Patna High Court
Raj Kumar Sah And Ors. vs Mahendra Prasad Shaw And Ors. on 20 August, 1988
Equivalent citations: 1990(38)BLJR887
JUDGMENT S.K. Jha, J.
1. This application in revision at the instance of the judgment-debtors is directed against the order, dated the 21st April, 1988, passed by the IInd Munsif, Bhagalpur, in Miscellaneous Case No. 6 of 1988. Shorn of alt details, the relevant facts are there. The decree-holders opposite party filed a suit against the petitioners for their eviction from the suit premises bearing Holding No. 63, Ward No. 13 under the Bhagalpur Municipality. The matter went up to the Supreme Court of India, which granted three months' time to the petitioners to vacate the premises in question. Thereafter, the decree-holders opposite party 1st set levied execution register as Execution Case No. 12 of 1987 for recovery of possession of the suit premises. On the 4th April, 1988, the petitioners filed an application stating, inter alias, that after the disposal of the special leave petition by the Supreme Court, the petitioners and the opposite party (decree-holders) compromised the dispute on the 12th February, 198S, on the request of the petitioners and on the intervention of the respectable persons of the locality closely related to the parties on certain terms and conditions. It was stated that as per the terms of agreement or compromise, the petitioners paid a sum of Rs. 9,900/- to the opposite party for making construction on the first floor of the suit premises and the vacant possession of the first floor was handed over to the opposite party and the amount so paid was to be adjusted in future rent since the months of February, 1988, for the ground floor, which would remain under the tenancy of the petitioners at the enhanced rate of rent from Rs. 203/- to Rs. 275/- per month, It was further alleged that the rent for the months of December, 1987 and January, 1988, were paid to the opposite party and the rent receipts were granted in printed form in token thereof. As the story further goes on, in view of the terms of compromise, the petitioners and the opposite party agreed to file a joint compromise petition on the 22nd April, 1988, the date fixed in the Execution Case. Despite repeated requests by the petitioners, the opposite party was evading to grant rent receipts, which created suspicion in the mind of the petitioners and, as such, they sent a lawyer's notice to the opposite party on the 2nd March, 1988, and on receipt thereof, the opposite party sent a reply through their Advocate on the 7th March, 1988. A copy of the lawyer's notice sent on behalf of the petitioners has been annexed to this application marked as Annexure 1 and the reply there to purported to be sent by opposite party through their Advocate has been annexed to this application marked as Annexure 2. It is further stated that from the reply, Annexure 2, it would appear that the disputes and difference between the parties have been compromised, and even inspite of the aforesaid facts, the opposite party filed, an application on the 14th March, 1988 to effect delivery of possession.
2. The opposite party in their rejoinder to the application for recording the compromise or adjustment repudiated and denied all the allegations made by the petitioner with regard to any such compromise or adjustment of the decree. This led to a miscellaneous case, which was registered as Miscellaneous Case No. 6 of 1988, as aforementioned.
3. The court below, by the impugned order, has dismissed the application -under Section 47 read with Order XXI, Rule 2-A of the Code of Civil Procedure (for short the Code) in limine holding that there was no document to prove any such adjustment or compromise.
4. It was submitted by Mr. Tara Kant Jha, learned Counsel for the petitioners, that the impugned order is vitiated in law and amounts to illegal exercise of jurisdiction is so far as the dismissal of the miscellaneous case is concerned, and, secondly, that the court below has committed an error of record in saying that no document had been filed in support of the petitioner's case.
5. I may at once dispose of the second point. A photo state of the list of documents has been filed as Annexure 3 to this revision application, which shows that six documents had been filed. In all fairness, it must be said that these documents were not formally proved and, therefore, they could not be marked exhibits and, therefore could not be technically treated as documentary evidence. In loose sense, therefore, it may be said that the court below has committed an error of record, but strictly speaking as has been said by Mr. S.C. Ghosh, learned Counsel for the decree-holders opposite party that the documents filed at the time of dismissal of the miscellaneous case, there was no document of proof in support of the assertion of the petitioners. Be that as it may the whole question is as to whether the miscellaneous case deserved to be admitted and the petitioners should have been given an opportunity under the law to prove those documents in support of their case of adjustment of the decree either in full or in part. The court below has not applied its mind to this aspect of the case at all, because it has refused to entertain the petition by dismissing it in liming. This brings us to Section 47 of the Code read with Order XXI, Rule 2 thereof.
