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1994 Supreme(Bom) 534
IN THE HIGH COURT OF BOMBAY
Dr. B.P. Saraf, J.
Manuraj Chandrakant Babar.... Petitioner.
Versus
Bapusaheb Babasaheb Deshmukh.... Respondent.
Civil Revision Application No. 486 of 1993, decided on 27-9-1994.
Advocates appeared :
G.S. Godbole, for the petitioner.
P.M. Mengane, for the respondents.
Any payment or adjustment of a decree made outside the court cannot be recognized unless it is certified or recorded by the executing court under Order XXI, Rule 2 of the Code of Civil Procedure.
Headnote:
EXECUTION OF DECREE - ORDER XXI, RULE 2 OF THE CODE OF CIVIL PROCEDURE - PAYMENT OR ADJUSTMENT OF DECREE OUTSIDE COURT - RECORDING OF PAYMENT OR ADJUSTMENT BY EXECUTING COURT - CONDITIONS - INTERPRETATION OF ORDER XXI, RULE 2 - EFFECT OF FAILURE TO RECORD PAYMENT OR ADJUSTMENT.
Fact of the Case:
The petitioner, a decree holder, filed an execution petition to recover a sum of Rs. 4000/- with interest from the respondent, the judgment debtor. The respondent claimed that a compromise had been reached between the parties and that the petitioner had agreed to accept Rs. 4000/- in full and final satisfaction of the decree. The executing court allowed the respondent's application and recorded the adjustment of the decree, despite the petitioner's denial of the compromise.
Finding of the Court:
The High Court held that the executing court erred in recording the adjustment of the decree without following the procedure prescribed under Order XXI, Rule 2 of the Code of Civil Procedure. The court noted that the respondent had failed to produce any evidence to support his claim of compromise, and that the petitioner had denied the compromise and reiterated that the entire decretal amount was liable to be recovered.
Issues: 1. Whether the executing court can record an adjustment of a decree based on a compromise alleged by the judgment debtor without following the procedure prescribed under Order XXI, Rule 2 of the Code of Civil Procedure? 2. Whether the executing court can recognize a payment or adjustment made outside the court without it being certified or recorded under Order XXI, Rule 2 of the Code of Civil Procedure?
Ratio Decidendi: The court interpreted Order XXI, Rule 2 of the Code of Civil Procedure and held that any payment or adjustment made outside the court cannot be recognized unless it is certified or recorded by the executing court under sub-rules (1) and (2) of Rule 2. The court further held that the executing court is bound to follow the procedure prescribed under Rule 2 before recording an adjustment of a decree, and that failure to do so would render the order of adjustment unsustainable.
Final Decision: The High Court allowed the revision petition and set aside the order of the executing court recording the adjustment of the decree. The court directed the executing court to proceed with the execution of the decree for realization of the balance amount in terms of the decree.
2. The learned Counsel for the petitioner submits that there is not even an iota of evidence or any material to show that there was any compromise between the judgment-debtor and the decree-holder as alleged. It is further stated that the amount of Rs. 4,000/- was paid by the judgment-debtor in instalments on different dates to the Baillif in part satisfaction of the decree. There was no compromise as alleged at any point of time. The learned Counsel referred to the provisions of Order XXI, Rule 2 which provides that where any money payable under a decree is paid out of Court or a decree of any kind is 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 executing Court and the executing Court shall record the same accordingly. Sub-Rule (2) of the said rule also enables the judgment-debtor to inform the Court of such payment or adjustment. Such application has to be made in writing supported by an affidavit of such payment or adjustment. The judgment-debtor has also to apply to the Court to issue a notice to the decree-holder to show-cause as to why such payment or adjustment should not be recorded as certified. 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. Sub-Rule (3) of the said Rule makes it further clear 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 learned Counsel submits that in the instant case the p
