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Azizan Vs. Matuk Lal Sahu - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1894)ILR21Cal437
AppellantAzizan
RespondentMatuk Lal Sahu
Cases ReferredNubo Kishen Mookerjee v. Debnath Roy Chowdhry
Excerpt:
civil procedure code (act xiv of 1882), section 244 - separate suit--uncertified adjustment--agreement not to execute decree--suit by judgment-debtor to stay execution--civil procedure code (act xiv of 1882), section 258. - macpherson, j.1. the plaintiff' is one of the heirs of mahomed saleh, against whom and others the defendant obtained a decree for money in january 1877. the decree was executed in that year, and partial satisfaction was obtained. in march 1890 the defendant again applied to execute the decree for the whole outstanding balance against the plaintiff and other judgment-debtors or their representatives; the plaintiff objected to the execution, on the ground that the decree had been adjusted in so far as she was concerned, but her objection was disallowed, as the adjustment had not been certified to the court. the plaintiff brings this suit for a declaration that the defendant has no right to execute the decree as against her and for an injunction to restrain him from so executing it. she says.....
Judgment:

Macpherson, J.

1. The plaintiff' is one of the heirs of Mahomed Saleh, against whom and others the defendant obtained a decree for money in January 1877. The decree was executed in that year, and partial satisfaction was obtained. In March 1890 the defendant again applied to execute the decree for the whole outstanding balance against the plaintiff and other judgment-debtors or their representatives; the plaintiff objected to the execution, on the ground that the decree had been adjusted in so far as she was concerned, but her objection was disallowed, as the adjustment had not been certified to the Court. The plaintiff brings this suit for a declaration that the defendant has no right to execute the decree as against her and for an injunction to restrain him from so executing it. She says that in August 1887 they adjusted their accounts; that her share of the amount which had been realized in satisfaction of the decree and her share of the amount which was still outstanding were apportioned, and that she gave the defendant a bond for Rs. 753, which included her share of the outstanding balance of the judgment-debt and the amount due by her on other accounts in satisfaction of all claims, and that the defendant agreed to exonerate her from all further liability under the decree and to certify the adjustment to the Court, but that he did not certify it and is now executing his decree.

2. The question is whether the suit is not prohibited by Section 244 of the Procedure Code. Beyond doubt it raises questions relating to the execution, discharge or satisfaction of the decree as between the parties, or the representatives of the parties, to the suit in which the decree was passed, and if it is maintainable, the Court must, on a determination of those questions, decide whether the decree can or cannot be executed. It seems to me immaterial whether the plaintiff relies on the alleged adjustment or on the alleged agreement of the decree-holder not to execute the decree, as the consideration for the agreement was the adjustment by the bond, and this she would have to prove for the purpose of preventing the execution. It is argued that Section 244 does not apply to this case, because the Court executing the decree, being precluded by Section 258 from recognizing an uncertified payment, could not give the plaintiff the relief asked for, or, in other words, that Section 244 is limited in its operation by Section 258, and does not apply to any case in which there is an alleged payment or adjustment which has not been certified in accordance with the provisions of that section. Such a construction would require the insertion of words which are not to be found in the section, and for introducing which I see no warrant. The object of the section clearly is that the Court executing the decree, having the parties before it, should determine all questions relating to the execution, including the question whether the execution should or should not proceed, and its order has the force of a decree. I cannot suppose that the Legislature with that object in view contemplated or sanctioned the institution by the judgment-debtor of a separate suit which might delay the execution for an indefinite period. By Section 258 as now framed and as it has been framed since 1877, the judgment-debtor can compel the decree-holder to certify, but he must take the measures necessary for that purpose within the prescribed period. If he fails to do so, the effect of Section 244 read with Section 258 seems to be that the payment or adjustment does not operate to satisfy the decree, and that the judgment-debtor cannot by a separate suit prevent execution on the ground that the decree has been satisfied or adjusted. He may be able in a suit differently framed to get relief of another kind, but it is not necessary to consider this.

3. There is another difficulty in the appellant's way. The decree was under execution and the Court executing it overruled, no matter on what grounds, her objection to the execution. The effect of the order was that execution should proceed, and the order has the force of a decree which is still in force. I fail to see how another suit will lie to prevent the decree-holder from executing his decree.

4. I concur in the decision of the Madras Court in Bairagulu v. Bapanna I.L.R. 15 Mad. 302, which is directly in point, that Section 258 does not limit the operation of Section 244 of the Procedure Code.

5. It is said, however, that the decisions of this Court are the other way, and show that such a suit as this can he maintained. It is necessary therefore to refer to those cases, although I think they have not the effect attributed to them.

