Karnataka High Court
Basheer Ahmed Sherif vs Mohammed Yousuff on 10 September, 1993
Equivalent citations: ILR1993KAR3542, 1993(4)KARLJ235
ORDER Murgod, J.
1. This Appeal, under Order 43 Rule 1(r) CPC, is directed against the order dated 13.7.1993 passed in O.S.No. 1993/93 on the file of the learned 15th Add!. City Civil Judge, Bangalore, allowing I.A.II filed under Order 39 Rules 1 and 2 CPC and granting interim injunction restraining the appellant from interfering with the peaceful possession and enjoyment of the suit schedule property by the respondents.
2. The facts giving rise to this Appeal are The appellant filed a petition in HRC 10477/93 in the Court of the Additional Small Causes Judge, Bangalore City against respondent-1 and obtained an order of eviction in respect of the premises involved in the present proceedings on 18.8.1990 after protracted litigation for 7 years, Respondent-1 came up in Revision before this Court in CRP No. 5414/90 and on a compromise the present appellant agreed to grant time upto 1.6.1993 to vacate the premises. On a joint Memo filed before this Court time to vacate the premises was allowed upto 1.6.1993 and eviction order was confirmed by dismissing the Revision Petition on 31.1.1991.
3. Respondent-1 on the allegations that eviction decree would be executed against him approached the appellant and after negotiations paid Rs. 50,000/- as advance and agreed to pay enhanced rent of Rs. 600/- per month in place of Rs. 120/- p.m. and took the fresh lease of the said premises in favour of himself and his son under a document reciting these terms and filed O.S.No. 1993/93 in the Court of 15th Addl. City Civil Judge, Bangalore for the relief of declaration that he and his son respondent-2 were tenants of the premises and that eviction order In HRC No. 10477/93 was not binding on them and for permanent injunction restraining the appellant from executing the eviction order. It may also be noted that Corporation of City of Bangalore was impleaded as 2nd defendant in the suit alleging that it was set up at the instance of appellant and its officers were harassing respondent-1 to vacate the premises on the allegation that taxes due to the Corporation is respect of the plaint schedule property has not been paid.
4. In the application I.A.II filed under Order 39 Rules 1 and 2 CPC for relief of temporary injunction the allegations were that respondent-1 after lapse of one month from fresh lease under document dated 10.2.1993 approached the appellant to pay him enhanced rent of Rs. 600/- p.m. but the appellant refused to receive the same and threatened him to dispossess from the premises by executing the decree and it is also averred that appellant demanded further amount of Rs. 25,000/-. According to the respondents, to, escape from eviction they sought for relief of temporary injunction not to disturb their possession and to restrain the appellant from executing the decree in HRC No. 10477/83.
5. The suit and application were seriously contested by the appellant by filing written statement and objections before the Trial Court. The appellant contended that the document dated 10.2.1993 was a concocted and forged document. Every averment in the document has been denied. The appellant specifically denied the averments that he received Rs. 50,000/- as advance and he had agreed for the enhancement of rent from Rs. 120/- per month to Rs. 600/- month. On the other hand, the appellant urged that he purchased the property in dispute in the year 1978 and tried to persuade respondent-1 to vacate the same, but he did not comply with the request and being fed up with the conduct of respondent-1 he instituted eviction petition in the Court of Small Causes on the ground that he required the premises for his bona fide use and occupation for running his own business and the same was contested for 7 years and after his success respondent-1 took the matter to this Court in Revision and consented for eviction order conceding the reasonable and bona fide requirement agreeing to vacate the premises on or before 1.6.1993. It is further contended that respondent-1 was not regular in paying the rent at the rate of of 120 p.m. and that the appellant was required to write letters to send the rental arrears and that respondent-1 was sending the rental arrears by money order. Regarding the fresh lease set up by respondent-1 in the suit, it is stated as the appellant wanted the premises, he could riot have accepted the alleged demand for fresh lease as made out and the averments made in that behalf in the plaint and the document relied upon in the back ground of the history of the litigation are not acceptable and are concocted and respondents 1 and 2 had no rights to be protected under the alleged concocted document dated 10.2.1993 which is termed as receipt-cum-lease deed and balance of convenience was not in favour of the respondents. The appellant contended that the suit was not maintainable and therefore application for any relief was also not maintainable.
