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Babar Ali Biswas Vs. Shishir Kumar Bose Roy Chowdhury and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in14Ind.Cas.574
AppellantBabar Ali Biswas
RespondentShishir Kumar Bose Roy Chowdhury and anr.
Cases Referred and Iswar Ohiwirx Dutt v. Hiri Chandra Dutt
Excerpt:
execution of decree - admission of decree-holder that decree was fraudulent and that judgment-debtor was relieved from liability--whether decree-holder's sons can execute decree--civil procedure code (act v of 1908), order xxi, rule 2. - .....which has given rise to the present, appeal, in which he sought on behalf of the two minor sons of sital for execution of the decree for the balance which, he alleged, was outstanding in their favour.3. the court of first instance dismissed the application. the learned munsif held that, from the admission made by sital in the suit brought against him by sudhanaya, it was clear that the decree obtained against babar ali was a fraudulent decree and was the outcome of enmity between them and him, that a sum of money was accepted in full satisfaction of that decree, apparently meaning the sum of rs. 200 received on the 5th kaitik 1314, and that, after that admission by the father, the application made on behalf of the sons for execution of the decree for the balance outstanding could not.....
Judgment:

1. This is an appeal against an order passed by the lower Appellate Court in certain execution proceedings. It appears that a suit was brought by the father of the two respondents in the present appeal and by his brother, Sudhanaya Roy, against the present appellant and a decree was obtained on the 9th September 1907. In October 1907, corresponding to 5th Kartik 1314 B.S., a sum of Rs. 200 was admittedly paid by the judgment-debtor to the decree-holders. Afterwards, Sudhanaya Roy, the brother of the father of the respondents, brought a partition suit against his brother Sital Roy and, in his plaint, he alleged that Sital had not entered in the assets of the family property the decree which they had obtained on the 9th September 1907 against Babar Ali. Sital, in his written statement, put in an objection to this allegation. He said that, at the time when this decree was obtained by the two brothers against Babar Ali, there was enmity between them and Babar Ali, that afterwards Babar Ali had come under their influence and Rs. 200 was accepted in full satisfaction of that decree and that Babar Ali was given to understand that he was exempted from further liability. Afterwards, when satisfaction was certified to the Court, the payment was certified as made only in satisfaction of one instalment due under that decree. It is not clear what was the result of that suit but Sital afterwards died and Sudhanaya, his brother, after putting in a petition admitting receipt of another Rs. 200 from Babar Ali in Aghran 1316, filed a certificate admitting full satisfaction of his half share of the decree and then put in the application which has given rise to the present, appeal, in which he sought on behalf of the two minor sons of Sital for execution of the decree for the balance which, he alleged, was outstanding in their favour.

3. The Court of first instance dismissed the application. The learned Munsif held that, from the admission made by Sital in the suit brought against him by Sudhanaya, it was clear that the decree obtained against Babar Ali was a fraudulent decree and was the outcome of enmity between them and him, that a sum of money was accepted in full satisfaction of that decree, apparently meaning the sum of Rs. 200 received on the 5th Kaitik 1314, and that, after that admission by the father, the application made on behalf of the sons for execution of the decree for the balance outstanding could not proceed. The Muusif further found that throughout the whole proceedings, there was clear proof of fraud on the part of Sudhanaya. He not only held that the original decree was a fraudulent decree and that no money was really due under it to the present applicants, but he also held that Sudhanaya fraudulently put in the certificate in satisfaction of his half share of the decretal money in order to avoid the effect of the admission made by Sital in the case which he had brought against him.

4. On appeal, the lower Appellate Court has entirely ignored the Question whether the Munsif was entitled to rely on the admission made by Sital in the suit brought against him by Sudhanaya and has confined its attention entirely to the point whether the Court of first instance was entitled, in execution of the decree, to accept any evidence of payment or adjustment which had not been certified or recorded as required by Order XX I, Rule 2, Civil Procedure Code. The learned District Judge held that as full satisfaction of the decree had not bean certified when Rs. 200 was paid to Sital and Sudnanaya in 1314, the Court of first instance was not entitled to arrive at the conclusion that the decree had been satisfied, and he further found that there was no allegation that the decree-holders had by fraud kept the judgment-debtor in ignorance of the fact that satisfaction of the decree had not been certified. The learned Judge, therefore, set aside the judgment arid order of the Court of first instance and directed that the execution should proceed.