6. Stress is placed upon the remarks of Couch, C.J., in Gunamani Dasi v. Pran Kishori Dasi 5 B.L.R. 223 : 13 W.R.F.B. 69 decided by a Full Bench of this Court. That was a suit by the judgment-debtor to recover from the decree-holder money paid out of Court in satisfaction of a decree and the payment of which was not certified, and it was held that Section 11 of Act XXIII of 1861, which was the section corresponding to Section 244 in the present Code, did not prohibit such a suit, which in no way affected the execution of the decree. Couch, C.J., said that Section 11 of Act XXIII of 1861 and Section 206 of Act VIII of 1859 (which to some extent corresponded to Sections 257, 258 of the present Code) could only be reconciled by 'holding that Section 11 does not apply to payments made out of Court and not certified to the Court and of which it cannot take notice.' Those remarks must be taken in connection with the provisions of the sections referred to and the nature of the suit then brought. It was particularly pointed out that it was a suit to recover the money originally paid under the compromise, and of which the defendant must be regarded as a trustee for the plaintiff, and not a suit to recover back the money levied in execution of the decree.

7. Then there are two cases in 22 Weekly Reporter upon which great reliance has been placed, and they are the only instances of cases, so far as I know, brought to restrain a decree-holder from executing the decree. In neither are the facts fully stated. In Nubo Kishen Mookerjee v. Debnath Roy Chowdhry 22 W.R. 194 it is said that the defendant agreed for a consideration of Rs. 2,500 not no enforce his decree against the plaintiff, but he was to be at liberty to continue his suit against the other parties and to establish his right against them,' and that the object of the suit was to obtain an injunction against the defendant personally to prevent him from breaking his agreement by applying to the Court to execute the decree against the plaintiff. In Nujveni Mullick v. Erfan Mollah 22 W.R. 298 the suit was based on a contract adjusting a dispute between the defendant decree-holder and the plaintiff judgment-debtor to the effect that the defendant on receiving Rs. 100 from the plaintiff should execute a conveyance and should not execute two decrees which he held against the plaintiff. It was held in each of the cases that Section 206* of Act VIII of 1859 did not prohibit the suit, but in neither is there any allusion to Section 11, Act XXIII of 1861, the material portion of which was as follows: 'questions relating to sums alleged to have been paid in discharge or satisfaction of the decree or the like and any other questions arising between the parties to the suit in which the decree was passed and relating to the execution of the decree, shall be determined by order of the Court executing the decree and not by separate suit, and the order passed by the Court shall be open to appeal.'

8. These cases cannot be regarded as an authority for holding that Section 244 of the present Code does not apply to the present case. Section 244 is more explicit, and enacts in Clause (a) that, among the questions to be determined by order of the Court executing a decree and not by separate suit are, 'any either questions arising between the parties to the suit in which the decree was passed or their representatives, and relating to the execution, discharge or satisfaction of the decree, or to the stay of execution thereof.' It does not appear, moreover, that in those cases there had been any application for execution or any order of the execution Court. In Guni Khan v. Kunjo Behary Sein 3 C.L.R. 414 and Poromanand Khasnabish v. Khepoo Paramanick I.L.R. 10 Cal. 354, the Court merely followed the Full Bench decision in Gunamani Dasi v. Pran Kishori Dasi above referred to. In both those cases the decree had been satisfied by an uncertified payment, notwithstanding which the decree-holder took out execution. The judgment-debtors sued for compensation in the form of damages, and it was not attempted to interfere with the execution of the decree.

9. Then there is another class of suits to set aside a sale held in execution of a decree on the ground that the decree had been in fact satisfied by an uncertified payment out of Court. Of this, Ishan Chunder Bandopadhya v. Indro Narain Gossami I.L.R. 9 Cal. 788 and Pat Dasi v. Sharup Chand Mala I.L.R. 11 Cal. 376 were instances. It may be conceded that if a sale which had taken place could be set aside on such a ground, in a separate suit, a separate suit could be maintained to prevent the sale taking place. The first-mentioned case is, I think, really no authority in favour of a separate suit for such a purpose. The Court, it is true, confirmed the decree setting aside the sale, but in doing so it professedly followed the decision of the Full Bench in the case already referred to and the decision in Guni Khan v. Kunjo Behary Sein, although the relief asked for and given was of a wholly different character, and the execution of the decree in the latter two cases was left untouched. Although, however, the sale was set aside, the decree-holder was the purchaser at the execution sale, and it did not in substance matter whether the sale was set aside or whether he was directed to recovery the property, and no objection to the decree appears to have been taken on that ground.

