Gujarat High Court
Pravinbhai Bhagvanjibhai Popat vs Shambhubhai Valjibhai Bhua on 11 July, 2014
Author: Abhilasha Kumari
Bench: Abhilasha Kumari
C/SCA/6571/2014 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 6571 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE SMT. JUSTICE ABHILASHA KUMARI
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1 Whether Reporters of Local Papers may be allowed to see
the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law as
to the interpretation of the Constitution of India, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
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PRAVINBHAI BHAGVANJIBHAI POPAT....Petitioner(s)
Versus
SHAMBHUBHAI VALJIBHAI BHUA....Respondent(s)
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Appearance:
MR PJ KANABAR, ADVOCATE for the Petitioner(s) No. 1
MR SIKANDER SAIYED, ADVOCATE for the Respondent(s) No. 1
Mr.Mehul S.Shah, as amicus curiae
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CORAM: HONOURABLE SMT. JUSTICE ABHILASHA
KUMARI
Date : 11/07/2014
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C/SCA/6571/2014 JUDGMENT
ORAL JUDGMENT
1. Rule. Mr.Sikander Saiyed, learned advocate waives service of notice of Rule for the respondent. On the facts and in the circumstances of the case and with the consent of the learned counsel for the respective parties, the petition is being heard and decided finally.
2. The challenge in this petition preferred under Article 227 of the Constitution of India, is to the order dated 12-4-2014, passed by the learned 3rd Addl.Senior Civil Judge, Amreli ("the Executing Court"
for short), below the Application at Exh.83, preferred by the petitioner in Special Civil Execution Petition No.27 of 1998, whereby the said application for recording the compromise between the parties, has been rejected.
3. Briefly stated, the relevant factual background of the case is that an agreement to sell in respect of agricultural land bearing Revenue Survey No.1150, admeasuring 3 Acres, 10 Gunthas, situated in Amreli Town on Amreli-Kukavav Road, was executed by Valjibhai Page 2 of 20 C/SCA/6571/2014 JUDGMENT Bhua, father of the respondent herein, in favour of the petitioner, on 13-9-1989. The petitioner paid Rs.2500/- as earnest money, which was accepted by Valjibhai Bhua who put his thumb impression on the Agreement to Sell, in the presence of witness Vithalbhai Bapubhai. The thumb impression of Valjibhai Bhua was identified by a third party. On 23-6-1981, Valjibhai Bhua made a will in favour of the respondent. Subsequently, he passed away. However, the respondent refused to act upon the Agreement to Sell executed in favour of the petitioner. Hence, the petitioner filed a suit, being Special Civil suit No.79 of 1992, which was decreed in his favour by the learned Civil Judge (SD), Amreli, vide judgment and decree dated 8-5-1998. Despite the said judgment and decree, the respondent was reluctant to act in accordance with the decree. The petitioner, therefore, filed the above-mentioned Execution Petition. As, according to the petitioner, the attitude of the respondent was non-cooperative and hostile, he was constrained to apply for an order against the respondent, to put him in civil prison.
Subsequently, the parties arrived at an amicable
settlement of the dispute. According to the
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C/SCA/6571/2014 JUDGMENT
petitioner, pending the execution proceedings, he had obtained the status of an agriculturist. The parties, therefore, agreed that a fresh sale deed be executed by the respondent in favour of the petitioner with respect to the agricultural land situated in Amreli Town on Amreli-Kukava Road, namely, Revenue Survey No.1150, admeasuring 2 Acres 7 Gunthas, instead of 3 Acres and 10 Gunthas, as ordered in the decree. The remaining land admeasuring 1 Acre and 3 Gunthas would remain with the respondent. As against this, the respondent would not be entitled to receive the remaining sale consideration amounting to Rs.1,07,500/- and this amount was deemed to have been waived by the respondent. It was further agreed between the parties that the objections raised by one Babubhai Nathabhai at Exh.15, and by the brothers of the respondents namely, Hansraj Valji Bhua and Vaghji Valji Bhua, at Exh.31 and 42 respectively, are deemed to have been waived as they were rejected vide order dated 23.03.2001 and 29.03.2004 respectively. It was further agreed between the parties that if the respondent fails to execute the sale deed qua the land admeasuring 2 Acres, 7 Gunthas and/or handover the actual physical possession thereof, the petitioner Page 4 of 20 C/SCA/6571/2014 JUDGMENT would be entitled to get the said land by way of a sale in terms of the compromise dated 31.03.2014.
4. The Executing Court refused to record the compromise between the parties as, according to it, it was contrary to the original decree. According to the Executing Court, it has no power to change the decree. Hence, the application of the petitioner at Exh.83 was rejected by the impugned order. Aggrieved thereby, the petitioner has approached this Court.
