ATTACHING DECREE HOLDER CAN EXECUTE ATTACHED DECREE UNTIL IT GETS BARRED UNDER SEC. 48 C.P.C. - ATTACHING DECREE HOLDER CAN RECEIVE PAYMENT OUT OF COURT AND CERTIFY SUCH PAYMENT.

( 1 ) THE appellant filed a petition under Order 21 Rule 2 and Sec. 151 of the code of Civil Procedure to record full satisfaction of the decree in O. S. 42/36 on the file of the District Munsif, Sompet, and report part satisfaction of the decree in O. S. 13/1929 on the file of Sub Court, Berhampur. The 1st respondent herein obtained a decree in O. S. 42 of 1936 against the 2nd respondent on the 21st of september 1936. This was transferred to the Sub Court, Srikakulam, for execution. Prior to this decree, the 2nd respondent herein and another obtained a decree against the present appellant in O. S. 13 of 1929 on the file of Sub Court, berhampur. The decree-holders here had their decree transferred to the Sub court, Stikakulam. It was alleged for the appellant that the 1st respondent in execution of his decree attached the interest of the 2nd respondent in the decree in O. S. 13 of 1929, obtained against the appellant, and the latter paid a sum of Rs. 2,908-8-0 to the 1st respondent on 25-1-1951 out of court. It is to certify this payment that the petition out of which this appeal arises was filed.

( 2 ) THIS application was opposed by the 2nd respondent on two grounds: (1) that it was not open to the attaching decree-holder to certify a payment received out of court; and (2) that the 1st respondent could not attach the decree in his favour as the decree was barred on the relevant date.

( 3 ) THE trial court while holding that the attaching decree-holder was entitled to execute the attached decree-until it got barred under Sec. 48 C. P. C. dismissed the petition on the ground that it was not competent for an attaching decree holder to receive payment out of court and therefore any payment made outside the court could not have the effect of giving a discharge to the judgment-debtor under the attached decree. In support of the conclusion on the 2nd question, the lower court relied on a judgment of Justice Wads worth in Ahmed Ibrahim rowther v. Allapichai Routher.

( 4 ) I will first take up the second point. The view of the subordinate Judge in this regard seems to be untenable. The material provision of law is Order 21 rule 53. The relevant rule is sub-rule (3) which recites thus :"the holder of a decree sought to be executed by the attachment of another decree of the nature specified in sub-rule (1) shall be deemed to be representative of the holder of the attached decree and to be entitled to execute such attached decree in any manner lawful for the holder thereof. "

( 5 ) THE answer to this question turns upon the construction to be placed on the words "to be entitled to execute such attached decree in any manner lawful for the holder thereof. " The view taken by Wadsworth, J. was that the attaching decree-holder was a representative of the original decree-holder only for certain purposes and that for the purpose of executing it, he could not receive the decretal amount outside the court and certify such payment under Order 21 Rule 2 C. P. C. This opinion of the learned Judge is not only opposed to the plain meaning of the relevant sub-rule but to the pronouncement of the Judicial Committee in radhakrissen v. Durga Prasad. It was ruled by their Lordships that receiving money out of court is a mode of executing the decree. Under Order 21 Rule 53 (3), the attaching decree-holder has power to receive payment out of court and to certify such payment. It is no doubt true that that sub-rule does not confer upon him all the powers of the original decree-holder and it is therefore not open to him to exercise such power such as remitting a portion of the decretal amount so as to prejudice his judgment-debtor. Bur, it cannot be postulated that he should confine himself to execute the decree by process of court. Surely it is open to him to receive the amount out of court and the judgment-debtor who makes such a payment could ask for entering satisfaction of the decree. The conclusion of the trial court is therefore unsust