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Prasanna Kumar Shaha Vs. Lal Mian - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in55Ind.Cas.669
AppellantPrasanna Kumar Shaha
RespondentLal Mian
Excerpt:
civil procedure code (act v of 1908); order xxi, rule 2 - execution of decree--executing court, jurisdiction of, to entertain question of payment or adjustment of decree. - .....peon same to serve it, it appears that be was told that part of the money had been paid and the decree-holder not wishing to proceed with the execution the writ was returned unserved. that was on the 13th december 1917 and on the 22nd of that month the execution case was dismissed for want of prosecution. on the 28th may 1918 the decree-holder applied for execution for the sum of rs. 95-10 annas, stating that rs. 73 had been paid on a previous occasion. that execution case was no. 978 of 1918. on the 18th january 1919 the judgment-debtor instituted a miscellanious case no. 23 of 1919, alleging that the whole of the decree had been satisfied by payment of rs. 85 on the 6th december 1917. his case is that rs. 70 had been paid in august 1917 and rs. 85 had been accepted in satisfaction.....
Judgment:

Beachcroft, J.

1. This Rule was issued at the instance of the decree-holder. Part of the decree had been satisfied and on the 22nd August 1917 he took out execution for the balance of the decree, amounting to Rs. 162 and odd. The writ of attachment was issued, but when the Court peon same to serve it, it appears that be was told that part of the money had been paid and the decree-holder not wishing to proceed with the execution the writ was returned unserved. That was on the 13th December 1917 and on the 22nd of that month the execution case was dismissed for want of prosecution. On the 28th May 1918 the decree-holder applied for execution for the sum of Rs. 95-10 annas, stating that Rs. 73 had been paid on a previous occasion. That execution case was No. 978 of 1918. On the 18th January 1919 the judgment-debtor instituted a miscellanious case No. 23 of 1919, alleging that the whole of the decree had been satisfied by payment of Rs. 85 on the 6th December 1917. His case is that Rs. 70 had been paid in August 1917 and Rs. 85 had been accepted in satisfaction of the balance of the decree, The Subordinate Judge has dismissed the application for execution on the ground that the decree had been fully satisfied. He appears to have acted on the report of the peon, dated 13th December 1917. He says: 'From the peon's report in the previous case it would seem that the decree-holder's dues had been paid up.'

2. The learned Judge's order is open to criticism on various grounds. In the first place, as a matter of fact the report of the peon, or at any rate the translation that is put before me, does not show that the whole amount due had been paid up. In the second place, it appears that the peon has not been examined. But the most important of all points, for this is a point which touches the question of jurisdiction, is that the learned Judge was not entitled to go into this question of payment at all, because under Order XXI, Rule 2(3), a payment or adjustment which has not been certified or recorded in the manner provided by the rule is not to be recognized by the Court executing the decree, The payment is alleged by the judgment debtor to have been made in December 1917. The judgment-debtor had three months in which to apply to the Court to record the payment. He did not do so within the time allowed and, therefore, the Court had no jurisdiction to entertain the question as to whether there had been this payment or not.

3. The order of the learned Judge dated 9th August 1919 is accordingly set aside and the execution case must be returned to him to be proceeded with in accordance with law. The decree-holder will get his costs of this hearing, which I assess at one gold mohur.

4. Let the record be sent down at once.


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