5. Notice was issued in the petition on 02.05.2014. The respondent has filed his affidavit-in-reply.
6. The stand taken in the affidavit-in-reply is in consonance with the case put up by the petitioner. The respondent has stated in the said affidavit, that the petitioner and he have settled the dispute amicably on 31.03.2014, and have jointly submitted that compromise deed to the Executing Court. It is stated that the petitioner has acted upon the compromise and the respondent has waived the amount of Rs.1,07,500/- as per the said compromise. The respondent, in his reply, supports the stand of the petitioner in all respects and further states as below:
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"I say that the learned Executing Court
ought to have accepted the compromise entered
into between me and the petitioner and further ought to have ordered to execute the same in the facts and the circumstances of the case and interest of justice. The order impugned in this petition is liable to be quashed and set aside and the petition is required to be allowed to meet with the ends of justice."
7. From the above, it is clear that insofar as the compromise is concerned, as also the stand of the parties in relation to the impugned order, the petitioner and respondent are ad idem. Though the respondent has not formally challenged the impugned order, however, it is stated by him in the affidavit- in-reply that the Executing Court ought to have accepted the compromise between the parties and the impugned order is liable to be quashed and set aside.
8. As the petitioner and the respondent have taken the same stand, this Court considers it appropriate to request Mr.Mehul S. Shah, learned advocate to render his assistance, as amicus curiae. He has kindly consented and made submissions, as would be recorded Page 6 of 20 C/SCA/6571/2014 JUDGMENT hereinbelow.
9. Mr.P.J. Kanabar, learned advocate for the petitioner submits that the impugned order is illegal, unjust and unreasonable, as the Court has failed to appreciate the relevant provisions of the Code of Civil Procedure, 1908 ('the Code' for short). Referring to Section 141 of the Code, it is submitted that this provision of law provides that the procedure provided in the Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of Civil Jurisdiction. Hence, the procedure envisaged by the Code would apply to execution proceedings, as well.
9.1 Learned advocate for the petitioner has further referred to the provisions of Order 23 Rule 3 and submitted that this provision lays down that when the Court is satisfied that the suit has been adjusted wholly or in part by any lawful agreement or compromise, the Court shall order such agreement or compromise to be recorded and pass a decree in accordance therewith. In the present case, there is no dispute to the compromise between the parties. For this reason, the Executing Court ought not to have rejected the prayer of the petitioner to record the Page 7 of 20 C/SCA/6571/2014 JUDGMENT compromise.
9.2 Learned advocate for the petitioner has further referred to the provisions of Order 21 Rule 2 by submitting that, where any money payable under a decree of any kind is paid out of Court, in whole or in part to the satisfaction of the decree, the Executing Court is duty-bound to record the said adjustment. It is submitted that in view of this provision, the compromise ought to have been recorded, as it amounts to the adjustment of the decree. It is urged that the above provisions of the Code ought to be read conjointly and if so read, there is no impediment in the way of the Executing court in recording the compromise.
9.3 It is further contended on behalf of the petitioner that the compromise is legal and permissible by law, therefore, the Executing Court is not justified in refusing to accept and record the compromise. By recording the compromise, no prejudice would be caused to any party and the compromise would settle the root cause of the dispute regarding an agreement to sell, executed in the year 1989. That the procedural law is a handmaid of justice and is Page 8 of 20 C/SCA/6571/2014 JUDGMENT designed to sub-serve and not subvert, the interest of justice.
On the above grounds it is prayed that the impugned order may be quashed and set aside.
10. Mr. Sikander Saiyed, learned advocate for the respondent, has reiterated the stand taken by him in the affidavit-in-reply, by submitting that the parties have arrived at a compromise that would settle their long-standing dispute and the Executing Court is not justified in refusing to record it.
11. Mr. Mehul S. Shah, learned amicus curiae, has submitted that Section 47 of the Code pertains to questions to be determined by the Court executing a decree, and provides that questions arising between the parties to the suit, in which the decree was passed, relating to the execution, discharge or satisfaction of the decree, have to be determined by the Court executing the decree and not by a separate suit. According to him, this section has to be read harmoniously with the provisions of Order 21 Rule 2, which relates to adjustment of the decree in whole or Page 9 of 20 C/SCA/6571/2014 JUDGMENT in part, to the satisfaction of the decree-holder. Learned amicus curiae submits that the Executing Court certainly has the power of adjustment of the decree, wholly or in part, to the satisfaction of the decree-holder. As this procedure is provided for in execution proceedings, by recording the compromise between the parties, which is to the satisfaction of the decree-holder, it cannot be said that the Executing Court would be going against the decree.
