Subramaniam Chettiar vs A. Murugappan Chettiar and Others

Venkataraman, J.—This is an appeal by one A.N. Subramaniam Chettiar, the first Defendant in the suit Original Suit No. 132 of 1949, on the file of the Subordinate Judge's Court, Pudukottai, against the order, dated 16th August 1969 of the learned Subordinate Judge dismissing the application. Execution Application No. 161 of 1966, which he had filed under Order XXI Rule 2 of the CPC to record full satisfaction of the decree so far as he was concerned. There was one Subramaniam Chettiar. He had three sons, Annamalai, Chidambaram and Kuttayan. The first Defendant in the suit (Appellant herein) is the son of Annamalai Chettiar. The third Defendant in the suit is Adaikalam Chettiar alias Kuttayan Chettiar (third son of Subramaniam Chettiar). The Plaintiff in the suit was Deivanai Achi alias Visalakshi Achi, the wife of the said Kuttayan Chettiar. She filed the suit against the three Defendants--the first Defendant, Chidambaram (her husband's brother) as the second Defendant, and her husband, Kuttayan Chettiar, as the third Defendant. Chidambaram, the second Defendant died and his son C.T. Subramaniam Chettiar was impleaded as his legal representative and figured as the fourth Defendant. The suit was decreed for Rs. 75,748.07 in the trial Court against the family assets of the Defendants. Defendants 1 and 4 filed an appeal, Appeal Suit No. 381 of 1951, against the Plaintiff and the third Defendant. On 21st March 1956, the High Court in modification of the trial Court's decree directed the Plaintiff to proceed against the assets in the hands of her husband, the third Defendant, in the first instance, and only for the balance against the assets in the hands of Defendants 1 and 4, her husband's brothers'' sons. She accordingly realised a sum of Rs. 12,502.93 from her husband, the third Defendant. She realised Rs. 33,019.98 from the fourth Defendant in full settlement of his 1/3 liability. Alleging that it was not possible to recover anything more from them, she sought to levy execution for the balance of the decreetal amount against the present Appellant. She filed Execution Petition No. 16 of 1962 on 17th January 1962, but it was dismissed on 19th February 1962. Then on 14th March 1962 she filed another execution petition. It was not numbered; it was returned, but it was not represented. It has been marked as exhibit A-6 in the present proceeding, Execution Application No. 161 of 1966. On 15th June 1962 she filed another execution petition. That again was returned, but was not represented. That has been marked as exhibit A-7 in the present proceeding.

Then on 15th January 1965, she filed Execution Petition No. 5 of 1965. It has been marked as exhibit A-12 in the present proceeding. The first Defendant filed a counter stating that the decree had been discharged by a family arrangement, dated 12th March 1962 which is set out in full. The purport of it was that he had filed a suit, Original Suit No. 54 of 1949, for partition against his paternal uncle. Kuttayan Chettiar and had obtained a preliminary decree for partition and accounting. He and C.T. Subramaniam Chettiar (fourth Defendant in Original Suit No. 132 of 1949) had filed a suit, Original Suit No. 27 of 1952 in the Subordinate Judge's Court, for a declaration that whatever liability they might have incurred under the decree in the suit, Original Suit No. 132 of 1949, to Deivanai Acbi, ultimately it would be her husband, Kuttayan Chettiar, who would be liable for

it. By the family arrangement all these matters were settled by mutual undertakings. For his part, the Appellant was to execute a sale deed of his half share in the house in Arimalam village (in the then Pudukottai State) in favour of Deivanai Achi in satisfaction of her decree in Original Suit No. 132 of 1949. Further certain shares were standing in the name of the Appellant's father and mother. They had to be transferred to the name of Kuttayan Chettiar (Deivanai Achi's husband). The Appellant should report that the decree in Original Suit No. 54 of 1949 had been settled out of Court and he should not press the right of indemnity in Original Suit No. 27 of 1952. Deivanai Achi should similarly report in Original Suit No. 132 of 1949 that her decree had been settled out of Court. The above arrangement was carried into effect by the Appellant filing a petition for recording of full satisfaction in Original Suit No. 54 of 1949. Deivanai Achi also filed a similar petition for recording full satisfaction in Original Suit

No. 132 of 1949 on 12tb March 1962, but took it back. That petition, if produced, would bear out the contention of the Appellant. The Appellant had, in pursuance of the arrangement, given up his right in the Arimalam house in favour of Deivanai Achi, but, contrary to that, Deivanai Achi had made it appear that on 31st May 1962 the Appellant had conveyed only the superstructure of the Arimalam house for a sum of Rs. 5,000 in partial satisfaction of the decree in Original Suit No. 132 of 1949. There was no such agreement on the part of the Appellant. It was fraudulent on the part of Deivanai Achi to levy execution against him.

