Sardar Autar Singh v. Firm Ram Narain Jai Gopal — 1945 DIGILAW 195 (ALL)

JUDGMENT Ghulam Hasan and Kaul, JJ. - These are execution of decree appeals by the judgment- debtors agiinst the jutgments and decrees of learned single Judge of this Court u/s 12 (2) of the Oudh Courts Act. The facts may be shortly stated. 2. The firm Ram Niram Tai Gopil of Amritsiri which will be referred to as the firm, field a suit against Sardar Autar Singh and his mother Mst. Basant Kuar on bahikhata accounts for Rs. 7,797 in March, 1923. A compromise was arrived at between the parties on the 24th September, 1929, whereby Mst. Basant Kuar was discharged and a decree for Rs. 8,100 was passed against Sardar Autar Singh, the amount to be paid within a year with 7 1/2 per cent, per annum interest. In the event of default the future interest was to run at 12 per cent, per annum. The decree which was prepared in pursuance of this compromise omitted to incorporate the default clause. Having obtained a transfer certificate, for execution the firm filed the same before the Subordinate Judge of Lucknow on the 18th March, 1931, and got three hojses of the judgment-debtor situate on Outram Road Lucknow attached. On the 2nd May, 1931, Sardar Autar Singh paid Rs. 2,500 to the decree-holder. No sale took place, and on the 17th Sept. another compromise was effected between the parties. Jogendra Singh, the son of Sardir Autar Singh, was brought into the case as a surety and both the judgment-debtors agreed to pay Rs. 6,831-1 in two instalments. The first instalment of Rs. 4,075 was to be paid on the 30th November 1931, (this was in fact paid) and the second instalment of Rs. 2,756-1 was to be paid on the 30th November, 1932. The attachment was to continue till the amount was paid off and a charge was created on the three houses. As we have already stated the first instalment was paid but as regards the second instalment only tRs. 1,000 were paid on the due date leaving a balance of Rs. 1,756-1 still payable by the judgment-debtors It may be mentioned that the clause about interest was not mentioned in the compromise. As we have already stated the first instalment was paid but as regards the second instalment only tRs. 1,000 were paid on the due date leaving a balance of Rs. 1,756-1 still payable by the judgment-debtors It may be mentioned that the clause about interest was not mentioned in the compromise. On the 27th March, 1939, one of the proprietors of the firm filed an application for amendment of the original decree before the Amritsar Court praying that the default clause inadvertently omitted in' the decree miy be incorporated therein. This was allowed on the 21st April without any notice to Sard ir Autar Singh. On the 25th April the firm applied for a transfer certificate to be sent to Lucknow a notice of this was sent to Mst. Basant Kuar and Sardar Autar Singh. Sardar Autar Singh filed objections on the 3rd Miythitthe execution application dated the 25th April, 1939, was barred inasmuch as it was not filed within three years of the last execution. The firm filed an affidavit that the decree had been executed successively for three years in the Lucknow Court and Moti Rim, one of the proprietors, actually made statement on oath to that effect. The Amritsar Court rejected the objections holding that the execution was not barred. This decision was upheld on appeal by the Lahore High Court. On the and July, 1940, the decree was transferred to Luc- know and on the 23rd July execution for Rs. 3,720 was sought against the three attached houses. For some reason this application was rejected on the 30th August 1940. 3. The present application which gave rise to these appeals was filed on the 11th December, 1940. The 27th May, 1941, was fixed as .the date of the sale. Sardar Autar Singh and Jogendra Singh filed objections u/s 47 read with Order XXI rule 66 of the CPC alleging that the decree was barred by lime and the valuation of the houses was shown to be very low. 4. The Civil Judge of Lucknow before whom this matter came up held that the execution was with- in time and the decision of the Amritsar Court dated the 27th June, 1940, constituted res judicata. 4. The Civil Judge of Lucknow before whom this matter came up held that the execution was with- in time and the decision of the Amritsar Court dated the 27th June, 1940, constituted res judicata. A second application was filed by the judgment- debtors under Sections 5 and 30 of the U. P. Agriculturists' Relief Act claiminf reduction of interest and instalments in the alternative if the- decree was not time-barred. This application was rejected. Accordingly the judgment-bebtors filed two appeals. 