12. This Court has heard learned counsel for the respective parties and learned amicus curiae.
13. The present petition arises out of execution proceedings. It would,therefore, be pertinent to refer to the relevant provisions of Order 21 Rule 2 regarding execution of decrees and orders. It reads as under:
"2. Payment out of Court to decree-holder - (1) Where any money payable under a decree of any kind is paid out of Court, or a decree of any kind is otherwise adjusted in whole or in part to the satisfaction of the decree-holder, the decree-holder shall certify such payment of adjustment to the Court whose duty it is to Page 10 of 20 C/SCA/6571/2014 JUDGMENT execute the decree, and the Court shall record the same accordingly.
(2) The judgment-debtor or any person who has become surety for the judgment-debtor also may inform the Court of such payment or adjustment, and apply to the Court to issue a notice to the decree-holder to show cause, on a day to be fixed by the Court, why such payment or adjustment should not be recorded as certified; and if, after service of such notice,the decree-holder fails to show cause why the payment or adjustment should not be recorded as certified, the Court shall record the same accordingly.
(2A) No payment or adjustment shall be recorded at the instance of the judgment-debtor unless--
(a) the payment is made in the manner provided in rule 1; or
(b) the payment or adjustment is proved by documentary evidence; or
(c) the payment or adjustment is admitted by,or on behalf of, the decree-holder in his reply to the notice given under sub-rule (2) of rule 1, or before the Court.
(3) A payment or adjustment, which has not been certified or recorded as aforesaid, shall not be recognised by any Court executing the decree."
14. Sub-rule (1) of Rule 2 stipulates that where any Page 11 of 20 C/SCA/6571/2014 JUDGMENT money payable under a decree of any kind is paid out of Court, or a decree of any kind is otherwise adjusted in whole or in part to the satisfaction of the decree-holder, the decree-holder shall certify such payment or adjustment to the Executing Court. It then becomes the duty of the Executing Court to execute the decree and record the same accordingly. This provision clearly provides for the adjustment of the decree, in whole or in part, to the satisfaction of the decree-holder which,if certified by the decree- holder, is bound to be recorded by the Executing Court.
15. In the present case the original decree is sought to be adjusted by a compromise arrived at between the parties, whereby it is agreed by the decree-holder that he is satisfied with land admeasuring 2 Acres and 7 Gunthas, instead of land admeasuring 3 Acres and 10 Gunthas as ordered in the decree. The respondent has agreed to waive the remaining amount of sale consideration of Rs.1,07,500/- as also the objections raised by one Babubhai Nathabhai and the brothers of the respondent. The proposed compromise between the parties amounts to an adjustment of the decree in Page 12 of 20 C/SCA/6571/2014 JUDGMENT part, to the satisfaction of the decree-holder and, in the view of this Court, would definitely fall under the provisions of Order 21 Rule 2 of the Code, which specifically applies to execution proceedings. As such, there was no legal impediment in the way of the Executing Court in recoding the compromise. It appears that while passing the impugned order, the Executing Court has overlooked the provisions of Order 21 Rule 2 of the Code.
16. It may also be relevant to notice the provisions of Section 47 of the Code, which read as below:
"47. Question to be determined by the Court executing decree - (1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit.
(***) (3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the Court."
17. The provisions of Order 21 Rule 2 and Section 47 Page 13 of 20 C/SCA/6571/2014 JUDGMENT of the Code are to be read harmoniously, and if so read, there is no conflict between the two provisions.
18. The sole reason for refusing to record the compromise, as stated by the Executing Court in its impugned order, is to the effect that the recording of the compromise would amount to changing the decree. As indicated hereinabove, this reason is unsustainable in law in view of the above discussion. In any event, the impugned order is a cursory one and appears to have been passed without noticing the relevant provisions of law.
19. Learned amicus curiae has brought to the notice of this Court a judgment of the Supreme Court in the case of Sultana Begum v. Prem Chand Jain, reported in (1997) 1 SCC 373, which makes the position of law in this regard, crystal clear. The relevant extract of the judgment is reproduced hereinbelow:
"16. Interpreting the provisions of Section 47 and Order 21 Rule 2 in the light of the above principles, there does not appear to be any antithesis between the two provisions. Section 47 deals with the power of the court executing the Page 14 of 20 C/SCA/6571/2014 JUDGMENT decree while Order 21 Rule 2 deals with the procedure which a court whose duty it is to execute the decree has to follow in a limited class of cases relating to the discharge or satisfaction of decrees either by payment of money (payable under the decree) out of court or adjustment in any other manner by consensual arrangement.
17. Since Section 47 provides that the question relating to the execution, discharge or satisfaction of the decrees shall be determined by the court executing the decree, it clearly confers a specific jurisdiction for the determination of those questions on the executing court.
