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Gudimalla Satagopacharyulu Minor by Mother and Guardian, Vedala Ramanujamma Vs. Tatta Sri Rama Narasimham and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Case NumberA.A.O. No. 605 of 1948
Judge
Reported inAIR1950Mad608
ActsCode of Civil Procedure (CPC) , 1908 - Sections 47 - Order 21, Rules 6 and 16
AppellantGudimalla Satagopacharyulu Minor by Mother and Guardian, Vedala Ramanujamma
RespondentTatta Sri Rama Narasimham and ors.
Appellant AdvocateS. Suryaprakasam, Adv.
Respondent AdvocateCh. Suryanarayana Rao and ; T. Subba Rao, Advs.
DispositionAppeal dismissed
Cases ReferredRamayya v. Krishnamurti
Excerpt:
.....the mortgage debt had been satisfied, but that the parties for their convenience allowed the decree to be passed and then arranged for the decree to be assigned to the appellant's paternal aunt's husband. however, since we are satisfied that the appeal should be dismissed on another ground and since this point has not been fully argued, we prefer to base our dismissal of the appeal on the ground that no executing court, whether it be the transferor court or the transferee court, could enquire as to the truth or otherwise of an agreement of the nature put forward by the appellant. and, therefore, the contention of the appellant that the debt was satisfied does not relate at all to execution. if we knew nothing but the fact that a satisfaction memo had been filed, that argument might..........the district judge of masulipatam on 14th october 1942; and the decree was assigned to the present decree-holder on 27th october 1942, the final decree was passed on 4th april 1944; and on some date subsequent to that the decree was transferred from the court of the district judge of masulipatam to that of the subordinate judge of masulipatam. the certificate required under order 21, rule 6 was sent with it to the effect that the decree had been satisfied to the extent of rs. 472-8-0. notice was given to the appellant, who then raised an objection that during the pendency of the suit, even before the preliminary decree had been passed, the mortgage debt had been satisfied, but that the parties for their convenience allowed the decree to be passed and then arranged for the decree to be.....
Judgment:

Horwill, J.

1. A preliminary mortgage decree was passed by the District Judge of Masulipatam on 14th October 1942; and the decree was assigned to the present decree-holder on 27th October 1942, The final decree was passed on 4th April 1944; and on some date subsequent to that the decree was transferred from the Court of the District Judge of Masulipatam to that of the Subordinate Judge of Masulipatam. The certificate required under Order 21, Rule 6 was sent with it to the effect that the decree had been satisfied to the extent of Rs. 472-8-0. Notice was given to the appellant, who then raised an objection that during the pendency of the suit, even before the preliminary decree had been passed, the mortgage debt had been satisfied, but that the parties for their convenience allowed the decree to be passed and then arranged for the decree to be assigned to the appellant's paternal aunt's husband. That assignment was actually made, as already stated on 27th October 1942. In order to bring about the same result as if no decree had been passed at all, the decree-holder filed into Court on 16th July 1945 a satisfaction memo. That satisfaction memo is not on record; and we only know of one having been filed by a reference to the suit register. It was presumably defective in some way; for, on 12th September 1945 it would appear from a recital in the diary that the document was returned; it was not represented. The appellant asked the Court to make enquiry into this allegation and to dismiss the execution petition; because nothing was due to the nominal decree-holder. The learned Subordinate Judge overruled the appellant's objection on the ground that this was a matter that should have been raised before the transferor Court and could not be considered by him.

2. We think that the learned Subordinate Judge was right in overruling the objection of the appellant on the ground that he did. Order 21, Rule 6 requires that:

'The Court sending a decree for execution shall send :

(a) * * * * *

(b) a certificate setting forth that satisfaction of the decree has not been obtained . . . ; and

(c) * * * *

From this it would appear that the Court to which a decree is transferred is bound by the order of the transferring Court and the terms of the certificate granted by it. It may be true that in circumstances such as those which came up for consideration in Ramgopal v. Shivanarayan, : AIR1932Bom202 , a judgment-debtor might be entitled even before the transferee Court to plead discharge; but where the act relied on by the judgment-debtor --such as in this case--the filing of a satisfaction memo, is done in the transferor Court itself, the transferor Court alone would have jurisdiction to inquire into the allegation that there had been full satisfaction. If the transferee Court considered that matter, it would be going be-hind the express terms of the certificate which had accompanied the decree. However, since we are satisfied that the appeal should be dismissed on another ground and since this point has not been fully argued, we prefer to base our dismissal of the appeal on the ground that no executing Court, whether it be the transferor Court or the transferee Court, could enquire as to the truth or otherwise of an agreement of the nature put forward by the appellant.

3. If the agreement set up by the appellant be true, as we must presume it was for the purpose of considering the question before us, then there was no debt due to the decree holder on the date when the preliminary decree was passed; and, therefore, the contention of the appellant that the debt was satisfied does not relate at all to execution. It is argued that because a memorandum of satisfaction was filed in the Court, the matter would relate to the satisfaction of the decree. If we knew nothing but the fact that a satisfaction memo had been filed, that argument might be a good one; but we must take the allegations of the appellant as they stand. Although the memorandum filed in the Court may have been termed a memorandum of satisfaction of the decree; yet it was not so in fact. It was merely an act of the transferee decree-holder intended to bring about the same result as if the parties had reported prior to the passing of the decree that the mortgage debt had been paid off. The learned advocate for the appellant relies on Chidambaram Chettiar v. Krishna Vathiyar, 40 Mad. 233 : A. I. R. 1918 Mad. 1174, as authority for his contention that it is open to the executing Court to consider the truth or otherwise of a pre-decretal arrangement. That decision however, is not to the effect that an executing Court can consider the truth of any pre-decretal arrangement. The particular arrangement in that case was that the decree should not be executed for a certain time. The learned Judges held that since that agreement related to the execution of the decree, the executing Court could go into the matter. That case, therefore, can be no authority for the contention of the appellant that an arrangement that has nothing at all to do with execution can be considered by an executing Court. An authority is hardly necessary for the proposition that an executing Court cannot enquire into pre-decretal arrangements that have nothing to do with execution; but Mr. Suryanarayana has referred us to Butchiah Chetti v. Tayar Rao Naidu, 54 Mad. 184: A. I. R. 1931 Mad. 399, in which a Bench of this Court held that the truth or otherwise of a pre-decretal agreement of satisfaction could not be gone into in execution.

4. The learned advocate for the appellant has cited Ramayya v. Krishnamurti, 40 Mad. 296: A. I. R. 1917 Mad. 590, to show that an executing Court can and must consider in execution the truth of an allegation that the transferee decree-holder is a benamidar for the judgment-debtor; because the provisions of Order 21, Rule 16 require it to do so. The transferee decree-holder here was not, however, on the appellant's allegations, a benamidar for the judgment-debtor. The transfer of the decree to the transferee decree-holder was nominal in the sense that he paid no consideration and obtained no title, though he was to enter up full satisfaction in order to fulfil the agreement entered into before the decree was passed. In any event, the stage for considering whether execution can be refused on the grounds set out in Order 21, Rule 16 has passed. The appellant admittedly received notice of the application to assign the decree; and he consented. That was done before the transferor Court; and if any party wished to raise an objection to the assignment of the decree on the ground that the transferee decree-holder was a benamidar for the judgment-debtor he should have done so at that stage. If he did not, he could not do so later.

5. The appeal is dismissed with costs.


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