The Appellant also raised an objection that the amounts collected from C.T. Subramanian Chettiar had not been fully given credit to in the execution petition.

On 11th August 1965 Execution Petition No. 5 of 1965 was dismissed leaving all the contentions between the parties open.

Then Execution Petition No. 83 of 1965 was filed on 2nd September 1965. The decree-holder gave correct figures of the amounts realised from the fourth Defendant. A counter was filed by the present Appellant similar to the one which he had filed in Execution Petition No. 5 of 1965 setting up the family arrangement and pleading that execution could not be levied.

Execution Petition No. 83 of 1964 was dismissed on 16th October 1965. Then Execution Petition No. 28 of 1966 was filed on 27th January

1966. The Appellant filed a counter as before. He further filed, on 16th August 1966 Execution Application No. 161 of 1966 under Order XXI Rule 2 CPC setting up the above family arrangement as a bar to the execution of the decree.

In the evidence adduced by the Appellant in support of his application, he swears that exhibit A-9, dated 7th September 1960 is the family arrangement brought about with the help of one P.V.R.M. Kulandayan Chettiar as mediator. That Kulandayan Chettiar was examined as P.W. 1 on commission at Madras. He has spoken to the above fact. Exhibit A-9 is dated 23rd Avani, Sarvari ( corresponding to 7th September 1960) and is in Tamil.

The judgment of the learned Subordinate Judge is very scrappy and has not at all discussed the evidence and the contentions of the Appellant fairly. The learned Subordinate Judge seems to think that exhibit A-9 might have been brought about between the Appellant and Kuttayan Chettiar, but his point is that it has not been proved that Kuttayan Chettiar, acted as the agent of his wife, Deivanai Achi. He further thinks that it was the duty of the Appellant to have examined Ramanatha Sastrigal, Advocate of Deivanai Achi, in order to elicit what was the petition which he filed on 12th March 1962 in Original Suit No. 132 of 1949 and which he could not trace. We have no doubt that this reasoning of the learned Subordinate Judge is entirely unacceptable and that, under the circumstances of the case, it was, up to Deivanai Achi to have examined her advocate, Ramanatha Sastrigal. In view of Section 126 of the Evidence Act it is arguable whether it would have been open to the Appellant to examine Ramanatha Sastrigal as a witness on his behalf. In any case, it is clear that, under the circumstances of the case, it was for Deivanai Achi to have examined Ramanatha Sastrigal as a witness on her behalf. It is impossible to believe that, though the Advocate as been careful enough to preserve other documents like the returned execution petitions, exhibits A-6, and A-7, be was not able to trace this particular petition alone which was presented on 12th March 1962 and which, according to exhibit A-3, was taken return of by him on 31st March 1962. Even, before, us, Mr.

D. Ramaswamy Iyengar, the learned Counsel appearing for Deivanai Achi, has not been able to suggest as to what was the nature of that petition, which was filed on 12th March 1962, according to exhibit A-3, would have been. We have no doubt under the circumstances of the case, that that was a joint petition filed under Order XXI Rule 2 CPC reporting full satisfaction in Original Suit No. 132 of 1949. It is significant to note that on 14th March 1962 itself the Appellant's Advocate, Mr. Krishnamurthy Iyer, filed a copy application (exhibit A-1) for a copy of the petition filed under Order XXI Rule 2 CPC by both parties, and the endorsement of return on exhibit A-1 is that that petition filed by the decree holder had been returned on 16th March 1962 for rectification. It fits in with the entry (exhibit A-3) in the Court-fee register. P.W. 3 the clerk who made the endorsement on exhibit A-1 says in cross-examination that he made the endorsement with reference to the original of exhibit A-3. It was further elicited:

Because copy was applied for an application under Order XXI Rule 2, I made this return. I referred to C.R. No. 17 register.

