1. This E.P. No. 69 of 1927 was put in for recognition of a transfer of the decree in O.S. No. 58 of 1917 on the file of the Court of the Subordinate Judge of Nellore. The first respondent is the transferee decree-holder. The objections raised by the judgment-debtor to the transfer were disallowed and the petition allowed. The appeal is against that order.
2. The judgment-debtor had filed E.A. No. 365 of 1926 before the District Court alleging that there had been an adjustment of the decree. This petition was transferred to the Subordinate Judge for disposal and it appears to have been disposed of at the same time as the present petition and adversely to the judgment-debtor but the order has not been filed.
3. The first point for determination in the present petition has been stated by the lower Court as follows;
Whether the agreement pleaded by the judgment-debtors even if true operates as an adjustment of the decree within the meaning of Order 21, Rule 2, Civil P. C,
4. In para. 5 of the order the learned Sub-Judge says:
For the reasons given in my order passed on that petition, (i.e., E.P. No. 22 of 1927 in the course of which E.A. No. 365 of 1926 was put in) my finding on the point No. 1 is in the negative.
5. The appellant has neither filed a copy of that order nor supplied the other side with a copy so that we are not in a position to know the reasons stated in that order. So far, however, as the present petition is concerned the appellant admittedly filed no certificate of adjustment and for purposes of this petition we take it that no adjustment has been certified. An attempt was made to argue that though an adjustment must be certified under Order 21, Rule 2 if such adjustment is to be used as a bar in execution an agreement to adjust need not be certified. We cannot accept this contention which would defeat the whole object of Order 21, Rule 2. An attempt was made to argue that one of the terms of the alleged agreement to adjust was that the judgment-creditor should not transfer the decree and that the transfer can be opposed on these grounds. Assuming for a moment that an uncertified agreement of this sort could be pleaded as a bar in execution it is sufficient for the purposes of this appeal to state that no such agreement was alleged in the counter and it cannot be set up now.
6. As stated above, the appellant has not chosen to file the order of the Court in which his application to have the alleged adjustment or agreement to adjust recognized is a bar to execution.
7. We hold that in the absence of any certificate of adjustment the judgment-debtor had no locus standi to oppose the transfer and on the terms of the counter he has put in, the transfer could not be opposed.
8. The appeal must be dismissed with costs of 1st respondent. The transferee decree-holder will, of course, be bound by any adjustment recognized by the Court on the application in E.A. No. 123 of 1921.