5. The judgment-debtor, Babar Ali, has now appealed to this Court; and, in support of the appeal, the main point taken is that the Court of first instance was justified in the view which it took that, after Sital, the father of the present applicants for exacution, had, is the suit brought against him by Sudhanaya, substantially admitted that the decree was fraudulent a decree and that the money paid by Babar Ali had been accepted in full satisfaction of that decree, no further sue; was due from Babar Ali on account of that decree and that the decree was merely kept alive for the purpose of exercising pressure over Babar Ali in consequence of the enmity which existed between him and Sital and Sudhanaya. The point for consideration in this case was not really one falling under the provisions of Rule 2 of Order XXI, Civil Procedure Code, but was whether, in the face of the admission made by the father, the two sons were entitled to succeed in the present application. The learned Pleader for the respondents has contended with great earnestness that the Court of first instance, in execution of the decree, had no right whatever to go into the matter whether or not Sital, the father of the minors, had admitted that no money was due to him from Babar Ali under this decree. The learned Pleader has contended that all that the executing Court could take into consideration was the payment made under the decree which had been duly certified to the Court as required by Rule 2 of Order XXI of the Code and that, as full satisfaction of the decree had not been certified when the payment was made in Kartik 1314, therefore, the executing Court had no jurisdiction to do anything else but to direct the execution to proceed; and, in support of this contention, he has relied one cases of Bajrang Behari Lal v. Laehmi Narain 15 C.L.J. 88 : 13 Ind. Cas. 941 and Iswar Ohiwirx Dutt v. Hiri Chandra Dutt 25 C. 713 : 2 C.W.N. 247. With the decision of this Court in those two case3 we have no desire to disagree, but the important point to be noticed is that, in those two cases, there was no question whatever whether the decree-holder had, prior to the application for execution, himself admitted that no money was due under the decree. The learned Pleader has contended that the admission contained in the written statement of Sital did not go so far as to say that no money was due under the decree after the payment of the Rs. 200 and he suggests that, in the case in which that decree was obtained, the Court, on the application of the judgment-debtor, directed that the decree should be paid by instalments. These facts may be true or not, but there is nothing on the record bafore us to support them. The learned Pleader has thought it his duty to read out to us the paragraphs in the written statement of Sital on which the learned Muusif has relied as showing that he admitted in that suit that the original decree obtained against Babar Ali was a fraudulent decree, that it was obtained at a time when the two brothers were at enmity with Babir Ali and that it was practically cancelled or satisfaction of it was accepted when they succeeded in bringing Babar Ali under their control. In our opinion, the contention which the learned Pleader for the respondents has advanced cannot, with due regard to the facts of the present case, prevail. We are fully in agreement with his argument that, in ordinary cas93, no Court should accept any payment in satisfaction of a decree or any adjustment made in satisfaction of a decree which has not been certified to the executing Court as contemplated by Order XXI, Rule 2, Civil Procedure Code; but, in this case, we have not to consider any adjustment of the decree such as is contemplated by that section. What we have to consider is whether the sons of Sital are, in these execution proceedings, entitled to recover any money due under this decree from Babar Ali after their father in a suit, in which the genuineness of this decree was in issue, had, solemnly in his written statement, admitted what we agree with the Munsif in terms amounted to saying that the original decree was a fraudulent decree, the result of enmity between the two brothers and Babar Ali and that the two brothers had subsequently relieved Babar Ali from any liability under that decree when they received the Rs. 200. In our opinion, the Court of first instance was entitled to take that admission into consideration in determining whether the present proceedings in execution should be allowed to go on and the lower Appellate Court was wrong in refusing to give effect to that admission and in setting aside the judgment and order of the Court of first instance for the reasons given in its judgment. We, therefore, decree the appeal, set aside the judgment and order of the Court of appeal below and restore the judgment and order of the Court of first instance with costs. We assess the hearing fee in this Court at three gold muhurs.


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