This evidence, if anything is only in favour of the Appellant. His reply that he made the endorsement with reference to the original of exhibit A-3 shows that he thought that exhibit A-3 related to the petition for which the copy application, exhibit A-1 was made. He was the execution clerk and, if the petition, copy of which was applied for, had been filed on 12th March 1962, he could not have forgotten the nature of that petition when he made the endorsement of return in exhibit A-1 on 17th March 1962. We are therefore, satisfied that the petition which was filed on 12th March 1962 was a petition under Order XXI Rule 2 CPC filed by both parties in Original Suit No. 132 of 1949, that there was a return on 16th March 1962 and that it was taken return of on 31st March 1962. It was because such a petition had been filed on 12th March 1962 the Appellant made a copy application, exhibit A-1. To hold otherwise would mean that, even, though no such petition had been filed, the Appellant, and his advocate played a deep fraud in making it appear that such a petition under Order XXI Rule 2 CPC was filed by making reference to such an imaginary petition in the copy application, exhibit A-1. We think that that would be a far fetched inference. On the contrary, the probabilities are in favour of the case of the Appellant that the copy application, exhibit A-1, was filed because a petition under Order XXI Rule 2 CPC had been filed on 12th March 1962 by the decree-holders's advocate, Ramanatha Sastrigal and that was the reason why Ramanatha Sastrigal and Deivanai Achi would say that they are unable to trace it from the records. Under such circumstances, for the learned Subordinate Judge to say that the Appellant should have examined Ramanatha Sastrigal is really strange and is a perversion of the correct practice. In Sardar Gurbaksh Singh v. Gurdial Singh 53 M.L.J. 392 (P.C.) their Lordships of the Privy Council have condemned the practice of Counsel not calling his own client and forcing the other party to call him. That comment would apply even here, in respect of the non-examination of Ramanatha Sastrigal as a witness on behalf of the Plaintiff, Deivanai Achi.

The suppression by Deivanai Achi and her Advocate of the petition filed on 12th March 1962 in Original Suit No. 132 of 1949 and taken return of on 31st March 1962 is by itself a clinching circumstance in favour of the contention of the first Defendant that petition was nothing other than the petition under Order XXI Rule 2 CPC to record satisfaction of the decree as settled out of Court. There are also other circumstances in the same direction.

Thus, exhibit B-3, itself shows that a memo was filed on 12th March 1962 in Original Suit No. 54 of. 1949 by the Appellant as Plaintiff, besides the petition, exhibit B-3, which he filed on 13th March 1962 Hence, there is no basis for the argument that the evidence of the Appellant about his recording a copy of the memo in Original Suit No. 54 of 1949 on the reverse of exhibit A-2 was false.

We, therefore, find that on 12th March 1962 a joint petition signed by both parties in terms of exhibit A-2 was actually presented in the executing Court by Deivanai Achi's Advocate, Mr. Ramanatha Sastrigal, that an endorsement was made on it on 16th March 1962 returning it, that it was actually taken return of by Mr. Ramanatha Sastrigal on 31st March 1962 and later it was stated to be not traceable and that a deep fraud was played on the Appellant by not producing it. He was lulled into a false belief till notice actually went to him in Executive Petition No. 5 of

1965.

This brings us to the point of limitation. Order XXI Rule 2 CPC reads as follows:

(1) 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.

(2) Any party to the suit or his legal representative or any person who has become surety for the decree debt 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 day to be fixed by the court, why such payment or adjustment should not be recorded as certified; and if, after service of such notice, the decree-holder fails to show cause why the payment or adjustment should not be recorded as certified, the court shall record the same accordingly.

(3) A payment or adjustment which has not been certified or recorded as aforesaid, shall not be recognized by any court executing the decree.