10. The case of' Pat Dasi v. Sharup Chand Mala was different. There the plaintiff's property had been sold in execution of a decree for money and purchased by a person who was no party to the decree in which the suit was passed. The judgment-debtor then brought a suit against the decree-holder and the purchaser to set aside the sale, on the ground that the decree had been privately satisfied and that the subsequent proceedings in execution were fraudulent. A division Bench of this Court, after holding that the private payment could be proved otherwise than by a certificate under Section 258, set aside the sale on the ground that the decree having been satisfied was inoperative, and that the sale was void and of no effect. I should hesitate to follow that decision to its full extent under any circumstances, but in so far as it is an authority to show that a suit of that nature could be at all maintained, it is, I think, directly opposed to a recent decision of the Judicial Committee, in Prosunno Kumar Sanyal v. Kali Das Sanyal I.L.R. 19 Cal. 683 : L.R. 19 I.A. 166. That was a suit of the same description. There was an alleged private payment by some of the judgment-debtors of their share of the decree and an alleged agreement by the decree-holder not to execute it as against them. Notwithstanding that, he did execute it, and sold their property, which was purchased by a third party. The judgment-debtors then brought a suit against the decree-holder and the purchaser to set aside the sale. It was argued that Section 244 did not apply, as the purchaser was not a party to the suit in which the decree was passed, but their Lordships said that made no difference, and that the suit was prohibited by Section 244; they added that they were glad to find that the Courts in India had not placed any narrow construction on the provisions of Section 244. That case seems to go further in the direction of a strict enforcement of the provisions of Section 244 than the decision of the Full Bench of this Court in Mohendro Narain Chaturaj v. Gopal Mondul I.L.R. 17 Cal. 769.

11. The argument that Section 244 does not apply to the present case would, I think, be equally applicable to the case which was before the Privy Council. Neither before sale nor after sale can an uncertified payment be proved in the Court executing the decree. If Section 244 does not apply to a suit in which an uncertified payment is set up before the sale, it would not, it seems to me, apply to a suit in which it was set up after the sale. In neither instance could the Court executing the decree give any relief.

12. Another argument has been founded on the alteration in the last paragraph of Section 258. The Codes of 1859 (Section 206) and 1877 (Section 258) provided that an adjustment of a decree made out of Court should not be recognized by the Court executing the decree unless it had been certified to that Court. By Act XII of 1879, Section 258 of Act X of 1877 was altered so that the adjustment should not be recognized by any Court. The provisions remained till 1888, when by Act VII of that year the section was again altered, so that the adjustment should not be recognized by any Court executing the decree. The alteration effected in 1879 gave rise to some difference of opinion as to the proper construction of the words 'any Court' [See Ishan Chunder Bandopadhya, v. Indro Narain Gossami I.L.R. 9 Cal. 788, Poromanand Khasnabish v. Khepoo Paramanic I.L.R. 10 Cal. 354, Pat Dasi v. Sharup Chand Mola I.L.R. 14 Cal. 376, Abdul Rahiman v. Khoja Khaki Aruth I.L.R. 11 Bom. 6], and the Act of 1888 restored the old provision. The effect of the alteration last made was not, I think, to limit or in any way interfere with the operation of Section 244. It admits of an uncertified payment being proved in any other Court, but not for the purpose of preventing or interfering with the execution of the decree

13. I think the suit has been rightly dismissed, but as my learned colleague takes a different view, the case must be referred under Section 575 of the Code to such one or more Judges of the Court as the Chief Justice may appoint.

Banerjee, J.

14. The question that arises for determination in this case is whether the suit is barred by Section 244 of the Code of Civil Procedure.

15. The suit was brought by the plaintiff appellant, on the allegation that the defendant on the 31st of January 1887 obtained a decree for a certain sum of money against the plaintiff and certain other person; that after having obtained partial satisfaction by execution of that decree he entered into a contract with the plaintiff by which he released the plaintiff' from all liability under the decree upon obtaining from the latter a mortgage bond, dated the 26th August 1887, for a certain sum of money which was made up partly of what was settled to be the remainder of the plaintiff's' debt under the decree and partly of a debt due on a certain bohi khata or account; that the defendant promised to file in Court a petition exonerating plaintiff from liability under the decree, but in contravention of such promise applied for execution against her and the other judgment-debtors on the 12th March 1890; that the plaintiff thereupon raised objections to the execution proceeding against her, but they were disallowed on the 24th of January 1891 under Section 258 of the Code of Civil Procedure; and that the plaintiff was consequently obliged to bring this suit for a declaration that the defendant has no right to execute the decree against the plaintiff and for an injunction restraining him from doing so. The defendant amongst other matters urged that the suit was barred by Section 244 of the Code of Civil Procedure; that the bond mentioned by the plaintiff was not taken in satisfaction of the decree; and that there was no agreement to release her from liability under the decree.

16. The first Court held that the suit was not barred by Section 214, but that the agreement setup by the plaintiff was not established and it accordingly dismissed the suit.

17. On appeal the lower Appellate Court, without going into the merits, has affirmed the first Court's decree dismissing the suit on the ground that it is barred by Section 244.

18. In second appeal it is contended for the plaintiff that the suit is not barred by Section 244 of the Code of Civil Procedure; and in my opinion this contention is valid.

19. Section 244 of the Code of Civil Procedure enacts that certain classes of questions arising between the parties to a suit including, among others, questions relating to the discharge or satisfaction of the decree, shall be determined by order of the Court executing the decree and not by separate suit. A provision like this evidently implies that the question for the determination of which a separate suit is prohibited are questions which the Court executing the decree is competent to determine in the course of the execution proceedings, and the object of such a provision obviously is, not to bar inquiry into any question, but to enable the parties to obtain adjudication of questions relating to execution without any unnecessary expense or delay such as a fresh suit might entail. Section 244 of the Code of Civil Procedure cannot, therefore, be taken to have been intended to bar a suit like the present, for the determination of the question whether there was or was not an adjustment of the decree which the decree-holder wrongfully omitted to certify to the Court, after having undertaken to do so, when Section 258 of the same Code prohibits the Court executing the decree to recognize such uncertified adjustment. The same view was taken of the corresponding provisions of the old law (Section 11 of Act XXIII of 1861 and Section 206 of Act VIII of 1859) by a Full Bench of this Court in the case of (Gunamani Dasi v. Pran Kishori Dasi 5 B.L.R. 223 : 13 W.R.F.B. 69) in which Sir R. Couch in his judgment observed: 'There is nothing in Section 11 of Act XXIII of 1861. which prevents such a suit as the present from being brought. That section says that all questions relating to sums alleged to have been paid in discharge or satisfaction of the decree or the like, and any other questions arising between the parties to the suit in which the decree was passed and relating to the execution of the decree, shall be determined by order of the Court executing the decree, and not by a separate suit; but Section 206 of Act VIII of 1859 prevents the Court executing the decree from taking any notice of payments not made through the Court or certified to the Court, and 1 cannot think that it was the intention of the Legislature that the Courts executing the decree should be bound to hear and determine questions as to payments which by Section 206 they were forbidden to recognize. I think these two sections can only be reconciled by holding that Section 11 does not apply to payments made out of Court and not certified to the Court and of which it cannot take notice.'.

20. To hold otherwise, that is, to hold that an uncertified adjustment of a decree cannot be given effect to as an adjustment by a separate suit, would be to hold that it cannot be recognized and given effect to at all. For if it cannot be recognized and given effect to by a separate suit, then seeing that its cognizance by the Court executing the decree is barred by Section 258, there is no other mode in which it can be given effect to. This, however, the Legislature did not intend, as the language of Section 258, and the successive changes in the law before 'it assumed its present form,, will amply show. In the Civil Procedure Code of 1877 (Act X of 1877, Section 258) the provision on this point was that an adjustment of a decree not certified to the Court whose duty it was to execute it, should not be recognized by such Court. The section was amended by Act XII of 1879, which provided that an uncertified adjustment shall not be recognized by any Court, and the provision was re-enacted in that form in the Code of 1882. While this was the law, this Court held in the case of Ishan Chunder Bandopadhya v. Indro Narain Gossami I.L.R. 9 Cal. 788 that any Court meant any Court of execution, and that suits based on an uncertified adjustment would lie, while a Full Bench of the Bombay High Court in the case of Abdul Rahiman v. Khoja Khaki Aruth I.L.R. 11 Bom. 6 took the opposite view; and then followed the last amendment of the provision by Act 'VII of 1888, by which it is now enacted in the last paragraph of Section 258 that an uncertified adjustment shall not be recognized as an adjustment of the decree by any Court executing the decree.

21. It is, therefore, no longer open to any one to contend that an uncertified adjustment of a decree cannot be recognized in a separate suit and be made the basis of relief. It was, however, contended by the learned Counsel for the respondent that though an uncertified adjustment of a decree may be recognized by a Court in a separate suit, such suit can be brought only after the execution proceedings have run out their course, and brought only for damages for the wrongful execution, and that a suit to arrest the progress of the execution proceedings by an injunction is barred by Section 244. I am unable to accept this argument as sound. Section 258 by enacting that an uncertified adjustment cannot be recognized as an adjustment of the decree by any Court executing the decree, implies that it may be recognized as such by a Court trying the matter as a regular suit; and if it can recognize the adjustment as such and can make it the basis of some relief, as was conceded, and must upon the authorities be conceded, I fail to see why the Court should be precluded from giving effect to the adjustment and granting full relief, or why the wrong-doer should be allowed to use or rather abuse the process of the Court, and the party wronged should be compelled to sit quiet until the wrong--it may be an irreparable one--is completely done, and then seek for compensation as his only remedy, though in many cases it would be a most inadequate one. It was urged that Section 244 is answerable for such anomaly and injustice. But, as I have said above, Section 244 does not require all this; and Sections 244 and 258 may be reconciled in the same way as Sir R. Couch reconciled the corresponding provisions of the old law, namely by holding that Section 244 prohibits a separate suit for the determination of those matters only which can be determined by the Court of execution. Some reliance was placed, in the argument for the respondent, on the Full Bench decision of this Court in Mohendro Narain Chaturaj v. Gopal Mondul I.L.R. 17 Cal. 769 and on the decision of the Judicial Committee in Prosunno Kumar Sanyal v. Kali Das Sanyal I.L.R. 19 Cal. 683 : L.R. 19 I.A. 116. Those cases, however, do not directly bear on the present question. So far as they bear upon it they only show that the object of Section 244 is a beneficial one, and that it should receive a liberal construction; and that matters relating to execution should he determined as cheaply and as speedily as possible, that is by the Court of execution. But they are not, as I understand them, any authority for the position that a separate suit is barred even as to matters which cannot be determined by the Court of execution.

22. It was expressly held by Couch, C.J. and Ainslie, J., in the case of Nubo Kishen Mookerjee v. Debnath Roy Chowdhry 22 W.R. 194, and by Markby and Mitter, JJ., in Nujeeni Mullick v. Erfan Mollah 22 W.R. 298, that a suit would lie for an injunction to restrain a decree-holder from executing his decree in contravention of an adjustment not certified to the Court. Those cases I think are direct authority in support of the appellant. The learned Counsel for the respondent tried to distinguish those cases from the present, by showing that the provisions of Section 244 are more comprehensive than those of Section 11 of Act XXIII of 1861, which was the law then in force. But I do not see any real difference so far as the point now under discussion is concerned. It is true that Section 244 expressly refers to questions relating to discharge or satisfaction or stay of execution, but they were I think all included in the words, 'any other questions relating to the execution of the decree.'

23. For all these reasons I think the appeal ought to be allowed, and the decree of the lower Court set aside, and the case remanded to that Court for trial on the merits. But as my learned colleague takes a different view, I agree with him in referring the case under Section 575 of the Code of Civil Procedure read with Section 587 to such other Judge or Judges of this Court as the Chief Justice may appoint.

24. There being a difference of opinion between the learned Judges who heard the appeal, the case was referred under Section 575 of the Civil Procedure Code to Pigot, J., who gave the following decision:

Pigot, J.

25. This case has been referred to me under Section 575 of the Code of Civil Procedure.

26. The facts of the case and the questions of law arising in it are fully stated in the judgments of my learned colleagues. The case comes to this Court in the following manner:

The plaintiff is one of several judgment-debtors, against whom, as representing Sheikh Mahomed Saleh, father of the plaintiff, the defendant obtained a decree : the decree was in part satisfied by execution. The plaintiff says that after this there was an adjustment of account between plaintiff and defendant in respect of the proportionate share of the decretal amount payable by the plaintiff and the other dues of both parties, including a sum of money due to defendant from the plaintiff's father : that for the amount found due on this adjustment of account the plaintiff executed a mortgage bond to the defendant, in consideration whereof the defendant agreed to exonerate the plaintiff' from liability for the remainder of the decretal amount, and promised to file a petition in Court exonerating her from liability. The plaintiff says that, fully relying on the defendant, she did not put in any petition stating the settlement thus come to.

27. She says that, in violation of the agreement between them, the defendant applied on the 12th March 1890 for execution of the decree against her along with the other judgment-debtors; and that her objection in the execution proceedings was disallowed under Section 258 on January 24th, 1891. She says her cause of action accrued on March 12th, 1890, on January 24th, 1891, and every following day.

28. She asks for a declaration that the defendant did receive the proportionate share of the amount payable by her and exonerated her from liability to the decree; that he has no right to execute it; and that the execution proceedings by him against her are fraudulent.

29. She prays for an injunction restraining defendant from executing the decree against her, and for an interim injunction.

