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Mukunda Lal De Vs. Bansidhar Marwari - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1923Cal342,76Ind.Cas.311
AppellantMukunda Lal De
RespondentBansidhar Marwari
Cases ReferredKamini Kumar Saha Chaudhury v. Abdul Rahim
Excerpt:
civil procedure code (act vof 1908), section 47, order xxi, rule 2 (2), scope of - failure to record satisfaction of decree within time--fraud of decree-holder--execution court, whether can investigate fraud. - .....respondent obtained a decree for rs. 765 against the present appellant. on the 2nd august 1917 the decree-holder applied for execution of his decree, the execution case being numbered 480 of 1917. on execution being levied, the judgment-debtor, it is alleged, entered into a compromise with the decree-holder, the compromise being in these terms, viz., that the judgment-debtor executed a mortgage-bond in favour of the decree-holder for a sum of rs. 1,500 which was made up as follows.--rs. 1,050 being the consideration in respect of a previous bond, a sum of rs. 450 being the balance of the decree referred to above, a sum of rs. 250 paid to the decree-holder in cash and the balance rs. 65 being remitted by the decree-holder. the judgment-debtor alleges that the decree-holder promised, on.....
Judgment:

1. The facts which have given rise to this appeal shortly stated are as follows:--On the 7th August 1916 the present respondent obtained a decree for Rs. 765 against the present appellant. On the 2nd August 1917 the decree-holder applied for execution of his decree, the execution case being numbered 480 of 1917. On execution being levied, the judgment-debtor, it is alleged, entered into a compromise with the decree-holder, the compromise being in these terms, viz., that the judgment-debtor executed a mortgage-bond in favour of the decree-holder for a sum of Rs. 1,500 which was made up as follows.--Rs. 1,050 being the consideration in respect of a previous bond, a sum of Rs. 450 being the balance of the decree referred to above, a sum of Rs. 250 paid to the decree-holder in cash and the balance Rs. 65 being remitted by the decree-holder. The judgment-debtor alleges that the decree-holder promised, on the execution of the said bond, that he would certify an adjustment of the decree to the Court whose duty it was to execute the decree but that, notwithstanding his promise to so certify the adjustment of the decree, the decree-holder failed and neglected to do so. The decree-holder, it is further alleged, applied for execution of the decree not withstanding the fact of the said adjustment on the 10th February 1919. It appears that the execution case was struck off for want of prosecution. Sometime in April 1921 the decree-holder made a fresh application for execution of the decree and in opposition to this fresh application for execution of the decree, the judgment-debtor stated that the decree had been lawfully adjusted in 1917 and that the decree-holder had fraudulently failed and neglected to certify to the Court the fact of such adjustment and that by reason of fraud on the part of the decree-holder in failing to certify such adjustment to the Court, he, the judgment-debtor, had been prevented from applying to the Court under the provisions of Sub-rule (2) of Order XXI, Rule 2 for an order that the said adjustment should be recorded and that, in these circumstances, the application for execution was not maintainable and, in the alternative, an extension of time should be granted to him in order to make the necessary application as contemplated in Sub-rule (2) of Order XXI, Rule 2 of the Code of Civil Procedure. The lower Appellate Court has held that, inasmuch as the time allowed to the judgment-debtor to make an application under Sub-rule (2) of Order XXI, Rule 2, is 90 days under Article 174 of the First Schedule of the limitation Act, and inasmuch as the period indicated therein has long elapsed, the judgment-debtor could not resist the decree-holder's application for execution of the decree on the ground that the decree had been lawfully adjusted, because the fact of such adjustment had remained uncertified to the Court. Dr. Mitter who has appeared on behalf of the judgment-debtor appellant has argued, on the authority of the cases reported as Trimback Ramkrishna Ranade v. Hari Laxman Ranade 7 Ind. Cas. 940 : 34 B. 575 : 12 Bom. L.R. 686, and Hansa Godhaji Marwadi v. Bhawa Jogaji Marwadi 33 Ind. Cas. 232 : 40 B. 333 : 18 Bom. L.R. 22, that the omission on the part of the decree-holder to certify the fact of the adjustment of the decree, notwithstanding his promise to do so, was really a fraud upon the Court and, in the circumstances, the Courts below should have dismissed the decree-holder's application for execution or, in the alternative, should have allowed the judgment-debtor's application to have the adjustment recorded under the provisions of Sub-rule (2) of Order XXI, Rule 2. He argues that if there was fraud on the part of the decree-holder, it was a question which came rightly within the