6. The learned trial Judge heared the parties on the relief in respect of the application for interim injunction under Order 39 Rules 1 and 2 CPC and after considering the affidavits and documents placed by them found that respondents 1 and 2 were in possession of the premises and their rights under the document dated 10.2.1993 with reference to the premises in their possession required to be protected and he found that suit was maintainable and accordingly issued temporary injunction restraining the appellant from interfering with their possession of the plaint schedule property. This order is under challenge in this Appeal.
7. The learned Counsel for the appellant submitted that the suit based on the disputed document which is not properly stamped is devoid of merits and the legal course open to the respondent-1 was to report certification of the adjustment of the decree to the Court and in the absence of such legal remedy open to him, he cannot maintain his suit and seek the reliefs prayed for in the way he has done and therefore he is not entitled to either interim injunction or any other relief in the suit, According to the learned Counsel, the document dated 10.2.1993 is a fabricated document and it creates no rights and it reads as though it is a sort of confessional statement on the part of appellant and that even if any rights had accrued to respondent-1 tenant under the same, the transaction alleged under the document amounts to an adjustment of the decree and such adjustment of decree under the provisions of Order 21 Rule 2 CPC has got to be certified to the Court either by the decree-holder or by the judgment-debtor and if such certification is not done to the Court, an independent suit is barred by virtue of provisions of Section 47 of the Code of Civil Procedure and therefore the respondents cannot maintain and prosecute the present suit. This submission is contested by the learned Counsel for the respondents, According to the learned Counsel under the Deed dated 10.2.1993, the lease is created by the appellant jointly in favour of respondent-1 and his son respondent-2 and they have got rights of their own in respect of the premises in question under the fresh lease created in their favour and to establish those rights and to effectively enjoy the same they have got a right to maintain the present suit The learned Counsel submitted that before the Trial Court, this contention had not been agitated and that the contentions put forth before the Trial Court were restricted firstly to the maintainability of the suit in view of the provisions of Section 41(b) of the Specific Relief Act, 1963 and the second ground urged was that the document dated 10.2.1993 was forged one. According to the learned Counsel these two grounds were negatived by the Trial Court by holding that a person claiming independent rights had every legal right to maintain a suit in a Civil Court which was competent to give relief in that behalf and the remedy sought by filing the suit by respondents 1 and 2 came within the Rule enunciated in MESSRS. PARAMOUND INDUSTRIES v. C.M.MALLIGA. With regard to genuineness of the document, the learned trial Judge observed that the signatur MESSRS. PARAMOUND INDUSTRIES v. C.M.MALLIGA, . With regard to genuineness of the document, the learned trial judge observed that the signatures on the disputed document resembled many admitted signatures found in the records. Therefore the contentions put forth on behalf of the appellant before the Trial Court were rejected and the appellant, according to the learned Counsel for the respondents, should not be permitted to raise fresh contention of bar of suit under Order 21 Rule 2 CPC read with Section 47 CPC. Therefore, the Points that arises for consideration in this Appeal are:-
(1) Whether the order under appeal is illegal and perverse as contended?
(2) To what relief the appellant is entitled?
