TARACHAND JAGANNATH Vs. MT. TAIBAI

JUDGEMENT

(1.) THIS appeal has been filed by the judgment-debtor Tarachand against the order of Mr. Adhar Sinha, Additional District Judge, Hoshangabad, who set aside the order of the executing Court and held that the decree was executable. The decree-holder Mt. Tai Bai obtained a decree for village profits for the Sambat years 1990-1995 in Civil Suit No. 15-B of 1935 for Rs. 994-7-0 against the judgment-debtor. The decree-holder had also obtained a similar decree for village profits n Civil Suit No. 186 of 1933 for the sambat years 1885.1890. It is admitted that the latter decree was fully satisfied. The judgment-debtor presented an application on 16th August 1940, in Debt Relief case No. 679 of 1940, before the Debt Relief Court, Harda, under Section 5, Central Provinces and Berar Relief of Indebtedness Act, 1939 (XIV of 1939) (hereinafter referred to as the Act) containing a statement of all claims outstanding against him and asking the Debt Relief Court to prepare a scheme of repayment under Section 11 of the Act. It is admitted that in that application the judgment-debtor wrongly stated Civil Suit No. 180 of 1933 instead of Civil suit No. 15-B of 1989. It is an admitted fact that on the date of the application there was absolutely nothing due under the old decree, in Civil Suit No. 186 of 1933, as the said decretal debt was fully satisfied long before. The decree-holder did not appear and file her statement of claim with in two months as required by Section 8(1) of the Act, with the result that the decretal debt was automatically discharged, under the provisions of Section 8(1) of the Act. Thereafter, on 14th March 1941, she made an application for setting aside the order of discharge of the decretal debt and it is significant to note that in that application she specifically referred to the decree of Rs. 994-7-0 for the Sambat years 1990-1995, without stating the precise number of the suit, viz., Civil Suit No. 15-B of l939.It cannot be disputed that the description, given about the decree in the application, made by the judgment-debtor and in the application presented by the decree, holder, exactly relates only to the latter suit (Civil Suit No. 15-B of 1939). The said description, by any stretch of reasoning cannot be extended to the decree in Civil Suit No. 186 of 1933. The Debt Relief Court, however, dismissed the decree-holder's application, upheld the order of discharge in respect of the decree-holder's debt and passed the final order under Section 11 of the Act, on 30th October 1941. The decree-holder, thereupon, made an application for revision in .the Court of the Additional District Judge, Hoshangabad, under Section 20 of the Act, but that application was dismissed on 18th May 1942.On 2nd February 1948 the decree-holder lodged an application for execution in respect of the decree in Civil Suit No. 13 B of 1939 against her opponent Tarachand. That application was resisted by Tarachand, on the round that the decretal debt having been discharged by the Debt Relief Court under Section 8(1) of the Act, the application for execution was not maintable. It was contended by the decree-holdar that the order of discharge by the Debt Relief Court related only to the decree in Civil suit No. 186 of 1933, as that was the debt which was specifically mentioned by the judgment-debtor before the Debt Relief Court and that the said discharge could not, therefore, affect the executability of the decree in civil Suit No. 15-B of 1989. The executing Court accepted the contention of the judgment debtor and dismissed the application for execution. Against this order, the decree holder appealed to the first appellate Court of Hoshangabad. The learned Judge of the lower appellate Court set aside the order of the executing Court and sent back the case to the lower Court for execution of the decree. Against this decision the present appeal has been preferred to this Court.

(2.) THE first point for determination is whether the order of discharge related to the decree in Civil Suit No. 186 of 1938 or whether it related to the decree in civil Suit No. 15-B of 1939. Prom the description of the decretal claim, as given by either party in the proceedings before the Debt Relief Court, it is quite evident that the only decree which was in contemplation of both the parties was the decree passed in civil Suit No. 15-B of 1939 and not the decree passed in Civil Suit No. 186 of 1933. In the first place the decree in the latter suit was for different years and in the second place it is common ground that that decree was fully satisfied long before. In my opinion the mistake about the number of I the suit was nothing but a clerical mistake or an accidental slip and it would be futile to contend, on the admitted facts of this case, that the order of discharge must be confined to the non-existing decretal claim in the old suit--Civil Suit No. 186 of 1933. I think that the executing Court was fully justified in not making a fetish of this clerical mistake and in holding that the decretal debt in civil suit No. 15-B of 1939, which was the only debt admittedly outstanding on the date of the application before the Debt Relief Court, was discharged under Section 8(1) of the Act.

(3.) THE result, therefore, is that I allow this appeal, set aside the decision of the learned Additional District Judge and restore that of the executing Court dismissing the application for execution with costs in favour of the appellant in all Courts. The respondent will bear his costs. Leave to file an appeal under Clause 15, Letters Patent, is granted. Counsel's fees Rs. 40.