Sub-rule (1) of Order XXI Rule 2 of the CPC speaks of a case where the decree-holder certifies payment or adjustment of the decree. Once the decree-holder makes such a certificate, the Court is bound to record the same, and no notice to the judgment-debtor is contemplated. The reason is that, when the decree-holder herself certifies that the decree has been adjusted, there is an end of the matter and there is no need to verify from the judgment-debtor whether it is true. We are confining our attention to a petition like exhibit A-2 in which a report simpliciter was made that the decree had been settled out of Court, there being no reference to any obligation undertaken by the judgment-debtor. In contrast to Sub-rule (1), Sub-rule (2) of Order XXI Rule 2 enables the judgment-debtor to inform the Court of the adjustment of the decree. But in such a case it is necessary that notice should go to the decree-holder to show cause why the adjustment should not be recorded as certified. The Limitation Act of 1908 prescribed a period of 90 days for such an application by the judgment-debtor, the article being 174 and the starting point being the time when the payment or adjustment was made. No corresponding period of Imitation was provided for the decree-holder certifying the adjustment to the Court under Sub-rule (1). The scheme of the present Limitation Act of 1963 is also the same, but the period for the application by the judgment-debtor has been curtailed to 30 days under Article 125. The argument of Mr. Ramasamy Iyengar, the learned Counsel for Deivanai Achi, is that even taking the counter-filed by the Appellant in Execution Petition No. 28 of 1966 as an application under Order XXI Rule 2(2), that was beyond 90 days under the Limitation Act of 1908 or 30 days under the Limitation Act of 1963. Even assuming that the counter which he filed in Execution Petition No. 5 of 1965 would amount to such an application, that was also beyond the period of 90 days or 30 days there are at least three replies to this contention. The first is that the Appellant was kept out of knowledge of his right and need to apply under Order XXI Rule 2(2) till he got notice of Execution Petition No. 5 of 1965 and time, therefore, began to run against him only from the date on which he received notice in Execution Petition No. 5 of 1965 see Section 18 of the Limitation Act of 1908 and the corresponding Section 17 of the Limitation Act of 1963, and on that basis the counter in Execution Petition No. 5 of 1965 was in time and could be treated as an application under Order XXI Rule 2(2).

Secondly the petition filed on 12th March 1962 in terms of exhibit A-2 by the decree-holder's Advocate, Mr. Ramanatha Sastrigal, was a certificate under Order XXI Rule 2(1) and that itself was sufficient. The Court was bound to record the same. It is true that the petition was ordered to be returned and was not represented. But we shall come to that point presently.

Thirdly, the petition of 12th March 1962 in terms of exhibit A-2 was a joint petition signed by both parties. Though it was presented only by the decree holder's advocate, under the peculiar circumstances of the case, since it was a joint petition, it could be held that it was a petition filed on behalf of the judgment-debtor (Appellant herein) also under Order XXI Rule 2(2). The agreement itself was on 12th March 1962 (according to our reasoning, time having been extended up to that date by mutual consent), and therefore, it was filed on the very first day of the starting point of limitation.

The first reply to the question of limitation is obviously and need not be developed and it is sufficient reply to the question of limitation. It is however, necessary to dwell a little more on the second and third replies to the question of limitation. The objection which could possibly be put forth on behalf of the decree-holder to these two replies will be that the petition of 12th March 1962 was ordered to returned on 16th March 1962 presumably for some defects it was taken return of on 31st March 1962, and was not represented and was, therefore, not available in Court at all in order that the Court may proceed with it either under Sub-rule (1) or under Sub-rule (2). There is, however, a good reply to this objection, namely, that since it was a joint petition, it was not open to the decree-holder by herself to get it back, and for the purpose of limitation it is sufficient that it was presented on 12th March 1962. Mr. Gopalachari, the learned Counsel for the Appellant has not been able to cite a case exactly resembling the present, but the cases which he has cited show that it is permissible to take the view which we have indicated. Similarly, we may say that Mr. Ramasamy Iyengar, the learned Counsel for the decree-holder, has not been able to cite any case which will throw doubt on the view which we have indicated above, and the cases which he has cited are distinguishable. The cases which Mr. Gopalachari has cited are those Neduri Rajanna Vs. Dontukunti Seshamma and Another, and Pullareddigari Venkatasubba Reddi and Others Vs. Pullareddigari Peddasubbareddi and Another,

In Neduri Rajanna Vs. Dontukunti Seshamma and Another, the Plaintiff and some of the Defendants entered into a compromise on 21st February 1922 and an application, Execution Application No. 182 of 1922, was made under Order XXI Rule 2 to the executing Court on the same day for the recording of the adjustment. This application was made jointly by the Plaintiffs and all the Defendants except, Defendants 1 and