8. Point No. 1:- The main ground urged before this Court is in regard to the bar of maintainability of the suit in view of specific provisions contained in Order 21 Rule 2 CPC and Section 47 CPC. That arises for consideration in view of the recitals contained in the disputed document dated 10.2.1993 which is styled as 'receipt-cum-lease-note' on a plain paper with typewritten material with 20 paise revenue stamp at the end stated to bear the signature of the appellant. This document also contains signatures in ink of witnesses Mohammed Ashfaque and Ameer Iqbal. It would be useful to reproduce the contents of the receipt-cum-lease note as under:-
"I. Basheer Ahmed Shariff s/o late Haji Akbar Shariff, aged about 44 years, resident of No. 2, Halappa Garden, Shivajinagar, Bangalore-560051, Landlord of the premises No. 7, Hazarath Kambal Posh Road (Broadway Road), Bangalore - 560 051 this day received an advance of Rs. 50,000/- (Rupees fifty thousand only) from Mr. Mohamed Yousuff, s/o late Gulam Mohammed, the tenant of the premises, aged about 65 years, presently residing at No. 212/B, Pillanna Garden, 8th Main, III Stage, Bangalore -560 084. The rent for the premises is enhanced from Rs. 120/- to Rs. 600/- per month. I had filed a HRC case against the tenant before the Small Cause Court, Mayohall, Bangalore, in HRC No. 10477/83 which resulted in the eviction of the tenant on 18.8.1990. As against that order the tenant had filed a revision before the Hon'ble High Court of Karnataka in CRP No. 5414/90 which came to be disposed off on 31-1,1991 through a compromise memo filed jointly by both of us and I agreed to grant time to the tenant to vacate the premises in question by 1.6.1993.
The tenant Mr. Mohamed Yousuff had requested me to continue his lease and pleaded that if he is thrown out, the entire family would suffer as the business of Dry cleaning carried on since decades was the only source of income and he offered Rs. 50,000/- as advance and also voluntarily agreed to pay Rs. 600/- rent per month. Since f had sought the eviction of the tenant for my bonafide use and occupation of the premises, but due to these circumstances t gave up the idea of occupying the premises and decided to invest the advance so taken in my business, so 1 do not require the premises any more, I hereby declare that I have given up my right of executing the said HRG decree and I further affirm that the order of judgment of Small Cause Court and High Court are not binding on the tenant since I have given the premises on fresh lease for eleven months to the tenant to continue along with his son Mr. Mohammed Farooq which means both the father and son to continue as joint tenants. The joint tenancy is made due to old age of the tenant Mr. Mohamed Yousuff, who is 65 years old. Both the tenants are in possession of the premises in question for this day i.e. 10.2.1993 and there is no arrears of rent at old rate as on this day. Hence this receipt-cum-fresh (ease note executed this the 10th day of February one thousand nine hundred and ninety three at Bangalore City."
From the contents of the document on which the suit itself is based, it is seen that this document is executed by the appellant Basheer Ahmed Sherif in favour of respondent-1 Mohamed Yousuff as tenant of the premises. The very first sentence recites the receipt of Rs. 50,000/- by the appellant from the tenant-respondent-1 and the second sentence refers to enhancement of the rent from Rs. 120/- per month to Rs. 800/- per month. In the second paragraph of the document it is recta that the appellant gave up the Idea of occupying the premises and he was satisfied with the amount of Rs. 50,000/- given to him and he would invest that in his business and the decree for eviction obtained by him was not binding and he had given up his right of executing the eviction decree and since respondent-1 had become old, he agreed to create the joint-tenancy in favour of responden-1 and his son who was residing with him. These contents of this document clearly indicate that the eviction decree was not binding and appellant had given up the idea of executing the decree. This had been done in view of payment of Rs. 50,000/- by respondent-1 to appellant, and respondent-1's further agreement to raise the rent from Rs. 120/- per month to Rs. 600/- as recited in the very second sentence of this document. The terms of this document indicate that there was an adjustment of the decree. The adjustment was by way of receiving an amount of Rs. 50,000/- and agreement to pay higher rents and appellant giving up his right to execute the decree and agreeing to create new lease on fresh terms of enhanced rent of Rs. 600/- per