30. The Subordinate Judge found as to the facts that the plaintiff had altogether failed to prove that the defendant had, as she alleged, discharged her from liability under the decree, and he dismissed the suit. But he held that the plaintiff's suit would not have been barred by Section 244 of the Civil Procedure Code had her allegations been proved. The plaintiff appealed from the judgment dismissing the suit on the merits; and the defendant from the decision of the Subordinate Judge holding that the suit was maintainable notwithstanding Section 244. For some reason not stated the latter appeal was, by consent, heard first. The appeal on the merits appears not to have been as yet disposed of. The District Judge, disagreeing with the Subordinate Judge, held that Section 244 was a bar to the suit, and this appeal is against that decision. The question to be determined in this appeal is therefore in some measure a speculative one. As yet, so far as the plaintiff's case on the merits has been decided, it has been found that she has none; and this appeal is to determine whether, if it should turn out that her case on the facts is, after all, well founded, she would be entitled to the relief which she claims. It is not, at any rate, one of those cases of proved hardship such as have arisen from time to time from the perhaps improvident stringency of Section 258, or of the provisions which preceded it. For the appellant it is contended that Section 244 does not bar the determination, by a separate suit, of the questions arising between the parties in the present case, that is the determination of any of those questions the determination of which is necessary for appellant's success. There are, in the present case, two principal questions which may seem to come within the terms of Section 244 : one, whether as a fact there was such an adjustment between the parties as the plaintiff alleges; another, whether, if so, the plaintiff is entitled to a perpetual injunction against the execution of the decree. If the determination of either of those questions is barred by Section 244, the suit must fail. The first relates to the foundation of the suit, the cause of action without which no suit could be maintained; the second to the relief which the plaintiff seeks in the suit--the only relief, indeed, which at present she could claim, if she can claim it: she has as yet sustained no damage from the defendant's act in applying for execution, nor been obliged to pay any sum in addition to the security. She goes on the compromise if her story as to that is true.

31. In considering whether the scope of any suit comes within Section 244, I suppose it may be regarded with reference to these two points : 1st, whether the cause of action can only be made out by the determination of questions which come within the section; 2nd, whether the relief claimed can only be given upon determination of such questions, as for example under the present Section 241 upon determination of questions relating to stay of execution.

32. The numerous cases referred to in the judgments of my learned colleagues have decided that, under Section 206 of the old Code and Section 11 of Act XXIII of 1861, and under Sections 244 and 258 of the later Code, a Civil Court other than a Court executing the decree can recognize an uncertified payment or adjustment of a decree in a suit based upon such payment or adjustment. This goes to the cause of action.

33. The principle upon which this construction of the section was first adopted is stated in Gunamani Dasi v. Pran Kishori Dasi 5 B.L.R. 223 : 13 W.B.F.B. 69 and in other cases--in none more fully and clearly than in the judgment of Kindersley, J., in Viraraghava Reddi v. Subbakka I.L.R. 5 Mad. 397. It is that any other construction must leave a judgment-debtor, against whom a decree really satisfied had been inequitably executed, without any remedy whatsoever; and as the construction was possible it should be adopted. (I may observe that the Legislature, when it altered the terms of Section 258 by Act VII of 1888, had this course of decisions before it, and I think it must be understood to have affirmed, by the alteration then made, the correctness of them.)

34. Accordingly it was held in the case of Gunamani Dasi v. Pran Kishori Dasi and several others that under such circumstances the judgment-debtor might maintain a suit for the money he had paid on the adjustment. So far as the relief thus granted was concerned, no questions coming within Section 11 or Section 244 arose in Gunamani Dasi v. Pran Kishori Dasi.

35. In some cases, however, the Courts holding that, on the principle just mentioned, a suit might be maintained, went further and gave a relief, which did perhaps come within the prohibition of the section, and to which perhaps that principle did not necessarily apply.

36. I own that I think such was the case in Nubo Kishen Mookerjee v. Debnath Roy Chowdhry 22 W.R. 194, which no doubt would be a binding authority upon this Court if the statutory law then in force still prevailed, but which I think I am at liberty to consider upon the question whether it should be treated as binding now under a changed state of the law.

37. In that case, the case of Gunamani Dasi v. Pran Kishori Dasi was followed as to the right to bring a suit founded on the uncertified adjustment. But, besides the question relating to this, there was, with respect to the relief to be granted, a question which certainly related to the execution of the decree, inasmuch as it was whether the decree should be executed at all.

38. It was held that it must not be executed, and for the same reason as is urged on the Court in the present case. That reason is, not that to refuse the plaintiff that remedy would leave him without any remedy whatever, and thereby violate a fundamental maxim of the law, but 'that to abstain from interfering with the execution would leave the plaintiff to be compensated in damages, which might not be an adequate compensation to him.' Since the Act of 1861, the Act in force when the case Nubo Kishen Mookerjee v. Debnath Roy Chowdhry was decided, the Legislature has, by the Acts of 1877, 1879, 1882, and lastly Act VII of 1888, persistently followed the policy of restricting to the Court executing the decree the determination of all questions relating to the execution of the decree and arising between the parties to it. It has, no doubt, made an exception in the case of an uncertified adjustment, so far as to allow a separate suit to be based upon it. I think that must be taken to be the effect of the later change in Section 258. But in Act VII of 1888, in which that section was altered so as to bring it into more complete accordance with the decisions of most of the Courts, an addition to Section 244 (c) was made, as pointed out by Mr. Justice Macpherson in his judgment in this case, which shows I think very strongly the intention of the Legislature, I refer to the words 'or to the stay of execution thereof.'

