Madras High Court
M.Kesavan vs A.Jayaraman on 23 March, 2015
Author: K.Kalyanasundaram
Bench: K.Kalyanasundaram
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 23.03.2015 CORAM THE HONOURABLE MR.JUSTICE K.KALYANASUNDARAM C.R.P(NPD) No.142 of 2012 & M.P.No.1 of 2012 and C.R.P(NPD) No.3249 of 2013 & M.P.No.1 of 2013 M.Kesavan .. Petitioner in CRP 142 of 2012 Respondent in CRP 3249 of 2013 Vs A.Jayaraman .. Respondent in CRP 142 of 2012 Petitioner in CRP 3249 of 2013 Common Prayer : Civil Revision Petitions are filed under Section 115 of Code of Civil Procedure against the order dated 15.09.2010 made in E.A.No.29 of 2010 in E.P.No.63 of 2009 in O.S.No.21 of 1994 on the file of the Subordinate Judge, Poonamallee. For Petitioner in CRP 142/2012 & Respondent in CRP 3249/2013 : Mr.T.R.Rajaraman For Respondent in CRP 142/2012 & Petitioner in CRP 3249/2013 : Mr.V.Shanmugam COMMON ORDER
These civil revision petitions have been filed against the order dated 15.09.2010 passed by the learned Subordinate Judge, Poonamallee, in E.A.No.29 of 2010 in E.P.No.63 of 2009 in O.S.No.21 of 1994.
2. The petitioner in CRP.NPD.No.142 of 2012 and the respondent in CRP.NPD.No.3249 of 2013 had instituted the suit against the respondent in CRP.NPD.No.142 of 2012 and the petitioner in CRP.NPD.No.3249 of 2013 for specific performance. After trial, the suit was decreed on 11.04.2000. Aggrieved by the Judgement and Decree, the defendant preferred an appeal in A.S.No.302 of 2000 before this Court. During the pendency of the appeal, a settlement was reached between the parties and a fresh agreement of sale dated 30.07.2008 was entered into between the parties. In pursuance of the agreement, the appeal was withdrawn as settled out of Court.
3. As per the agreement of sale dated 30.07.2008, the decree holder has agreed to pay to the Judgement Debtor a sum of Rs.2,10,00,000/- towards fresh sale consideration and complete the transaction within a period of three months. According to the Judgement Debtor, the Decree Holder has failed to comply with the terms and conditions of the agreement of sale dated 30.07.2008 however, he laid the execution proceedings in E.P.No.63 of 2009.
4. In the execution petition, the Judgement Debtor filed an application in E.A.No.29 of 2010 under Section 47 C.P.C. to declare the decree made in O.S.No.21 of 1994 as inexecutable. The Decree Holder opposed the application stating that after the withdrawal of the appeal and according to the decree passed in the suit, he has filed an execution petition for getting the sale deed and the present application is vexatious and has no merits.
5. The Decree Holder has not denied the settlement, reached during the pendency of the appeal in A.S.No.302 of 2000 and execution of the fresh agreement of sale dated 30.07.2008. The Executing Court, while dismissing E.A.No.29 of 2010, however, directed the Decree Holder to deposit a sum of Rs.2,10,00,000/- to the credit of the Execution petition. Aggrieved by the order, both the Judgement debtor and the Decree Holder have preferred these civil revision petitions.
6.Heard Sri.T.R.Rajaraman, learned counsel for the Decree Holder and Sri.Yasodh Varadhan, learned counsel for the Judgement Debtor and perused the materials.
7. Sri. T.R.Rajaraman, learned counsel for the petitioner submitted that the suit for specific performance was decreed on 11.04.2000 and the appeal was withdrawn by the defendant on 18.08.2008 and as per the subsequent agreement, the Judgement Debtor has not fulfilled his obligations and therefore, the Decree Holder laid an execution petition on 16.12.2008; that the subsequent agreement was not filed before the Court and it was not certified and therefore, as per Order 21 Rule 3 C.P.C, the subsequent agreement cannot be acted upon.
8. In support of his contentions, the learned Senior counsel has relied on the following decisions;
(i) In 2000 (IV) CTC 252 (Lakshmi Narayanan Vs. S.S.Pandian), wherein paragraphs 14 & 18 reads as follows;
14. In a case where parties compromise after the decree in of the decree depends upon the intention of the parties, which is a mixed question of law and fact and has to be determined by the executing court on an application under Section 47 of the C.P.C. on interpretation of the decree and the compromise in the light of the facts and circumstances of such case. If on such determination it is gathered that the intention of the parties is to extinguish the decree and either the decree holder or the judgment-debtor got the compromise recorded under Rule 2 of Order 21 of the C.P.C. by the court whose duty it is to execute the decree, the execution of the decree cannot be proceeded with by the executing court. But if the intention of the parties is to keep the decree alive and to give effect to it in the manner agreed upon between the parties in the compromise, the decree will be given effect to accordingly or executed as it is depending upon whether the compromise is recorded by the court as aforementioned or not.
