Judgement

Appeal (No. 71 of 1938) from a judgment and order of the High Court (April 9, 1937) which reversed a judgment and order of the First Subordinate Judge of Howrah (January 28, 1935).

The first respondent obtained a decree for a large sum against the appellants. Certain payments were made towards the discharge of the decree which were not certified and recorded and there remained on the face of the decree a sum of Rs.3,32,373. As there was a sum of Rs.3,86,000, arrears of income-tax, due from the first respondent, the income-tax authorities, acting under the Bengal Public Demands Recovery Act, attached the decree and applied for execution. The appellants alleged payments had been made towards the discharge of the decree and the real balance outstanding was only Rs. 1,60,000 and the authorities agreed to accept this sum in full satisfaction of the decree. The appellants paid this sum and applied to the Court to record the adjustment of the decree.

The first respondent, who was made a party to the proceedings, contended that it was not competent to the income-tax authorities to adjust the decree

The Subordinate Judge held that the income-tax authorities were competent to adjust the decree.

The High Court (Nasim Ali and R. C. Mitter) reversed that finding.

The facts are more fully stated in the judgment of the Judicial Committee.

1940. April 25, 29. L. P. E. Pugh K.C., and J. M. Pringle for the appellants. An attaching creditor is the representative of the decree-holder for all purposes Unao Commercial Bank, Ld. v. Mohan Gobinda Roy (A. I. R. ( 1930) All. 659.); Ramcharan Singh v. Jangbahadar Singh (A. I. R. ( 1924) Pat.696.); Brojo Nath Saha v. Sandari Dassya (( 1906) 6 C. L. J. 141.); and Chatterton v. Watney.(( 1881) 16 Ch. D. 378.) He is not bound to put the attached property up for sale. He can receive payment in money out of court. If he can receive payment in full, he can compound for a lesser amount. If he can receive payment out of court, he must be able to have the payment recorded. Here, admittedly, Rs.1,60,000 Was paid out of court by the appellants. The payment should be recorded otherwise the appellants would lose that sum, for, if the payment is not recorded the appellants would be prohibited from proving the payment in execution. The agreement to receive the payment in full discharge of the decree should also be recorded as having taken place. It need not be recorded as an adjustment finally discharging the decree. Any question as to the effect of the agreement could be left to be determined in future proceedings.

If I am wrong in my contention that the attaching-creditor is competent to adjust the decree, then, as an alternative, I now ask that the payment be recorded as a part-payment. I give up my right to get the money back, but I submit that the agreement to accept the payment in full discharge of the debt should also be recorded and my right to contend that no more was really due on the decree than I have paid should be kept open.

Pringle followed. The sole question in the case is whether the statutory power given to the attaching-creditor under Order XXI., r. 53, sub-r. 3, extends to adjusting the decree with the original judgment-debtor. If it does, it is immaterial what the quantitative relation between the attached decree and the attaching-creditors decree is on the result of the adjustment between the attaching-creditor and the original decree-holder. The Court has to be satisfied that an adjustment has been made between the judgment-debtor and the decree-holder, or one who stands in his shoes, and has been

36 Law. Rep. 67 Ind. App. 360 ( 1939- 1940) Radhakissen C hamria V. Durga Prosad Chamria

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accepted by the latter. Being satisfied on these points, the Courts duty is then the purely ministerial one of recording the adjustment. If the original decree-holder is dissatisfied, if he alleges fraud or collusion, he can challenge the adjustment in a separate suit; he cannot do it under s. 47 of th