1. In this civil revision petition the question raised is whether a judgment-debtor debarred Under Order 21, Rule 2, Civil P.C., for failure to certify, from pleading adjustment of a decree, can nevertheless plead such adjustment when opposing a transfer Under Order 21, Rule 16, Civil P.C.
2. The petition was argued before our learned brother Jackson, J., and in view of the differing opinions of various Judges in cases to which reference was made in the course of the argument, the matter has been posted for argument before a Full Bench.
3. Jackson, J., is inclined to the view that the question raised is one which should be answered in the negative.
4. Upon this question the High Courts in India have taken different views. In this High Court Wallace and Pakenham Walsh, JJ., in P. Gananamma v. Seetharama Chandra A.I.R. 1930 Mad. 429, held that the judgment-debtor could not plead an uncertified adjustment in opposition to an application for recognition of a transfer of a decree. The Bombay High Court has however taken the opposite view in Raghunatha Govind v. Gangaram Yesu A.I.R. 1923 Bom. 404. The reason underlying that decision is that, where an application is made Under Order 21, Rule 16, Civil P.C., it is open to the judgment-debtor to oppose such application on the ground that the transferee applicant is not the transferee of the decree because the decree has ceased to exist by reason of a previous, though uncertified, adjustment, that is to say, the uncertified adjustment is made available to the judgment-debtor for the purpose of attacking the transferee-applicant's character as transferee. A distinction is also drawn between the Court passing the decree and the Court executing the decree. It was contended in that case and here that the bar of recognition of an uncertified adjustment can only be set up in the executing Court and that by reference only to the executing Court in Rule 2, Order 21, the Court which passed the decree is ruled out.
5. A similar view to that taken by the Bombay High Court in Raghunatha Govind v. Gangaram Yesu A.I.R. 1923 Bom. 404, was taken in Ponnuswami Nadar v. Latchmanan Chettiar [1912] 35 Mad. 659, by Sundara Ayyar, J., who held that Order 21, Rule 2, does not make an uncertified adjustment invalid but merely forbids effect being given to such an adjustment when it is set up as a defence to the execution of a decree by one entitled to do so, and that the section will not disentitle the judgment-debtor to prove facts which will show that the applicant is not the real transferee even if the facts he relies on show that the decree has been adjusted. Abdur Rahim, J., the other member of that Bench however took the contrary view. In Ramayya v. Krishnamurti [1917] 40 Mad. 296, Sadasiva Ayyar, J., took the same view as Sundara Ayyar and Moore, JJ., agreed with him. In that case the judgment-debtor was held not debarred from proving facts that a transferee of a decree applying for execution is merely a benamidar of another judgment-debtor even if the facts on which he relies show that there has been a payment which has not been certified. In Anantha Rama Ayyar v. Kumaraswami Pandaram [1920] 54 I.C. 922, Ayling, J., held that an uncertified adjustment cannot be considered by the Court as a ground for refusing to recognize the transfer of the decree and that, where the transferee decree-holder applies for execution, the Court has no discretion to refuse execution on the ground that there has been an adjustment, though not certified to the Court.
6. We have also been referred to a recent decision of Waller, J., in C.S. No. 354 of 1913. In that case it was successfully contended that the decision in Raghunatha Govind v. Gangaram Yesu A.I.R. 1923 Bom. 404 wag correct. As before stated in Raghunatha Govind v. Gangaram Yesu A.I.R. 1923 Bom. 404 it was held that the Court passing the decree was not the executing Court and was therefore not prohibited from recognizing an uncertified adjustment whereas by Order 21, Rule 2, it is the executing Court which is prohibited from such recognition. In my view, it is incorrect to regard the Court which passed the decree as not being the executing Court as well. In the case before us the decree bad not been transferred for execution to another Court and the application was by the transferee decree-holder for execution. The fact that the executing Court is the same Court that passed the decree does not deprive the Court of its character as an executing Court as well. It is not correct, in my opinion, to treat applications Under Order 21, Rule 16, as applications merely for the recognition of the transfer of a decree to the transferee. The marginal note to Rule 16 is "Application for execution by transferee of decree." The transferee decree-holder has of course to be recognized as the transferee, but the application is for execution by him in that capacity and it seems to me that the application is not deprived of its character as an execution petition by reason of the fact that the position of the transferee has at the same time to be recognized and is open do attack by the judgment-debtor.
7. Waller, J., in C.S. No. 354 of 1913, to which reference has already been, made is of the opinion that the Court is both a Court which passed the decree and a Court executing the decree. With that view I agree; but it seems to me to follow that, as soon as its character as a Court executing the decree is recognised, the bar to recognition by it as the executing Court of an uncertified adjustment arises Under Order 21, Rule 2, and as I have before stated the application Under Order 21, Rule 16, is an application for execution. In impeaching the character of the transferee it is not, in my opinion, open to the judgment-debtor to contend that the transferee is not a transferee because there is no existing decree to be transferred. The decree is in the Court and it remains an effective decree and has to be recognised as such until it is shown that there has been an adjustment which has been certified either wholly in which case there is no decree or partially in which case the decretal amount is diminished by the amount certified. It is open to the judgment-debtor to attack the transferee's position by showing that he cannot legally possess that character or that he is a benamidar and for reasons of a similar nature. But, in my view, it is not permissible to argue that there is no decree to be transferred to him where there has been no certified adjustment. The transferee of the decree should occupy no better position than the decree-holder and he should not occupy a worse one. If Raghunatha Govind v. Gangaram Yesu A.I.R. 1923 Bom. 404 correctly states the law the judgment-debtor is put in a better position than he occupied before the debt was assigned and the transferee of the decree in a worse than the decree-holder. Where a decree has been adjusted if the decree-holder does not certify such adjustment to the Court, the judgment-debtor himself may apply to the Court to issue a notice to the decree-holder to show cause why such an adjustment should not be recorded as certified. Under Article 174, Limitation Act, he has 90 days in which to do this. If the decree-holder has not certified the adjustment and the judgment-debtor has not got the adjustment recorded within that period, such an adjustment cannot be recognized by the Court executing the decree. If the decisions in Raghunatha Govind v. Gangaram Yesu A.I.R. 1923 Bom. 404 and the other cases holding the same view are correct, then if the decree is subsequently assigned, it may be years after the 90 days period of limitation has expired, the bar of limitation is removed in favour of the judgment-debtor. This seems to me to place the judgment-debtor in a privileged position which is quite unwarranted. In my view, we should not follow the decision in Raghunatha Govind v. Gangaram Yesu A.I.R. 1923 Bom. 404 and the other decisions to the same effect and must hold that the judgment-debtor cannot plead an uncertified adjustment in opposition to an application Under Order 21, Rule 16, by the transferee decree-holder.
8. The civil revision petition is allowed with costs in the High Court.
Ramesam, J.
9. I agree.
Cornish, J.
10. I agree.