It was adjourned to the next day and ultimately dismissed on 4th March because the decree holder's vakil appeared and stated that the application was not pressed. (None of the judgment debtors who has signed the compromise was present). The next step was taken by the Plaintiffs who applied for execution on 4th May 1922. The 10th Defendant filed Execution Application No. 629 of 1922 opposing the execution and asking that the Court should record under Order XXI Rule 2 of the compromise which he had filed on 21st February 1922. That application was dismissed by the Courts below, apparently as time-barred. In second appeal by the 10th Defendant Venkatasubba Rao, J. pointed out that, though if was filed more than 90 days after the adjustment, it was really not barred because it was merely an application to the Court to dispose of Execution Application No. 182 of 1922 properly. The learned judge proceeded to point out that it was not open to the decree-holder's Counsel alone to have withdrawn the petition, Execution Application No. 182 of 1922. In that connection he observed as follows:

Clause (1) of Order 21 Rule 2 provides that the decree-holder shall certify the adjustment to the court and the court shall thereupon record the adjustment.

Under Clause (3) an adjustment which has not been certified or recorded cannot be recognised by a court executing the decree. It is sufficient therefore that the adjustment has been certified and for the court to recognise the adjustment it is not necessary that it shall have been both certified and recorded. The words used in Clause (3) are certified or recorded, and not "certified and recorded". If this be so, was there a proper disposal of E.A. No. 182 of 1922? The judgment--creditor could not withdraw the application nor could the court dismiss it. As is pointed out in a Calcutta case reported as Tarak Nath Sarkar v. Natabar Mandal 21 C.I.J. 632 : 30 I.C. 45 the judgment-debtor does not lose his protection merely because the Court fails to perform the duty cast upon it, namely, to make a record that the payment or adjustment has been certified by the decree-holder; see also Soma Pathar v. Rengasami Reddiar 35 M.L.J. 252 : 51 I.C. 411 Sadasiva Iyer, J., observes in Thimma Reddi v. Subba Reddiar 1918 M.W.N. 507 : 49 L.C. 141.

The neglect by the court of the duty expressly imposed on it of recording the decree-holder's certificate cannot prejudice the judgment-debtor and it cannot be argued successfully that the record also by the court is required under Sub-rule 3 before the payment or adjustment could be recognised.

In the same case Napier, J., points out that the object of the rule is not even to require any particular form of proceeding, but only to provide that the Court should be informed of the payment.

The learned Judge proceeded to point out that the facts of that case were, however, peculiar, because it was not an application by the decree-holder alone under Clause (1) nor was it made by the judgment-debtor alone under Clause (2). It was a joint application, and, since it was adjourned for the purpose of the seventh Defendant, who had not signed the compromise, notifying his acceptance of it, it must be understood as an application made for the purpose of enquiring whether there was adjustment and for recording it, if, in fact, a valid adjustment was made. The application was therefore remanded for that purpose. Accepting the finding which was submitted the learned Judge directed the lower Court to record the compromise and dismiss the execution petition.

This decision is useful in two ways firstly, that under Order XXI Rule 2(1) it is enough if the decree-holder certifies that the decree has been adjusted and the judgment-debtor does not lose his protection merely because the Court fails to perform the duty cast upon it, namely, to make a record that the adjustment has been certified by the decree-holder. Secondly the decision shows that further the decree-holder could not withdraw the application nor could the Court dismiss it.

The decisions quoted by Venkatasubba Rao, J., also support the above view. Thus in Tarak Nath Sarkar v. Natabar Mandal 21 C.J. 632 : 30 I.C. 45; (decided, by Asutosh Mookerjee and Beachcroft, JJ), payment of the decree had been made by the judgment-debtor and a petition was filed in Court by the decree-holder notifying that the decree had been satisfied in full. But this petition could not be traced. The decree-holder took advantage of that fact to deny falsely that the decree had been satisfied. Under the circumstances the question arose whether there was any substance in the argument of the decree-holder that the payment was not certified as required by law, because it was not recorded by the Court.

The Court said, ""In our opinion, there is no force in this contention,"" and after comparing Order XXI Rule 2 of the Code of 1908 with the corresponding Section 258 of the Code of 1882, the Court observed:

It is plain from Clause (3) of Rule 2 that a payment or adjustment shall not be recognised by any Court executing the decree, unless it has been either certified or recorded. This does not require that the payment or adjustment must be both certified and recorded. It is also clear that in Clause

(3) of Rule 2 the term "certified" refers to Clause (1) and the term "recorded" to Clause (2). Consequently, it cannot be reasonably contended that the judgment-debtor looses his protection merely because the Court fails to perform the duty cost upon it, namely, to make a record that the payment or adjustment has been certified by the decree-holder. The decree-holder, at any rate, is not prejudiced by the omission of the Court to make the record. He has received the payment or has entered into an adjustment with the judgment-debtor. He has notified the fact to the Court; he has done his duty, as the Code does not provide for any special form to be adopted for the purpose. The failure of the Court to make the record does not surely entitle him to take advantage of the omission to the detriment of the judgment-debtor.

