Author Description

This historic book may have numerous typos and missing text. Purchasers can download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1908 Excerpt:...should be told. The respondent applied for an order absolute under section 89 of the Act. The judgment-debtors pleaded that they had paid a certain sum to the decree-holder out of Court. This was denied by the decree-holder. The Court of first instance found the payment proved and made an order absolute for sale to recover the balance due after deduction of the amount paid out of the Court. The decree-holder appealed. Ho pleaded that 110 payment bad been mado to him out of Court and further that it was not open to the Court, huving regard to the provisions of section 258 of the Code of Civil Procedure to recognise the payment out of Couit. Without going into the first plea the learned District Judge sustained the second plea. The judgment-debtors come here in 6econd appeal. For the appellants it is argued that the provisions of section 258 I ave no application to the case. Reliance is placed upon a deci?ion of the Madras High Court, viz., Mallikarjuna S"stri v. Narasimhu lino (1) and on a decision of the Calcutta High Court in Hatem Ali Khundkar v. Abdul Ghaffur Khun (2). The former of these deci-ions m Leen overruled by a full Bench of tho Madras High Court in Vaidhinadusamy Ayyar v. Somasiindram Filial (3). The latter case undoubtedly supports the appellantsj but, with all deference to the learned Judges who decided it, we are unable to agree with them. The Full Bench case of the Madras High Court is in point, and is against the appellants. We agree with the view taken in that case. We hold that the money alleged by the judgment-debtors to have been paid out of Court was "money payable under a decree" within the meaning of section 258 of the Code of Civil Procedure. If it was paid out of Court and the decreeholder did not certify the paymen...