GUDIMALLA SATAGOPACHARYULU MINOR Vs. TATTA SRI RAMA NARASIMHAM

JUDGEMENT

(1.) A preliminary mortgage decree was passed by the District Judge of Masulipatam on 14th October 1942; and the decree was assigned to the present decree-holder on 27th October 1942, The final decree was passed on 4th April 1944; and on some date subsequent to that the decree was transferred from the Court of the District Judge of Masulipatam to that of the Subordinate Judge of Masulipatam. The certificate required under Order 21, Rule 6 was sent with it to the effect that the decree had been satisfied to the extent of Rs. 472-8-0. Notice was given to the appellant, who then raised an objection that during the pendency of the suit, even before the preliminary decree had been passed, the mortgage debt had been satisfied, but that the parties for their convenience allowed the decree to be passed and then arranged for the decree to be assigned to the appellant's paternal aunt's husband. That assignment was actually made, as already stated on 27th October 1942. In order to bring about the same result as if no decree had been passed at all, the decree-holder filed into Court on 16th July 1945 a satisfaction memo. That satisfaction memo is not on record; and we only know of one having been filed by a reference to the suit register. It was presumably defective in some way; for, on 12th September 1945 it would appear from a recital in the diary that the document was returned; it was not represented. The appellant asked the Court to make enquiry into this allegation and to dismiss the execution petition; because nothing was due to the nominal decree-holder. The learned Subordinate Judge overruled the appellant's objection on the ground that this was a matter that should have been raised before the transferor Court and could not be considered by him.

(2.) We think that the learned Subordinate Judge was right in overruling the objection of the appellant on the ground that he did. Order 21, Rule 6 requires that:

(3.) If the agreement set up by the appellant be true, as we must presume it was for the purpose of considering the question before us, then there was no debt due to the decree holder on the date when the preliminary decree was passed; and, therefore, the contention of the appellant that the debt was satisfied does not relate at all to execution. It is argued that because a memorandum of satisfaction was filed in the Court, the matter would relate to the satisfaction of the decree. If we knew nothing but the fact that a satisfaction memo had been filed, that argument might be a good one; but we must take the allegations of the appellant as they stand. Although the memorandum filed in the Court may have been termed a memorandum of satisfaction of the decree; yet it was not so in fact. It was merely an act of the transferee decree-holder intended to bring about the same result as if the parties had reported prior to the passing of the decree that the mortgage debt had been paid off. The learned advocate for the appellant relies on Chidambaram Chettiar v. Krishna Vathiyar, 40 Mad. 233 : (A. I. R. (5) 1918 Mad. 1174 (F. B.)), as authority for his contention that it is open to the executing Court to consider the truth or otherwise of a predecretal arrangement. That decision however, is not to the effect that an executing Court can consider the truth of any pre-decretal arrangement. The particular arrangement in that case was that the decree should not be executed for a certain time. The learned Judges held that since that agreement related to the execution of the decree, the executing Court could go into the matter. That case, therefore, can be no authority for the contention of the appellant that an arrangement that has nothing at all to do with execution can be considered by an executing Court. An authority is hardly necessary for the proposition that an executing Court cannot enquire into pre-decretal arrangements that have nothing to do with execution; but Mr. Suryanarayana has referred us to Butchiah Chetti v. Tayar Rao Naidu, 54 Mad. 184: (A. I. R. (18) 1931 Mad. 399), in which a Bench of this Court held that the truth or otherwise of a predecretal agreement of satisfaction could not be gone into in execution.