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1981 DIGILAW 531 (RAJ)

Chhagan Lal v. Bhagat Ram

1981-12-04

S.K.M.LODHA

body1981
S.K. MAL LODHA, J.—This is a decree-holders revision u/s. 115 C.P.C. against the order dated April 9,1981 of the Munsif, Udaipur City (North), by which he directed that an enquiry be held on the objection filed by the judgment-debtors non-petitioners on April 3, 1981, and further ordered that execution proceedings until the parties produce evidence in regard to the objection be stayed. 2. The decree-holder-petitioner instituted a suit against non-petitioners for ejectment. The suit was decided by the learned Munsif on September 25, 1974. He dismissed the suit. An appeal was preferred by the decree-holder. The appeal was allowed and the suit for ejectment was decreed on November 17, 1980. 3. The decree-holder levied execution for evicting the judgment-debtors. A warrant for possession under O. XXI, r. 35 C.P.C. was issued. Resistance was offered by the sons of the judgment-debtoi-non-petitioners. The possession could not be obtained. 4. On April 2, 1981, an application was filed in the executing court on behalf of the firm M/s Damodar Lal Bhagwan Das, alleging that the aforesaid firm which was registered in 1975, consists of four partners and they are independent tenants of the shop on the basis of the two rent receipts dated January 16, 1974 and May 4, 1974. 5. It may be stated here that these very receipts were filed by the judgment debtor-non petitioners during the pendency of the first appeal against the dismissal of the suit for ejectment under O. XLI, r. 27 C.P.C. and that application was dismissed by the appellate court on May 5, 1979, and they were not taken on record. It was stated in the application dated April 2, 1981, that as the decree is not against the four partners of the firm M/s Damodar Lal Bhagwan Das, it cannot be executed against them. It was prayed that no further proceedings in the execution may be taken. This application, as appears from the order dated April 3, 1981, was dismissed by the Munsif, Udaipur City (North). It is thus clear that the application of the firm M/s Damodar Lal Bhagwan Das, was dismissed. 6. It was prayed that no further proceedings in the execution may be taken. This application, as appears from the order dated April 3, 1981, was dismissed by the Munsif, Udaipur City (North). It is thus clear that the application of the firm M/s Damodar Lal Bhagwan Das, was dismissed. 6. On the same day i.e. on April 3, 1981, the judgment-debtors non-petitioners filed objection under Ss.47, 151 and O.XXI r. 36 C.P.C. alleging amongst others that the judgment-debtor Fateh Lal, (non-petitioner No. 2) had delivered possession of the shop to the decree-holder, on August 31, 1973 and executed a document to that effect. After that the shop in question was rented out by the decree-holder to the registered firm Damodar Lal Bhagwan Das. The decree-holder had passed two receipts dated January 16, 1974 and May 4, 1974, to the firm M/s Damodar Lal Bhagwan Das. As the decree-holder had obtained possession of the shop on August 31, 1973 and had also received the entire rent up to that date, the decree is not capable of execution. 7. The objection was contested on behalf of the decree-holder on various grounds. The reply to the objection was filed by the decree-holder on April 4. 1981. 8. The learned Munsif, by his order dated April 9, 1981, ordered for the summary enquiry of the objection filed by the judgment-debtors on April 3, 1981, and directed that the execution proceedings shall remain stayed until the parties produce their evidence. Being dis-satisfied, the decree-holder has filed this revision petition. 9. I have heard Mr. N.P. Gupta, learned counsel for the petitioner. No body has appeared on behalf of the non-petitioners despite service of notice on them. 10. Learned counsel contended that the arrangement, adjustment, agreement or satisfaction of the decree that has been alleged by the judgment-debtors in their objection dated April 3, 1981, is admittedly prior to the passing of the decree against them, and as such, the executing court cannot go behind the decree and investigate the alleged arrangement, adjustment agreement or satisfaction, which has taken place on August 31, 1973. 11. It may be recalled here that the suit of the decree-holder for ejectment was dismissed by the trial court on September 25, 1974. The appeal was allowed on November 17, 1980 and, a decree for ejectment was passed against the judgment-debtors-non-petitioners. 