These observations will apply with equal force in the present case and the decree-holder cannot take advantage of her not having represented the petition which she filed on 12th March 1962.

In Thimma Reddy v. Subba Reddiar 1918 M.W.N. 507 : 49 I.C. 141 there was a decree in favour of a partnership of four partners. There was an adjustment and the Defendants paid, Rs. 485 in full satisfaction to all the four Plaintiffs in 1909, but a certificate of satisfaction was not filed in time. The partnership was dissolved in 1910. Plaintiffs 3 and 4 assigned the decree as it it was alive to the Appellant for no consideration, and the Appellant applied for execution in July 1911. Plaintiffs 1 and 2 got notice and filed counter petitions containing certificates of satisfaction of the decree by payment of Rs. 485 in 1909. The Appellant did not prosecute that petition. It was dismissed. He filed another execution petition. That was also dismissed. He appealed. The second point argued on his behalf was that the certificates of Plaintiffs 1 and 2 were not in proper form. The learned judges repelled this contention pointing out that it need not be in any particular form. The third contention is important for us and it was that no record of satisfaction was made by the Court on those certificates and that therefore those certificates were useless. The learned Judges repelled this contention also. Sadasiva Iyer, J., after pointing out that Order XXI Rule 2(3) did not say certified and recorded, but merely stated certified or recorded, observed:

The neglect by the Court of the duty expressly imposed on it under Sub-rule (1) of Order 21 Rule 2 of the new Code] of recording the decree-holder's certificate cannot prejudice the judgment-debtor and it cannot be argued successfully that the record also by the Court is required under Sub-rule (3) before the payment or adjustment could be recognised. The record by the court being a formal matter of course may be made at any time or even be treated as having been made.

Napier, J., pointed out:

It seems to me immaterial that the Court did not pass any order on the counter petitions.... The object of the rule is not to ""to require any particular form of proceeding, but only to provide that the court should be informed of the payment.

Quoting Bashyam Iyengar, J., he says:

It is not the act of the court in recording such payment as certified that operates as a discharge.

In Soma Pathar v. Rengaswami Reddiar 35 M.L.J. 252 : 51 I.C. 411 one Rengaswami Reddi obtained a small cause decree against the decree-holder in Original Suit No. 333 of 1912 and attached the later decree in 1914. In 1915 the decree-holder in Original Suit No. 333 of 1912 applied to the District Munsif's Court to enter up satisfaction of his decree. It was opposed by the attaching decree-holder and in consequence the decree-holder in Original Suit No. 333 of 1912 withdrew the application. The judgment-debtor in Original Suit No. 333 of 1912, however, contended that the decree against him had been satisfied. The Courts below repelled his contention on the ground that the application for recording full satisfaction had been withdrawn. Seshagiri Aiyar, J., pointed out that it was not open to the decree-holder in Original Suit No. 333 of 1912 to withdraw the petition and that a mere certificate was enough to enable the judgment-debtor to plead that the decree had been satisfied. The learned Judge, therefore, directed an enquiry to be made whether the payment had really been made.

In Velayudhan v. Krishna AIR 1954 T.C. 288 the decree was assigned. The assignee decree-holder filed Civil Miscellaneous Petition No. 3700 of 1118 (M.E.) under Order XXI Rule 16 for setting off the amounts under the cross-decrees. It was dismissed for some reason. When the assignee decree-holder took out execution later, the judgment-debtor pleaded that the earlier petition, Civil Miscellaneous Petition No. 3700 of 1118, amounted to a certificate of full satisfaction under Order XXI Rule 2. That plea was upheld by the executing Court and was confirmed in appeal. It was confirmed in second appeal by the Bench of the High Court. The objection, on behalf of the assignee decree-holder was that Civil Miscellaneous Petition No. 3700 of 1118 did not in terms purport to be under Order XXI Rule 2. The learned Judges repelled this contention, observing:

