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Supreme Court
Honble KULDIP SINGH & S. SAGHIR AHMED, JJ.
Sultana Begum - Appellant
Versus
Prem Chand Jain - Respondents
Civil Appeal No. 5631 of 1994
Decided On : December 10, 1996
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 Sections 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. (Para 20)
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-calledas,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. (Para 21)
The following principles are clearly discernible : (1) It is the duty of the courts to avoid a head-on clash between two Sections of the Act and to construe the provisions which appear to be in conflict with each other in such a manner as to harmonise them; (2) The provisions of one Section of a statue cannot be used to defeat the other provisions unless the court, in spite of its efforts, finds it impossible to effect reconciliation between them; (3) It has to be borne in mind by all the courts all the time that when there are two conflicting provisions in an Act, which cannot be reconciled with each other, they should be so interpreted that, if possible, effect should be given to both. This is the essence of the rule of ``harmonious construction.; (4) The courts have also to keep in mind that an interpretation which reduces one of the provisions as a ``dead letter or ``useless lumber is not harmonious construction; (5) To harmonsie is not to destroy any statutory provision or to render it otiose. (Para 12)
(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 appellants 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.Shrama 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 recor- ded 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 compromise decree and that the appellants attorney allowed him to stay on in the premises as a licencee on payment of the licence fee at a rate which was more than the rate at which the rent was paid by the resp
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