Patna High Court
Shyamlal Jagnani And Ors. vs Sunder Singh And Ors. on 10 August, 1973
Equivalent citations: AIR1974PAT138, AIR 1974 PATNA 138
JUDGMENT H.L. Agrawal, J.
1. This is a miscellaneous appeal by the decree-holder. On 11-2-1965, he got a money decree for Rs. 10,991/- and put the same in execution in Execution Case No. 29 of 1968. First Appeal No. 125 of 1965 was filed by the defendant but the same was dismiss sed for default and attempts for its restoration also failed. On 21-1-1969, the respondent judgment-debtor filed a petition in the executing court stating that in September, 1968, on account of the intervention of certain persons, the decree-holder agreed to accept a total sum of Rs. 5,500/- in full satisfaction of the entire decretal dues including costs and interest in instalments and a prayer was made for recording this adjustment between the parties by the court. On notice being issued to the decree-holder, he took the objection for recording the adjustment in question, inter alia, on the ground of limitation. The decree-holder had also challenged the correctness of the case of adjustment of the decree as alleged by the judgment-debtor, and the court below has accepted the case of the judgment-debtor that there was an agreement between the parties to accept a sum of Rs. 5,500/- only, as alleged by the judgment-debtor, towards the entire decretal dues and having accepted the case of the judgment-debtor, has allowed the prayer for instalment and fixed an yearly instalment of Rs. 1,375/-.
2. Mr. J.C. Sinha, learned counsel appearing for the appellants, has challenged the correctness of the order only on one question, namely, that the executing court committed an error of law in recording the alleged adjustment of the decree after the period of limitation. This contention of the learned counsel is of much substance and must prevail for the following reasons.
3. Order 21, Rule 2 of the Code of Civil Procedure prescribes a special procedure for recording any payment made under a decree or certifying any adjustment in whole or in part. The decree-holder himself may inform the Court to the above effect and for him there is no period of limitation. Such steps can also be taken by a judgment-debtor and he may apply to the Court jfor recording such payment or adjustment. In the case of an intimation by the decree-holder, the certification need not be after any notice to the judgment-debtor and the Court automatically records the information which is a mere ministerial act However, if the judgment-debtor has not been given prior notice of the same, it may be open to him to raise a dispute regarding its accuracy and the matter can be decided Jby the Court concerned. In the case of such an intimation by the judgment-debtor, the Court is bound to issue a notice to the decree-holder before recording the information to show cause as to why such payment or adjustment should not be recorded as certified. This does not remain a mere ministerial act, as in the case of an information by the decree-holder, but becomes a regular judicial proceeding, and a Court has to adjudicate on this question. For filing such an application on the part of ttie judgment-debtor, the Limitation Act prescribes a time limit Under the old Limitation Act, Article 174 allowed a period of 90 days from the date of the alleged payment or adjustment, whereas under the new Limitation Act. Article 125 allows only 30 days time to him. Admittedly, according to the case of the judgment-debtor himself, the alleged adjustment in question was made beyond the period prescribed under either of the Articles of the Limitation Act and, therefore, the question of limitation for certifying the adjustment in question was very much rele-
vant for consideration of the executing Court.
4. The Executing Court, however, under an erroneous impression that the provision of Order 21, Rule 2 of the Code of Civil Procedure applies only in cases where an execution proceeding is pending, and not otherwise, held that as no execution proceeding was pending when the judgment-debtor had to notify the adjustment, the procedure of Order 21, Rule 2 of the Code was not required to be followed by the judgment-debtor, After overcoming this hurdle, the court below proceeded to examine the correctness of the case of the judgment-debtor on merits, and as already stated, has accepted the same. Reliance has been placed by the Court below on a decision of this Court in the case of Firm Surajmal Badri Das v. Firm Manbodh Bhagat Lall Chand Ram, AIR 1938 Pat 204 in this connection.
