K.S. Venkataraman, J.
1. This is an appeal by one A.N. Subramaniam Chettiar, the first defendant in the suit, O.S. No. 132 of 1949, on the file of the Subordinate Judge's Court, Pudukkottai, against the order, dated 16th August, 1969 of the learned Subordinate Judge dismissing the application, E.A. No. 161 of 1966, which he had filed under Order 21, Rule 2 of the Civil Procedure Code, to record full satisfaction of the decree so far as he Was concerned. There was one Subramaniam Chettiar. He had three sons, Annamalai, Chidambaram and Kuttayan. The first defendant in the suit (appellant herein) is the son of Annamalai Chettiar. The third defendant in the suit is Adaikalam Chettiar alias Kuttayan Chettiar (third son of Subramaniam Chettiar). The plaintiff in the suit was Deivanai Achi alias Visalakshi Achi, the wife of the said Kuttayan Chettiar. She filed the suit against the three defendants, the first defendant, Chidambaram (her husband's brother) as the second defendant, and her husband, Kuttayan Chettiar, as the third defendant. Chidambaram, the second defendant died and his son C.T. Subramaniam Chettiar was impleaded as his legal representative and figured as the fourth defendant. The suit was decreed for Rs. 75,748-07 in the trial Court against the family assets of the defendants. Defendants 1 and 4 filed an appeal, A.S. No. 381 of 1951, against the plaintiff and the third defendant. On 21st March,' 1956, the High Court in modification of the trial Court's decree directed the plaintiff to proceed against the assets in the hands of her husband, the third defendant, in the first instance, and only for the balance against the assets in the hands of defendants 1 and 4, her husband's brothers' sons. She accordingly realised a sum of Rs. 12,502.93 from her husband, the third defendant. She realised Rs. 33,019.98 from the fourth defendant in full settlement of his 1/3 liability. Alleging that it was not possible to recover anything more from them, she sought to levy execution for the balance of the decretal amount against the present appellant. She filed E.P. No. 16 of 1962 on 17th January, 1962, but it was dismissed on 19th February, 1962. Then on 14th March, 1962 she filed another execution petition. It was not numbered; it was returned, but it was not re-presented. It has been marked as Exhibit A-6 in the present proceeding, E.A. No. 161 of 1966. On 15th June, 1962, she filed another execution petition. That again was returned, but was not re-presented. That has been marked as Exhibit A-7 in the present proceeding.
2. Then on 15th January, 1965, she filed E.P. No. 5 of 1965. It has been marked as Exhibit A-12 in the present proceeding. The first defendant filed a counter stating that the decree had been discharged by a family arrangement, dated 12th March, 1962, which is set out in full. The purport of it was that he had filed a suit, O.S. No. 54 of 1949, for partition against his paternal uncle, Kuttayan Chettiar and had obtained a preliminary decree for partition and accounting. He and C.T. Subramaniam Chettiar (fourth defendant in O.S. No. 132 of 1949) had filed a suit, O.S. No. 27 of 1952, in the Subordinate Judge's Court, for a declaration that whatever liability they might have incurred under the decree in the suit, O.S. No. 132 of 1949, to Deivanai Achi, ultimately it would be her husband, Kuttayan Chettiar, who would be liable for it. By the family arrangement all these matters were settled by mutual undertakings. For his part, the appellant was to execute a sale deed of his half share in the house in Arimalam Village (in the then Pudukottai State) in favour of Deivanai Achi in satisfaction of her decree in O.S. No. 132 of 1949. Further certain shares were standing in the name of the appellant's father and mother. They had to be transferred to the name of Kuttayan Chettiar (Deivanai Achi's husband). The appellant should report that the decree in O.S. No. 54 of 1949, had been settled out of Court and he should not press the right of indemnity in O.S. No. 27 of 1952. Deivanai Achi should similarly report in O.S. No. 132 of 1949, that her decree had been settled out of Court. The above arrangement was carried into effect by the appellant filing a petition for recording of full satisfaction in O.S. No. 54 of 1549 Deivanai Achi also filed a similar petition for recording full satisfaction in O. Section No. 132 of 1949 on 12th March, 1962, but took it back. That petition, if produced, would bear out the contention of the appellant. The appellant had, in pursuance of the arrangement, given up his right in the Arimalam house in favour of Deivanai Achi, but, contrary to that Deivanai Achi had made it appear that on 31st March, 1962, the appellant had conveyed only the superstructure of the Arimalam house for a sum of Rs. 5,000 in partial satisfaction of the decree in O.S. No. 132 of 1949. There was no such agreement on the part of the appellant. It was fraudulent on the part of Deivanai Achi to levy execution against him.
3. The appellant also raised an objection that the amounts collected from C.T. Subramaniam Ghettiar had not been fully given credit to in the execution petition.
4. On 11th August, 1965, E.P. No. 5 of 1965 was dismissed, leaving all the contentions between the parties open.
5. Then E.P. No. 83 of 1965 was filed on 2nd September, 1965. The decree-holder gave correct figures of the amounts realised from the fourth defendant. A counter was filed by the present appellant similar to the one which he had filed in E.P. No. 5 of 1965, setting up the family arrangement and pleading that execution could not be levied.
6. E.P. No. 83 of 1965, was dismissed on 16th October, 1965. Then E.P. No. 28 of 1966, Was filed on 27th January, 1966. The appellant filed a counter as before. He further filed, on 16th August, 1966 E.A. No. 161 of 1966 under Order 21, Rule 2, Civil Procedure Code, setting up the above family arrangement as a bar to the execution of the decree.