11. It may be recalled here that the suit of the decree-holder for ejectment was dismissed by the trial court on September 25, 1974. The appeal was allowed on November 17, 1980 and, a decree for ejectment was passed against the judgment-debtors-non-petitioners. The document which has been relied on by the judgment-debtors-non-petitioners is dated August 31, 1973. This document inter-aliaresites:— ^^mldk fdjk;k 31-8-73 rd dk tek djk;k lksbZ eqrkfcd tek gqvk :i;k 1500½ sd/- ¼iUnzg lkS½ sd/- rks vkidk gekjs ikl ,MokUl Fkk og rFkk ckdh dk :i;k vkSj ysdj fdjk;s dh pqdrh jlhn dj nksuks lks lgh NS rk- 31-8-73A** 12. According to Mr. N.P. Gupta, learned counsel for the decree-holder the underlined words ^^lksbZ eqrkfcd tek gqvk** refer that the rent has been accordingly deposited whereas he says that the judgment-debtors read them as ^^lksbZ eqrkfcd dCtk gqvkA** 13. The view to which I have arrived at after hearing the learned counsel for the petitioner, the alleged controversy with respect to the aforesaid words between the decree holders and the judgment-debtors need not detain me. 14. The agreement, arrangement or adjustment alleged by the judgment-debtors is a pre-decree matter. The question that, therefore, needs decision is whether a pre-decree agreement, arrangement or adjustment is a matter that can be said to relate to the execution, discharge or satisfaction of the decree within the meaning of s.47 C.P.C. There is a conflict of judicial opinion on this point. The High Courts of Calcutta, Karnatak, Mysore, Nagpur, Punjab, Travancore-Cochin and Judicial Commissioner of Bhopal have taken the view that the executing court cannot entertain an objection to the execution of the decree based on an agreement, arrangement or adjustment between the parties prior to the date of decree. A contrary view was taken by Allahabad and Bombay High Courts. However the High Court of Allahabad in Krishna Raj Trading Corporation v. Ram Saran Dass and Brothcrs(l), held that the setting up of a pre-decree agreement in the execution proceeding is not permissible under s. 47 C.P.C. The decisions of the Madras High Court on this question are of divergent views. In Kaku Ramji v. M. Bapiraju (2), the Andhra Pradesh High Court opined that an agreement between two parties to an action to the effect that one of the parties would not execute a decree to be obtained against the other could be pleaded in bar of execution. 15. In Kaku Ramji v. M. Bapiraju (2), the Andhra Pradesh High Court opined that an agreement between two parties to an action to the effect that one of the parties would not execute a decree to be obtained against the other could be pleaded in bar of execution. 15. The question came up for consideration before a learned single Judge of this court in M/s M.N. Hasa Singh & Co. v. Sardarmal Bardiya (J) After noticing the decisions of the various High Courts, the learned Judge took the view that the pre-decree arrangement or adjustment, cannot be enquired into, in the execution. 16. I respectfully agree with the view taken in M/s M.N. Hasa Singh & Gos case (3) and held that a court, executing decree, cannot under s. 47 C.P.C. entertain the objection to the execution of the decree based on an agreement or arrangement between the parties prior to the date of the decree. The agreement or arrangement relied on by the judgment-debtors is based on the document dated August 31, 1973. It is admittedly a pre-decree matter and as such this cannot be a matter relating to the execution, discharge or satisfaction of the decree. 17. Thus, the learned Munsif has exercised jurisdiction not vested in him by law when he passed the impugned order for holding enquiry and staying the proceedings of the execution until the parties produce evidence on the objection filed by the judgment-debtors under s. 47 C.P.C. The impugned order of the enquiry on the objection filed by the judgment-debtors under s. 47 C.P.C. has, in my opinion, occasioned a failure of justice. 18. No enquiry on the objection filed by the judgment-debtors on April 3, 1981, is warranted, as the objection relates to a pre-decree matter. 19. For the reasons mentioned above, the revision petition is allowed and the order dated April 9, 1981. passed by the Munsif, Udaipur City (North), is sat aside. 20. As nobody has appeared on behalf of the non-petitioners to oppose the revision petition, there will be no orders as to costs.