month. The rights created under the eviction decree passed in HRC. 10477/83 in favour of the appellant against his tenant - respondent-1 have been fashioned or remodelled in terms recited in the document styled as 'receipt-cum-least-note'. This remodelling or refashioning of the rights under the eviction decree in HRC 10477 of 1383 amounts to nothing but adjustment of decree as mentioned in Order 21 Rule 2 CPC. When an adjustment of decree takes place, it is the duty of the decree holder to certify the same to the executing Court for being recorded in the execution proceedings. For reporting certification, no execution proceedings need be pending in the Court at the relevant time. If the decree-holder fails to report such adjustment, the same provision requires that such certification should be reported to the Court by the judgment-debtor also -and in that event, the Court will proceed to record the same after due notice and after hearing the decree-holder. If this procedure is not followed, the adjustmen of decree cannot be pressed before the Court executing the decree and the bar created under Order 21 Rule 2 CPC applies to an executing Court. Therefore the learned Counsel for the respondents contended that the bar under Order 21 Rule 2 CPC is only with regard to executing Court and not to Court which is approached with an Original Suit in which independent rights of the parties are sought to be established and enforced. The learned Counsel further submitted that in the instant case, not merely the earlier tenant but third party is involved and when rights of third parties are intervening, Order 21 Rule 2 CPC has no application. In support of this contention, the learned Counsel cited Decisions starting from Privy Council case reported in NANHELAL AND ANR. v. UMRAO SINGH, AIR 1933 Peshawar 53 , RAM DAS v. ALIBAHADUR, AIR1931 PC33 PRIYALAL DAS v. SADHANA KAR, 1984 Calcatta Weekly Notes 322, SEKHARAM AND ANR. v. BHAWANI RAM AND ORS., AIR 1977 NOC Item 58 @ 56 (MP)
9. On the other hand the learned Counsel for the appellant in this connection in support of the contentions raised by him and by way of meeting the objections raised by the respondents relied upon the Decisions in M.P.SHREVASTAVA v. MRS. VEENA, , K.C.PILLAPPA v. M.MUNIREDDY, AIR 1959 Mysore 155, RAJEEV KHANDALWAL v. ARUN PANNALAL, (FB) Order 21 Rule 2 Sub-rule (3) CPC lays down that a payment or adjustment, which has not been certified or recorded as aforesaid, shall not be recognised by any Court executing the decree.
The High Courts have held that the bar under Order 21 Rule 2 CPC operates so far as the executing Court is concerned and the same does not extend to Civil Court in which suits for establishing the independent rights are filed. Filing a suit is one thing. But whether the law permits a party to prosecute the suit so filed is another aspect to be gone into. As held in Paramound Industries v.
C.M. Mallige special jurisdiction is conferred on the Courts under the provisions of the Karnataka Rent Control Act and that does not mean that the person who is not bound by the order of eviction cannot seek appropriate relief from the ordinary Civil Court. It is open to him to seek a declaration from the Civil Court that the order of eviction is not binding upon him and to permanently restrain the person who has secured the order of eviction from interfering with his possession. In such a case, whether the Court which has passed an order of eviction is subordinate or not becomes immaterial.... The Civil Court is also competent to entertain such a suit and pass an appropriate interim order of temporary injunction and ultimately pass a decree as prayed for and such a suit is not hit by Section 41(b) of the Specific Relief Act and in view of this position it is no doubt open to a plaintiff claiming to establish independent rights to maintain a suit and obtain relief against executing an eviction order obtained from the Rent Control Court but that does not mean that every person filing a suit has got a right to obtain an order of injunction preventing execution of a decree for eviction order. It is also well established that whenever there is a special provision provided in any law that has to be given effect to in preference to the general provision of law contained in that behalf. Further it is well settled that law is to be interpreted with a view to advance the cause of justice and not to help a person drag on litigation and subject a party entitled to relief under a decree to suffering and harassment and deprivation of decretal fruit. Applying these principles, it is to be seen in the instant case whether -the document relied on by respondents 1 and 2 and styled as 