IMPORTANT POINT
The general power of deciding questions relating to execution, discharge or satisfaction of decree u/s 47 of the Civil Procedure Code can be exercised subject to the restriction placed by Order XXI 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.

Headnote:(i) Civil Procedure Code, 1908-Section 47 and Order XXI Rule 2-Execution of decree-General power of deciding questions relating to execution, discharge or satisfaction of decree u/s 47 can be exercised subject to restriction placed by Order XXI Rule 2 including sub-rule (3) which contain special provisions-Section 47 and Order XXI Rule 2 are read together-Rule of harmonious construction applicable-Rule that general provision must yield to special provision.
       Held : 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 XXI 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. (Para 19)
       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 XXI 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 had, therefore, to yield to that extent to the special provisions contained in Order XXI 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. If Section 47 and Order XXI Rule 2 are read together, as has been done by us in this case, the so-called conflict (we say "so-called" as, in fact, there is none) stands dispelled by employing the rule of harmonious construction or the other rule that the general provision must yield to the special provision. (Paras 20 to 21)
       (ii) Civil Procedure Code, 1908-Section 47 and Order XXI Rule 2-Execution-Suit for eviction-Compromise decree passed providing that respondent tenant would vacate premises and hand over its possession to appellant or to her attorney, R-Premises not vacated-Application for execution-Objection filed u/s 47-Respondent pleaded that possession was handed over to attorney R-R allowed respondent to remain in possession as a licencee on payment of fee of Rs. 5000/- p.m.-decree not certified under Order XXI Rule 2-Provisions of Order XXI Rule 2(3) prohibiting executing court from giving effect to said plea were applicable-Executing Court acted erroneously in refusing to execute decree for eviction of respondent.
       Held : The decree was for eviction and the respondent himself had agreed in the compromise decree to deliver possession to the appellant by 10th of February, 1992. The plea relating to the delivery of possession in pursuance of the compromise decree, if accepted, would amount to an adjustment of the decree which shall consequently be treated to have been partially satisfied to the extent of eviction of the respondent as a tenant from the disputed property. That being so, it had to be recorded and certified under Order XXI Rule 2. Since this was not done, the provisions of Order XXI Rule 2(3) prohibiting the executing court from giving effect to the said plea were applicable and the executing court acted erroneously in refusing to execute the decree for eviction of the respondent on the ground that possession having been delivered to the appellant s attorney, the decree, to that extent, stood satisfied. (Para 24)
       Further held : In the instant case, the respondent himself says that it was only a licence which was created in his favour and that he had to pay the licence fee. This itself is indicative of the fact that a fresh lease was not created in his favour and consequently the rights under the decree were neither intended to be surrendered nor were they actually surrendered. The decree remained preserved and the creation of a licence had not the effect of destroying it. (Para 29)
       (iii) Civil Procedure Code, 1908-Order XXI Rule 2-Words or the decree of any kind is otherwise adjusted -Scope of. (Para 17)
       (iv) INTERPRETATION OF STATUTES-Rule of ex visceribus actus -While interpreting two inconsistent, or, obviously repugnant provisions of an Act-Courts should make an effort to so interpret the provisions as to harmonise them-Purpose of Act may be given effect to-Both the provisions may be allowed to operate without rendering either of them otiose-Statute has to be read as a whole to find out real intention of legislature. (Paras 10 to 12)

Judgement Key Points

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JUDGMENT

S. Saghir Ahmad, J.-Appellant before us is the landlady of the premises, "Pink City Hotel", Mumtaz Bagh, Jaipur, which was in occupation of the respondent as a tenant against whom a suit for eviction on various grounds including default in payment of rent, sub-letting, as also for bona fide requirement was filed, which ultimately ended in a compromise on 16.9.1991. The compromise decree which was passed on that date provided that the respondent would vacate the premises and hand-over its possession to the appellant or to her attorney, Ramesh B. Sharma, by 10th of February, 1992, and that he would pay rent @ Rs. 3,100/- per month from the date of the suit till the date of delivery of possession.

2. Since the premises were not vacated by the respondent and its possession was not handed over to the appellant in terms of the compromise decree, she filed an application for execution which was resisted by respondent by means of objections filed under Section 47 of the Code of Civil Procedure, in which it was pleaded by him that possession of the premises in question was handed over to Ramesh B. Sharma on 31.10.1991 who, however, allowed the respondent to remain in possession of the premises as a licencee on payment of the licence fee of Rs. 5,000 per month. It was pleaded that since possession of the disputed premises was handed over to Ramesh B. Sharma, who was the legally constituted attorney of the appellant, the decree stood satisfied and as such it could not be executed. It was also pleaded that in terms of the fresh licence, the respondent had already paid the licence fee @ Rs. 5,000 to Ramesh B. Sharma, who had also issued a receipt to him.

3. The appellant, in reply, pointed out that the power of attorney executed by her in favour of Ramesh B. Sharma was cancelled by notice dated 1.12.1991 and by another notice dated 31st January, 1992 Ramesh B. Sharma was required not to act as the appellant s attorney in any manner whatsoever. It was pleaded that since the power of attorney in favour of Ramesh B. Sharma had already been cancelled, there was no occasion for the respondent to have handed over possession of the premises in question to Ramesh B. Sharma, nor could Ramesh B. Sharma create a fresh licence in his favour.

4. The trial court by its judgment and order dated 23.10.1992 allowed the objections of the respondent in so far as they related to the delivery of possession of the premises in question to the appellant, with the finding that the respondent had already delivered vacant possession to Ramesh B. Sharma who was still the legally-constituted attorney of the appellant on the relevant date, namely the date on which possession was delivered by respondent to Mr. Sharma, which date was pleaded to be 31st of October, 1991, i.e. the date earlier in time than the date on which the power of attorney of Ramesh B. Sharma was said to have been cancelled. It was also found by the trial court that Ramesh B. Sharma could legally create a fresh licence in favour of the respondent and could also issue receipts for the licence fee paid to him @ Rs. 5,000/- per month. On these facts, it was found by the trial court that the decree had become inexecutable.

5. The appellant filed a Revision before the Rajasthan High Court which, by its judgment and order dated 21.9.1993, dismissed the Revision. The findings recorded by the trial court were upheld and it was further found that Order XXI Rule 2 of the Code of Civil Procedure was not applicable to the facts of the case. It is in these circumstances that the appellant has come up in appeal before us.

6. Learned counsel for the appellant has contended that the agreement set out by the respondent in his objections under Section 47 CPC that possession of the disputed premises was handed over to the appellant s attorney in pursuance of the compromise decree and that the appellant s attorney allowed him to stay on in the premises as a licencee on payment of the licence fee at a rate which was m

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1996 Supreme(SC) 2125

Cases Referred (18)