PRABHAKAR JAGESHWAR JOSHI Vs. SHANKAR GOVINDRAO JOSHI

JUDGEMENT

(1.) THE respondent obtained a simple money decree against the appellant, and the decree was transferred to the Collector for execution in accordance with the provisions of schedule 3, Civil P.C. Execution was stayed as there were proceedings before the Debt Conciliation Board where the parties came to an agreement that the amount payable should be reduced to Rs. 1575 and that the judgment-debtor should transfer one acre to the decree-holder in lieu of Rs. 75 and pay the remaining RS. 1500 by 25 annual instalments of Rs. 60 each that agreement was never carried out owing to the failure of the judgment-debtor to deposit the registration charges before the Board. It is alleged that on 16th May 1939 the parties came to a second agreement out of Court under which the decree-holder agreed to take a half share of a certain field in full satisfaction of his decretal claim and was placed in possession of this land though no sale deed was executed. It appears that a receipt to this effect was executed by a reputed agent of the decree-holder and that the judgment-debtor produced this receipt before the Collector who dismissed the case as fully satisfied on 6th July 1939 and informed the civil Court to that effect. On 20th July 1939, an entry was made in the register of civil suits showing the decree as fully satisfied by private arrangement.

(2.) ON 18th June 1941 the decree-holder applied to execute the decree, and the question is whether execution is barred by the previous agreement. Under Order 21, Rule 2 a payment or adjustment of a decree must be certified by the decree-holder to the Court whose duty it is to execute a decree, and the judgment-debtor may also inform the Court of such payment or adjustment. Sub-rule (3) provides that a payment or adjustment which has not been certified or recorded, as aforesaid shall not be recognized by any Court executing the decree. In view of the plain words of Sub-rule (3) it seems to me that the only question that now arises for decision is whether the adjustment of the decree has been recorded by the Court whose duty it was to execute the decree. Admittedly the adjustment was never certified j by the decree-holder; the judgment-debtor in formed the Collector and the Collector informed the civil Court. It was held in Muhammad Said Khan v. Payag Sahu (94) 16 All. 228 that an application for certifying payment or adjustment was properly made to the Collector. That decision has been disapproved in Shankar Atmaram v. Keshav Govind A.I.R. 1936 Bom. 227 and Raghoji v. Vithoba . In those cases and also in Narasppa Naik v. Emperor A.I.R. 1935 Bom. 158 it has been held that the Collector is not a Court and has no power to record the adjustment of the decree. In Abdul Shakur v. Muhammad Matin A.I.R. 1924 All. 307 again it was held that the Collector is not a Court. Apart from the decision in Muhammad Said Khan v. Payag Sahu (94) 16 All. 228 where it was not specifically held that the Collector is a Court, it has, I think, almost invariably been held the Collector is not a Court. It therefore follows that the Collector cannot record an adjustment under Order 21, Rule 2.

(3.) I , therefore, agree with the lower Courts that the adjustment has not been certified or recorded and therefore cannot be recognized by the Court executing the decree. That is the only point that arises at this stage. The judgment-debtor may have other remedies open to him but he cannot dispute the executing Court's power to execute the decree. The appeal is dismissed with costs. Counsel's fee Rs. 20.