Ittiavira Thommen v. Chandy Abraham — 1955 DIGILAW 82 (KER)

Judgment :- 1. These appeals arise from a single appellate order in execution of the decree in O.S. No. 816 of 1109 on the file of the District Munsiff's Court of Meenachil. S.A. No. 400 is by the defendant-judgment-debtor while S.A. No. 410 is by the additional plaintiffs 3,4 and 6. These appeals came before a Single Bench in the first instance and were referred to a Division Bench as they raised questions of some importance. 2. The second plaintiff is the mother of the plaintiffs 3 to 6. Her deceased husband, the original plaintiff, obtained the decree for money in question against his brother the defendant for his share of property left out in a partition between them. The ultimate decree was passed by the High Court on 13.1.1111. The original plaintiff died during the pendency of the second appeal in the High Court and the plaintiffs 2 to 6 had been impleaded there as his legal representatives, 2nd plaintiff being appointed as the guardian ad litem of children the plaintiffs 3 to 6. 3. On 17.3.1114 the 2nd plaintiff acting for herself and as guardian of the other plaintiff gave Ext. I assignment of the decree in favour of one Devasia Varkey and, in due course, on 20.2.1115 the assignee obtained satisfaction from the judgment debtor outside court but the fact of assignment or its satisfaction was not reported to court by either the assignee or the debtor. On 11.12.1119 the 3rd plaintiff who had by that time become major applied to execute the decree professing himself for that purpose to be the guardian of his brother the 4th plaintiff and his sister the 6th plaintiff, the 5th plaintiff sister having been married away in the interval. This application was resisted by the defendant on the ground that the decree debt had been discharged by payment to the assignee and there was no subsisting decree available for execution. He challenged the right of the 3rd plaintiff to act as guardian of the plaintiffs 4 and 6 in any event. 4. The executing court passed orders on the execution application aforesaid on 27.10.1120 dismissing the same in the light of the assignment of the decree which it held to be valid. He challenged the right of the 3rd plaintiff to act as guardian of the plaintiffs 4 and 6 in any event. 4. The executing court passed orders on the execution application aforesaid on 27.10.1120 dismissing the same in the light of the assignment of the decree which it held to be valid. On appeal by plaintiffs 3, 4 and 6 the District Court held that the executing court was bound to execute the decree so long as it stood undischarged on its records and remanded the execution case. The High Court in second appeal by the defendant upheld the order of remand as passed by the District Court and gave further direction. 5. The executing court subsequently passed orders on 21.10.1950 that the decree had been validly discharged and further that execution was barred by limitation. In the appeal preferred to the lower appellate court by the plaintiffs 3, 4 and 6 that court held that Ext. A assignment was a bona fide transaction fully supported by consideration and there was also no reason to think that the discharge pleaded by the defendant was fictitious; but all these could not avail against the 3rd plaintiff inasmuch as there had been no certification of satisfaction of the decree. The only question then was whether the execution of the decree was barred by limitation or not and on this the learned District Judge held that there was no bar of limitation and the 3rd plaintiff was entitled to execute the decree. He, however, confined the execution to the share of the 3rd plaintiff alone, in the view he took that the 3rd plaintiff could look only for himself and the 2nd plaintiff had validly assigned all her one-half share of the decree and had not also relinquished her guardianship over the plaintiffs 4 and 6. 6. Learned Counsel for the plaintiffs 3, 4 and 6 raises the question that if the 3rd plaintiff's share of the decree amount is allowed to be recovered, there was no reason why the recovery of 4th plaintiff's share also should not be granted seeing that there was no question of minority at this stage so far as he was concerned. Learned Counsel for the plaintiffs 3, 4 and 6 raises the question that if the 3rd plaintiff's share of the decree amount is allowed to be recovered, there was no reason why the recovery of 4th plaintiff's share also should not be granted seeing that there was no question of minority at this stage so far as he was concerned. Learned Counsel for the defendant submitted that the court below rather misled itself in thinking that the 2nd plaintiff was entitled to one-half of the decree rights while in fact her right was equal to the share of her sons the 3rd and 4th plaintiffs individually and therefore she was entitled to only 1/3 right and he fairly conceded that if this Court was of opinion that the order for execution passed by the lower appellate court was at all right then the 4th plaintiff could also be allowed to execute for his share so that the exemption granted by the court below to the extent of one-half would have to be reduced to one-third. 7. The first question that arises for consideration is whether the court below was right in ignoring the assignment of the decree by the 2nd plaintiff and the discharge of the decree thereafter by the judgment-debtor and allowing execution of the decree to proceed though for portion thereof. Learned Counsel for the defendant submits that the court was wrong in its conclusion and he relied upon Sadagopa Chariar v. Raghunatha Chariar, I.L.R. 33 Madras 62, Town Bank of Podigon v. Raman Chettiar, A.I.R. 1928 Rangoon 25, Radhakrishnan v. Daudas, A.I.R. 1935 Nagpur 230 and Raghunath v. Gangaram, A.I.R. 1923 Bombay 404. Learned Counsel for the plaintiffs 3, 4 and 6 supported the order of the court below and he cited Jayanarayanan v. Polayya, A.I.R. 1935 Madras 383, Anath Nath v. Monmoth Nath, A.I.R. 1039 Calcutta 482 and Umrao Singh v. Phalad Singh, A.I.R. 1935 Allahabad 1001. 