promised to do; but, realising the danger of this course and perhaps being doubtful of the powers which he proposed to exercise, he inserted in his order a sort of escape clause whereby, if the applicant failed to do that which he had promised, the District Munsif was to cancel the order which he had passed on the strength of that promise. Now it seems to me that an executing Court has no power under the Code to make a provisional record of satisfaction of a decree. Either a decree is satisfied or it is not and there is no power of which I am aware, for an executing Court to record satisfaction on the basis of a mere promise which is not treated as a sufficient discharge. It may perhaps be permissible for a decree-holder to accept a promise as a discharge and to record satisfaction on that basis; and conceivably the Court might if it saw fit, grant the application on the strength of this acceptance. But this is not what the learned District Munsif has done. He has in fact recorded in the form of satisfaction that which is really only a 'provisional satisfaction conditional on the doing of some future act. To my mind he had no power to do this.

6. It is also very doubtful whether under Order 21, Rule 2, the Court can recognise an adjustment which is executory in its nature as if it were complete. The decisions in Azisur Rahman v. Aliraja : AIR1928Cal527 , Lachman Das v. Baba Ramnath Kalikamliwala I.L.R.(1921) 44 All. 258 and N.P.L. Firm v. B.K. Bhanja A.I.R. 1934 Rang. 190 (1) indicate that the only adjustment contemplated under Order 21, Rule 2 is one which has already been completed not one which rests on future performances. But quite apart from this question it seems to me apparent that in recording satisfaction the executing Court cannot undertake the responsibility of seeing to the future performance of provisions in the agreement upon which the satisfaction is based. The Code contemplates only an unconditional record of satisfaction.

7. A wider question is whether in any case an attaching decree-holder is entitled by the terms of Order 21, Rule 53(3) to make an adjustment of the attached decree and record satisfaction by reason of that adjustment. On this subject there is difference of judicial opinion and, so far as I am aware, no decision of this High Court. In Durga Prosad Chamaria v. Secretary of State : AIR1937Cal468 , it was held that under Rule 53(3) the attaching decree-holder is the representative of the holder of the attached decree for the limited purpose of execution and not for all purposes and is therefore incapable of making a valid adjustment of the attached decree. A similar decision was passed by a single Judge in the case reported in Ram Badan Singh v. Ram Pargash Singh : AIR1925All123 , which has, however, been dissented from by a Bench of the same Court in Unao Commercial Bank, Ltd., Unao v. Mohar Gobmd Rai : AIR1930All659 . There is an observation in the decision in Ramcharan Singh v. Janghahadur Singh A.I.R. 1924 Pat. 696, to the effect that there is nothing in Rule 53 to prevent an adjustment by payment out of Court between the judgment-debtor of the attached decree and the decree-holder of the attaching decree. The question is not easy and in view of my decision on the earlier points is no longer of vital importance for the present case. But as it has been argued at length it seems to me desirable that I should indicate my opinion.

8. Rule 53(3) says:

The holder of a decree sought to be executed by the attachment of another decree...shall be deemed to be the representative of the holder of the attached decree and to be entitled to execute such attached decree in any manner lawful for the holder thereof.

9. The argument is that by virtue of Section 146 of the Code of Civil Procedure, if there is no prohibition imposed by law, any proceeding which may be taken by the holder of the attached decree may betaken by the holder of the decree under which-the attachment is made, since the latter is the representative of the former. In my opinion, the mere use of the word representative in Rule 53(3) cannot be taken as justifying the conclusion that the attaching decree-holder is the representative of the holder of the attached decree for all purposes. It is unnecessary to dwell at length on the complications which would arise unless the converse were true, but I would point out that there may be several attaching decree-holders all of whom are undoubtedly entitled to execute the attached decree as representatives of the holder of the decree under attachment. To maintain that each of them was for all purposes the representative of the holder of that decree would lead to chaos. It is pointed out that A may have a decree for Rs. 100 against B and may attach in execution of his decree a decree against X in favour of B for Rs. 1,00,000. In such circumstances the extent to which A can be the representative of B must obviously be governed by the extent of A's decree against B and to assume that A has an unlimited power of representing B including a power to compromise the decree which B has got against X is to put into the hands of A a power very liable to abuse. It seems to me that the only safe way of interpreting Rule 53(3) is that adopted by the Calcutta High Court in Durga Prosad Chamaria v. Secretary of State : AIR1937Cal468 , that is, to treat the holder of the attaching decree as the representative of the holder of the attached decree only for the purpose contemplated by that sub-rule, namely, the purpose of execution. If this view is correct, it follows that the attaching decree-holder cannot exercise the power conferred under Order 21, Rule 2 upon thedecree-holder himself of certifying an adjustment made out of Court as a satisfaction of the decree. On this ground also, therefore, Ivam constrained to conclude that the order of the District Munsif of Tuticorin recording satisfaction of the decree against All a Pichai was erroneous. It follows that the decree against Alia Pichai must be regarded as still alive and the decree of which Alia Pichai has obtained an assignment and under which he made the attachment must be regarded as still unsatisfied and liable to be executed by Mohideen by virtue of the attachment which he has obtained under his decree against the same Alia Pichai.

10. In the result, therefore, both the appeal and the Civil Revision Petition are allowed, the order of the District Munsif of Tuticorin recording satisfaction of the decree in O.S. No. 11 of 1931 is set aside and the order of the District Munsif of St ivaikuntarn refusing to record satisfaction of the decree in O.S. No. 95 of 1932 on the file of the District Munsif of Kumbakonam is restored. The respondent Alia Pichai will pay the costs of both the appeal and the Civil Revision Petition one Advocate's fee).

11. Leave to appeal refused.


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