7. In the evidence adduced by the appellant in support of his application, he swears that Exhibit A-9 dated 7th September, i960 is the family arrangement brought about with the help of one P.V.R.M. Kulandayan Chettiar as mediator. The Kulandayan Chettiar was examined as P.W. 1 on commission at Madras. He has spoken to the above fact. Exhibit A-9 is dated 23rd Avani, Sarvari (corresponding to 7th September, i960), and is in Tamil. A free translation of Exhibit A-9, is as follows:
Arrangement entered into between Kuttayan Chettiar (third defendant in the suit, O.S. No. 132 of 1949), and Subramaniam Chettiar (appellant) with the help of P.V.R.M. Kulandayan Chettiar in respect of all matters between them.
Since A.N. Subramaniam Chettiar has given as security for the decree in O.S. No. 132 of 1949 his half share in the Arimalam house which he had taken in auction, that half share should go towards satisfaction of the decree. A.N. Subramaniam Chettiar, the appellant, should execute a sale deed therefor in favour of Deivanai Achi alias Visalakshi Achi, the plaintiff in O.S. No. 132 of 1949.
The shares in Brahmavilyambal Electric Supply Corporation, Ramachandrapuram, and their dividends, and the shares in Pudukottai Electric Supply Corporation, and their dividends should be transferred by Lakshmi Achi (mother of the appellant) to Kuttayan Chettiar, at the latter's expense.
In O.S. No. 132 of 1949, release should be effected of the 1/3 share of A.N. Subramaniam chettiar and the half share of Subramaniam Chettiar in the Thiruvarankulam lands they had been offered as security by the appellant for satisfaction of the decree on O.S. No. 132 of 1949). The properties in the Burma firm (of which the appellant and Kuttayan Chettiar were partners) should be divided by lots.
For effecting the above Kuttayan Chettiar should pay Rs. 6,000 in Rayavaram (in Pudukottai State) and Rs. 4,000 in Burma. The partition suit (O.S. No. 54 of 1949), filed by A.N. Subramaniam Chettiar and the stridhana suit, (O.S. No. 132 of 1949), filed by Deivanai Achi alias Visalakshi Achi, should be reported as settled Out of Court in accordance with this arrangement.
All the matters as agreed here should be finished within two months.
8. The first defendant as P.W. 2 states that the time for the performance of the agreement was extended by mutual consent. He says that in accordance with it he executed a sale deed of his half share in the Arimalam house on 1st March, 1962, in favour of Deivanai Achi, but, for some reason which is not clear, it was not registered. Exhibit A-16, is stated to be a copy of the sale deed of the half share of the appellant in the Arimalam house (not merely the superstructure) to Deivanai Achi for a consideration of rupees two thousand in full satisfaction of her decree in O.S. No. 132 of 1949. The first defendant explains that, though his half share in that house was worth Rs. 30,000, a low Valuation was adopted to reduce the stamp duty payable.
9. The first defendant, further swears that, in pursuance of the above arrangement, he, for his part, filed a petition for full satisfaction in O.S. No. 54 of 1949. Exhibit B-4 is the copy of the affidavit in I.A. No. 60 of 1962, in O.S. No. 54 of 1949, and Exhibit B-3 is the certified copy of the petition and the orders. The first defendant has further sworn that, so far as O.S. No. 132 of 1949, is concerned, a similar petition was filed on 12th March, 1962, under Order 21, Rule 2, Civil Procedure Code. He signed it. He also saw the plaintiff affixing her thumb inpression in the full satisfaction memo, in the Bar room. It was filed by Deivanai Achi in O.S. No. 132 of 1949. Before filling, he took a copy of that full satisfaction memo, and that copy is Exhibit A-2. His Advocate, Mr. Krishnamurthy Iyer, filed on 14th March, 1962, a copy application (C.A. No. 876 of 1962), for 'a certified copy of the petition filed by both parties on 12th March, 1962, under Order 21, Rule 2'. That copy application has been marked as Exhibit A-1 in the present proceeding. There was an endorsement written by the clerk concerned on the reverse, Exhibit A-3. That clerk has been examined as P.W. 3. The endorsement is:
Petition under Order 21, Rule 2, filed by the decree-holder returned for rectification on 16th March, 1962. Hence returned. Time 7 days.
That is how Exhibit A-1, came to be with the first defendant. He was under the impression that the full satisfaction memo, which had been returned, according to the above endorsement to the Advocate for the decree-holder in O.S. No. 132 of 1949, would be re-presented in the normal course, but he came to knew that a fraud had been committed, only in 1965, when he was served with a copy of E. P. No. 5 of 1965, and at the earliest opportunity he filed his counter setting forth the above family arrangement.
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[After discussing the evidence His Lordship proceeded:]
28. If we bear the above clinching circumstances in mind, there should be no difficulty in holding that the points sought to be made by Mr. D. Ramaswami Iyengar, the learned Counsel for the respondents (legal representatives of Deivanai Achi) are really unsubstantial. In the first place, he lays stress on the fact that the appellant did not care to obtain the signature of the plaintiff in the settlement, Exhibit A-9. Secondly, he urges that the sale deed of the Arimalam house Was not completed, and that, though as a result of Exhibit A-17, dated 16th February, 1963, the first defendant came to know that it had not been registered and that even refund of stamps had been obtained, he did not choose to execute another sale deed in respect of the Arimalam house. Further, though he had filed a copy application (Exhibit A-1) on 14th March, 1962, and it was returned to his on 17th March, 1962, the appellant did not care to verify till he received the notice in E.P. No. 5 of 1965, whether a full satisfaction memo, had really been filed in O.S. No. 132 of 1949. The learned Counsel goes*to the extent of submitting that Exhibit A-1 itself was a clever move by the appellant to make it appear that a full satisfaction petition under Order 21, Rule 2, Civil Procedure Code, had been filed in O.S. No. 132 of 1949, on 12th March, 1962, and that really no such petition had been filed. The learned Counsel further submits that, if really a petition reporting full satisfaction had been filed on 12th March, 1962, and a fraud had been conceived of even at that stage by Deivanai Achi and her husband Kuttayan Chettiar to deceive the appellant, that petition would not have been allowed to remain in Court till 31st March, 1962. He further submits that there was no reason why a petition should have been fied at all under Order 21, Rule 2, Civil Procedure Code, by Deivanai Achi in O.S. No. 132 of 1949, when a simple memorandum would have been sufficient, and he submits that in O.S. No. 54 of 1949, only a memorandum was filed. Speaking generally, he made it clear that though he should not be taken as having admitted that an arrangement like Exhibit A-9, was brought about between Kuttayan Chettiar and the appellant by Kulandayan Chettiar, his purpose was not to attack such an arrangement, but only to show that the plaintiff herself was not a party to that arrangement, that it was possible that Kuttayan Chettiar might have hoped to convince his wife and make her consent to the arrangement, but when the plaintiff was approached, she was not willing and that that was why the sale deed of the Arimalam house was not completed.
