Gopal Rai v. Rambhajan Rai

Dawson Miller, C.J:— In my opinion this appeal ought to be allowed. The appellant is one of the judgment-debtors in a suit in which the respondent was the plaintiff. A decree for Rs. 95 was made in favour of the respondent. One of the defendants settled the matter out of court by paying to the decree-holder the full amount of his claim on the 21st May, 1915. After the decree-holder had been paid a petition was presented to the Court in accordance with the provisions of Order XXI, rule 2, of the Civil Procedure Code certifying that the full decretal amount had been paid. Subsequently the appellant in this suit not knowing that the decree-holder's claim had been satisfied paid the money into court and this was taken out by the decree-holder. The appellant afterwards discovered that the decree had previously been satisfied by one of his co-debtors. He thereupon made as application to the executing court for a refund of the money which had been taken out of court by the decree-holder. In that application the facts were not in dispute. It was admitted by both sides that the decree had been satisfied before the decree-holder took the money out of court which is now claimed back and indeed the petition certifying the payment is signed by the decree-holder himself. The court therefore which had the record before it must have been aware that the payment of the debt had been properly certified within the meaning of Order XXI, rule 2. The learned Munsif, however, came to the conclusion that as the matter had been disposed of sometime before, it was to late then to apply to the executing court to have it set right.

The matter then went on appeal to the District Judge and the District Judge took the same view and dismissed the appeal.

When the case came on second appeal to this Court the learned Judge did not deal with the question which had been raised in the lower courts but found that even assuming the appellant to be right upon the contention previously raised by him in the lower courts still the position here was different because he said it had not been proved that any payment or adjustment had been certified as provided by Order XXI, rule 2, and that, therefore, even if the money had been paid to the decree-holder, there was nothing to show that it had been certified and, therefore, the executing court was not entitled under Order XXI, rule 2, sub-rule (3), to recognize the payment. With great respect to the learned Judge I think that he was in error in introducing this matter. It was admitted in both the lower courts that the facts were not in dispute and it was never suggested that the payment had not in fact been certified within the meaning of Order XXI, rule 2. That was taken for granted.

On appeal to this court under the Letters Patent the appellant has produced a certified copy of the petition which was before the executing court showing quite clear that the decretal amount had been paid before the appellant had paid the same sum into court and that this had been accepted by the decree-holder in full satisfaction of his debt. The result is that the decree-holder has obtained payment twice over, a thing which he was clearly not entitled to do. The only; question therefore which arises before us is whether, seeing that the decree had in fact been executed, it was the proper procedure which was adopted, that is to say whether the judgment-debtor could have this matter determined by the executing court, or whether he was bound to bring a separate suit. In the case of Collector of Jaunpur v. Bithal Das, it was laid down that an application to recover property which had been improperly sold in excess of the decretal amount was a matter relating to the execution, satisfaction or discharge of the decree, and further that the executing court was the proper court in which to have the matter decided notwithstanding that the decree had already been executed some time before. I see no reason to differ from the opinion there expressed which is supported by other cases and in my opinion this appeal ought to be allowed. The orders of the lower courts will be set aside and the case will be sent back to the executing court and reinstated on the file to be tried according to law. The appellant is entitled to his costs of this appeal and in all the courts below.

Jwala Prasad, J.:— I agree.

Appeal allowed.