'receipt-cum-lease-note' is prima facie reliable. It purports to be a receipt in respect of a sum of Rs. 50,000/-. A tenant paying a rent of Rs. 120/-p.m. and refusing to vacate on the ground that he was not in a position to pay higher rent and alleging that the appellant was actuated by extracting higher rent had filed the petition claims to have paid all of a sudden Rs. 50,000/- and also agreed to pay higher rent of Rs. 600/- per month. These facts have to be kept in view to arrive at a just conclusion on the facts and law applicable thereto. Respondent-1 paid Rs. 50,000/- not under a cheque, nor under a Pay Order nor under a Demand Draft but in cash and has taken no document other than the one dated 10.2.1993 stated to be the receipt-cum-lease deed. It is to be kept in view that respondent-1 had time till 1.6.1993 to vacate and hand over the premises under the eviction order suffered by him but according to him developing cold-feet due to impending execution of the decree, he approached the decree-holder and carried on negotiations and arrived at an agreement and paid Rs. 50,000/-. All this happened, according to him, when the relations were cordial between the parties. He availed the good offices of well-wishers to bring about this compromise. But according to the appellant, respondent-1 was not regular in paying the rent and he was demanding the payment of rent by writing letters and respondent-1 was sending the same by Money Order through post and that was all happening during the months of October, November and December, 1991 and therefore, according to him, there was no scope for negotiations alleged under the agreement. These circumstances, as the order of the learned trial Judge goes, do not find any consideration or mention. But the learned trial Judge was satisfied with the maintainability of the suit and comparison of signature of the appellant on this disputed document with other admitted signatures of the appellant found in the records and he proceeded to dispose of the application with a view to protect the rights of the respondents as they happened to be in possession of the premises. No doubt, they were in possession and the respondents 1 and 2 were entitled to continue in possession upto 1.6.1993 and there was no need to protect their possession till 1.6.93 even though an allegation was made that they were being disturbed by the appellant. The appellant could not have dared to disturb their possession during that period as he could not have executed the decree upto 1.6.1993.
10. Reverting back to the legal position, in the absence of decree-holder certifying to the executing Court, it was open to the judgment debtor-respondent-1 to report this adjustment. That such a transaction amounts to an adjustment is clear from a Full Bench Decision of Nagapur High Court reported in MEGHARAJ v. KESARIMAL, AIR 1948 Nagpur 25. The law as found summarised therein in this behalf in paragraph-4 of the Judgment reads as under:-
"Agreements to compromise a claim to execute a decree may be divided into three classes. In the first class of agreement, the decree-holder agrees to give up all his rights under the decree on the judgment-debtor's doing something or other, and there is no adjustment until the judgment-debtor has done whatever he promised. The second class of agreement is where the decree-holder agrees to give up all his rights under the decree in return for a promise by the judgment-debtor to do something or the other; on the recording of such an adjustment the decree becomes fully satisfied and the decree-holder can enforce the fulfilment of the judgment-debtor's promise only by a separate suit. It has -in some cases been doubted whether such an agreement termed an 'executory agreement' could amount to an adjustment of the decree but it is now well settled that it can. The third class of agreement is one in which the parties agreed that the decree shall be modified in some way or other and that the decree-holder shall be entitled to execute the decree as modified but not the original decree. The question of the class in which the compromise falls is a question of a fact."
The type of agreement covered by facts of the case on hand comes in the second category referred to in the above Decision. It is still an adjustment of a decree and this adjustment of decree needs certification by reporting to executing Court. Coming to the provisions of Section 47 CPC Clause (1) thereof reads as under:-
"Section 47. Questions to be determined by the Court executing decree:- (1) Alt 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."
Provisions of Sub-section (3) and Explanation are not relevant and they are not extracted.
