1978 Supreme(Raj) 326
RAJASTHAN HIGH COURT
S.K.Mal Lodha, J.
Indra - Appellant
Versus
Narayan Chand - Respondent
S.B. Civil Revision No. 251 of 1978.
Decided On : 19-09-1978
Advocates:
For the Petitioner:S.S. Purohit, Advocate.
For the Respondent:Mr. Gopal Raj Singhvi, Advocate.
An agreement between a decree-holder and a judgment-debtor which does not have the effect of satisfying or discharging the decree, but only surrenders the decree-holder's right to execute it in consideration of the judgment-debtors giving up their right of appeal, does not amount to adjustment of the decree and does not require certification under Order 21, Rule 2, C.P.C.
Headnote:
EXECUTION OF DECREE - ADJUSTMENT OF DECREE - AGREEMENT BETWEEN DECREE-HOLDER AND JUDGMENT-DEBTOR - WHETHER AMOUNTS TO ADJUSTMENT OF DECREE - WHETHER CERTIFICATION REQUIRED UNDER ORDER 21, RULE 2, C.P.C. - SCOPE OF SECTION 47 AND ORDER 21, RULE 2, C.P.C. - INTERPRETATION.
Fact of the Case:
The judgment debtors filed objections to the execution of a decree for arrears of rent and ejectment, claiming that an agreement was reached between them and the decree-holder whereby the decree-holder agreed not to dispossess them from the shop in dispute and to relinquish his right to execute the decree if the judgment debtors paid the rent in time and further paid the entire dues after adding interest and costs. The decree-holder denied the agreement and contended that the objections were barred by time as they amounted to adjustment of the decree and were not certified within thirty days as required by Article 125 of the Limitation Act, 1963.
Finding of the Court:
The court held that the agreement pleaded by the judgment debtors did not amount to adjustment of the decree so as to require certification under Order 21, Rule 2, C.P.C. It further held that Sub-rule 3 of Rule 21, C.P.C. cannot operate as a bar. The court also held that the executing Court had committed illegality or material irregularity in the manner in which it exercised its jurisdiction while disposing of the objections of the judgment-debtors.
Issues: 1. Whether the agreement between the decree-holder and the judgment-debtors amounted to adjustment of the decree? 2. Whether certification under Order 21, Rule 2, C.P.C. was required for the agreement to be effective? 3. Whether the objections filed by the judgment debtors were barred by time?
Ratio Decidendi: 1. The court held that the agreement pleaded by the judgment debtors did not amount to adjustment of the decree because it did not have the effect of satisfying or discharging the decree, but only surrendered the decree-holder's right to execute it in consideration of the judgment-debtors giving up their right of appeal. 2. The court held that certification under Order 21, Rule 2, C.P.C. was not required for the agreement to be effective because it did not involve the question of adjustment but it effected the question of execution of the decree, which is to be investigated and adjudged in proceedings under Section 47, C.P.C. 3. The court held that the objections filed by the judgment debtors were not barred by time because the provisions of Order 21, Rule 2, C.P.C. cannot operate as a bar to an agreement between the parties subsequent to the decree on account of which the decree holder cannot execute the decree against the judgment-debtors.
Final Decision: The court allowed the revision petition, set aside the order of the executing Court, and remanded the case back to the executing Court for investigating the agreement pleaded by the judgment-debtors on merits in accordance with law.
JUDGMENT
1. - This is a revisional application under Section 115, C.P.C. by the three judgment-debtors directed against the order of the Munsif City, Jodhpur dated January 1, 1978 by which he dismissed their objections dated October 14, 1977 praying that execution cannot proceed against them and that the execution may be dismissed.
2. The short facts relevant for the disposal of this revision are these : The plaintiff-decree-holder instituted a suit for arrears of rent and ejectment against the defendant Shantilal (now deceased) in respect of the shop No. 2 situate in Ramnath Mehra Bhawan, Jalorigate, Jodhpur. An ex parte decree was passed by the learned Munsif, Jodhpur on March 28, 1973 for ejectment, arrears of rent and damages for use and occupation @ Rs. 75/- per mensem. Execution was levied by the decree-holder against Shantilal judgment-debtor on October 16, 1973. During the pendency of the execution application, since Shantilal, original judgment-debtor died on April 14, 1976, notices were issued to the legal representatives of Shantilal under Order 21, Rule 2, C.P.C. Shantilal judgment-debtor is survived by his widow, Indra Dixit (petitioner No. 1); his son Ajay Dixit (petitioner No. 2) and daughter Kumari Abha, (petitioner No. 3). Besides these, there are two minor daughter Kumari Vibha and Kumari Nidhi who are pro form a non-petitioners No. 2 and 3 whose Court guardian is Smt. Indu B. Rathi, Advocate, High Court, Jodhpur. In response to the notice Under Order 21, Rule 22 C.P.C., the objections were filed stating that an agreement was arrived at between the decree-holder-non-petitioner No. 1 and deceased Shantilal (original judgment-debtor) during his life time according to which, the decree-holder had agreed that he will not disposes the judgment-debtor from the shop in dispute and will relinquish his right to execute the decree if the judgment-debtor pays to the decree-holder rent in time and further pays the entire dues after adding interest and costs. It has also been stated that Shantilal agreed to the offer made by the decree- holder and he paid the entire rent, costs and interest to the decree-holder in time. The case of the judgment-debtors further is that rent was paid to the decree-holder upto August, 1977 and that the decree-holder did not dispossess the judgment-debtors from the shop in dispute in pursuance of the agreement. It has been mentioned in the objections that after the death of Shantilal, rent has been accepted by the decree-holders from his son and he has also accepted him as his tenant. Thereafter on July 27, 1976, Rs. 225/- was sent by money-order which were accepted on behalf of the decree-holder. Subsequent to that, on November 2, 1976, a further sum of Rs. 225/- was sent to the decree-holder which was received by him on November 4, 1976. In the premises aforesaid, it was contented by the judgment-debtors in their objections that the decree-holder has relinquished his right, and so the execution cannot proceed further. In para 5 of the objection-petition, it was pleaded that a new tenancy had come into existence between the decree-holder and the judgment debtor and, therefore, on account of novation of contract, the execution is not maintainable. Certain other objections were taken but I do not consider them necessary to mention for the present purpose. The decree-holder resisted the objections by filing a reply dated November 4, 1977. The decree-holder denied the agreement between him and the original judgment-debtor Shantilal. The various payments alleged to have been made were admitted by the decree-holder. His principal pleas are that there was neither agreement for novation of contract and that the objections of the judgment-debtor are not barred by time as the pleas taken by the judgments-debtors amount to adjustment of the decree and since the judgment-debtors did not get it certified within thirty days as required by Article 125 of the Limitation Act, 1963, no effect can be given to t
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