5. Both these appeals were dismissed by a learned single Judge of this Court. The learned Judge g anted leave to appeal to a Bench. He held that the decision of the Civil Judge upon the question of limitation was correct. He overruled the objection that the plea of res judicata should not have been entertained by the execution Court. The learned Judge agreed with the execution Court that the decision on the question of limitation was res judicata and the fact that Jogendra Singh was not a party to the proceedings in the Amritsar Court, did not take away the force of the decision inasmuch as Jogendra Singh could not be invested with the position of a judgment- debtor merely beciuse he stood surety for the payment of the amount of the decree against his father. It miy be mentioned thit under the will executed by Autar Singh's father Autar Singh had lite interest in the property in dispute and remainder man's interest vested in his son Jogendra Singh. As regards the further contention that the decision of the Amritsar Court was obtained by fraud, the learned Judge held that this plea was not established. 6. Regarding the other appeal, the learned single Judge agreed with the view of the execution Court" Section 5 of the Agriculturists' Relief Act did not authorise the execution Court to grant any relief under the Act, that section requiring that the relief can be granted only by the Court which originally passed the decree or by the Court to which its business had been transferred. 7. Having heard learned Counsel in support of these appeals, we are of opinion that they have no subs- tance and must be dismissed. Having regard to the trend of decisions in this Court, we are of opinion that this was not a fit Case in which leave ought to have been granted (vide Bhagwant v. Mst. 7. Having heard learned Counsel in support of these appeals, we are of opinion that they have no subs- tance and must be dismissed. Having regard to the trend of decisions in this Court, we are of opinion that this was not a fit Case in which leave ought to have been granted (vide Bhagwant v. Mst. Gattga Dei 1943 OA 262 : AWR (CC) 130 : OWN 393, Brij BUukhany. Biagwan Dcitt 1943 OA 247 : AWR (CC) 115 : OWN 404, Mohammad J afar v. Mst. Barka 1943 OA 282 : AWR (CC) 150 : OWN 457, but we are not disposed to throw these appeals out on that ground. 8. It has been argued before us that the decree dated the 24th September, 1929, which awarded a higher rate of interest in the event of default must be deemed to be non-existent as it was superseded by the decree dated the 17th Septem- ber, 1931. There is no merit in this contention. The decree of 1929 was the original decree which laid down that the decretal amount was to be paid on a certain date and if it was not so paid then a higher rate of interest was to run. The judgment- debtors paid a portion of the amount but not the whole, and as regards the remainder a compromise was affected in 1931 which regulated its payment in a certain manner. There can be no question of afresh decree having been passed in 1931 which had the effect of superseding the decree of 1929. The contention further overlooks the fact that the transferee Court can only execute the decree which is transferred to it and not a decree which is not so transferred. What was transferred by the Amritsar Court to the Lucknow Court was the decree of 1929 and it was not open to the execution Court as such to go behind that decree. 9. Next it has been contended that the decree of 1929 had become time-barred and the decision of Amritsar Court to the contrary did not constitute res judicata. The learned single Judge, in agreement with the view taken by the execution Court, came to a finding that the judgment-debtors had not succeeded in showing that no steps had been taken within the time prescribed by law for keeping the decree alive. The learned single Judge, in agreement with the view taken by the execution Court, came to a finding that the judgment-debtors had not succeeded in showing that no steps had been taken within the time prescribed by law for keeping the decree alive. On the other hand, he held relying on the evidence of Hoti Ram and the cir- cumstances of the case that steps in aid of execution had been taken by the decree-holder. We can see no flaw in this finding but even if we were disposed to disagree with this finding we should not be justified in disturbing it in third appeal. To do so would be to completely qverlook the scope i of a third appeal under Sect'On 12 (2) of the Oudh Courts Act. We also agree with the learned Single Judge on the question of res judicata. Autar Singh appeared before the Amritsar Court in answer to the notice served upon him He actually