39. This last mentioned Act was passed soon after the important case of Abdul Rahiman v. Khoja Khaki Aruth I.L.R. 11 Bom. 6 was reported. This Act, by the amendment to Section 258, ended the controversy which had arisen on the construction of that section. With the judgments of the High Court of Bombay before it, in which all the cases were examined, and in which the case of Nubo Kishen Mookerjee v. Debnath Roy Chowdhry was fully discussed, it added the above words to Section 244.

40. I find myself unable to come to any other conclusion than this, that for reasons of policy, which it is not for a Court to contravene, the Legislature has deliberately so framed Section 244 as to prohibit in a separate suit between the parties to a decree any relief being granted which shall interfere with the conduct of the execution proceedings by the Court executing the decree. I do not see any escape from that conclusion, nor do I think it should be avoided, because possibly individual cases of inconvenience (not of absolute denial of all remedy) may arise from it.

41. The case of Prosunno Kumar Sanyal v. Kali Das Sanyal I.L.R. 19 Cal. 683 : L.R. 19 I.A. 166 relied on by Mr. Justice MACPHERSON in his judgment, is, I think, a case of great importance. I have looked at the record in the case. It was, although this is not noticed in the report, a case of verbal adjustment, not certified. The suit was brought to set aside a sale in execution proceedings carried out in violation of the adjustment. It seems therefore undistinguishable from the case of Ishan Chunder Bandopadhya v. Indro Narain Gossami I.L.R. 9 Cal. 788, (where the sale was set aside), save that in the Privy Council case persons not parties to the decree were defendants.

42. This Court (Tottenham and Ghose, JJ.) held that the questions in the suit which had been already raised without success before the Court executing the decree were, as relating to the execution of the decree, barred by Section 244, and dismissed the suit, and the Judicial Committee affirmed that decision.

43. No doubt the argument in that case was on the question whether, having regard to the fact that persons not parties to the decree were defendants, the section could apply; and it was on this question that their Lordships reserved judgment in order to examine the decisions in the Indian Courts upon Section 244. But this rather strengthens the case as an authority; for it was held that as one of the parties to the decree was a defendant, the suit could not lie, because the questions raised in the suit were, as the Judges of this Court had held, questions relating to the execution of the decree under Section 244.

44. This case, it is to be observed, was decided upon that section as it stood before it was altered by Act VII of 1888.

45. There were two questions in the case which, prima facie, might seem to come within Section 244 : first, whether a suit would lie on the uncertified adjustment; and, second, whether the relief claimed, namely, the setting aside of the sale had in execution, involved the determination of a question relating to the execution of the decree. Neither in the judgment of this Court nor in that of the Judicial Committee, does it appear whether it was decided that both of these questions or only one of them was held to bring the case under Section 244.

46. If the first question was thought to be within Section 244, that would be at once to sweep away the whole course of decisions of which the case of Gunamani Dasi v. Pran Kishori Dasi is one. But it is difficult to suppose that this could have been intended by their Lordships, who do not refer in the judgment to that class of cases; and Sir Richard CoUCH, who decided the case of Gunamani Dasi v. Pran Kishori Vasi, was a member of the Board which decided the appeal in the Privy Council. It seems safer to conclude that the questions held to he barred were those relating to the relief claimed, and so far the decisions seem to overrule the case of Ishan Chunder Bandopadhya v. Indro Narain Gossami I.L.R. 9 Cal. 788 and the case of Sakharam Ramchandra Dikshit v. Govind Vaman Dikshit 10 Bom. 361 before West, J., referred to by Sargent, C.J., in Mukund Harshet v. Haridas Khemji I.L.R. 17 Bom. 23, (28) I may say here that the case just mentioned (Mukund Harshet v. Haridas Khemji) relied on for the appellant, was not; a suit on an uncertified adjustment of a decree, but on an agreement made before the decree came into existence.

47. I own that as to the relief by way of injunction grunted in that case it does seem to me not to be consistent with the decision of the Privy Council as to the scope of the words 'relating to the execution, &c;,' and I think, therefore, that i am bound to conclude that, had that decision been before the Court, the case of Mukund Harshet v. Haridas Khemji would have been otherwise decided.

48. It appears to me that Prosunno Kumar Sanyal v. Kali Das Sanyal I.L.R. 19 Cal. 683 : L.R. 19 I.A. 166 is an authority for the opinion expressed by Mr. Justice Macpherson, with which I agree.

49. Upon these grounds I think the suit was rightly dismissed by the District Judge and that this appeal should be dismissed.