We have carefully read C.M.P. No. 3700 of 1118 and we are inclined to think that the application in substance was one certifying the adjustment of the decree in the manner pleaded by the Defendants. When once the decree-holder had certified an adjustment of the decree, it is not thereafter open to him to execute the decree disregarding such certification. It was the duty of the court to have recorded satisfaction especially in view of the fact that the Defendant to whom notice was given had taken no objection in regard to that matter. Sub-rule (3) of Order 21 Rule 2 only provided that a payment or adjustment which has not been certified or recorded shall not be recognised by any court executing the decree. It is significant that the words used are "certified or recorded" and not "certified and recorded". Therefore, for the court to recognise the adjustment, it is sufficient that it is certified and it is not necessary that it shall have been both certified and recorded. It is not open to the Court to dismiss an application by the decree-holder to record satisfaction. Vide Neduri Rajanna Vs. Dontukunti Seshamma and Another, . The fact that Civil Miscellaneous Petition

No. 3700 of 1118 appears to have been for some reason dismissed will not entitle the decree-holder to execute the decree which he has certified to the court to have been adjusted.

In Pullareddigari Venkatasubba Reddi and Others Vs. Pullareddigari Peddasubbareddi and Another, in pursuance of a decree the Plaintiffs sought possession of a certain house forming item 1 of A-1 schedule. The defence was that by a mutual adjustment decree had been varied under exhibit B-1 and that in lieu of that item of property the Plaintiffs were to get another property. Actually within 50 days of this adjustments the judgment-debtor filed a petition for recording the adjustment so far as that item of property was concerned. For his part the decree-holder did not press Executive Petition No. 1 of 1954 in respect of that item. No formal order, however, recording the adjustment was passed. It was held in the later execution petition that that was immaterial, and that, since it was not already recorded, the judgment-debtor could request the Court to record it.

The first case cited by Mr. D. Ramaswamy Iyengar is Badrudeen v. Gulam Maideen (1911) ILR 36 Mad. 357. There the decree was satisfied by payment by the judgment-debtor to the two Plaintiffs of a substantial portion of the amount in 1904, but it was not reported to the Court either by the decree-holders or by the judgment-debtors. The judgment-debtors pleaded that when an application for execution was made in August

1907. By that time the period of 90 days for filing an application u/s 258 of the Code of 1882 corresponding to Order XXI Rule 2 of the Code of 1908 was over. The learned Judges held that the plea was time-barred. They observed:

The adjustment in the present case was in the year 1904. The application for execution was in August 1907. In their counter-petitions the judgment-debtors do not state that they were prevented from knowing of the fraudulent conduct of the Plaintiffs by any fraud on their part until within 90 days before the date of their application. Section 258 Clause 3 is imperative that the executing Court cannot recognise an adjustment which has not been certified.

This case is distinguishable, because, in the present case, the judgment-debtor (Appellant) was fraudulently kept out of knowledge of his right and need to apply under Order XXI Rule 2.

The next case cited by Mr. Ramaswamy Iyengar is Meghraj v. Kesarimal ILR [1947] Nag. 197 There one Sadaram obtained a decree in Civil Suit No. 36 of 1929 against one Kesarimal and in execution attached a certain bungalow. Kesarimal obtained an adjournment on the ground that he had to perform the marriage of his niece in that house. He took advantage of the postponement and executed a sale deed of the house to one Meghraj. Kesarimal, however, continued in possession. Meghraj filed a suit for arrears of rent (51B of 1938) and he took out execution of the decree against Kesarimal, The three parties, Sadaram, Meghraj and Kesarimal, came to an agreement, that Meghraj should pay Rs. 7,000 to Sadaram in full quit of his decree against Kesarimal, that Meghraj should give up all claim for arrears of rent against Kesarimal and that Kesarimal should not put Meghraj in possession of the bungalow and disclaim all interest therein. Meghraj paid Rs. 7,000 to Sadaram on that day. Meghraj and Kesarimal signed a document of compromise, stating that possession of the bungalow had been given to Meghraj though admittedly it had not been given. The petition for compromise was adjourned. Finally disputes arose between Meghraj and Kesarimal and Meghraj put in an application stating that he had agreed to the compromise on the distinct understanding that he would be given immediate possession of the bungalow and. asking that either he should be put in possession or that he should be allowed to execute his decree.