11. Section 47(1) thus requires the executing Court to determine all the questions arising between the parties to a suit relating to the execution, discharge or satisfaction of the decree and not by a separate suit. The terms of the impugned document dated 10.2.1983 show that the transaction was mainly between the appellant and respondent-1. Appellant is described as landlord and respondent-1 is described as tenant and the amount of Rs. 50,000/- is stated to have been received by the landlord from the tenant. To the payment of this amount of Rs. 50,000/- the present respondent-2 is not a party. In respect of giving up the rights of executing the decree, appellant alone is said to have made a declaration in the document which is addressed to respondent-1 alone. After so mentioning by the appellant that he has given up his right under the decree, the document proceeds to state that the appellant was creating a fresh lease jointly in favour of respondent-1 and his son residing with him. Therefore the entire transaction is mainly between the appellant and respondent-1 and the learned Counsel for the appellant submits that respondent-2 is skating on thin ice and he has not much of a role to play, except to claim that he has also got independent rights and to throw a further spanner in the works to see how best it could be brought to a halt. It is in this context the submission that when the rights of third party intervene Order 21 Rule 2 CPC has no application has to be appreciated. In the Privy Council case of Nanhelal v. Umrao Singh the facts were that an execution sale had taken place and a third party had purchased the property and it was observed that the rights of the purchaser third party had to be protected as the adjustment had taken place between the judgment debtor and the decree holder after the said sale had taken place. Such an adjustment would not affect the rights of the third party purchaser in question. The learned Counsel for the respondents relying on the Decision in M.P. Shrevastava v. Mrs. Veena contended that in the case on hand there is no adjustment at all and as such there is no question of bar of Order 21 Rule 2 CPC and according to him such bar would operate only in respect of an executing Court and not in respect of a suit in ordinary Civil Court. In paragraph 5 of Shrevastava's case which dealt with a decree of restitution of conjugal rights, the Court observed that adjustment contemplated mutual agreement and since in that case there was no evidence of any consent on the part of the appellant there was no adjustment of decree and therefore there was no question of certifying the same to the Court. In a case where there is no mutual agreement which is the first requirement for an adjustment there will never be any adjustment and rightly there would be no question of reporting adjustment of a decree under Order 21 Rule 2 CPC. That principle no doubt is correct but whether that principle of law applies to the facts of the case on hand is the question for consideration. As the terms of the disputed document go to show that there was an agreement between the appellant and respondent-1 and in that agreement an amount of Rs. 50,000/- was paid, rent was agreed to be enhanced and therefore the appellant gave up his right to execute the decree for eviction, then there was an agreement giving a quietus to the executability of the eviction order and its effect had to be certified to the Court. It is only after this first agreement had come into existence and rights under the agreement had been adjusted and certified, the fresh agreement would come into existence and be operative. Therefore the requirement of law of certifying this adjustment under Order 21 Rule 2 CPC cannot be contended to be not applicable to the facts of the case on hand. Even as held in the Decision of this Court in K.C. PILLAPPA v. M. MUNIREDDY an application under Order 21 Rule 2 CPC for recording certification was filed but beyond the period of limitation. Such a petition was sought to be permitted as one filed under Section 47 CPC. The learned District Judge could not have permitted such application to be treated as a Miscellaneous proceeding under Section 47 CPC for which an enlarged period of limitation was available and this Court observed, that what was not allowed to be done under Order 21 Rule 2 CPC would not be allowed to be done by recourse to provisions of Section 47 CPC. That principle precisely applies to the facts of the case on hand and what was required to be done by law under the provisions of Order 21 Rule 2 CPC and was not done in that way cannot be allowed to be done by filing a suit.
12. What would be the effect on such a suit has been summarised on page 1347 of Volume II, Mulla on Code of Civil Procedure, 14th Edition as under:-
"The effect of non-certification on the rights of parties may be summarised as follows. If the adjustment is not certified, it will not be recognised by any Court executing the decree and if the decree-holder applies for execution notwithstanding the adjustment, the Court will direct execution to issue and the judgment-debtor will not be heard to say that the decree has been adjusted. Nor can he, even by instituting a regular suit for injunction obtain a stay of execution, for such a suit is barred under Section 47."
