Firm Surajmal-Badri Das of Daulat Khan vs Firm Manbodh-Bhagat Lall Chand Ram

Mohammad Noor, J.—This second appeal arises out of a proceeding for execution of a decree. It appears mat the appellant executed his decree against the respondent in the Court of the Munsif of Araria. The judgment-debtor preferred an objection u/s 47, Civil Procedure Code, and alleged that the entire decretal amount was adjusted for Rs. 575 of which Rs. 425 had already been paid up and only Rs. 150 was due. This objection was, as usual, numbered and proceeded with. The inquiry was adjourned on several occasions but ultimately it was taken up on August 15, 1936 (Saturday) at about 4-30 p.M. when the decree holder was found to be absent and the learned Munsif recorded the evidence of a witness on behalf of the judgment-debtor, accepted a receipt produced by him allowed the objection and directed the execution to proceed only for the balance admitted by the judgment-debtor. On August 17 (Monday), the decree-holder appeared and represented to the Court that he had left the Court in the last hours on the" understanding that no new case would be taken up by the Court. The learned Munsif without " commenting on the allegation in the application ordered it to be filed saying that the case had already been disposed of. Thereafter the decree-holder preferred an appeal before the District Judge of Purnea. The appeal was apparently time-barred and in that connection the learned Judge had to hold some inquiry and he came to the conclusion that the order of August 17 was no brought to the notice of the decree-holder''s Pleader for a very long time. On this ground the learned Judge admitted the appeal and proceeded with it, but ultimately he dismissed it. The decree-holder has preferred this second appeal.

In my opinion the appeal must be allowed. The learned District Judge has not considered the evidence of the Pleader whom he examined at the time of the admission of the appeal in connection with the limitation. That evidence clearly shows that the Pleader left the Court as he was given to understand that no new case would be taken up. Even the witness for the judgment-debtor respondent admitted that the case was taken up at about 4-30 p.M. The usual time for the Court to sit is from 10-30 A.M. ''to 4-30 p.M. Even if the Pleader was not told by the Court that no new case would be taken up, he was justified in acting upon the supposition that no new case would be taken up at about 4-30 P. M. The learned District Judge has referred to the various dates on which the case was taken up and seems to be of opinion that there was laches on the part of the decree holder. 1 do not agree with him. As a matter of fact, there were occasions when the judgment-debtor ''applied for time; but there was no occasion on which the decree holder applied for time. No doubt as noted by the learned Judge on some dates no step was taken by him. But I do not understand what particular step was to be taken by him. He had executed his decree for the entire amount. To this there was an objection. On some occasions he had filed hazri showing that he was going to contest the allegation of the judgment-debtor that the decree was adjusted and on account of that adjustment Ks. 425 was paid up. The onus was obviously upon the judgment-debtor, and if on a particular date no hazri was tiled by the decree-holder, it does not go to show that he was in any way negligent. The learned Advocate for the respondent has referred to the amendment of O. XXI, r. 2, Civil Procedure Code, by this Court and has contended that if a judgment-debtor informs the Court of an adjustment and applies to the Court for issue of notice td the decree-holder to shew cause why such adjustment should not be recorded, and if no cause is shewn, the payment or adjustment alleged is to be certified, and, therefore the onus in this case was upon the decree-holder. I am unable to accept it. The rule refers to the stage when there is no execution case pending and when the judgment-debtor comes to notify to the Court an adjustment outside the Court. Here an execution case was pending and there was an objection on the part of the judgment-debtor that the decree was adjusted and Rs. 425 was already paid. The decree-holder''s attitude by filing hazri and appearing on some occasions was a clear indication that he was going to contest the claim of the judgment-debtor. Therefore the onus being on the judgment-debtor, there was no particular pairvi or step which was to be taken by the decree-holder. In my opinion the learned Munsif was not justified in hearing the objection of the judgment-debtor ex parts at the end of the working hour of the Court; and he has acted with material irregularity in the exercise of his jurisdiction.

The result is that the appeal is allowed and the orders of the Court below are set aside. The case is remanded to the learned Munsif who will allow the decree-holder to cross-examine the witness examined by the judgment-debtor and take such other evidence as may be produced by the judgment-debtors and decree-holder and then dispose of the objection according to law.

There will be no order for costs.