purview of Section 47 of the Civil Procedure Code and that, in that event, no question of limitation, as provided for in Article 174 of the First Schedule of the Limitation Act, would arise as an obstacle in the way of the judgment-debtor. This question has recently been discussed and, so far as this Court is concerned, the overwhelming balance of authorities is against Dr. Mitter's contention. It is unnecessary to go through the cases again but it is sufficient to observe, as pointed out in the case reported as Biroo Gorain v. Jaimurat Koer 13 Ind. Cas. 63 : 16 C.W.N. 923 : 16 C.L.J. 174, that a proceeding under Sub-rule (2) of Order XXI, Rule 2 is a proceeding under Section 47 of the Code, inasmuch as it decides the question between the parties to the suit and relating to the execution, satisfaction or discharge of the decree made in the suit. Further, if the contention now advanced by Dr. Mitter on behalf of the judgment-debtor-appellant were to prevail, in all cases where fraud is imputed to the decree-holder the provisions of Clause (3) of Order XXI, Rule 2, would become nugatory in other words, the provisions of Rule 2 would be superseded by the wider provisions of Section 47 of the Code. It would also have the effect, as pointed out by the Privy Council in the case reported as Chhatrapat Singh Dugar v. Kharag Singh Lachmiram 39 Ind. Cas. 788 : 19 Bom. L.R. 174 at p. 178 : 44 C. 535 : 21 M.L.T. 36 : 15 A.L.J. 87 : (1917) M.W.N. 100 : 32 M.L.J. 1 : 25 C.L.J. 215 : 21 C.W.N. 497 10 Bur. L.T. 25 : 44 I.A. 111 (P.C.), of the Courts allowing themselves to be influenced by the plea of hardship on account of the strict application of the rule under Article 174 of the Limitation Act instead of being guided in their decisions by clear and unambiguous words of Sub-section (2) of Order XXI, Rule 2 of the Code of Civil Procedure. The case in Biroo Gorain v, Jaimurat Koer 13 Ind. Cas. 63 : 16 C.W.N. 923 : 16 C.L.J. 174, is in accordance with the view taken in Ganapathy Ayyar v. Chenga Reddi 29 M. 312 : 16 M.L.J. and has also been followed in the case reported as Imamuidin Khan v. Binda-basint Prasad 55 Ind. Cas. 890 : 5 P.L.(sic)01 P.L.T. 149 : (191) Pat. 360. Dr. Mitter has called our attention to the case in Gadadhar Panda v. Shyam Chum Naik 12 C.W.N. 485, and has argued that inasmuch as it has been held in that case that the question such as has been urged by his client came within the purview of Section 47 of the Code of Civil Procedure it ought to be held on the authority of the last mentioned case that the question which his client now urges should also be similarly treated as a question under Section 47 of the Code of Civil Procedure and as such it ought to be held that instead of Article 174 being made applicable to the present case, the judgment-debtor should have three years' time to have this matter investigated. Now, with reference to the case reported as Gadadhar Panda v. Shyam Chum Naik 12 C.W.N. 485, as pointed out by Mookerjee, J., in Biroo Gorain v. Jaimurat Koer 13 Ind. Cas. 63 : 16 C.W.N. 923 : 16 C.L.J. 174, that although there are isolated expressions which may lend support to the view that Section 47 may be invoked in cases of this description still when the case is analysed, it does not support the contention of the appellant and it would appear that the learned Judges did not intend to lay down a general rule that, although the period of limitation within which art application by the judgment-debtor under Clause (2) of Rule 2 of Order XXI, is to be presented to the Court has expired, it is still open to him to secure an investigation of the very same matter and to secure an extension of time by invoking the terms of Section 47 of the Code of Civil Procedure. Dr. Mitter has. rightly drawn our attention to a recent decision reported as Kamini Kumar Saha Chaudhury v. Abdul Rahim 53 Ind. Cas. 67 : 30 C.L.J. 248, being a decision of Chatterjea and Duval, JJ. On examination of the facts in the last mentioned case, it would appear that the fact of the payment in satisfaction of the decree which was the subject-matter of the execution in that case was certified to the Court not in the execution case relating to the particular decree, but in another execution case pending between the parties. No. question of limitation such as has arisen in the present case arose in that case and the only question which was before the learned Judges for decision was whether on the facts of that particular Case, Section 47 could be invoked or not, They apparently were of opinion that Section 47 would enable the judgment-debtor to have an investigation of the matter arising out of the fact of the particular case. As has been pointed, out in the judgment of the Patna Court, the overwhelming balance of more modern authorities is decidedly against the contention raised by Dr. Mitter and in this view of matter, there is no other alternative but to hold that the appeal fails and must be dismissed with costs. We asses the hearing fee at two gold mohurs.


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