1982 Supreme(MP) 695

IN THE HIGH COURT OF MADHYA PRADESH
M.D. BHATT, J.
Ramesh Chand - Applicant
Versus
Chandrakant - Non-Applicant
C.R. No. 1029 of 1982 (J)
Decided On : 27-09-1982

Headnote:(1) Civil Procedure Code, 1908 – O. 21, R.2 (h) and S. 47 – question of adjustment or otherwise of decree for possession – fall under O. 27, R. 2 and not under S.47.1

       (2) Civil Procedure Code, 1908 – O. 21, R. 2(2), Limitation Act, 1963 – Art. 125 – date to deliver possession fixed in decree – J.D. should apply for adjustment within 30 days if delivery is made.

       (3) Civil Procedure Code, 1908 – O.21, R. 2(2) – J.D. neither complying provisions under nor giving particulars of adjustment – enquiry cannot be made.

        Short Note

       1. The trial Court, in the eviction suit had passed the decree, for eviction on 23 August, 1978. As per the terms of the decree, it was ordered that the applicant judgment debtor would remove the encroachment by 1 – 10 – 1978 and in case, he fails to do so by the said date, the plaintiff landlord would be entitled to his eviction from the tenanted premises as well as the additionally encroached portion. The defendant tenant had preferred the successive appeals and this Court had finally dismissed the second appeal on 22 – 10 – 1981. The landlord decree holder, thereafter, filed an execution for obtaining possession of the suit premises and also for removal of thee encroachment,. The judgment debtor tenant filed an application in the Court on 9 – 12 – 1981 that he had already vacated the encroached portion and as such, the execution of the main decree had become infructuous. The Executing Court, in the impugned order, observed that the judgment – debtor did not give particulars in his application, as to when he had vacated the encroached portion. Accordingly, finding no substance in the application, the same was dismissed. Hence, the judgment – debtor tenant's present revision.

       Held: Since the judgment – debtor tenant had preferred the appeal against the judgment and decree for eviction, at first, in the lower appellate Court and later in this Court and since the execution of the decree bad been stayed by the superior Courts, one can, well, appreciate the failure of the judgment debtor in not vacating the encroached portion by 1 – 10 – 1978, as had been stipulated in the decree. The stay of the execution had naturally stood vacated when this Court dismissed the tenant's second appeal on 22 – 10 – 1981. After this date, it was incumbent on the judgment debtor to immediately comply with the terms of the decree, in so far as the vacating of the encroached portion by him was concerned and then to inform the executing Court about this and to take necessary steps, in accordance with Order 21 rule 2 CPC. It has been held by this Court in the order passed on 17 – 11 – 1981 in Civil Revision No. 1139/81 Chandra Kant Dwivedi and others v. Sunderlal. On the strength of D.B. decision of this Court in 1977 JLJ 609 Bahadur Singh Gupta v. Mohammadali that the question of adjustment or otherwise of the decree for possession falls within the ambit of Order 21, rule 2 CPC and not under section 47 CPC. It has been further held, vide this Court's order dated 27 – 9 – 82 in Civil Revision No. 247/82 Sunderlal v. Chandrakant and others that where the judgment debtor claims to make any payment or adjustment in terms of the decree, be has to comply with the provisions of rule 2 Order 21, for getting certified or recorded the alleged adjustment. Sub – rule(2) O.21 of R.2 mandatorily enjoins that after the adjustment in compliance of the terms of the decree, the judgment debtor bas not only to inform the Court of such adjustment but has also to apply to the Court for issuing notice to the decree holder for showing cause, as to why such adjustment should not be recorded, as certified. In the present case the judgment debtor is not found to have taken proper steps strictly in compliance with sub – rule (2) R. 2 Order 2 of Order 21 ibid. In his application, he is not even found to have given the exact date or other particulars, as to when he vacated the encroached portion. This application, in the particular circumstances of the present case, where the execution of the decree had been stayed under the order of the superior Courts, had necessarily, to be made within 30 days of this Courts' final judgment in Second Appeal against the eviction decree, in accordance with the requirement under Art. 125 of the Limitation Act. This was obviously not done. The application, in this regard, was apparently hopelessly barred by time. The adjustment being thus not certified or recorded under Order 21 Rule 2 CPC there is no question of any enquiry in the matter of adjustment within the prescribed time, more particularly in the absence of necessary particulars regarding the date when the adjustment had been made. The executing Court, therefore, was right in rejecting the hopelessly time barred application of the applicant and in proceeding with the execution for delivery of possession of the suit premises, by issue of warrant in that regard. 1977 JLJ 609 and C. R. No. 247 of 1982, decided on 27 – 8 – 1982 relied on. Revision dismissed.