18. However, the contention of Mr.Sivasubramaniam is that as no specific procedure or method of recording the adjustment has been prescribed under the rules, the order dismissing the E.P. as withdrawn must to be taken as recording of the compromise by the executing court. We are afraid, we cannot accept this contention of the learned counsel. It is true that no specific procedure or formula is prescribed for recording the adjustment in the said Rules; what is required under rule (2) is that the Court should take cognizance of the fact of the compromise and pass appropriate orders accepting or giving effect to it. Admittedly, no such order is passed in this case. Even assuming, without so holding that the order amounts to recording of the compromise inasmuch as it did not have the effect of extinguishing the decree, as held above, the decree has to be executed. The compromise indicates that there has been part satisfaction of a part of the decree and in regard to the remaining part, they contemplated granting time for three years to the respondent for vacating the premises. Even so, this does not justify the conclusion that the decree has become inexecutable with regard to the rest of the suit premises.
(ii) In (1997) 1 Supreme Court Cases 373, Sultana Begum Vs. Prem Chand Jain), wherein paragraphs 20 to 23 reads as follows;
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, 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 specialibus 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 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 of 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.
(iii) In 1999 (6) SCC 30 (Badamo Devi and others Vs. Sagar Sharma), wherein paragraph 10 reads as follows;
10. Admittedly, neither the decree-holder nor the respondent had applied to the Court for certification of the compromise entered into between the parties which had the effect of adjustment of the decree in its entirety. What would be the effect of non-compliance with the provisions of Order 21 Rule 2 was considered by this Court in Sultana Begum v. Prem Chand Jain1 in which the entire case-law was reviewed and it was laid down that any payment or adjustment which is not certified under Order 21 Rule 2 would not be recognised by the executing court. Since the respondent had not approached the Court under Order 21 Rule 2 for certifying the adjustment of the decree in terms of the so-called agreement between him and Appellant 2, the objections filed under Section 47 CPC before the executing court were not maintainable and no investigation was required to be done in those objections.
9. On the other hand, Sri.Yosodh Vardhan, learned counsel for the respondent submitted that during the pendency of the appeal, the parties have settled the dispute amicably and on the basis of the settlement, a memo was filed and the appeal was withdrawn as settled out of Court; that subsequent agreement is not disputed by the Decree Holder, which amounts to certifying the same, that the Decree Holder has failed to comply with the terms and conditions set out in the fresh agreement within the stipulated time, that the Decree Holder has no authority to execute the decree obtained by him in the suit, which was subsequently, culminated into a fresh agreement with a new set of terms and conditions and the Executing Court has no jurisdiction or authority to execute the decree dated 11.04.2000 and it is an inexecutable one. The Court below ought to have allowed the application and declared that the decree is an inexecutable one.
10. In support of his contentions, the learned counsel for the respondent relied upon the following decisions;
(i) In 1972 MLJ 168 (Subramaniam Chettiar Vs. A.Murugappan Chettiar and others), wherein paragraphs 46 reads as follows:
46. The decisions quoted by Venkatasubba Rao, J., also support the above view. Thus in Tarak Nath Sarkar v. Malabar Mondal (1915) 21 C.L.J. 632 : 30 I.C. 45, (decided by Asutosh Mookerjee and Beachcroft, JJ.), payment of the decree had been made by the judgment-debtor and a petition was filed in Court by the decree-holder notifying that the decree had been satisfied in full. But this petition could not be traced. The decree-holder took advantage of that fact to deny falsely that the decree had been satisfied. Under the circumstances the question arose whether there was any substance in the argument of the decree-holder that the payment was not certified as required by law, because it was not recorded by the Court. The Court said, "In our opinion, there is no force in this contention," and, after comparing Order 21, Rule 2 of the Code of 1908 with the corresponding Section 258 of the Code of 1882, the Court observed:
It is plain from Clause (3) of Rule 2 that a payment or adjustment shall not be recognized by any Court executing the decree, unless it has been either certified or recorded. This does not require that the payment or adjustment must be both certified and recorded. It is also clear that in Clause (3) of Rule 2 the term certified' refers to Clause (1) and the term 'recorded' to Clause (2). Consequently, it cannot be reasonably contended that the judgment-debtor loses his protection merely because the Court fails to perform the duty cast upon it, namely, to make a record that the payment or adjustment has been certified by the decree-holder. The decree-holder, at any rate, is not prejudiced by the omission of the Court to make the record. He has received the payment or has entered into an adjustment with the judgment-debtor. He has notified the fact to the Court; he has done his duty, as the Code does not provide for any special form to be adopted for the purpose. The failure of the Court to make the record does not surely entitle him to take advantage of the omission to the detriment of the judgment-debtor.