29. It will be seen that, in our analysis, we have endeavoured to show that Kuttayan Chettiar acted only with the consent of the plaintiff. The negotiations went on for a long time and because she knew everything she did not protest. That was why the sale deed was taken in her name on 1st March, 1962, and that was why she filed the petition for full satisfaction on 12th March, 1962, in O.S. No. 132 of 1949. The first defendant does not appear to be a very wordly-wise person, but, even so, we do not think that, if he knew that the plaintiff had not consented to the arrangement and the sale was not brought about, he would have agreed to enter full satisfaction in O.S. No. 54 of 1949. There was nothing to make him scent the fraud till notice came to him in E.P. No. 5 of 1965, and that was why he kept quiet till then. Even after the refund of the stamps for the sale deed was obtained, he might have thought that there was no necessity for drawing up another sale deed, because, for his part, he had done all that Was necessary. He had given up the Arimalam house in favour of Deivanai Achi and he might have thought that it was for Deivanai Achi to complete her legal title. If really the superstructure was pulled down, as appears to have been the case, that would have only confirmed him in his impression that it had been pulled down by Deivanai Achi, because, the first defendant had parted with the whole house, namely, the site and the superstructure, in favour of Deivanai Achi. Because he had no suspicion of fraud, there is nothing surprising in his advocate not pursuing the matter and verifying whether the joint petition under Order 21, Rule 2, Civil Procedure Code, filed on 12th March, 1962, and ordered to be returned on 16th March, 1962, for rectification of defects, was re-presented, and whether full satisfaction was really entered up by the Court. There was nothing to excite his suspicion till he got notice of E.P. No. 9 of 1965, and that would explain his conduct. It was stated before us by his advocate, Mr. Gopalachari, that after this arrangement was effected, he went away to Thiruthuraipoondi, and, in fact, that is borne out by the fact that Exhibit A-17 was addressed to him at Thiruthuraipoondi. We have no doubt that a deep fraud was played on the appellant and that he was kept out of knowledge of the real facts till he got notice in E.P. No. 5 of 1965.
30. Mr. Ramaswami Iyengar, makes a point that, if Exhibit A-g, was acted upon, the appellant would have got a release of the properties which he had offered as security for the decree in O.S. No. 132 of 1949, and which comprised other properties besides his half share in the Arimalam house. The actual reply of the appellant on this point is:
I have not taken any steps to cancel the security till now. In pursuance of this, Exhibit A-9, I say the decree was satisfied.
The meaning of this is obviously that he thought that, when full satisfaction of the decree in O.S. No. 132 of 1969, was reported on 12th March, 1962, there was no need to get a release of the other properties offered as security.
31. Mr. Ramaswami Iyengar urges that if Exhibit A-9, was meant to bind the plaintiff, Deivanai Achi, and Kuttayan Chettiar, there was no need for the execution of a separate agreement, like Exhibit B-2, on 12th March, 1962, between the appellant and his mother on the one hand, and Kuttayan Chettiar and his sons on the other. There is nothing, however, surprising in the parties writing out a separate agreement, like Exhibit B-2, filing a separate joint memo, of full satisfaction in O.S. No. 132 of 1949. To put it differently, merely because of Exhibit B-2, we cannot conclude that no joint petition was filed in O.S. No. 132 of 1949. Further the fact that Exhibit B-2, came into existence does not show that Exhibit A-9, was not acted upon. Exhibit A-9, was only an agreement that certain things should be done. Exhibit B-2, recites that those things had been done, so far as O.S. No. 54 of 1949 and the Burma properties were concerned. Exhibit B-2, was thus necessary, notwithstanding Exhibit A-9. Further, it contains some clauses not found in Exhibit A-9.
32. The learned Counsel refers to the fact that Deivanai Achi, filed E.P. No. 16 of 1962 on 17th January, 1962, which was dismissed on 19th February, 1962, another execution petition on i4th March, 1962, (Exhibit A-6), and another execution petition on 15th June, ig62, and urges that these would not have been filed if Exhibit A-g, was acted upon. The point to be noted however is that notice of these execution petitions did not go to the appellant, and further Exhibit A-6, was returned and was not re-presented till 12th April, 1965, and the paper containing the endorsement of return has not been filed. The same criticism would apply also to the next execution petition (Exhibit A-7), filed on 15th June, 1962.