filed an objection that the decree was time-barred as no steps in aid of the execution had been taken by the decree-holder He contented him- self with filing a search certificate to the effect that there was no record trace- ab'e in the Lucknow Courts to indicate any executions between the jears 1932 and 1939. On the other hand, Moti Ram, one of the proprietors of the firm, not only filed an affidavit but gave evidence and submitted himself to cross-examination by the judgment-debtor. His statement was not rebutted. Neither Autar Singh nor his mukhtar came into the witness bos to prove the contrary. A search certificate filed by the judgment-debtor was not a conclusive piece of evidence on the matter and the Amritsar Court was perfectly justified in coming to the conclusion tint the dec- ree was not time-barred. This decision was upheld in appeal by the Lahore High Court and must be held to conclude tie matter between the parties. It has, however, been argued that the decree-holder committed fraud on the Court by falsejy representing that steps in execution had been taken, although the search certificate showed a different state of facts The question whether steps ir aid of execution had or had not been taken was cne of fact which could be proved by ev denee in the case. Evidence was tendered by both sides and the execution Court preferred to rely on one evidence rather than on the other and it cannot be said that the decree- holder was guilty of any fraud upon the Court. The burden of proving fraud lay entirely upon the judgment-debtors and in such a case there can be no shifting of the burden of proof, as Counsel contends because of the production of the search certificate. It may be as the learned Judge re- marked, ttrt i further search in the record of the Amatsar Our might have s-ho vn steps in execution taken by Me decree-holder. u/s 41 of the CPC the Court to which a decrre is sent for execution is bound to certify to the Court which passed it the fact of such execution, whether complete or partial, and where no execution has taken place the circumstances attending such failure. u/s 181 of the Oudh Civil Rules the file of the trans- feror Court with the record of proceedings taken by the transferee Court must be returned to the former. The only exception is that where a decree so transferred has been executed in part only it need not be at once returned to the Court from which it has been received, but, should the decree holder so desire, it can be retained for a subsequ- ent period (not exceeding one year) to enable the decree-holder to obtain further satisfaction. It would be reasonable to presume that after the decree was partially satisfied the record must have been sent at any rate after a year to the Amritsar Court, and it was the bounden duty of the judgment-debtors to have searched the file in the Amritsar Court with a view to ascertaining whether any steps in aid of execution had been taken or not. This the judgment-debtors .have failed to do and the plea of fraud must, therefore, fail. 10. Regarding the other appeal the -view taken by the learned Judge was that under Sections 5 and 30 jf the U. P. Agriculturists' Relief Act the amendment of the original decree,could be midebythe Court passing the decree or by the Court to which its busi- ness had been transferred and not by the execution Court, much less by a Court to which the decree was transferred from another province. Two contentions have been urged before us in support of thejappeal. The first contention is that the com- promise of 1931 was made a rule of Court and a fresh decree was passed on the basis thereof. It is urged therefore that the Court passing the decree could exercise its jurisdiction under Sections 5 and 30 of the U. P. Agriculturists' Relief Act, We have already repelled the argument that the com- promise of 1931 constituted a fresh decree. To say that an execution Court to which a decree has been transferred for execution passes a fresh decree in the execution proceedings is a proposition which is hardly stateable. Ths other contention is that the words "Court whose business has been trans- ferred" should be deemed to include the Court to which the execution of the decree has been transferred. No authority is cited in support of this proposition. We think it impossible to hold that these words could have been intended to mean that a Court passing a decree in one province can, by the issue of a transfer certificate for the purposes of execu'ion of the decree, be held to transfer its business to the execution Court in another province. 11. Accordingly we hold that there is no substance in these appeals, which we dismiss but without costs.