RADHAKISSEN CHAMRIA Vs. DURGA PROSAD CHAMRIA

JUDGEMENT

(1.) The question for decision in this appeal is whether the holder of a certificate under the Bengal Public Demands Recovery Act (Bengal Act 3 of 1913) who has attached a decree passed in favour of his judgment- debtor and has applied under S. 19 of the Act for its execution, is competent, as the representative of the holder of the attached decree, to adjust such decree with the judgment-debtors thereof for a sum smaller than the amount of the decree. The statutory provisions requiring construction in this appeal are contained in O.21, R.2 and R.53, Civil PC, (Act 5 of 1908) and the said S. 19, of the said Act. O. 21 R. 2 is in these terms : (1) 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. (2) The judgment-debtor also may inform the Court of such payment or adjustment, and apply to the Court to issue a notice to the decree-holder to show cause, on a day to be fixed by the Court, why such payment or adjustment should not be recorded as certified, and if, after service of such notice, the decree-holder fails to show cause why the payment or adjustment should not be recorded as certified, the Court shall record the same accordingly. (3) A payment or adjustment which has not been certified or recorded as aforesaid, shall not be recognized by any Court executing the decree.

(2.) Order 21, Rule 53 is in these terms: (1) Where the property to be attached is a decree, either for the payment of money or for sale in enforcement of a mortgage or charge, the attachment shall be made, (a) if the decrees were passed by the same Court, then by order of such Court, and, (b) if the decree sought to be attached was passed by another Court, then by the issue to such other Court of a notice by the Court which passed the decree sought to be executed, requesting such other Court to stay the execution of its decree unless and until-(i) the Court which passed the decree sought to be executed cancels, the notice, or (ii) the holder of the decree sought to be executed or his judgment-debtor applies to the Court receiving such notice to execute its own decree. (2) Where a Court makes an order under cl. (a) of sub-rule (1) or receives an application under sub-head (ii) of cl. (b) of the said sub-rule, it shall, on the application of the creditor who has attached the decree or his judgment-debtor, proceed to execute the attached decree and apply the net proceeds in satisfaction of the decree sought to be executed. (3) The holder of a decree sought to be executed by the attachment of another decree of the nature specified in sub-r. (1) shall be deemed to be the representative of the holder of the attached decree and to be entitled to execute such attached decree in any manner lawful for the holder thereof. (4) Where the property to be attached in the execution of a decree is a decree other than a decree of the nature referred to in sub-r. (1), the attachment shall be made by a notice by the Court which passed the decree sought to be executed, to the holder of the decree sought to be attached, prohibiting him from transferring or charging the same in any way; and where such decree has been passed by any other Court, also by sending to such other Court a notice to abstain from executing the decree sought to be attached until such notice is cancelled by the Court from which it was sent. (5) The holder of a decree attached under this rule shall give the Court executing the decree such information and aid as may reasonably be required. (6) On the application of the holder of a decree sought to be executed by the attachment of another decree, the Court making an order of attachment under this rule shall give notice of such order to the judgment-debtor bound by the decree attached, and no payment or adjustment of the attached decree made by the judgment-debtor in contravention of such order after receipt of notice thereof, either through the Court or otherwise, shall be recognized by any Court so long as the attachment remains in force.

(3.) Section 19, Public Demands Recovery Act, is as follows : (1) The attachment of a Civil Court decree for the payment of money or for sale in enforcement of a mortgage or charge shall be made by the issue to the Civil Court of a notice requesting the Civil Court to stay the execution of the decree unless and until : (i) the certificate officer cancels the notice, or (ii) the certificate-holder or the certificate-debtor applies to the Court receiving such notice to execute the decree. (2) Where a Civil Court receives an application under cl. (ii) of sub s. (1), it shall, on the application of the certificate-holder or the certificate-debtor, and subject to the provisions of the Civil Procedure Code, 1908, proceed to execute the attached decree and apply the net proceeds in satisfaction of the certificate. (3) The certificate-holder shall be deemed to be the representative of the holder of the attached decree, and to be entitled to execute such attached decree in any manner lawful for the holder thereof. Appellants 1 and 2 are brothers and respondent 1 (hereinafter called "the respondent") is their stepbrother. Appellant 3 is the mother of appellants 1 and 2. .On 21 June 1923, the respondent brought a suit (No. 61 of 1923) in the Court of the Additional Subordinate Judge of Howrah against the appellants to recover Rupees 11,03,063 odd. On 19 April 1926, the suit was decreed on a compromise, on terms that the appellants paid to the respondent Rs. 8,61,000, together with interest thereon and certain expenses, out of which Rupees 4,25,000 and a sum of money in the hands of the receiver in the suit were to be paid immediately and the balance in eighteen monthly instalments of Rs. 35000 each. The payments were made by appellant 3 as agreed, but the respondent, instead of fulfilling the obligation imposed by O. 21, R. 2 (1) of certifying such payments to the Court, applied for execution of the compromise decree, ignoring the payments made up to that time. The appellants thereupon applied to have the said payments recorded as certified under O. 21, R. 2 (2); but the Court, by judgment dated 25 January 1928, held that the application, save as regards three instalments (totalling Rupees 1,05,000) paid within ninety days of the date of the application, was barred by limitation.