The executing Court ordered that Meghraj should be put in possession of the bungalow, and that the decree should be regarded as fully satisfied. In appeal by Kesarimal, the learned District Judge held that Meghraj had to resort to a separate suit to get possession of the bungalow.

He directed the execution petition to be struck off as fully satisfied. Against that Meghraj filed a second appeal.

The learned Judges pointed out that it was a case of the parties agreeing to vary the original decree (for rent), that such an agreement was valid, that the enforcement of the decree was one within the province of the executing Court and that consequently the executing Court had jurisdiction to place Meghraj in possession of the bungalow. That is the main reason for the decision. Mr. Ramaswamy Iyengar, however, does not rely on that, but relies on the secondary reasoning given by the learned Judges as follows:

The point has been taken that when the petition of compromise was filed in the executing Court on the 4th February 1941, then under Order XXI Rule 2 of the CPC the Court had no option but to record that the decree had been satisfied. The court might have recorded satisfaction on the 4th February 1941; but before it dealt with the application the decree-holder objected to the recording of satisfaction, and the court was therefore correct in enquiring whether the decree had been satisfied. We agree with the view taken in Dattatraya Kashinath v. Vithaldas Bhagwandas ILR [1942] Bom. 132 that there is nothing in Order XXI Rule 2 to prevent the decree-holder from withdrawing or modifying his application for adjustment before the adjustment is recorded and we respectfully dissent from the view in Maung Kyaw Min v. Ma Hpaw AIR 1931 Rang. 332 that once an application has been put in by the decree-holder the Court must record the decree as adjusted, whatever happens between the putting in of the application and the recording of the adjustment. We see no reason why amendment should not be allowed in cases where it is equitable to allow it.

It is enough to point out that this opinion was obiter and, if it were necessary to express our view on that reasoning, we would point out that in that case Meghraj's reporting satisfaction was intertwined with his being put in possession, and, since he had not been put in possession, the decree was really not satisfied. Here, however, exhibit A-2 did not contain anything which had to be done by the Appellant and to that extent the decree-holder, Deivanai Achi, could not withdraw or take away the petition filed on 12th March 1962. We, therefore, find that the objection of limitation fails.

The last point taken by Mr. Ramaswamy Iyengar is that, after Execution Petition No. 5 of 1965 was dismissed on 11th August 1965, Execution Petition No. 83 of 1965 was filed for attachment giving correct figures of the amount recovered from the fourth Defendant and the first Defendant filed a similar counter as in Execution Petition No. 5 of 1965. Attachment was ordered, but batta was not paid as the property had been given as security. On 16th October 1965, Execution Petition No. 83 of 1965 was dismissed. The learned Counsel urges that, since attachment was ordered, that order would operate as constructive res judicata on the question that execution could validly proceed. In support of this contention he relies on the well known decisions in Raja of Ramnad v. Velusami Tevar 40 M.L.J. 197 (P.C.); Desayi Venkatranga Reddi and Others Vs. Paraku Chinna Sithamma and Another, and Mohanlal Goenka Vs. Benoy Krishna Mukherjee and Others, . Mr. Gopalachari objected to Mr. Ramaswamy Iyengar being allowed to raise this point because this point had not been raised in the elaborate counter filed in Execution Application No. 161 of 1966. He further submits that possibly the order of attachment was an interim order passed before notice went to the judgment-debtor and not when he filed his counter in Execution Petition No. 83 of 1965 and that therefore the rule of constructive res judicata would not apply. In view of the fact that this objection was not raised in the counter in Execution Application No. 161 of 1966, we think that it would be unjust to allow this point to be raised at this stage, particularly as it involves the question whether the order of attachment was made before or after the judgment-debtor filed his counter in Execution Petition No. 83 of 1965 and whether he had notice that such an order had been applied for, and allowed the order to be passed ex parte. It is inconceivable that he would have allowed the matter to proceed ex parte.

The result of our analysis is that it has to be held that Deivanai Achi is not entitled to execute the decree in Original Suit No. 132 of 1949. It is true that the half share of the Appellant in the Arimalam house has not been conveyed by a registered sale deed, but it was not the fault of the Appellant. He is ready and willing to execute a sale deed even in this very proceeding.

The appeal is allowed, but the parties will bear their own costs throughout.