33. Mr. Ramaswami Iyengar, has then urged that in the affidavit in E.A. No. 161 of 1966, the date of Exhibit A-9 has not been referred to, and the learned Counsel construes paragraph 3 of the affidavit as meaning that the date of the agreement was 12th March, 1962, because it was on that date that full satisfaction in O.S. No. 51 of ig4g was, reported. But the point of this criticism vanishes when we find that the third son of the plaintiff has admitted that the signature in Exhibit A-g, is that of his father, and the date of Exhibit A-g, is 7th September, 1960. The father has not been examined. It is unnecessary to repeat the several reasons which we have given to show that Exhibit A-9, was acted upon. Paragraph 3 of the affidavit merely means that on 12th March, 1962, 'he arrangement was put through by the appellant filing a petition for recording full satisfaction in O.S. No. 54 of 1919, and by his having transferred the shares and the Arimalam house, and similarly in paragraph 4 it is alleged that on 12th March, 1962, a joint petition was filed in O.S. No. 132 of 1919, reporting full satisfaction, and it was taken back and not re-presented, but was fraudulently suppressed. The word 'simultaneously' occurring in paragraph 3 of the affidavit would only refer to the simultaneous performance of the agreement and would not mean that the agreement itself had come into being only on 12th March, 1962, and not earlier, on 7th September, i960. Incidentally, this paragraph means that the time for the performance of the agreement was extended by mutual consent till 12th March, 1962, and this is the effect of the evidence on both sides. That will be relevant on the question of limitation also.
34. Paragraph 10 of the counter-affidavit of Deivanai Achi, in E.A. No. 161 of 196b, states:
My advocate had also sworn to an affidavit that another application for executing this decree filed, by him was returned, but was not re presented and the same was not traceable now.
This proceeds on the basis that her advocate in the earlier affidavit, Exhibit A-10, stated that the petition which he had filed on 12th March, 1962, and which he took return of on 31st March, 1962, was >also a petition for executing the decree in O.S. No. 132 of 19, g. No attempt had been made in the evidence to adhere to this stand, and such a stand would really be inconsistent with the fact that on 14th March, 1962, itself a petition, Exhibit A-6, was filed for executing the decree, and it makes no reference to any prior execution petition having been filed on 12th March, 1962. It will be seen that the petition which was filed on 12th March, 1962, was ordered to be returned only on 16th March, 1962, and if an execution petition had in fact been filed and it had not yet been returned, we do not expect another execution petition (Exhibit A-6), to be filed. It is clear that the stand taken in paragraph 1 o of the counter-affidavit in E.A. No. 161 of 1966 is a desperate attempt to explain away the petition which was filed on 12th March, 1962 in O.S. No. 132 of 1919, as an execution petition. Mr. Ramaswami Iyengar himself was not able to tell us what that petition was, and we have no doubt that it was only a joint petition reporting full satisfaction of the decree in O.S. No. 132 of 1949.
35. Mr. Ramaswami Iyengar urges that it would have been enough if, under Order 21, Rule 2, Civil Procedure Code, the decree-holder alone certified to the Court that the decree had been satisfied. That is true; but there is nothing surprising if a joint petition was filed by both parties, and there is unimpeachable evidence to show that a joint petition was filed and that it was put into Court by the decree-holder's advocate, Ramanatha Sastrigal, as shown by Exhibit A-3 and by the endorsement of return made by the clerk (P.W. 3) on the copy application, Exhibit A-1. Since that petition has not been produced, the appellant is entitled to let in secondary evidence of the contents of the petition. Besides stating that it was a joint petition, we have seen that Exhibit A-1 itself shows that it was a joint petition to record full satisfaction. The appellant states that Exhibit A-2 is a copy of that petition. It is in Tamil and may be translated thus:
Deivanai Achi alias Visalakshi Achi - Plaintiff.
R. Ramanatha Sastrigal - Advocate.
Subramaniam Chettiar - First. Defendant. V. Krishnamurthi Iyer - Advocate.
Petition filed by both parties under Order 21, Rule 2, Civil Procedure Code.
36. Since this decree has been satisfied out of Court so far as the first defendant is concerned, it is prayed that full satisfaction may be recorded so far as the first defendant is concerned.
(Sd.) First defendant.
In the absence of anything to make us hold otherwise, we accept this as a true copy of the joint petition which was filed. Mr. Ramaswami Iyengar, however, wants us to discredit that evidence by submitting that the evidence of the first defendant that on the reverse of Exhibit A-2, he had also copied the memo, which he filed in O.S. No. 54. of 1949, could not be true. That reads:
Subramaniam Chettiar Plaintiff Kuttayan Chettiar alias Adaikalam Chettiar and others Defendants. Memo, filed by tie plaintiff.
Since all the rights concerned in this suit have been settled out of Court by both parties, it may be ordered that this suit has been settled out of Court. There will be no order as to costs in respect of any party.
37. The point made by the learned Counsel is that Exhibits B-3 and B-4, are the petition and affidavit, filed by the appellant herein, as plaintiff in O.S. No. 54 of 1949 to record full satisfaction and that therefore there was no need for filing a further memo, and that, since the appellant says that he filed a memo, it would mean that his evidence was false. But we find that Exhibit B-3 itself contains this:
Received 13th March, 1962. I.A. No. 60 of 1962. O.S. No. 54 of 1949. Petitioner by Sri V.K. Iyer for plaintiff. Praying to record that the suit has been settled out of Court. A memo was also filed on 12th March, 1962, by plaintiff that the suit may be dismissed and each party to bear his costs.
Thus Exhibit B-3 itself shows that a memo was filed on 12th March, 1962, in O.S. No. 54 of 1949, by the appellant as plaintiff, besides the petition, Exhibit B-3, which he filed on 13th March, 1962. Hence, there is no basis for the argument that the evidence of the appellant about his recording a copy of the memo in O.S. No. 54 of 1949 on the reverse of Exhibit A-2 was false.
38. We therefore, find that on 12th March, 1962, a joint petition signed by both parties in terms of Exhibit A-2 was actually presented in the executing Court by Deivanai Achi's Advocate, Mr. Ramanatha Sastrigal, that an endorsement was made on it on 16th March, 1962, returning it, that it was actually taken return of by Mr. Ramanatha Sastrigal on 31st March, 1962, and later it was stated to be not traceable and that a deep-fraud was played on the appellant by not producing it. He was lulled into a false belief till notice actually went to him in E.P. No. 5 of 1965.