8. We may say at once that the former set of decisions quoted by learned Counsel for the defendant have no application to the question on hand. In Sadagopa Chariar v. Raghunatha Chariar, I.L.R. 33 Madras 62, the only question was whether there should be a recognition of the assignment of the decree by court for purpose of the assignment to come into operation. In Sadagopa Chariar v. Raghunatha Chariar, I.L.R. 33 Madras 62, the only question was whether there should be a recognition of the assignment of the decree by court for purpose of the assignment to come into operation. It was held the assignment operated from date of the assignment and not from the date of the order of the court recognising assignment. Town Bank of Podigon v. Raman Chettiar A.I.R. 1928 Rangoon 25 decided that a transferee though not recognised by court can claim priority as against a later attaching decree-holder. In Radhakishen v. Daudas, A.I.R. 1935 Nagpur 230, it was held that an uncertified payment to the assignee of a decree could be pleaded by the judgment-debtor when the assignee applied, for recognition of court for purpose of execution, since 0.21 R.2 of the Code of Civil Procedure applied only to a'decree-holder' on record. In Raghunath v. Gongaram A.I.R. 1923 Bombay 404, the uncertified payment was to the original decree-holder and it was held that the judgment-debtor could plead the payment as against the assignee of the decree applying to execute the decree. The assignee's application was made to the court as a court which passed the decree and not as a court which was executing the decree and therefore 0.21, R.2, C.P.C. did not stand in the way. Now these decisions reflect the position of the assignee decree-holder seeking execution vis-a-vis either the judgment-debtor or strangers claiming through the judgment-debtor. But the question here is how far an original decree-holder moving the executing court for reaslising the decree can be met by the plea that there has been an assignment of the decree and the judgment-debtor has paid off on the basis of such assignment, though neither the assignment nor the fact of payment has been intimated to court. The authorities cited by learned Counsel for the plaintiffs do support the position that the decree-holder is entitled to execute the decree even after the assignment so long as the assignee has not chosen to apply to the executing court, because the executing court is not competent to ignore the records as it stands. For instance in Jayanarayana v. Polayya A.I.R. 1935 Madras 383, Chief Justice Beasley, delivering the judgment of the Bench referred to the previous cases on the subject and observed. For instance in Jayanarayana v. Polayya A.I.R. 1935 Madras 383, Chief Justice Beasley, delivering the judgment of the Bench referred to the previous cases on the subject and observed. "The only person in whose favour the decree was, on the face of it, was the original decree-holder and the executing court was bound to regard him as the person entitled to execute the decree and could regard no other person as such". There is also the case in Eli v. Narayana Aiyen,18 T.L.J.1216 referred to by the court below to the same effect. But the observations of Justice Walsh in Kadir Meera Sahib v. Pir Mahomed, A.I.R. 1933 Madras 523, seems to us to be most apposite for this case. The learned judge said: "There is absolutely no provision for a judgment-debtor paying a third party merely because he happens to know of the assignment of the decree in the latter's favour by the decree-holder; and it is perfectly clear that, if he were to make such payment, he would run the risk of having to pay money over again to the decree-holder". We hold therefore that the executing court was, in the circumstances, bound to execute the decree in accordance with its terms. It may be remembered that this was the view taken in the order of remand passed by the District Court at the earlier stage and this order of remand was upheld by the High Court. The court below was therefore perfectly justified in allowing execution to proceed at the instance of the 3rd plaintiff. 9. Learned Counsel for the defendant next contended that the 3rd plaintiff's execution application was barred by limitation on the ground that under the first part of S.8 of the Travancore Limitation Act, VI of 1100, corresponding to S.7 of the Indian Limitation Act, the 2nd plaintiff could have given a valid discharge without the concurrence of her minor children and had indeed done so. Here the interests of the plaintiffs 2, 3 and 4 were distinct and separate. The 2nd plaintiff as the guardian of the other plaintiffs had no doubt a right to give a discharge but this was subject only to 0.32 R.6 C.P.C., viz., with the permission of the court. Such conditional right to give discharge is insufficient for the operation of S.8 of the Limitation Act under which the discharge contemplated is one as of right. Such conditional right to give discharge is insufficient for the operation of S.8 of the Limitation Act under which the discharge contemplated is one as of right. The discharge that can be given only with the permission of the court is not within the section. See Amina Bibi v. Rama Shankar, I.L.R. 41 All. 473. The power, again, of the 2nd plaintiff as one of several joint decree-holders to apply for execution on behalf of all could not also imply that one joint decree-holder can give a discharge on behalf of all the decree-holders. For, the capacity to make an application on behalf of another person does not necessarily imply the capacity to give a discharge on behalf of such person and moreover the right of one joint decree-holder to apply for execution on behalf of all under 0.21 R.15, C.P.C. is dependent on the permission of the court and assuming that such right implies a right to give a discharge, the discharge will not be one contemplated by the section which requires that the discharge given by a person must be as of right. See Chittaley's Limitation Act, Volume 1, page 310, third edition. This is not a case where the decree itself authorises one of the decree-holders to receive the decretal amount and give a discharge to the judgment-debtor where it is possible to say that the general rule that one joint decree-holder cannot give a discharge to the judgment-debtor without the concurrence of the other decree-holders, may be said to be departed from. We hold therefore that the decree is valid and subsisting and available for execution at the instance of the 3rd plaintiff. 10. No other question arises. We therefore hold that the plaintiffs 3 and 4 are entitled to execute the decree to the extent of 2/3 of the decree amount. We further hold that the balance 1/3rd has been effectively discharged by the judgment-debtor. The appeals are disposed of accordingly. As both sides had exaggerated their respective claims, we direct that they will bear their respective costs throughout.