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1980 DIGILAW 139 (MP)

SHUBHASHCHANDRA BABULAL v. NANDLAL LAXMICHAND

1980-07-19

J.P.BAJPAI

body1980
JUDGMENT : ( 1. ) BY this Miscellaneous Appeal, the judgment-debtor seeks interference with the order made by the Executing Court refusing to entertain his objection purporting to be one under section 47 read with order 21, Rule 2, Civil Procedure Code. ( 2. ) THE facts and circumstances relevant for the purpose of this miscellaneous Appeal are that a decree for eviction and arrears of rent was passed against the appellant-judgment-debtor in favour of the respondent-plaintiff-landlord in the year 1972. The execution proceedings were instituted in the year 1977 after the said decree had become final. When the judgment-debtor was noticed, he came with a plea that subsequent to the passing of the decree one day during night hours, the decree-holder had granted a fresh lease in his favour on a monthly rent of Rs. 125 and had also granted time for making payment of arrears of rent under the decree. The objection, therefore, was that in view of the subsequent completed contract granting a fresh monthly lease, the decree for eviction ceased to exist and accordingly having been extinguished, the decree was not liable to be executed in execution of the same. It would be significant to mention that the aforesaid contention was based purely on oral evidence and there was nothing in the shape of documentary evidence in any manner to support the alleged grant of fresh lease. ( 3. ) THE Executing Court refused to entertain the said objection that since in substance, the judgment-debtor wanted to rely on an adjustment of the decree by pleading a subsequent completed contract of fresh lease, the subject matter was governed by the provisions of Order 21, Rule 2, Civil procedure Code and accordingly, the provisions of Rule 2 (a) of Order 21, as inserted by the Amendment Act of 1976, which were already in force on the date of the alleged adjustment, became attractive. The provisions of rule 2 (a) provide that no such request for adjustment would be entertained unless the same was supported by documentary evidence. Since undisputedly there was no such documentary evidence produced or even pleaded, the executing Court dismissed the objection in limine. ( 4. ) THE learned counsel for the appellant preferred a Misc. Appeal challenging the said order before the District Court. The lower appellate court affirmed the order made by the Executing Court and the appeal was accordingly dismissed. Since undisputedly there was no such documentary evidence produced or even pleaded, the executing Court dismissed the objection in limine. ( 4. ) THE learned counsel for the appellant preferred a Misc. Appeal challenging the said order before the District Court. The lower appellate court affirmed the order made by the Executing Court and the appeal was accordingly dismissed. The judgment debtor has now come before this court with this Second Appeal. ( 5. ) THE main argument put forth was that since the contention put forth by the judgment-debtor before the Executing Court was in the nature of an objection liable to be entertained under section 47 of the Code of Civil procedure, the bar created by Order 21, Rule 2 (a) requiring documentary evidence to raise the plea of adjustment of a decree, was not applicable and the Courts below have erred in law in holding so. Shri Gupta for the appellant-judgment-debtor contended that it was not a case of adjustment, but an objection that the decree, as passed, was not enforceable. He placed reliance on certain observations made in a decision given by a Single Bench of this court in Kanhaiyalal v. Saifuddin (C. R. No. 600 of 1979 decided on 21-1-1980 ). I have gone through the aforesaid decision and the records of the connected case. The said case is apparently distinguishable and, therefore, the observations made by the learned Single judge in para 10 of the said decision do not apply to the present case. In the aforesaid case, the objection raised by the judgment-debtor was that on payment of certain amount, as required by the decree, the decree for eviction stood satisfied. This Court in the context of the aforesaid plea, observed that since the objection pertained to the question of satisfaction of the decree, which clearly fell within the ambit of section 47, the provisions of Rule 2 (a)of Order 21 were not attracted. There is no quarrel with the aforesaid proposition. In the said case, before the learned Single Judge, there was no such plea that by virtue of a subsequent completed contract, the decree for eviction stood adjusted. There is no quarrel with the aforesaid proposition. In the said case, before the learned Single Judge, there was no such plea that by virtue of a subsequent completed contract, the decree for eviction stood adjusted. The objection raised in the said case was that since the amount shown as rent was liable to be paid in lieu of interest and the transaction was of loan, the decree stood satisfied on payment of the entire amount made payable under the decree and the decree-holder was not entitled to obtain the possession of the property in question. The situation in the present case is quite different. Here there is a decree for eviction in favour of the landlord against the tenant. The case of the tenant is that subsequent to the passing of the decree, the landlord had granted a fresh lease and by virtue of the said subsequent completed