39. This brings us to the point of limitation. Order 21, Rule 2, Civil Procedure Code, reads as follows:
(1) Where any money payable under a decree of any kind is paid out of Court, or the decree is otherwise adjusted in whole or in part to the satisfaction of the decree-holder, the decree-holder shall certify such payment or adjustment to the Court whose duty it is to execute the decree and the Court shall record the same accordingly.
(2) Any party to the suit or his legal representative or any person who has become surety for the decree debt 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 service of such notice, the decree-holder fails to show cause why the payment or adjustment should not be recorded as certified, the Court shall record the same accordingly.
(3) A payment or adjustment which has not been certified or recorded as aforesaid, shall not be recognized by any Court executing the decree.
Sub-rule (1) speaks of a case where the decree-holder certifies payment or adjustment of the decree. Once the decree-holder makes such a certificate, the Court is bound to record the same, and no notice to the judgment-debtor is contemplated. The reason is that, when the decree-holder herself certifies that the decree has been adjusted, there is an end of the matter and there is no need to verify from the judgment-debtor whether it is true. We are confining our attention to a petition like Exhibit A-2, in which a report simpliciter was made that the decree had been settled out of Court, there being no reference to any obligation undertaken by the judgment-debtor. In contrast to Sub-rule (1), Sub-rule (2) of Order 21, Rule 2, enables the judgment-debtor to inform the Court of the adjustment of the decree. But in such a case it is necessary that notice should go to the decree-holder to show cause why the adjustment should not be recorded as certified. The Limitation Act of 1908, prescribed a period of 90 days for such an application by the judgment-debtor, the article being 174 and the starting point being the time when the payment or adjustment was made. No corresponding period of limitation was provided for the decree-holder certifying the adjustment to the Court under Sub-rule (1). The scheme of the present Limitation Act of 1963, is also the same, but the period for the application by the judgment-debtor has been curtailed to 30 days under Article 125. The argument of Mr. Ramaswami Iyengar, the learned Counsel for Deivanai Achi, is that even taking the counter filed by the Appellant in E.P. No. 28 of 1966 as an application under Order 21, Rule 2(2), that was beyond 90 days under the Limitation Act of 1908 or 30 days under the Limitation Act of 1963. Even assuming that the counter which he filed in E.P. No. 5 of 1965 would amount to such an application, that was also beyond the period of 90 days or 30 days. There are at least three replies to this contention. The first is that the appellant was kept out of knowledge of his right and need to apply under Order 21, Rule 2(2), till he got notice of E.P. No. 5 of 1965,and time therefore began to run against him only from the date on which he received notice in E.P. No. 5 of 1965, see Section 18 of the Limitation Act of 1908 and the corresponding Section 17 of the Limitation Act of 1963, and on that basis the counter in E.P. No. 5 of 1965, was in time and could be treated as an application under Order 21, Rule 2(2).
40. Secondly the petition filed on 12th March, 1962, in terms of Exhibit A-2 by the decree-holder's advocate, Mr. Ramanatha Sastrigal, was a certificate under Order 21, Rule 2(1), and that itself was sufficient. The Court was bound to record the same. It is true that the petition was ordered to be returned and was not re-presented. But we shall come to that point presently.
41. Thirdly, the petition of 12th March, 1962, in terms of Exhibit A-2 was a joint petition signed by both parties. Though it was presented only by the decree-holder's advocate, under the peculiar circumstances of the case, since it was a joint petition, it could be held that it was a petition filed on behalf of the judgment-debtor (appellant herein) also under Order 21, Rule 2(2). The agreement itself was on 12th March, 1962, (according to our reasoning, time having been extended upto that date by mutual consent), and, therefore, it was filed on the very first day of the starting point of limitation.
42. The first reply to the question of limitation is obvious and need not be developed and it is sufficient reply to the question of limitation. It is, however, necessary to dwell a little more on the second and third replies to the question of limitation. The objection which could possibly be put forth on behalf of the decree-holder to these two replies will be that the petition of 12th March, 1962, was ordered to be returned on 16th March, 1962, presumably for some defects, it was taken return of on 31st March, 1962, and was not re-presented and was therfore not available in Court at all in order that the Court may proceed with it either under Sub-rule (1) or under Sub-rule (2). There is, however, a good reply to this objection, namely, that, since it was P. joint petition, it was not open to the decree-holder by herself to get it back, and for the purpose of limitation it is sufficient that it was presented on 12th March, 1962. Mr. Gopalachari, the learned Counsel for the appellant has not been able to cite a case exactly resembling the present, but the cases which he has cited show that it is permissible to take the view which we have indicated. Similarly, we may say that Mr. Ramaswami Iyengar, the learned Counsel for the decree-holder, has not been able to cite any case which will throw doubt on the view which we have indicated above, and the cases which he has cited are distinguishable. The cases which Mr. Gopalachari has cited are these: Rajanna v. Seshamma : AIR1927Mad155 , Venkatasubba Rao, J.; Velayudhan v. Krishna A.I.R. 1954 T.C. 288 and Venkatasubba v. Peddasubbareddi : AIR1964AP458 .