The learned Counsel for the respondents relied on Priyalal Das v. Sadhana Kar in which the defence of Order 21 Rule 2 Code of Civil Procedure was negatived. The facts in that case as found from paragraph-2 of the Judgment disclose that the plaintiff got a decree for ejectment and thereafter proceeded to execute the decree and the opposite party filed an application under Section 47 of the CPC inter alia alleging that after passing of the decree, there was an agreement between the plaintiff and herself and under that agreement the opposite party would pay a sum of Rs. 400/- to the plaintiff and would go on paying a monthly sum of Rs. 25/- on account of rent of the disputed premises and it was agreed that the opposite party would not prefer any appeal against the decree. The plaintiff did not file any objection to the said application under Section 47 CPC and but he opposed the application and the learned Munsiff believing the evidence on behalf of the opposite party found that the agreement between the plaintiff and the opposite party had taken place and in that view allowed the application under Section 47 CPC. The correctness of that decision was challenged under Revision before the High Court and before the learned Judge in the High Court, the compliance of Order 21 Rule 2 CPC was not specifically pleaded as a bar and the defence thereunder was not specifically put in issue and Court's attention was not invited to render a Decision on that aspect and a passing reference made thereto resulted in the observation by the Court that the learned Munsiff's conclusion in accepting the evidence and allowing the application under Section 47 CPC was correct and Order 21 Rule 2 CPC was not attracted to the facts of that case. Therefore the observation made in that case was in the nature of an obiter. It is to be borne in mind that in that case no objection was filed and no defence was put forth by the plaintiff and therefore there was no scope for consideration of the objections with regard to Order 21 Rule 2 CPC. Therefore the Decision in Priyalal Das's case is not of assistance to the respondents. The Decision in Rajeev Khandelwal v.
Arun Pannalal by a Full Bench of that High Court deals with facts which are almost identical with the facts of the case on hand. No doubt this Decision of Madhya Pradesh High Court arose out of the proceedings pending before the executing Court. But the law with reference to applicability of Order 21 Rule 2 CPC in regard to adjustment or satisfaction of a decree is same where facts of the case attract such application of Order 21 Rule 2 CPC. Whether in a given set of facts Order 21 Rule 2 CPC is attracted or not is a matter for consideration and the nature of proceeding is not so material. The respondents submitted that the Decision in Rajeev v. Arun is of no assistance on account of its arising out of execution proceedings before the executing Court but that does not make the Decision less applicable to the facts where application of law makes it eminently applicable. No doubt in Rajeev v. Arun, the controversy arose when the matter was pending before the executing Court and the availability of defence under Order 21 Rule 2 CPC arose on account of plea of new agreement set up by the judgment-debtor. The principle of law laid down by the Full Bench is found reported in para-12 of the Judgment on page 269 which reads as under:-
"We may also point out that it is true, as has been held in the case of Bherulal (supra), that if an objection pertains to the 'execution' of the decree, it has to be investigated under Section 47 C.P.C. This provision, however, is clearly subject to the specific provision contained in this behalf in Rules 2 and 3 of Order XXI of the Code of Civil Procedure. The clear intendment of these two rules is that notwithstanding the general power of making investigation in an objection pertaining to the execution of the decree contained in Section 47 CPC the said power shall not be exercised if it would have the effect of recognising an adjustment which has not been recorded as contemplated by Rules 2 and 3 of Order XXI of the Code of Civil Procedure. So to speak, the provision contained in this behalf in Section 47 CPC is general whereas the constraint or restriction placed on the power exercisable under Section 47 by Rules 2 and 3 of Order XXI is special. In all cases, therefore, which fall within the purview of Rules 2 and 3 of Order XXI which contain special provision these Rules shall prevail over the general power exercisable by the executing Court in matters pertaining to execution of decree under Section 47 CPC. in view of the well known maxim "generalia specialibus non derogant". In J.K.Cotton Spinning and Weaving Mills Co. Ltd, v. State of Uttar Pradesh, it was held that in cases of conflict between a specific provision and a general provision the specific