18. Under Section 38 of the Code, a decree may be executed either by the court which passed it or by the court to which it is sent for execution. The court which passed the decree has been defined in Section 37. Transfer of decree to another court for its execution has been provided for in Section
39. Section 40 provides for transfer of decree to a court in another State. Section 42 lays down that the court to which a decree is transferred for execution shall have the same powers in executing that decree as if the decree was passed by itself. These provisions including Section 37 thus clearly speak of the powers and jurisdiction of the court executing the decree.Page 15 of 20
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19. Order 21 Rule 2 applies to a specific set of circumstances. If any money is payable under a decree, irrespective of the nature of decree, and such money is paid out of court, the decree-holder has to certify such payment to the court whose duty it is to execute the decree and that court has to record the same accordingly. Similarly if a decree, irrespective of its nature, is adjusted in whole or in part, to the satisfaction of the decree-holder, the decree-holder has to certify such adjustment to that court which has to record the adjustment accordingly. If the payment or adjustment is not reported by the decree-holder, the judgment-debtor has been given the right to inform the court of such payment or adjustment and to apply to that court for certifying that payment or adjustment after notice to the decree-holder. Then comes Sub-rule (3) which provides that a payment or adjustment which has not been certified or recorded under Sub-rule (1) or (2), shall not be recognised by the court executing the decree.
20. The words "or the decree of any kind is otherwise adjusted" are of wide amplitude. It is open to the parties namely, the decree-holder and the judgment-debtor to enter into a contract or compromise in regard to their rights and obligations under the decree. If such contract or compromise amounts to an adjustment of the decree, it has to be recorded by the court under Rule 2 of Order 21. It may be pointed out that an agreement, Page 16 of 20 C/SCA/6571/2014 JUDGMENT contract or compromise which has the effect of extinguishing the decree in whole or in part on account of decree being satisfied to that extent will amount to an adjustment of the decree within the meaning of this Rule and the Court, if approached, will issue the certificate of adjustment. An uncertified payment of money or adjustment which is not recorded by the court under Order 21 Rule 2 cannot be recognised by the executing court. In a situation like this, the only enquiry that the executing court can do is to find out whether the plea taken on its face value, amounts to adjustment or satisfaction of decree, wholly or in part, and whether such adjustment or satisfaction had the effect of extinguishing the decree to that extent. If the executing court comes to the conclusion that the decree was adjusted wholly or in part but the compromise or adjustment or satisfaction was not recorded and/or certified by the court, the executing court would not recognise them and will proceed to execute the decree.
21. The problem can be looked into from another angle on the basis of the maxim "generalia speciallibus non derogant."
22. Section 47, as pointed out earlier, gives full jurisdiction and power to the executing court to decide all questions relating to execution, discharge and satisfaction of the decree. Order 21 Page 17 of 20 C/SCA/6571/2014 JUDGMENT Rule 3, however, places a restraint on the exercise of that power by providing that the executing court shall not recognise or look into any uncertified payment of money or any adjustment of decree. If any such adjustment or payment is pleaded by the judgment-debtor before the executing court, the latter, in view of the legislative mandate, has to ignore it if it has not been certified or recorded by the court.
23. The general power of deciding questions relating to execution, discharge or satisfaction of decree under Section 47 can thus be exercised subject to the restriction placed by Order 21 Rule 2 including Sub-rule (3) which contain special provisions regulating payment or money due under a decree outside the court or in any other manner adjusting the decree. The general provision under Section 47 has, therefore, to yield to that extent to the special provisions contained in Order 21 Rule 2 which have been enacted to prevent a judgment-debtor from setting up false, or cooked- up pleas so as to prolong or delay the execution proceedings.
24. If Section 47 and Order 21 Rule 2 are read together, as has been done by us in this case, the so-called conflict (we say "so-called" as, in fact, there is none) stands dispelled by employing the rule of 'harmonious construction' or the other rule that the general provision must yield to the Page 18 of 20 C/SCA/6571/2014 JUDGMENT special provision."
(emphasis supplied)
20. The judgment cited by the learned advocate for the petitioner in the case of T.H.Joshi v. Jashvantlal B.Nandha, reported in 2012(2) GLR 1035 may not be relevant, insofar as the specific question of law that arises in this petition, is concerned. Therefore, it need not be discussed in detail.
21. The cumulative effect of the above discussion is that the Executing Court has the power, under Order 21 Rule 2, to record a compromise that has the effect of adjusting the decree in whole or in part, to the satisfaction of the decree-holder. In this view of the matter, the Executing Court ought to have recorded the compromise between the parties as it would amount to the adjustment of the decree in part to the satisfaction of the decree-holder. The reason rendered by the Executing Court in its impugned order for refusing to record the compromise between the parties to the effect that recording the compromise would amount to going against the decree is untenable in law.
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C/SCA/6571/2014 JUDGMENT 22. Consequently, the petition is allowed. The
impugned order is quashed and set aside.
23. Rule is made absolute,accordingly. There shall be no orders as to costs.
The Court is grateful to Mr.Mehul S.Shah for the assistance rendered by him.
(SMT. ABHILASHA KUMARI, J.) ARG Page 20 of 20