43. In Rajanna v. Seshamma : AIR1927Mad155 , the plaintiff and some of the defendants entered into a compromise on 21st February, 1922 and an application, E.A. No. 182 of 1922, was made under Order 21, Rule 2 to the executing Court on the same day for the recording of the adjustment. This application was made jointly by the plaintiffs and all the defendants, except defendants 1 and 7. It was adjourned to the next day and ultimately dismissed on 4th March, because the decree-holder's vakil appeared and stated that the application was not pressed. (None of the judgment-debtors who had signed the compromise was present.). The next step was taken by the plaintiffs who applied for execution on (sic) May, 1922. The 10th defendant filed E.A. No. 629 of 1922, opposing the execution and asking that the Court should record under Order 21, Rule 2, the compromise which he had filed on 21st February, 1922. That application was dismissed by the Courts below, apparently as time-barred. In second appeal by the 10th defendant, Venkatasubba Rao, J., pointed out that, though it was filed more than 90 days after the adjustment, it was really not barred because it was merely an application to the Court to dispose of E.A. No. 182 of 1922, properly. The learned Judge proceeded to point out that it was not open to the decree-holder's. Counsel alone to have withdrawn the petition, E.A. No. 182 of 1922. In that connection he observed as follows:
Clause (1) of Order 21, Rule 2, provides that the decree-holder shall certify the adjustment to the Court and the Court shall thereupon record the adjustment.
Under Clause (3) an adjustment which has not been certified or recorded cannot be recognised by a Court executing the decree. It is sufficient therefore that the adjustment has been certified and for the Court to recognise the adjustment it is not necessary that it shall have been both certified and recorded. The words used in Clause (3) are 'certified or recorded,' and not 'certified and recorded.' If this be so, was there a proper disposal of E.A. No. 182 of 1922? The judgment-creditor could not withdraw the application nor could the Court dismiss it. As is pointed out in a Calcutta case reported as Tarak Nath Sarkar v. Natabar Mandal (1915) 21 C.L.J. 623 : 30 I.C. 45, the judgment-debtor does not lose his protection merely because the Court fails to perform the duty cast upon it, namely, to make a record that the payment or adjustment has been, certified by the decree-holder : see also Sama Pathar v. Rengasami Reddiar (1918) 35 M.L.J. 253 : 51 I.C. 411. Sadasiva Iyer, J., observes in Thimma Reddi v. Subba Reddiar (1918) M.W.N. 507 : 49 I.C. 141:
The neglect by the Court of the duty expressly imposed on it of recording the decree-holder's certificate cannot prejudice the judgment-debtor and it cannot be argued successfully that the record also by the Court is required under Sub-rule 3 before the payment or adjustment could be recognised.
In the same case Napier, J., points out that 'the object of the rule is not even to require any particular form of proceeding, but only to provide that the Court should be informed of the payment.
44. The learned Judge proceeded to point out that the facts of that case were, however, peculiar, because it was not an application by the decree-holder alone under Clause (1) nor was it made by the judgment-debtor alone under Clause (2). It was a joint application, and, since it was adjourned for the purpose of the seventh defendant, who had not signed the compromise, notifying his acceptance of it, it must be understood as an application made for the purpose of enquiring whether there was adjustment and for recording it, if, in fact, a valid adjustment was made. The application was therefore remanded for that purpose. Accepting the finding, which was submitted, the learned Judge directed the lower Court to record the compromise and dismiss the execution petition.
45. This decision is useful in two ways firstly, that under Order 21, Rule 2(1) it is enough if the decree-holder certifies that the decree has been adjusted and the judgment-debtor does not lose his protection merely because the Court fails to perform the duty cast upon it, namely, to make a record that the adjustment has been certified by the decree-holder. Secondly, the decision shows that the decree-holder could not withdraw the application nor could the Court dismiss it.
46. The decisions quoted by Venkatasubba Rao, J., also support the above view. Thus in Tarak Nath Sarkar v. Malabar Mondal (1915) 21 C.L.J. 632 : 30 I.C. 45, (decided by Asutosh Mookerjee and Beachcroft, JJ.), payment of the decree had been made by the judgment-debtor and a petition was filed in Court by the decree-holder notifying that the decree had been satisfied in full. But this petition could not be traced. The decree-holder took advantage of that fact to deny falsely that the decree had been satisfied. Under the circumstances the question arose whether there was any substance in the argument of the decree-holder that the payment was not certified as required by law, because it was not recorded by the Court. The Court said, 'In our opinion, there is no force in this contention,' and, after comparing Order 21, Rule 2 of the Code of 1908 with the corresponding Section 258 of the Code of 1882, the Court observed:
It is plain from Clause (3) of Rule 2 that a payment or adjustment shall not be recognized by any Court executing the decree, unless it has been either certified or recorded. This does not require that the payment or adjustment must be both certified and recorded. It is also clear that in Clause (3) of Rule 2 the term certified' refers to Clause (1) and the term 'recorded' to Clause (2). Consequently, it cannot be reasonably contended that the judgment-debtor loses his protection merely because the Court fails to perform the duty cast upon it, namely, to make a record that the payment or adjustment has been certified by the decree-holder. The decree-holder, at any rate, is not prejudiced by the omission of the Court to make the record. He has received the payment or has entered into an adjustment with the judgment-debtor. He has notified the fact to the Court; he has done his duty, as the Code does not provide for any special form to be adopted for the purpose. The failure of the Court to make the record does not surely entitle him to take advantage of the omission to the detriment of the judgment-debtor.
These observations will apply with equal force to the present case and the decree-holder cannot take advantage of her not having re-presented the petition which she filed on 12th March, 1962.