provision prevails over the general provision and the general provision applies only to such cases which are not covered by the special provision. If, on the basis of the distinction pointed out in the case of Bherulal (supra) which in our opinion is more artificial than real as already indicated above, investigation of objections which is prohibited by Rule 3 of Order XXI is permitted under Section 47 CPC, on the ground that the power of an executing Court under the said Section to investigate objections pertaining to execution is very wide it would not only result in multiplying and encouraging frivolous litigation and rendering the provisions of Rules 2 and 3 of Order XXI of the Code of Civil Procedure otiose for all intents and purposes in many cases, it will introduce uncertainty, fiction and confusion into the working of the system. In Collector of Customs v. Digvijaysinghji Spinning and Weaving Mills Ltd. it was held that it is a well settled principle of construction that where alternative constructions are equally open, that alternative is to be chosen which will be consistent with the smooth working of the system which the statute purports to be regulating, and that alternative is to be rejected which will introduce uncertainty, fiction or confusion into the working of the system."
As pointed out, the objections relating to execution, discharge and satisfaction of a decree are to be investigated under Section 47 CPC.
In the case on hand, not only the questions relating to satisfaction of the decree but also with regard to adjustment of the decree are involved. Such adjustment needs to be certified to the Court either by the decree-holder or by the judgment-debtor and in the absence of such certification, no plea of satisfaction can be put-forth before the Court executing the decree, but the matter does not end there. If such contention is sought to be agitated in a separate suit as has been done by the instant case, such agitation is prohibited by Section 47 CPC as per statement of law extracted from Mulla above. Therefore in, the case on hand also, the suit claimed to be one for agitating independent rights so far as respondent-1 is concerned is barred by Section 47 CPC and as regards his son as per the facts stated above he has no claims de hors the first respondent. This is the legal position and the learned trial Judge has not gone into this legal question. The submission of the respondents as pointed out earlier is that this contention not having been advanced before the Trial Court is not- permissible in appeal in this Court. Questions of law can always be canvassed in the appeal not merely in the Court of first appeal but also in the Court of second appeal. As it is a question of law, the appellant is permitted to agitate this question as pointed out earlier.
Law is to be interpreted and applied to bring about a just decision and not to encourage further litigation which prima facie appears to be not healthy and for advancing the cause of, Justice. In that view, the appellant is permitted to urge this contention and the same is accepted to find that the Trial Court failed to apply the correct legal position and proceeded on the basis that because respondents 1 and 2 were in possession of the property, they required to be assisted by injunctive relief to be ordered by the Court to protect their rights and accordingly it issued the injunction appealed against in this Court.
This approach of the learned trial Judge is illegal and improper and the Appeal therefore needs to be allowed by reversing this finding and order of the learned trial Judge.
13. It may be noted that executing a decree for eviction normally does not cause any injury or loss to the party affected by such execution. It is not a legal injury. Execution of a decree as per its terms is not an injury to the party affected by such execution. Therefore if possession of respondents is disturbed by executing the decree, it does not amount to causing any injury and there cannot be any restraint on execution of decree or for disturbing possession by executing the decree. Hence, balance of convenience or question of injury being not in favour of the respondents, they are not entitled to the relief of injunction. On that ground also the Appeal needs to be allowed and the following order is passed:
ORDER The Appeal is allowed. The injunction order issued by the Trial Court against the appellant on 13.7.1993 in Original Suit No. 1993/93 is set aside.
The learned Counsel for respondents orally prays for staying the operation of the order passed above on the ground that his clients want to approach the Supreme Court by way of Special Leave Application. Having vacated the order of injunction, this Court finds no ground to stay the operation of the order of this Court, as there is no operative order in force. Hence, the prayer is rejected.