6. The question with regard to the true scope and ambit of Order XXI, Rule 2 with its Sub-rule (2A), which was inserted by Section 72(ii)(b) with effect from the 1st February, 1977, by the Civil Procedure (Amendment) Act, 1976 (104 of 1976) is a matter of first impression and has to be decided as such, as there is no legal precedent of any High Court and the question is indeed an interesting one For the purpose of so construing that provision, a comparison of Order XXI, Rules 1 and 2, as they originally stood before the amendment and as they stand after the Amending Act, as aforementioned, is a must. The statutory provision, as it originally stood, read as follows:
1. Modes of paying money under decree.-(1) All money payable under a decree shall be paid as follows, namely:
(a) into the court whose duty it is to execute the decree ; or
(b) out of Court to the decree-holder, or
(c) otherwise as the Court which made the decree directs.
(2) Where any payment is made under Clause (a) of Sub-rule (1) notice of such payment shall be given to the decree-holder.
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 the decree is otherwise adjusted in whole or in part to the satisfaction decree-holder, the decree-holder shall certify such payment or adjustment to the Court whose duty it is to execute the decree, and the Court shall record the same accordingly.
(2) The judgment-debtor also may inform the court of such payment or adjustment, and apply to the court to issue a notice to a decree-holder to show cause, on a day to be fixed by the Court, why such payment of 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.
(3) A payment or adjustment, which has not been certified or recorded as aforesaid, shall not be recognized by any court executing the decree. After the amendment the statute prescribes.
1. Modes of paying money under decree,-(1) All money, payable under a decree shall be paid as follows, namely:
(a) by deposit into the Court whose duty it is to execute the decree, or seat to that court by postal money order or through a bank ; or
(b) Out of court, to the decree-holder by postal money order or through a bank or by any other mode wherein payment is evidenced in writing ; or
(c) Otherwise as the court which; made the decree, directs.
(2) Where any payment is made under Clause (a) or Clause (c) of Sub-rule (1) the judgment-holder shall give notice there of to the decree-holder either through the court or directly to him by registered post, acknowledgment due.
(3) Where money is paid by postal money order or through a bank under Clause (a) or Clause (b) of Sub-rule (1), the money order or payment through bank, as the case may be, shall accurately state the following particulars, namely :
(a) The number of the original suit:
(b) the names of the parties at where there are more than two plaintiffs or more than two defendants, as the case may be, the names of the first two plaintiffs and the first two defendants;
(c) How the money remitted is to be adjusted, that is to say, whether It is towards the principle, interests or costs:
(d) The number of the execution case of the Court, where such case is pending; and
(e) the name and address of the payer.
(4) On any amount paid under Clause (a) or Clause (c) of sub rule (1) Interest, if any, shall cease to run from the date of service of the notice referred to in Sub-rule (2). (5) On any amount paid under Clause (b) of Sub-rule (1) interest, if any, shall cease to run from the date of such payment:
Provided that, where the decree-holder refuses to accept the postal money order or payment through a bank, interest shall cease to run from the date on which the money was tendered to him, or where he avoids acceptance of the postal money order or payment through bank, interest shall cease to run from the date on which the money would have been tendered to him in the ordinary course of business of the postal authorities or the bank, as the case may be.
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 hind ii 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 Court whose duty it is to execute the decree, and the Court shall record the same accordingly.
(2) Toe 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. ' (2-A) 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 recognized by any Court executing the decree.
7. Now, let us look to the broad features of the aforesaid provisions as they stood originally and as they now stand after the amendment. Rule 1 of Older XXI has undergone a drastic change. Formerly, there were only three modes of payment of money to satisfy a money decree, which were to be made into the Court executing the decree or out of the Count to the decree-holder or in a manner in accordance with the directions of the executing Court. It will be seen that in Clause (a) of Sub-rule (1) of Rule 1, by the amendment, the mode has been more liberalised by providing that the payment shall be valid not only when it has been made while executing the decree, but also when it is sent by postal money order or through a bank and in Clause (b), it has further been liberalized with regard to the original mode or payment out of Court to the decree-holder. Now, it has been provided specifically that such payment may be made to the decree-holder by postal money order or through a bank or by any other mode where in payment is evidenced in writing. Instead of leaving the provisions which were quite narrow in their ambit, as they originally stood, further moods have been specified in the amending Act giving an opportunity to the judgment-debtor to make payments in different manners and modes, which were not previously embraced within the ambit of the statutory provisions. The objects and reasons for such a change, as has been stated have to be found in Clause 75, Sub-clause (1) of S. O. R. (Gazette of India 8-4-1974, Part II, S-2, Ext. page 321), as:
Clause 75, Sub-clause (i).-Under Rule 1 of Order XXI, money payable under a decree is required to be paid either into Court whose duty it is to execute the decree or out of Court to decree-holder or otherwise as the Court which made the decree directs. It is felt that an opportunity should be given to the judgment-debtor to send to the Court the amount due under a decree by postal money order or through a Bank or to pay out of Court to the decree-holder through a bank or by postal money order or by any other mode which would ensure written evidence of the payment. The rule is being substituted with a view to enabling such payment.