47. In Thimma Reddy v. Subba Reddiar 1918 M.W.N. 507 : 49 I.C. 141 there was a decree in favour of a partnership of four partners. There was an adjustment and the defendants paid Rs. 485 in full satisfaction to all the four plaintiffs in 1909, but a certificate of satisfaction was not filed in time. The partnership was dissolved in 1910. Plaintiffs 3 and 4 assigned the decree as if it was alive to the appellant for no consideration, and the appellant applied for execution in July, 1911. Plaintiffs 1 and 2 got notice and filed counter-petitions containing certificates of satisfaction of the decree by payment of Rs. 485 in 1909. The appellant did not prosecute that petition. It was dismissed. He filed another execution petition. That was also dismissed. He appealed. The second point argued on his behalf was that the certificates of plaintiffs 1 and 2 were not in proper form. The learned Judges repelled this contention pointing out that it need not be in any particular form. The third contention is important to us and was that no record of satisfaction was made by the Court on those certificates and that therefore those certificates were useless. The learned Judges repelled this contention also. Sadasiva Iyer, J., after pointing out that Order 21, Rule 2(3) did not say 'certified and recorded', but merely stated 'certified or recorded', observed:
The neglect by the Court of the duty expressly imposed on it (under Sub-rule (1) of Order 21, Rule 2 of the new Code) of recording the decree-holder's certificate cannot prejudice the judgment-debtor and it cannot be argued successfully that the record also by the Court is required under Sub-rule (3) before the payment or adjustment could be recognised. The record by the Court being a formal matter of course may be made at any time or even be treated as having been made.
Napier, J., pointed out:
It seems to me immaterial that the Court did not pass any order on the counter-petitions The object of the rule is not to require any particular form of proceeding, but only to provide that the Court should be informed of the payment.
Quoting Bashyam Iyengar, J., he said:
It is not the act of the Court in recording such payment as certified that operates as a discharge.
48. In Somu Pathar v. Rengaswami Reddiar (1918) 35 M.L.J. 253 : 51 I.C. 411, one Rengaswami Reddi obtained a small cause decree against the decree-holder in O.S. No. 333 of 1912 and attached the latter decree in 1914. Ini9i5 the decree-holder in O.S. No. 333 of 1912 applied to the District Munsif's Court to enter up satisfaction of his decree. It was opposed by the attaching decree-holder and in consequence the decree-holder in O.S. No. 333 of 1912 withdrew the application. The judgment-debtor in O.S. No. 333 of 1912, however, contended that the decree against him had been satisfied. The Courts below repelled this contention on the ground that the application for recording full satisfaction had been, withdrawn. Seshagiri Aiyar, J, pointed out that it was not open to the decree-holder in O.S. No. 333 of 1912 to withdraw the petition and that a mere certificate was enough to enable the judgment-debtor to plead that the decree had been satisfied. The learned Judge, therefore, directed an enquiry to be made whether the payment had really been made.
49. In Velayudhan v. Krishna A.I.R. 1954 TC. 288, the decree was assigned. The assignee decree-holder filed C.M.P. No. 3700 of 1118 (M.E.) under Order 21, Rule 16 for setting off the amounts under the cross-decrees. It was dismissed for some reason. When the assignee decree-holder took out execution later, the judgment-debtor pleaded that the earlier petition, C.M.P. No. 3700 of 1118, amounted to a certificate of full satisfaction under Order 21, Rule 2. That plea was upheld by the executing Court and was confirmed in appeal. It was confirmed in second appeal by a Bench of the High Court. The objection on behalf of the assignee--decree-holder was that C.M.P. No. 3700 of 1118 did not in terms purport to be under Order 21, Rule 2. The learned Judges repelled this contention, observing:
We have carefully read C.M.P. No. 3700 of 1118 and we are inclined, to think that the application in substance was one certifying the adjustment of the decree in the manner pleaded by the defendants. When once the decree-holder had certified an adjustment of the decree, it is not thereafter open to him to execute the decree disregarding such certification. It was-the duty of the Court to have recorded satisfaction especially in view of the fact that the defendant to whom notice was given had taken no objection in regard to that matter. Sub-rule (3) of Order 21, Rule 2 only provides that a payment or adjustment which has not been certified or recorded shall not be recognised by any Court executing the decree. It is significant that the words used are 'certified or recorded' and not 'certified and recorded'. Therefore, for the Court to recognise the adjustment, it is sufficient that it is certified and it is not necessary that it shall have been both certified and recorded. It is not open to the Court to dismiss an application by the decree-holder to record satisfaction : vide - Rajanna v. Seshamma : AIR1927Mad155 . The fact that C.M.P. No. 3700 of 1118 appears to have been for some reason dismissed will not entitle the decree-holder 10 execute the decree which he has certified to the Court to have been adjusted.
50. In Venkatasubba Reddi v. Peddasttbba Reddi : AIR1964AP458 , in pursuance of a decree the plaintiffs sought possession of a certain house forming item 1 of A-1 schedule. The defence was that by a mutual adjustment the decree had been varied under Exhibit B-1 and that in lieu of that item of property the plaintiffs were to get another property. Actually within 50 days of this adjustment, the judgment-debtors filed a petition for recording the adjustment so far as that item of property was concerned. For his part the decree-holder did not press E.P. No. 1 of 1954 in respect of that item. No formal order, however, recording the adjustment was passed. It was held in the later execution petition that that was immaterial, and that, since it was not already recorded, the judgment-debtor could request the Court to record it.
51. The first case cited by Mr. D. Ramaswami Iyengar is Budruddeen v. Gulam Moideen I.L.R. (1913) Mad. 357 : 25 M.L.J. 541. There the decree was satisfied by payment by the judgment-debtor to the two plaintiffs of a substantial portion of the amount in 1904, but it was not reported to the Court either by the decree-holders or by the judgment-debtors. The judgment-debtors pleaded that when an application for execution was made in August, 1907. By that time the period of 90 days for filing an application under Section 258 of the Code of 1883 corresponding to Order 21, Rule 2 of the Code of 1908, was over. The learned Judges held that the plea was time-barred. They observed:
The adjustment in the present case was in the year 1904. The application for execution was in August, 1907. In their counter-petitions the judgment-debtors do not state that they were prevented from knowing of the fraudulent conduct of the plaintiffs by any fraud on their part until within 90 days before the date of their application. Section 258 Clause 3 is imperative that the executing Court cannot recognize an adjustment which has not been certified.
