Order 21 Rule 2, C. P. C., and Article 174 of the Limitation Act, 1908, apply only to decrees under which payment of money is one of the reliefs granted under them, and not to all decrees without any distinction.

G. K. MISRA, J.

( 1 ) RESPONDENT is the landlord and the appellant is the tenant under him in respect of a house situate in the city of Cuttack. In House Rent Control Appeal No. 9 of 1968 the landlord obtained an order of eviction on 6-9-1963 wherein the tenant was directed to vacate the house within four months. As the tenant did not vacate the house, the landlord filed the execution case on 6-3-1964. On receipt of notice under Order 21 Rule 22, C. P. C. the appellant filed an objection under Section 47, c. P. C. alleging that there was an adjustment of the decree on 6-11-1963. The story of settlement, as stated in the objection petition, was that the parties agreed that the tenant would henceforward pay rent regularly and continue in possession of the house as a tenant as before and the landlord would not execute the eviction order dated 5-9-1963 without going into the merits of the objection by taking evidence, the learned Munsif dismissed the petition staling that no document showing settlement having been filed, the objection could not be accepted. Against that order an appeal was carried to the learned District Judge, who held that the alleged adjustment dated 6-11-68 was one under Order 21 Rule 2, C. P. C. , and as the judgment-debtor did not certify the adjustment within 90 days, as required under Article 174 of the Limitation Act (Act IX) of 1908, (hereinafter referred to as the Old Act), it was barred by limitation. In this view of the matter he did not remand the case for going into evidence on merits whether in fact there was any adjustment as pleaded by the judgment-debtor.

( 2 ) IN support of the judgment of the learned lower appellate court, Mr. Sinha advanced two contentions:

(1) The alleged adjustment, even if true, comes within the ambit of order 21 Rule 2, C. P. C. and the certification not having been done by the judgment-debtor within 90 days under Article 174 the objection in barred by time; find (2) Even if the objection of the judgment-debtor pleading adjustment does not come within the ambit of Order 21, Rule 2 and is an application under Section 47 C. P. C. , it would be hit by Article 174 as being barred by limitation.

Both the contentions require careful examination.

( 3 ) ORDER 21 Rule 2, C. P. C. , reads thus: 2. Payment out of Court to decree holder:

(1) Where any money payable under a decree of any kind is paid out of court, or the decree is otherwise adjusted in whole or in port to the satisfaction of the decree-holder, the decree-holder shall certify such payment or adjustment (o the Court whose duty it is to execute decree, and the Court shall record the same accordingly. (2) The judgment-debtor also may inform the Court of such payment or adjustment, and apply to the Court to issue a notice to the decree-holder to show cause, on a day to be fixed by the Court, why such payment or adjustment should not be recorded as certified; and where certification has been made by an endorsement of such payment or adjustment by the decree-holder or by any person authorised by him in that behalf upon the process issued by the Court, the Court shall issue such notice of its own motion. If after service of the notice, the decree-bolder fails to show cause why the payment or adjustment should not be recorded as certified, the Court shall record the same accordingly. (3) A payment or adjustment, which has not been certified or recorded as aforesaid, shall not be recognised by any court executing the decree. There is conflict of authority on the question whether this Rule has application only to decree under which payment of money is one of the reliefs granted under them, or to all decrees without any distinction. Allahabad, Bombay, Calcutta, Lahore, Patna, Nagpur and Mysore High Courts have taken the view that the provisions of the rule apply to every kind of decree: See AIR 1952 All, 814, AIR 1922 Bom 380 (2), AIR 1928 Cal 715, AIR 1936 Lah 842, AIR 1936 Pat 385. AIR 1948 Nag 374 and AIR 1963 Mys 79. The Hi