50. But I think I ought also to express my opinion that upon the grounds stated by Mr. Justice Farran in Abdul Rahiman v. Khoja Khaki Aruth I.L.R. 11 Bom. 6 at pages 29 and 30 of the report, where the case of Nuba Kishen Mooherjee v. Deb Nath Roy Chowdhry 22 W.R. 194 is discussed, I should find it impossible, apart from the construction of Section 244, to hold the plaintiff entitled to maintain this suit. That learned Judge says: 'There was, however, before Act XII of 1879 came into operation, another class of cases, by which it was in effect held that an uncertified adjustment of a decree out of Court;, though it could not be recognised by the Court concerned with the execution of the decree, yet might be recognised by the same Court as an adjustment of its decree, if the jurisdiction of that Court were invoked by a separate suit. I refer to the cases of Nujeeni Mullick v. Erfan Mollah 22 W.R. 298, where it was held 'that a suit to enforce a contract (uncertified) by which a dispute was adjusted between a decree-holder and a judgment-debtor could be maintained'; to Nubo Kishen Mookerjee v. Debnath Roy Chowdhry I.L.R. 19 Cal. 688 : L.R. 19 I.A. 166, where an injunction was issued to restrain the judgment-creditor from executing his decree, on the ground of an uncertified adjustment; and to Dhuromdhur Sen v. Agra Bank I.L.R. 4 Cal. 380. These rulings were, I think, admissible under the wording of the law as it stood when they were passed; but it appears to me to be an anomaly that in one branch of its jurisdiction a Court should be forbidden to recognise an uncertified adjustment of its decree, and that in another branch of its jurisdiction it should be permitted to recognise the same uncertified adjustment of the same decree and for the same purpose; that in the latter branch it should issue an injunction in effect against itself in the former branch, and this, too, in the face of the declared expression of the will of the Legislature that all questions between the parties to suit relating to the execution of a decree shall be dealt with by the Court executing the decree, and not by separate suit. The power of the Court in each branch of its jurisdiction to inquire into the alleged adjustment by the examination of witnesses is the same, and in each case its decision is open to appeal. I am unable to discover any ground upon which the anomaly can be defended. It is opposed alike to the wording and spirit of Section 56 of the Specific Relief Act, I of 1877.'

51. Further, the circumstances of this case are different from those in the case of Nubo Kishun Mookerjee v. Debnath Roy Chowdhry. In the case of Nubo Kishen Mookerjee v. Debnath Roy Chowdhry the suit was brought to restrain the defendant in it from applying to execute the decree. No execution proceedings had been commenced.

52. In this case the Court of the Subordinate Judge has had before it, since the 12th March 1890, the proceedings in execution, in the course of which that Court rejected the plaintiff's objection. The Court which is asked to grant the injunction is asked to restrain its own proceedings; it is now actually the Court executing the decree. It appears to me that it would be a serious anomaly that the Court executing the decree, in which character it cannot recognize the uncertified adjustment, should have the power at pleasure of divesting itself of that character in order to enable it to take cognizance of the adjustment for the purpose, by its own order, of putting an end to its own existence as a Court executing the decree, and getting rid of the execution proceedings, in which it is bound by law to disregard the adjustment. It is true that Sir C. Sargent, C.J. in the case of Swamirao Narayan Deshpande v. Kashinath Krishna Mutalik Dasai I.L.R. 15 Bom. 419 says (at page 421 of the report) that since Act VII of 1888 the payment or adjustment may be recognized by a Civil Court, 'except when executing the decree.' I do not understand the Chief Justice to suggest that the prohibition only applies to the Court during the moments it is actually engaged upon the execution proceedings. I understand these words to be equivalent to 'except when execution proceedings are pending in the Court.' I think that so long as execution proceedings are pending in a Court, it is a Court executing the decree, and the prohibition applies to it.

53. I think, therefore, that the case of Nubo Kishen Mookerjee v. Debnath Roy Chowdhry is not an authority applicable to the present one, assuming that under the law as it now stands it could be followed.

54. I think the appeal should be dismissed with costs.

55. There can be no doubt that upon this which seems to me and to Mr. Justice Macpherson a necessary construction of the law as it stands, some hardship is inflicted upon a judgment-debtor who was paid the decretal amount, as a consequence of his having neglected to avail himself of his right to compel the decree-holder to certify. The hardship arises from the very short period of limitation allowed for such an application. Were that period extended to a year, and made to run from the time the judgment-debtor learned that the decree-holder had neglected the statutory duty of certifying,--a duty for the violation of which no penalty is imposed,--I cannot help thinking that much costly litigation would be avoided.

* Payment of moneys under decrees, etc.

Adjustment of decree be made through the Court.

[Section 206.--All moneys payable under a decree shall be paid into the Court, whose duty it is to execute the decree, unless such Court or the Court which passed the decree shall otherwise to direct. No adjustment of a decree in part or in whole shall be recognized by the Court unless such adjustment be made through the Court or be certified to the Court by the person in whose favour the decree has been made or to whom it has been transferred.]


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