Mussammat Sukhdei Kumari vs Rai Bahadur Mahamata Prasad Singh and Others

Dawson Miller, C.J.—This is an application for execution of a decree. The appellant Musammat Sukhdei Kumri obtained a decree for a sum of Rs. 2,000 in respect of her maintenance and cost of certain ornaments against the respondents, who were members of the same family. On the 24th February 1917, she took out execution proceedings under the decree. A question then arose between the parties as to whether any and if so what part of the decree had already been satisfied. The appellant, plaintiff in the suit, admitted payment of the sum of Rs. 1,083-10-3, including two sums of Rs. 333-5-3 and Rs. 83 10 6 paid or deposited in Court pending the execution proceedings. The amount which the appellant now claims to be due is a sum of Rs. 916 and odd.

The figures are set out in the judgment of the Subordinate Judge now appealed against and a question arose before him on behalf of the respondents, whether certain sums which are there referred to had been paid out of Court'' by the respondents to the appellant in satisfaction of the decree, leaving a balance due of about Rs. 100 only.

Now the learned Subordinate Judge, after apparently hearing the evidence on this point of both the parties, came to the conclusion that the sums had, in fact, been paid and deducted them from the amount claimed; but the learned Subordinate Judge has unfortunately omitted to take into consideration the effect of Order XXI, Rule 2 of the Civil Procedure Code, which provides: where any money payable under a decree of any kind is paid out of Court or the decree is otherwise adjusted in whole or in part to the satisfaction of the decree-holder, the decree-holder shall certify such payment or adjustment to the Court whose duty it is to execute the decree and the Court shall record the same accordingly." It is further provided if the decree-holder fails to do so, "The judgment-debtor also may inform the Court of such payment or adjustment and apply to the Court to issue a notice to the decree-holder to show cause on a date to be fixed by the Court why such payment or adjustment should not be recorded as certified." And then follows Sub-clause (3), which says "A payment or adjustment which has not been certified or recorded as aforesaid shall not be recognised by any Court executing the decree."

Now what happened in the. present case was that the amount in dispute was according to the respondents paid to the appellant out of Court and the Subordinate Judge so found although the appellant denied it. If the sums were in fact paid by the respondents, judgment-debtors, as the Subordinate Judge finds they were, they nevertheless are not entitled in the execution proceedings under the decree to claim the benefit of the payment unless they have complied with the provisions of Order XXI, Rule 2, Sub-rule (3). It may possibly be a hardship in such cases if in fact the money has been paid or the decree otherwise adjusted. We have no doubt, however, that the rule was introduced with the very object of avoiding in execution proceedings disputes between the parties and frequently long enquiries as to what sums had or had not been paid out of Court in satisfaction of the decree. Unfortunately the Subordinate Judge has not adopted the right procedure as laid down in Order XXI, Rule 2.

We are, therefore, of opinion that this appeal ought to be allowed and the judgment of the Subordinate Judge set aside and judgment should be entered for the appellant for the principal sum of Rs. 916-5-9. The interest falling due in respect of that amount, if any, should be calculated by the Subordinate Judge and added to the amount decreed. The appellant is entitled to costs of this appeal.

Mullick, J.

I agree.