Madras High Court
Periatambi Udayan vs Vellaya Goundan And Anr. on 15 December, 1897
Equivalent citations: (1898)ILR 21MAD410
JUDGMENT
1. The finding is that the money was paid in full discharge of the judgment-debt, the first defendant undertaking to enter up satisfaction. No satisfaction was entered up and no application to compel the first defendant to fulfil his undertaking was made by plaintiff within sixty days of the payment. It was; therefore, not competent to the executing Court to determine whether the payment had been made or not. The only course open to the plaintiff was that which he followed, viz., to bring a suit for the amount. The fact that no application was made by the plaintiff within sixty days distinguishes the present case from Guruvayya v. Vudayappa I.L.R. 18 Mad. 26. As the Courts there held that it was open to the plaintiff to seek relief in execution, it must be taken that the application was made within sixty days, though the report does not expressly state this. In the case of Rama Ayyan v. Sreenivasa Pattar I.L.R. 19 Mad. 230. the person relying on the adjustment was not entitled to make any application under Section 258 [Section 258--If any money payable under a decree is paid out of Court or the decree is otherwise adjusted in whole or in part to the satisfaction of the Pay Ment to decree- decree-holder, or if any payment is made in pursurance of an holder. agreement of the nature mentioned in Section 257A, the decree-
holder shall certify such payment or adjustment to the Court whose duty it is to excute the decree.
The judgement-deptor 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 due service of such notice, the decree-holder failsti appear on day fixed, or having appeared fails to show cause why the payment or adjustment should not be recorded as certified, the Court shall record the same accordingly.
No such payment or adjustment shall be recognized by any Court unless it has been certified as aforsaid.] Civil Procedure Code, within sixty days from the date of the adjustment, as against the person who denied the payment, inasmuch as the latter was not then an assignee. That decision cannot be taken to justify an enquiry into an alleged adjustment after the expiry of sixty days from the time when a party relying on the adjustment had become entitled to apply for the adjustment to be recorded.
2. We must, therefore, dismiss the petition with costs.