A decree's joint liability cannot be severed or modified unilaterally; the recording of payments must meet procedural standards set forth in the Code of Civil Procedure.

JUDGMENT : 

Apurba Sinha Ray, J.

1. The judgment-debtor no. 2 Arun Subbaya Shetty has filed the GA No. 3 of 2024 praying for recalling the order dated 13.02.2024 on the ground that the said order seriously prejudices his interest as a judgment-debtor. Mr. Soumya Chakraborty, the learned senior counsel appearing for the judgment-debtor no. 2 has submitted that the judgment-debtor no. 1 and decree-holder in collusion with each other have persuaded the learned court in passing the order dated 13.02.2024 whereby the order dated 30.06.2022 and 17.08.2022 passed in EC No. 193 of 2022 have been modified and as a result of which the decree-holder and the judgment-debtor no. 1 have truncated the relevant decree in respect of which both the judgment-debtor nos. 1 and 2 are jointly liable. The action of the decree-holder and the judgment-debtor no. 1 reveals that the execution of the original decree has been divided into two parts and it is the intention of the decree- holder to release/relieve the judgment-debtor no. 1 from the scope of this execution case on the pretext that the judgment-debtor no. 1 has discharged his 50% liability in connection with the relevant decree. It is also alleged by Mr. Chakraborty that a plain and simple reading of the original decree would show that both the judgment-debtor nos. 1 and 2 are jointly liable and the liability of those judgment-debtors is not severable. It is further alleged that the judgment-debtor no. 1 is one of the employees of the decree-holder and with the connivance of the judgment-debtor no. 1 the decree-holder has gone beyond the scope of Order XXI Rule 2 of the Code of Civil Procedure . If the order dated 13.02.2024 is not recalled, the right and interest of the judgment-debtor no. 2 will be seriously prejudiced and he shall suffer irreparable loss and injury. The learned counsel Mr. Chakraborty has further submitted that this court while passing the order dated 13.02.2024 has gone beyond its jurisdiction and such course of action is not approved by the Hon’ble Apex Court. In this regard he has referred to the decision of A.R. Antulay Vs. R.S. Nayak reported in (1988) 2 SCC 602.

2. The learned counsel Ms. Sonal Shah, representing the decreeholder, has submitted that during pendency of the execution proceeding the judgment-debtor no. 1 has agreed to liquidate the decreetal amount in part and accordingly he has paid 2,31,00,000/- (Two crores thirty one lakhs) and on being satisfied, the decree-holder has not only conceded before the court on 13.02.2024 that the judgment-debtor no. 1 has liquidated his share of liability but has also submitted an affidavit containing terms and settlement in that regard. According to Ms. Shah, conditions as laid down in Order XXI Rule 2 have been duly complied with and the decree-holder has certified such payment made by the judgment-debtor no.1. The learned counsel has further submitted that the order dated 13.02.2024 was pronounced in presence of the learned counsel of the judgment-debtor no. 2 and at that time the learned counsel of the judgment-debtor 2 did not raise any objection. According to her, when an order was passed on consent of the parties, such order has gained certainty and cannot be withdrawn on the whims of another party who is not even caring to liquidate the decreetal dues inspite of his failed attempt at the Hon’ble Apex Court, and particularly, when such order dated 13.02.2024 was passed in presence of his learned counsel.

3. The learned counsel of the decree-holder has referred to a judicial decision reported in (1999) 4 SCC 396 (Budhia Swain & Ors. Vs. Gopinath Deb & Ors.) in support of her conten