8. In so far as the difference between Rule 2 of Order XXI, as it originally stood and Rule 2 and new Sub-rule (2-A) of Rule 2 of Order XXI, after the amendment arc concerned, the objects and reasons for such a change have to be found in Clause 75, sub-clause
(ii) of S. O. R. (Gazette of India 8-4-1974, Part II, Section 2, Ext. page 321) as:
Clause 75, Sub-clause (ii)-Divergent views have been expressed by different High Courts as to wither Rule 2 applies to all kinds of decrees or only to decrees under which any money is payable. The rule is being amended to make it clear that the rule applies to decrees of all kinds.
New Sub-rule (2-A) is being inserted to provide that any payment of money under a decree or adjustment of a decree shall not be recorded by the Court unless it is either made in accordance with Rule 1 or is proved by documentary evidence or is admitted by the decree holder.
That then is the specific reason why Rule 2 or Order XXI, has been bifurcated into two parts under the Amending Act. Previously, the provision was that the judgment-debtor had to inform the court of any payment of money or adjustment of a decree and to apply to the Court to issue a notice to the decree-holder and on the date to be fixed by the Court, if the decree-holder failed to show cause why the payment or adjustment should not be recorded as certified, the Court was bound to record the same accordingly. It has already been seen that previously, there was a doubt as to whether Order XXI, Rule 2 applied only to a money decree or to a decree of any other kind, now that doubt has been set at rest by making the rule all-pervasive bringing within its sweep not only the money decree, but the decrees of all sorts and the manner of proving adjustment, which was within a limited compass of Order XXI, Rule 2, which has been now enlarged by inserting Sub-rule (2-A), which now prescribes a special procedure more to the convenience of the judgment-debtor. Mow, the payment can be made in a manner provided in Rule 1 or under Clause (b) of Sub-rule (2-A) of Rule 2, the payment or adjustment can be proved by documentary evidence (underlining is mine for the sake of emphasis) or 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, Sub-rule (2) of Rule 1 prescribes that where any payment is made, the judgment-debtor shall give notice to the decree-holder either through the Court or directly through registered post, with acknowledgment due. On a plain reading of Sub-rule (2) of Rule 1, it would appear that it is with regard to the payment of money only, but in juxtaposition of Sub-rule (2) of Rule 2 of Order XXI, which now refers to such mode of notice as prescribed in Sub-rule (2) of Rule 1, in the notice contemplated in relation to all decrees of any other kind, payment of money or adjustment of the decree (underlining is mine for the sake of emphasis) is also embraced. Therefore as the law now stands, the payment of money or adjustment of any other kind of decree has to be intimated by a notice to the decree-holder either through the Court or sending it directly to him by registered post, with acknowledgment due. If a direct notice has been served under registered cover with acknowledgment due, no notice through the Court is necessary and under the provisions of Order XXI, Rule 2(a) Clause (b), such payment or adjustment can be proved as certified by the Executing Court, and, if so proved, it has to be recorded as certified by the Executing Court, If not so proved, that is the end of the matter in so far as the judgment-debtor is concerned. It rauit be highlighted that the main object of the Legislature is to give an opportunity to the judgment-debtor after due service of notice to the decree-holder that the money has been paid or a payment of any other decree adjusted either in whole or in part by adducing documentary evidence in support of such a claim even if the decree-holder denies the same. There can, thus, remain no manner of doubt that when such application is filed by the judgment-debtor with an averment that due notice has been served on the decree-holder, the question of admission of such a Miscellaneous Case does not arise at all. It has to be registered as a Miscellaneous Case, and the judgment-debtor has to be given an opportunity to prove by documentary evidence that his assertion that the money has been paid and the decree has been adjusted either in whole or in part, is true. If he proves it by such documentary evidence, the Court is bound to record or certify such payment. If he fails to do so, the Court is bound to proceed with the execution of the decree as it stands.
