IMPORTANT POINT
An uncertified payment of money or adjustment under a decree which is not recorded by the Court under Order XXI Rule 2 CPC cannot be recognized by executing Court.

Headnote:Civil Procedure Code, 1908—Section 47 and Order 21 Rule 2—Adjustment of decree—Unless recorded by Court under Order 21 Rule 2 ref=act:10444>CPC, cannot be recognised by executing Court—Decree in a suit for eviction against tenant—Tenant filed appeal—Application u/o XXIII Rule 1 CPC before appellate court and appeal was dismissed in terms of the application—Execution of decree was resisted on ground that decree became in executable and that suit for specific performance had been instituted and that landlord was not ready and willing to perform their part of contract—Executing Court held that application u/o XXIII Rule 1 CPC in appeal was adjustment and said adjustment being not certified by Executing Court, no claim of adjustment could be taken note of—High Court in revision held that there was no adjustment and in view of agreement between parties, decree became inexecutable—Appeal—Agreement of appellants, who were respondents in earlier appeal not to execute the decree was condition on appellant/tenant executing sale deed—Sale deed had not been executed—There was no certificate as needed u/o XXI Rule 2 CPC—Conscious waiver in the circumstances did not arise—Rights had not been surrendered and decree remained preserved—Order of High Court was liable to be set aside.
       Held : Interpreting the provisions of Section 47 and Order XXI Rule 2 in the light of the above principles, there does not appear to be any antithesis between the two provisions. Section 47 deals with the power of the court executing the decree while Order XXI Rule 2 deals with the procedure which a court whose duty it is to execute the decree has to follow in a limited class of cases relating to the discharge or satisfaction of decrees either by payment of money (payable under the decree) out of court or adjustment in any other manner by consensual arrangement. Since Section 47 provides that the question relating to the execution, discharge or satisfaction of the decrees shall be determined by the court executing the decree, it clearly confers a specific jurisdiction for the determination of those questions on the executing court.(Paras 14 and 15)
       Order XXI Rule 2 applies to a specific set of circumstances. If any money is payable under a decree, irrespective of the nature of decree, and such money is paid out of court, the decree-holder, has to certify such payment to the court whose duty it is to execute the decree and that court has to record the same accordingly. Similarly, if a decree, irrespective of its nature, is adjusted in whole or in part to the satisfaction of the decree-holder, the decree-holder has to certify such adjustment to that court which has to record the adjustment accordingly. If the payment or adjustment is not reported by the decree-holder, the judgment-debtor has been given the right to inform the court of such payment or adjustment and to apply to that court for certifying that payment or adjustment after notice to the decree-holder. Then comes sub-rule (3) which provides that a payment or adjustment which has not been certified or recorded under sub-rule (1) or (2), shall not be recognised by the court executing decree.(Para 17)
       An uncertified payment of money or adjustment which is not recorded by the court under Order XXI 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.(Para 18)
       As emphasized by learned counsel for the appellants, the agreement of the appellants who were respondents in the earlier appeal not to execute the decree was conditional on the appellants in the said appeal executing a sale-deed after receiving the amounts agreed upon. In other words, there were two components of the agreement. Second part related to the agreement not to execute the decree which was dependant upon the execution of the sale-deed. Undisputably, the same has not been executed and on the other hand suit for specific performance of the agreement has been filed, and that matter is pending in appeal. We do not think it necessary to express any opinion on the merits of the said suit. But the facts remain that there was no certificate as needed under Order XXI Rule 2 CPC. The question of conscious waiver, in the circumstances does not arise. Ultimately, it has to be decided on the facts and circumstances of this case as to what was the intention of the parties and to determine as to whether rights on the decree were given up or not. On the facts, the rights had not been surrendered and the decree remained preserved.(Paras 23 and 24)

JUDGMENT

Arijit Pasayat, J.—Challenge in this appeal is to the order passed by a learned Single Judge of the Madhya Pradesh High Court at Jabalpur in a Civil Revision filed under Section 115 of the Code of Civil Procedure, 1908 (in short ‘CPC’). By the impugned order the High Court held that the petitioner who was the plaintiff in the suit and the decree-holder in an earlier suit was not entitled to execute the same.

2. Background facts in a nutshell are as follows:

The plaintiffs had filed a civil suit for eviction of the father of respondents (Sri Narayanbhai) who was the tenant in the disputed premises. In the suit, pleadings were to the effect that suit property originally belonged to one Dhanji Bhai. Narayan had taken suit premises on rent from Dhanji Bhai. Appellant No.2 Kanji Bhai purchased the suit property in the name of his wife Padma Ben (Appellant No.1), by registered sale deed on 25.8.1980. Decree was granted in favour of the landlords. Tenant filed an appeal before the District Judge. Before the matter could be decided on merits an application purported to be under Order XXIII Rule 1 CPC was filed before the Appellate Court. The application was signed by the plaintiff-landlord and the defendant. The appeal was dismissed in terms of the application. Later on, the present appellants tried to execute the decree which was resisted by the defendants on the ground that (1) the decree has become in-executable; (2) the landlords were not ready and willing to perform their part of the contract and (3) a suit for specific performance had already been instituted. The execution application filed was pressed by the present appellants on the grounds that adjustments in terms of Order XXI Rule 2 CPC was not recorded. In any event the Court cannot take cognizance of the adjustment under Sub-rule (3) of Rule 2, Order XXI CPC and there was never any readiness or willingness to perform their part of the defendants and as such the decree was executable. The respondents raised another plea that since the landlords have given up their rights to execute the decree, the same amounted to conscious waiver on their part and, therefore, the decree had become in-executable. The Executing Court came to hold that the application filed under Order XXIII Rule 1 CPC was an application for withdrawal of the appeal, it led to adjustment and as said adjustment was not certified by the Executing Court, no claim of adjustment can be taken note of. No question regarding executability of the decree would arise for consideration under Section 47 CPC. Said order was challenged in Civil Revision by the present respondents. In the Civil Revision, the stand taken before the Executing Court were reiterated by the parties.

3. The High Court came to hold that there was no adjustment between the parties. In fact it was a case where in view of the agreement between the parties, the decree became in-executable as there was a conscious waiver.

4. In support of the appeal, learned counsel for the appellants submitted that the High Court proceeded to examine the issue involved on erroneous premises. The application which was filed under Order XXIII Rule 1 CPC did not in essence make the decree passed in favour of the decree-holder in-executable. Strong reliance was placed on a decision of this Court in Sultan Begum v. Prem Chand Jain (1997 (1) SCC 373) to contend that there was no question of any conscious waiver as concluded by the High Court. There was in reality adjustment which was required to be certified. The suit for specific performance filed by the respondents has already been dismissed and appeal is pending. That itself shows that the conditional acceptance not to execute the decree was not fulfilled.

5. In response, learned counsel for the respondent submitted that the High Court’s judgment suffers from no infirmity. In any event, there were two parts of the agreement - one was withdrawal of the appeal filed by the present respondents and the second was the ag

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Judicial Analysis

SupremeToday

2006 Supreme(SC) 384

IMPORTANT POINTAn uncertified payment of money or adjustment under a decree which is not recorded by the Court under Order XXI Rule 2 CPC cannot be recognized by executing Court.

Cases Referred (9)

Judicial Analysis

IMPORTANT POINT
An uncertified payment of money or adjustment under a decree which is not recorded by the Court under Order XXI Rule 2 CPC cannot be recognized by executing Court.