The learned Subordinate Judge has not correctly appreciated the principles laid down in the above case. In that case, in the execution proceeding of a money claim, the judgment-debtor had preferred an objection under Section 47 of the Code and had alleged that the entire decretal amount had been adjusted for Rs. 575/- out of which a sum of Rs. 425/- had already been paid up and only Rs. 150/- was due. This objection was decided in his favour ex parte by the executing court. The matter had come to this Court in second appeal at the instance of the decree-holder and this court came to the conclusion that the learned Munsif was not justified in hearing the objection of the judgment-debtor ex parte at the end of the working hours of the Court (4-30 P.M.) and, therefore, the appeal was allowed and the case was remanded to the executing court to dispose of the objection according to law. In answering a question is to whether under the provisions of Rule 2 of Order 21, the onus was on the decree-holder or the judgment-debtor to prove certification, the learned Judge observed that Rule 2 was referable to the state when there was no execution case pending and when the judgment-debtor came to notify to the Court an adjustment made outside the Court There is no doubt that the provisions of Order 21, Rule 2 have to be followed by the judgment-debtor immediately rather he has to do it, if there is any adjustment, immediately after the passing of the judgment and even before the preparation of the decree. He has not to wait beyond the period of limitation and certainly not until the filing of an exe cution proceeding which might defeat his right to apply to the Court on account of the delay. As once the time ex-
pires, the Court becomes powerless to take cognizance of any uncertified payment or adjustment at the instance of the judgment-debtor. I am supported in my view by a Bench decision of the Calcutta High Court in the case of Humayun Properties Ltd. v. Ferrazinis (P.) Ltd., AIR 1963 Cal 473 and a decision of the Mysore High Court in Patel Muddegowda V. Gangamma, AIR 1963 Mys 79.
The observation in the Patna case, AIR 1938 Pat 204 (supra) has not been correctly followed by the learned Subordinate Judge, otherwise the provisions of the Limitation Act would be entirely defeated as also the bar imposed by Sub-rule (3) of Rule 2 of Order 21 which says 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 judgment-debtor cannot be allowed to avoid ither the period of limitation prescribed by the Limitation Act or the provision of Sub-rule (3) of Rule 2 by describing his application as one under Section 47 of the Code claiming a longer period o£ limitation. It has been held in several cases that there is no antithesis between Section 47 and Order 21, Rule 2: the former deals with the power of the Court and the latter with the procedure to be followed in respect of a limited class of cases relating to discharge or satisfaction of decrees and for recording adjustment of a decree or for recording payment of money paid out of court Although it cannot be said that the plenary power conferred under Section 47 of the Code upon the Court executing a decree is not controlled or otherwise affected by the provisions of Order 21, Rule 2 of the Code, in cases of payment of money or adjustment of any decree by consensual arrangement between the parties, the procedure prescribed by Rule 2 of Order 21 has to be followed.
This question has been considered recently also by the Supreme Court in the case of M. P. Shreevastava v. Mrs. Veena, AIR 1967 SC 1193. In that case, the matter arose upon a petition filed by the husband for a decree for restitution of conjugal rights which, was decreed ex parte. After the decree, the wife made attempts in various ways for taking her back into the marital home of her husband, but the same proved unsuccessful. Thereupon, the wife applied to the District Court for an order that the decree be recorded as satisfied, since the husband had failed and neglected to allow her to resume conjugal relations and the District Judge recorded that the decree stood satisfied. The appeal of the husband in the Punjab High Court having failed, on special leave he went to the Supreme Court. One of the questions raised before the Supreme Court was to the effect that the application filed by the wife for recording the satisfaction of the decree was not maintainable because at the material date no application for execution of the decree filed by the husband was pending. Their Lordships answered this question with reference to the provisions of Order 21, Rule 2 that that was not a case in which there was any adjustment Adjustment contemplates mutual agreement and there was no evidence of any consent on the part of the husband who was never willing to take back the wife and resume conjugal relations.
Their Lordships while holding that where there was no such consent, express or implied, Order 21. Rule 2 of the Code did not apply, however, held that in cases covered by Order 21. Rule 2 (1) or (2) of the Code, there need not be a substantive application for execution pending. This argument of the pendency of an execution petition with respect to the cases covered by Section 47 of the Code was, however, repelled and it was held that there was no warrant for the argument that the expression "Court executing the decree" as used in Section 47 of the Code means a "Court which is seized of an application for execution of a decree at the instance of the decree-holder", and, therefore, the question relating to execution, discharge or satisfaction of a decree might be raised by a decree-holder or the judgment-debtor alike in the execution department and the pendency of an application for execution by the decree-holder was not a condition of its exercise and that the provisions of Order 21, Rule 2 deal with the procedure to be followed in a limited class of cases relating to discharge or satisfaction of decrees where there has been payment of money or adjustment or satisfaction of the decree by consensual arrangement.
5. Coming to the facts of the present case, it is clear that the case of the judgment-debtor was admittedly of a mutual adjustment and, therefore, his case was directly covered within the ambit of Rule 2 of Order 21 of the Code and he having failed to follow the procedure prescribed thereunder, his application filed in the execution proceeding was certainly out of time, and the Court below had no jurisdiction to go into this question purporting to exercise its power under Section 47 of the Code, as in that event that would render the specific provision like Order 21. Rule 2 of the Coda redundant.
6. In view of the above discussions, the point raised before me, there-
FORE, has to be answered in favour of the appellants and this appeal must be allowed and the order of the court below recording the adjustment of the decree, set aside. In the circumstances of this case, however. I shall direct the parties to bear their own costs.