9. That is the long and short of it. In the instant case, the court below has misdirected itself on a question of law with regard to the interpretation of Order XXL Rule 2(2-A) of the Code leading to material irregularity in exercise of its jurisdiction in putting up the Miscellaneous Case for admission and dismissing it in linins at the admission stage itself on the ground that no documentary evidence has been adduced, without affording an opportunity to the judgment-debtor for leading any documentary evidence. The statute pre-supposes that the Miscellaneous Case has to be admitted and the judgment-debtor be given an opportunity of proving all documents produced by him as pieces of evidence. As it may well be found that the judgment-debtor filed as many as six documents in the court below, but before admission of the Miscellaneous Case, they could not formally prove them, perhaps, under a misapprehension of law, the lawyer representing the petitioners in the court below also insisted that the question of proving the documents did not arise merely at the admission stage. Therefore, that application must be admitted with a view to affording to the judgment-debtor an opportunity to prove the documents, if any, already filed in support of their assertion with regard to the payment and/or adjustment of the decree in whole or in part. I may not be misunderstood in saying that these documents are pieces of evidence of proof of the assertion, because I am not supposed to apply my mind to that aspect at all. It is only within the competence of the court below after admitting them in evidence to appraise those documents, but of course, with an opportunity to the decree-holder to adduce evidence in rebuttal. From that point of view, an enquiry is a must. The rider is only that a prior notice through the Court or directly by registered post, with acknowledgment due, has been served on the decree-holder.
10. As a matter of fact, even under the old provisions, there are cases to the effect, which lend support to such a legal position. I may here refer to some legal precedents. In the case of Mr. Bhagirathibai w/o Panduji Kunbi v. Ruprao Ranjit Kunbi and Ors. AIR 1938 Nag 49, Pollock, J. wag seized with the following question:
In execution of a decree the agent of the decree-holder along with the judgment-debtor applied to the Collector before whom the decree was sent for execution that the decree was fully satisfied and execution be struck off. Shortly after this the decree-holder applied that his agent was cheated by the judgment-debtor and that the decree was not satisfied. The Collector thinking that it required an investigation into question of law and facts referred it to the Civil Court.
It was held that-
... The Collector had authority to refer to the Civil Courts under Rule 13 (Revenue Book Circular, Volume 2, 6, 3, Serial No. 8) of the rules under Section 70(1), Civil Procedure Code and that such application raised a question as to the satisfaction of a decree and as such lay under Section 47, Civil Procedure Code and no separate suit was necessary.
Instead of the word, investigation as used by Pollock, J. I have substituted it by the word 'enquiry'. In a Division Bench decision of the Bombay High Court in the case of Ganpatrao Sitaram Borlikar v. Shridhar Mukund Polekar . Dixit, J. whom Chagla, C.J. concurred, held inter alia -
... it is unnecessary to state that proceedings for the adjustment or compromise of a decree can only be initiated under Section 47 of the Civil Procedure Code and not by a substantive suit.
And again-
It is the sole right of the Executing Court to try an issue as to whether a decree has been adjusted or not. It is for the Executing Court to decide what the adjustment is and to record that adjustment of the decree. To the extent that the Executing Court can give relief to that adjustment, the Executing Court will give it. To the extent it cannot, if may be that the judgment-debtor might become entitled to file a suit or take other proceedings for enforcing the part of the adjustment in respect of which the Executing Court could not give any relief.
In so far as the last two sentences quoted above are concerned, I express no opinion after the amendment of the Code, but with regard to the rest of the portions quoted above, they do lend support to the view that I have taken with regard to the true construction of the provisions of Order XXI, Rule 2(2-A) read with Section 47 of the Code.
11. In the circumstances, this application is allowed, the impugned order is set aside, the Miscellaneous case is directed to be admitted and the case is remanded to the court below for affording an opportunity to the petitioners judgment debtors to prove that their assertion of the satisfaction or adjustment of the decree either in whole or in part is correct or not while giving a chance of rebuttal to the decree-holder opposite party. It would be then for the court below to decide as to whether there was sufficient evidence to induce the court to record its satisfaction in which case, it is bound to certify the adjustment of the decree and, accordingly, allow the Miscellaneous case, but in case it is not so satisfied, the Miscellaneous case has to be dismissed on merits. Since the matter has gone right up to the Supreme Court where the decree in favor of decree-holders opposite party was confirmed and the judgment-debtors petitioners were given an indulgence only for three months' time to vacate the premises, it is high time that the Miscellaneous Case be disposed of at the topmost priority level. The court below is, accordingly, directed to dispose of the Miscellaneous Case in accordance with the observations and directions, as aforementioned, within a period of two months from today. Let a copy of this judgment and order be sent down to the court below for immediately taking up the Miscellaneous Case and proceed with the same from day-to-day barring acts-vis-major, as both the parties have due notice of it since their counsel were present while the judgment was being dictated. Order accordingly. No costs.