contract, the decree for eviction stood adjusted and that part relating to the payment of arrears of rent also stood modified by the alleged grant of further time for making payment. This is a clear case of adjustment and once it is so, the bar created by Rule 2 (a) of Order 21 undoubtedly becomes applicable. The learned counsel for the respondent-decree-holder relied on the observations made by another Single Bench of this Court in the case of Hotamsingh v. Dangalsingh (1980 (II) M P W N Note 8 ). The facts and circumstances of the present case are substantially similar to those in Hotamsinghs case. In the said case also, a decree for possession was passed and the objection raised by the judgment-debtor was that subse-quent to the passing of the decree, there was another agreement in between the parties outside the Court that if the judgment-debtor would pay a sum of Rs. 400 to the decree-holder, the disputed land will continue to remain in the possession of the judgment-debtor. It was also held that the said amount of Rs. 400 was paid before the Panchas and accordingly the decree under execution has to be adjusted. This story was not supported by any documentary evidence. The alleged compromise was denied. 400 to the decree-holder, the disputed land will continue to remain in the possession of the judgment-debtor. It was also held that the said amount of Rs. 400 was paid before the Panchas and accordingly the decree under execution has to be adjusted. This story was not supported by any documentary evidence. The alleged compromise was denied. On these facts, it was held that there was a completed agreement which extinguished the decree already passed and took the place of the said decree and as such the said contract was an adjustment within the meaning of Order 21, Rule 2, civil Procedure Code. The learned Single Judge relied upon a decision of their Lordships of the Supreme Court in the case of Motilal v. Mohammad hasan Khan (AIR 1968 S C 1087), wherein it was observed that if the compromise amounts to an adjustment of the decree, it must be recorded under Order 21, Rule 2 and if not so recorded, it cannot be recognised by any Court executing the decree. The learned Single Judge also placed reliance on a decision in the case of Gyarsiram v. Brijmohan (1973 M P L J 211 =1973 J L J 125.), wherein it has been held that if there is a completed agreement which immediately extinguishes and takes the place of the decree, that contract is an adjustment within the meaning of Order 21, rule 2, Civil Procedure Code. In the opinion of this Court, the view taken by the learned Single Judge in Hotamsinghs case applies to the facts and circumstances of the present case. ( 6. ) THE learned counsel for the appellant thereafter contended that since the judgment-debtor had quoted section 47 in the cause title of the objection along with Order 21, Rule 2, Civil Procedure Code, the provisions of section 47 of the Code of Civil Procedure governed the matter and therefore even if the case pleaded was not supported by any documentary evidence the Executing Court should have held necessary enquiry and, thereafter passed suitable orders in the light of the evidence brought on record. As discussed above, the mere styling of an objection or an application is of no avail and what has to be looked into is the substance of the objection. As discussed above, the mere styling of an objection or an application is of no avail and what has to be looked into is the substance of the objection. If in reality and in substance, an objection clearly falls into a particular category, the mere labelling of the same under a different provision will not be material. It is not a case that the decree has been satisfied on compliance of the same or performance of any act by the judgment-debtor. The case of the judgment-debtor is that the decree-holder had subsequently entered into another contract granting a fresh lease and, therefore, the decree had come to an end. It is nothing but an adjustment; and once it is an adjustment, the requirements of Rule 2 (a) have to be necessarily complied with. ( 7. ) THE very purpose of making the legislation by the concerned amendment in the Code of Civil Procedure was to do away with the evil of frivolous objections, being taken every now and then by putting forth a false and fictitious story of adjustment of decree by oral compromise and using the same as a handle to anyhow delay and defeat the execution of a binding decree. Once such an objection was raised even if not supported by any documentary evidence, the Executing Court was naturally required to hold an enquiry. This created obstacles in the execution of the decree and caused serious prejudice to the interest of the decree-holder and ultimately it resulted in miscarriage of justice when after a prolonged enquiry, the said story was ultimately found to be false. The legislation therefore, thought it proper that there should be some check imposed and accordingly it was provided that unless a case of adjustment or compromise is supported by documentary evidence, the same shall not be entertained by the Executing Court. To accept the contention of the appellant-judgment-debtor that such an objection shall be treated as one under section 47 and the bar created by Rule 2 (a)should be ignored, will frustrate the very purpose of the legislation. ( 8. ) THIS appeal, therefore, fails and is dismissed. Counsels fee Rs. 50 (Rupees Fifty), if certified. Appeal dismissed.