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Report No. 27

Order XXI, rule 2 (1)

Under the Madras Amendment, any party to the suit can certify and get recorded a payment or adjustment. Further a person who has become a surety as well as the legal representatives of the judgment-debtor are also brought under this rule by the Madras Amendment. These amendments have been considered, but it is felt that it is unnecessary to adopt them. So far as sureties are concerned, even now they fall under the rule1. So far as legal representatives are concerned, section 146 is adequate.

No change is therefore proposed, on these points.

1. Tambi v. Devi, ILR 49 Mad 325; Onkarmal v. Nritya, AIR 1923 Cal 313.

Order XXI, rule 2(1)-which decree:

1. A question which has arisen under rule 2(1) is-do the words "decree of any kind" apply to all decrees, or only to decrees under which money is payable? Some High Courts hold that they apply to all decrees1-2-3.

2. But the High Courts of Madras and Andhra Pradesh hold that they are confined to decrees under which money is payable4-5-6.

For the history of the provision, see the undermentioned cases7-8.

3. It is considered that the provision should apply to all decrees. Necessary clarification is proposed.

1. Shaik Niamat v. Shaikh frill, AIR 1928 Cal 715; Ellis v. Kitter, ILR 46 Born 226: AIR 1922 Born 380(2) (Mcleod CJ. and Shah J.).

2. Shadi v. Ram Ditta, AIR 1936 Lah 842; Devidas v. Bala Saheb, ILR 1948 Nag 486: AIR 1948 Nag 374.

3. The point is discussed in Mulla CPC, (1953), p. 754.

4. See Chawa Seetharamayya v. Kadiyala, AIR 1951 Mad 853.

5. Narayanaswami v. Rnngaswami, ILR 49 Mad 716: AIR 1926 Mad 749.

6. Anjaneyulu v. Rangacharyulu, AIR 1958 AP 705 (reviews case-law).

7. AIR 1928 Cal 715.

8. AIR 1926 Mad 749.



Code of Civil Procedure, 1908 Back




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