This case is distinguishable, because, in the present case, the judgment-debtor (appellant) was fraudulently kept out of knowledge of his right and need to apply under Order 21, Rule 2.
52. The next case cited by Mr. Ramaswami Iyengar is Meghraj v. Kesarimal . There one Sadaram obtained a decree in C.S. No. 36 of 1929 against one Kesarimal and in execution attached a certain bungalow. Kesarimal obtained an adjournment on the ground that he had to perform the marriage of his niece in that house. He took advantage of the postponement and executed a sale deed of the house to one Meghraj. Kesarimal, however, continued in possession. Meghraj filed a suit for arrears of rent (51-B of 1938) and he took out execution of the decree against Kesarimal. The three parties, Sadaram, Meghraj and Kesarimal, came to an agreement, that Meghraj should pay Rs. 7,000 to Sadaram in full quit of his decree against Kesarimal, that Meghraj should give up all claim for arrears of rent against Kesarimal and that Kesarimal should put Meghraj in possession of the bungalow and disclaim all interest therein. Meghraj paid Rs. 7,000 to Sadaram on that day. Meghraj and Kesarimal signed a document of compromise, stating that possession of the bungalow had been given to Meghraj, though admittedly it had not been given. The petition for compromise was adjourned. Finally disputes arose between Meghraj and Kesarimal and Meghraj put in an application stating that he had agreed to the compromise on the distinct understanding that he would be given immediate possession of the bungalow and asking that either he should be put in possession or that he should be allowed to execute his decree.
53. The executing Court ordered that Meghraj should be put in possession of the bungalow, and that the decree should be regarded as fully satisfied. In appeal by Kesarimal, the learned District Judge held that Meghraj had to resort to a separate suit to get possession of the bungalow. He directed the execution petition to be struck off as fully satisfied. Against that Meghraj filed a second appeal.
54. The learned Judges pointed out that it was a case of the parties agreeing to vary the original decree (for rent), that such an agreement was valid, that the enforcement of the decree was one within the province of the executing Court and that consequently the executing Court had jurisdiction to place Meghraj in possession of the bungalow. That is the main reason for the decision. Mr. Ramaswami lyengar, however, does not rely on that, but relies on the secondary reasoning given by the learned Judges as follows:
The point has been taken that when the petition of compromise was filed in the executing Court on the 4th February 1941, then under Order 21, Rule 2 of the Civil Procedure Code, the Court had no option but to record that the decree had been satisfied. The Court might have recorded satisfaction on the 4th February, 1941, but before it dealt with the Application the decree-holder objected no the recording of satisfaction, and the Court was therefore correct in enquiring whether the decree had been satisfied. We agree with the view taken in Dattatraya Kashinath v. Vithaldas Bhagwandas I.L.R. (1942) Bom. 122, that there is nothing in Order 21, Rule 2 to prevent the decree-holder from withdrawing or modifying his application for adjustment before the adjustment is recorded and we respectfully dissent from the view in Maung Kyaw Min v. Ma Hpaw A.I.R. 1931 Rang. 332, that once an application has been put in by the decree-holder the Court must record the decree as adjusted, whatever happens between the putting in of the application and the recording of the adjustment. We see no reason why amendment should not be allowed in cases where it is equitable to allow it.
55. It is enough to point out that this opinion was obiter and, if it were necessary to express our view on that reasoning we would point out that in that case Meghraj's reporting satisfaction was intertwined with his being put in possession, and, since he had not been put in possession, the decree was really not satisfied. Here, however, Exhibit A-2 did not contain anything which had to be done by the appellant and to that extent the decree-holder, Deivanai Achi, could not withdraw or take away the petition filed on 12th March, 1962. We therefore, find that the objection of limitation fails.
56. The last point taken by Mr. Ramaswami lyengar is that, after E.P. No. 5 of 1965 was dismissed on nth August, 1965, E.P. No. 83 of 1965 was filed for attachment giving correct figures of the amount recovered from the fourth defendant and the first defendant filed a similar counter as in E.P. No. 5 of 1965. Attachment was ordered, but batta was not paid as the property had been given as security. On 16th October, 1965, E.P. No. 83 of 1965 was dismissed. The learned Counsel urges that, since attachment was ordered, that order would operate as constructive res judicata on the question that execution could validly proceed. In support of this contention he relies on the well known decisions in Raja of Ramnad v. Velusami Tevar (1921) 40 M.L.J. 197 : 48 I.A. 45 : A.I.R. 1921 P.C. 23; Venkataranga Reddi v. Chinna Seethamma : AIR1941Mad440 and Mohanlal Goenka v. Benoy Krishna Mukherjee : 4SCR377 Mr. Gopalachari objected to Mr. Ramaswami lyengar being allowed to raise this point because this point had not been raised in the elaborate counter filed in E.A. No. 161 of 1966. He further submits that possibly the order of attachment was an interim order passed before notice went to the judgment-debtor and not one after he filed his counter in E.P. No. 83 of 1965 and that therefore the rule of constructive res judicata would not apply. In view of the fact that this objection was not raised in the counter in E.A. N0. 161 of 1966, we think that it would be unjust to allow this point to be raised at this stage, particularly as it involves the question whether the order of attachment was made before or after the judgment-debtor filed his counter in E.P. No. 83 of 1965 and whether he had notice that such an order had been applied for, and allowed the order to be passed ex parte. It is inconceivable that he would have allowed the matter to proceed ex parte.
57. The result of our analysis is that it has to be held that Deivanai Achi is not entitled to execute the, decree in O.S. No. 132 of 1949. It is true that the half share of the appellant in the Arimalam house has not been conveyed by a registered sale deed, but it was not the fault of the appellant. He is ready and willing to execute a sale deed even in this very proceeding.
58. The appeal is allowed, but the parties will bear their own costs throughout.