1. The appellant before us is the 1st defendant. The plaintiff sued the 2nd defendant in 1914 and got a decree. When he attempted to execute his decree he was faced with a claim by the 1st defendant based on a sale to him by the 2nd defendant. The claim was allowed and the plaintiff sued to set aside the order on the claim. He succeeded in the first Court, but failed in appeal, the Subordinate Judge holding inter alia, that his decree had been satisfied. In second appeal, Odgers, J., restored the decree of the trial Court. He was of opinion that the plea that the decree had been discharged was not open to the 1st defendant.
2. The finding of the first Appellate Court that the decree had been discharged is, perhaps, not wholly satisfactory. It is, however, a finding of fact, which was not objected to in second appeal. So it calls for no further consideration, There is a decision of the Allahabad High Court in Tegh Singh v. Amin Chand 5 A. 269 : A.W.N. (1883) 18 : 3 Ind. Dec. 238 which seems to be exactly in point. The terms of Sub-rule (3) of Rule 2, Order XXI, Civil Procedure Code, are perfectly clear. They lay down that an uncertified discharge cannot be recognised by 'any Court executing a decree.' It follows that a plea of discharge can be taken in a suit, provided, of course, that it is not taken by one of the parties to the decree. And that is what was held in the decision above cited. Odgers, J., did not follow that decision, as he thought that he was concerned with parties to the suit. That was not correct, for the 1st defendant was not a party to the suit. Mr. K.V. Krishnaswami Iyer's argument, if I understand him right, proceeded on these lines. The plea of discharge was not open to any one in the claim proceedings. The suit is merely a continuation of the claim proceedings. Therefore, the plea is not open to any one in the suit. The argument can, I think, be justified only on the hypothesis that the Court which tried the suit was a Court executing the decree and that hypothesis seems to me to be entirely untenable. If it was not such a Court, the plea was open to a person like the 1st defendant who was not a party to the suit in which the decree was passed. I would follow the Allahabad ruling and allow the appeal with costs throughout.