Skip to content


Tarak Nath Sarkar Vs. Natabar Mondal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported inAIR1915Cal744(2),30Ind.Cas.45
AppellantTarak Nath Sarkar
RespondentNatabar Mondal
Excerpt:
decree, execution of - civil procedure code (act v of 1908), order xxi, rule 2, clause (3)--payment or adjustment recognized, when certified or recorded--judgment-debtor not to suffer for court's negligence in making record. - .....satisfied by payment out of court and that the satisfaction had been notified to the court by the decree-holder. the decree holder objected that no notice could be taken of the alleged payment, as the record of the court did not show that it had been certified under clause (3) of rule 2 of order xxi of the code; and he denied that the decree had been satisfied or that he had ever admitted satisfaction in any petition filed by him in court. the courts below have found that the payment was in fact made as stated 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 has not been traced and there has been much speculation as to how it has disappeared. we are not concerned with these hypotheses;.....
Judgment:

1. This appeal is directed against an order by which the District Judge, in concurrence with the Court of first instance, has refused an application for execution of a decree. The judgment-debtor pleaded that the decree had been satisfied by payment out of Court and that the satisfaction had been notified to the Court by the decree-holder. The decree holder objected that no notice could be taken of the alleged payment, as the record of the Court did not show that it had been certified under Clause (3) of Rule 2 of Order XXI of the Code; and he denied that the decree had been satisfied or that he had ever admitted satisfaction in any petition filed by him in Court. The Courts below have found that the payment was in fact made as stated 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 has not been traced and there has been much speculation as to how it has disappeared. We are not concerned with these hypotheses; the fact remains that the payment was made, that it was notified to the Court by the decree-holder, and that the latter has taken advantage of the disappearance of the petition to deny falsely that the decree had been satisfied. Under these circumstances the question arises, whether there is 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. In our opinion, there. is no force in this contention.

2. Clause (1) of Rule 2 of Order XXI provides that 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. It is worthy of note that there was no provision in Section 258 of the Code of 1882 which required the Court to record the payment or adjustment. Clause (2) then deals with the case in which the judgment-debtor intimates the fact of payment or adjustment to the Court, and provides that if, after such intimation has been given find a notice has been served upon the decree-holder, the latter fails to show cause why the payment or adjustment should not be recorded as certified, the Court shall record the same accordingly. Clause (3) finally provides that payment or adjustment which has not been certified or recorded as aforesaid, shall not be recognized by any Court executing the decree. A comparison of this clause with the corresponding paragraph of Section 258 of the Code of 1882 shows that the words or recorded' have been introduced for the first time into Clause (3) of Rule 2 of Order XXI. 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-h alder, 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. Under these circumstances, wo arc of opinion that the view taken by the District Judge is correct and his order must be affirmed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //