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Report No. 27

Order XXI, rule 2(2) (New)

The big question under Order XXI, rule 2, is whether the provision prohibiting the recognition of an unrecorded payment or adjustment requires to be made more liberal or more rigid.

The various possible approaches may be considered.

(1) The first is, that the mandatory provision has worked hardship and should be removed. This has been done in the Punjab by removing sub-rule (3); see the Punjab Relief of Indebtedness Act (7 of 1934), section 361-2. It has been expressly excluded in respect of proceedings under the Bombay Agriculturist Debtors Relief Act (28 of 1947), which takes the place of section 71, Dekhan Agriculturists Relief Act3. It has also been held to be inapplicable to an inquiry under section 3 of the Madras Agriculturists Relief Act, 1938, since the court scaling down a debt under that Act is not a "court executing a decree"4.

(2) The other approach is that hinted at by Shah J. in a Bombay case5. He observed, that the wording of sub-rule (3) is quite clear and admits no escape therefrom "on such general considerations as have been referred to by Heaton J. in Trimback v. Hari, (1910) ILR 34 Born 575 and accepted in Hansa v. Bhawa, (1916) ILR 40 Born 333". He observed further-

"Such considerations may afford a sufficient ground to modify the provision of sub-rule (3) or to repeal Article 1746, of the Indian Limitation Act so as to make it permissible to the judgment-debtor to apply at any time to have the payment recorded. But they cannot afford any sufficient ground for refusing to give effect to the plain and unambiguous words of the sub-rule in words of the sub-rule in question.".

(3) The Fourteenth Report considered the matter in detail7, and took the view that a payment not made through bank or by postal money order or evidenced in writing, and an adjustment not made in writing, should not be recognised by any court executing the decree. It referred to the Allahabad Amendment in this context, and recommended its adoption8.

(4) In the draft Report on Civil Procedure Code which had been circulated, while requiring the payments to be made in the manner suggested in the Fourteenth Report, scope had been deliberately left for the recognition of other payments if they were certified and recorded as at present.

The matter has since been considered in detail, and it is felt that the time has come to make the provisions of the law more stringent by recognising only payments made in the manner suggested in the Fourteenth Report (summarised above) or adjustments proved by documentary evidence. Even such payments and adjustments should, it is felt, be got recorded, and further, payments not recorded should continue to be unrecognised as at present. Broadly speaking, the effect of the proposed amendment will be, (i) that oral payments and adjustments will have no claim for recognition in execution and will be incapable of being got recorded; (ii) payments evidenced in writing or adjustments proved by documentary evidence, can be recognised, but that too only if they are recorded. The condition of recording is considered necessary even in the case of such payments, etc., for the reason that otherwise there may be room for fraud and forgery.

1. Daru Mal v. Todar, AIR 1938 Lah 602.

2. Murli Dhar v. Firm Basheshar Lal, ILR 1938 Lah 264: AIR 1938 Lah 126, applying the Punjab Amendment to an original side decree of the Calcutta High Court sent to Punjab.

3. Chhaganlal v. Farasram, AIR 1921 Born 142 (143). .

4. K. Raju v. C. Mahalakshman, ILR 1943 Mad 138: AIR 1942 Mad 597 (598).

5. Mehbunissa v. Mehbunissa, ILR 49 Born 548: AIR 1925 Born 309 (310) (BF).

6. Article 174 of the old Limitation Act.

7. 14th Report, Vol. I.

8. As to genesis of Allahabad Amendment, see U.P. Judicial Reform Committee (1950-51) Report, Vol. I, pp. 41-42.

Code of Civil Procedure, 1908 Back

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