These observations will apply with equal force to the present case and the decree-holder cannot take advantage of her not having re-presented the petition which she filed on 12th March, 1962.
(ii) In AIR 2004 BOMBAY 117 (Dilipkumar Chimanlal Maniar and others Vs.Industrial Credit and Development Syndicate Limited and others) wherein paragraph 8 reads as follows;
8. It is true that under Order XXI, Rule 2, Sub-rule (3) of the Code of Civil Procedure it is provided that a payment or adjustment which has not been certified or recorded shall not be recognised by any Court executing the decree. However, in the present case, we find a categorical admission made on behalf of the plaintiff in the affidavit of their Advocates Managing Clerk dated 20-10-1982. This affidavit was filed for the purpose of allowing the Court Receiver to take possession and the order passed on the basis of this affidavit is clearly an order passed to facilitate the process of execution of the decree. The executing Court was therefore, clearly informed about the payments of Rs. 4,00,000/- and Rs. 4,50,000/- made by the defendants to the plaintiff. On being so informed, it was the duty of the Court to record the adjustment under Order XXI, Rule 2 of CPC. This has however, not been done. In our view, such an admission made by the plaintiff before the executing Court is tantamount to the decree holders certifying such payment to the Court. It was further the duty of the Court under Order XXI, Rule 2(1) of the CPC to act and record the same accordingly. In such a case, the maxim "Actus Curiae Neminem Gravabit" would apply in full force. The defendants cannot be made to suffer merely because the Court has failed to record the second payment of Rs. 4,50,000/-. It is true that under Order XXI, Rule 2(3) A payment or adjustment, which has not been certified or recorded as aforesaid, shall not be recognised by any court executing the decree. However, we cannot allow this procedural requirement to result in injustice and for this purpose, in order to meet ends of justice, we propose to direct the executing Court to record the payment of Rs. 4,50,000/- admitted by the plaintiff to have been made to them, on the decree. It was contended by the Advocate for the appellants that under Article 125 of the Schedule to the Limitation Act 1963, the application to record an adjustment or satisfaction of a decree would have to be made within 30 days of the payment being made. In our view, no such application was required to be made as once the executing Court was intimated about the receipt of such payment by the decree-holders, it was the Court's duty to record the same and that there is no period of limitation prescribed for the Court to perform its duty. It may be mentioned here that the judgment-debtor also can inform the Court regarding any payment or adjustment by making an application under Order XXI, Rule 2 (2) and clause (Article) 125 of the Schedule to the Limitation Act would apply to such an application.
11. In the instant case, it is not in dispute that the suit filed by M.Kesavan against the A.Jayarama Naicker for specific performance in O.S.No.21 of 1994 was decreed on 11.04.2000 and the defendant had withdrawn the appeal of A.S.No.302 of 2000 on 18.08.2008 as settled out of Court. It is also not disputed that the parties have entered into a fresh agreement of sale on 30.07.2008, by which, the Decree Holder had agreed to pay a sum of Rs.2,10,00,000/- towards sale consideration to the Judgement Debtor. In view of the subsequent agreement, the appeal was withdrawn. In the execution petition also, the Decree Holder has not disputed the fresh agreement of sale deed dated 30.07.2008. In the light of the facts, I do not find force in the contention of the learned Senior counsel for the Decree-Holder and the judgments cited by him do not have bearing to the facts of this case.
12. Keeping in mind the principles laid down in the decision referred supra, I am of the opinion that the Executing Court has rightly directed the decree holder to deposit a sum of Rs.2,10,00,000/- as per the fresh agreement for execution of the sale deed. Hence, I do not find any reasons to interfere with the order impugned in this civil revision petition.
In the result, the civil revisions petition are dismissed as devoid of merits. No costs. Consequently, connected Miscellaneous Petitions are closed.
23.03.2015 Index : Yes Internet: Yes sms To The Subordinate Judge, Poonamallee.
K.KALYANASUNDARAM,J sms Order in C.R.P(NPD) No.142 of 2012 and C.R.P(NPD) No.3249 of 2013 23.03.2015