V. K. Mehrotra, J. - (1.) :-
(2.) THIS execution second appeal is by the decree-holder. The appellant obtained a decree against respondent Pati Ram and three others for the recovery of a sum of Rs. 8950/- in terms of a compromise between them. This was in original suit No. 38 of 1969 of the court of Civil Judge, Jaunpur. The compromise provided that in case the defendant judgment-debtors paid a sum of Rs. 8950/- on October 8, 1970, they would be absolved of any further liability. Since the judgment debtors did not pay the amount, the appellant had to file execution case No, 28 of 1970 on November 30, 1970. On December 11, 1970, an objection was filed by the judgment-debtors, other than the present respondent, under section 47 C. P. C. to the effect that a sum of Rs. 8900/- had already been paid to the decree-holder and no amount was due. A few days later that is, on December 16, 1970, Pati Ram, who is respondent in this appeal, filed an application under Order 21 Rule 2 C.P.C. alleging that a sum of Rs. 8900/-had been paid to the decree holder on November 15,1970 and that he should be called upon to certify the same. Both, the objection under section 47 C. P. C. and Pati Ram's application under Order 21 Rule 2 C. P. C. were taken up together. The executing court, on consideration of the evidence led before it, came to the conclusion that the judgment-debtors had failed to substantiate their version of payment to the decree-holder. It decided the matter by order dated November 12 1973. Feeling aggrieved, Pati Ram filed an appeal before the District Judge. The other three judgment-debtors, it appears, did not challenge the order of the executing court. In the appeal filed by Pati Ram, the lower appellate court reappraised the evidence on record and came to the conclusion that Pati Ram had succeeded in establishing that an amount of Rs. 8900/- had been paid to the decree-holder on November 15, 1970. In this view of the matter, it held that the application made by him under Order 21 Rule 2 C. P. C. deserved to be allowed. It directed the decree-holder to certify the payment. The decree-holder has now come up to this court in the present appeal.
(3.) THE very first submission which has been made by Sri G. P. Bhargava, learned counsel for the decree-holder appellant, is that on the facts alleged by the judgment-debtor Pati Ram himself it was clear that he had not applied for certification of the payment within the prescribed period of limitation and that the lower appellate court was, therefore, in error in directing the decree-holder to certify it. He has urged that this question was specifically raised before the lower appellate court. It, however, did not notice it nor decide it in the judgment under appeal. The first two grounds in the memorandum of appeal in this court relate to the question of limitation which has been agitated by Sri Bhargava in this court. It has been mentioned therein that the application under Order 21 Rule 2 C. P. C. by Pati Ram was barred by limitation and that ?though raised before it, the lower appellate court did not record any finding ahout it in its judgment.;