ORDER K.P. Balanarayana Marar, J. 1. The short question that arises in this revision petition is whether a compromise entered into between the decree holder and the judgment debtor not recorded by the court can be recognised by the court executing the decree. 2. Respondent obtained a money decree against revision petitioner and sought to realise the amount by attachment of salary. Revision petitioner pleaded that there had been an agreement by which the decree holder had consented to receive Rs. 2,500/- in full satisfaction of the claim towards which an amount of Rs. 1000/- was paid and the balance agreed to be paid before 3-3-1988. He was not able to pay the balance amount before the stipulated date, but the same was tendered since then, and refused by the decree holder who put the decree in execution for realisation of the balance under the decree. Revision petitioner resisted the execution petition and contended that he was liable to pay only the balance as per the agreement. The agreement was not recorded by the court. The executing court refused to place reliance on the agreement and directed the judgment debtor to pay the entire balance as per the decree. That order is challenged in this revision. 3. It cannot be disputed that parties are entitled to enter into a compromise with reference to their rights and obligations under the decree. There is no provision in the Code of Civil Procedure which prevents the parties from entering into such a compromise. But O.21 R.2 provides that any agreement or adjustment has to be brought to the notice of the court and recorded by it at the instance of the decree holder and if he fails to do so at the instance of the Judgment debtor. If not so recorded no such agreement or adjustment can be recognised by the court executing the decree. All questions arising between the parties relating to execution, discharge or satisfaction of the decree are to be determined by the court executing the decree by virtue of S.47 of the Code. Learned counsel for revision petitioner contends (hat the compromise entered into between the parties stipulating the manner in which the decree amount was to be discharged is a matter arising under S.47 and as such to be decided by the executing court.
Learned counsel for revision petitioner contends (hat the compromise entered into between the parties stipulating the manner in which the decree amount was to be discharged is a matter arising under S.47 and as such to be decided by the executing court. On the other hand it is pointed out by the learned counsel for the decree holder that the agreement being one in satisfaction of the decree has to be recorded under O.21 R.2 of the Code, and if not the same cannot be recognised. In order to appreciate the contentions raised on both sides it is necessary to refer to the provisions contained in O.21 R.2 and S.47 of the Code and to see whether there is any antithesis' between these provisions. 4. O.21 R.2 reads thus: (1) Where any money payable under a decree of any kind is paid out of Court, or a decree of any kind is otherwise adjusted in whole or in part to the satisfaction of the decree holder, the decree holder shall certify such payment or adjustment to the Court whose duty it is to execute the decree, and the Court shall record the same accordingly. (2) The judgment debtor or any person who has become surety for 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 if after service of such notice, the decree holder fails to show cause why the payment or adjustment should not be recorded as certified, the Court shall record the same accordingly. (2A) No payment or adjustment shall be recorded at the instance of the judgment debtor unless (a) the payment is made in the manner provided in the R.1; or (b) the payment or adjustment is proved by documentary evidence; or (c) the payment or adjustment is admitted by, or on behalf of the decree holder in his reply to the notice given under sub-r.(2) of R.1, or before the Court (3) A payment or adjustment, which has not been certified or recorded as aforesaid, shall not be recognised by any Court executing the decree.
Section 47 of the Code enables the executing court to determine any question relating to execution, discharge or satisfaction of the decree. 4. The executing court can therefore make an order in terms of the compromise under O.21 R.2. In other words any agreement or adjustment or compromise entered into between the parties regarding the discharge or satisfaction of the decree has to be recorded by the court. The decree holder has to move under R.2(1) and that right is also conferred on the judgment debtor under sub-r.(2). Sub-r.2A stipulates the conditions to be fulfilled before an adjustment is recorded at the instance of the judgment debtor. Sub-r.(3) stipulates that a payment or adjustment which has not been certified or recorded shall not be recognised by any court executing the decree. The phrase "shall not be recognised" indicates that there is a total prohibition in regard to recognition of any payment or adjustment unless that is recorded either under sub-r.(1) or sub-r.(2) of O.21 R.2. In other words the executing court cannot take cognizance of uncertified payment or adjustment for any purpose whatsoever. 5. S.47 confers wide powers on the executing court to determine ail questions relating to execution, discharge or satisfaction of the decree. That court can consider a post decretal arrangement. That the executing court has such power is manifest from O.20 R.11 which empowers the court to order payment of the decree amount in instalments or postponement of the decree on the application of the judgment debtor and with the consent of the decree holder. A compromise or an agreement can be set up by the judgment debtor at the execution stage. The compromise may be regarding the postponement of payment under the decree, payment in instalments or provide some other mode for discharging the decree depending on the intention of the parties. A compromise in execution intended to give up the liability under the decree or fixing the time and manner of enforcement can be set up under S.47 and enforced by the executing court. Incidental terms as to payment of higher interest or lower interest can also be provided in a compromise or agreement and set up by the parties. In short it is open to the parties to enter into a compromise in respect of the rights and obligations under the decree. 6.
Incidental terms as to payment of higher interest or lower interest can also be provided in a compromise or agreement and set up by the parties. In short it is open to the parties to enter into a compromise in respect of the rights and obligations under the decree. 6. What is the procedure to be followed is the next question that falls for consideration. Are the parties required to get the agreement or compromise recorded in all cases or can they set up that agreement as a matter arising in execution coming within the scope of S.47 of the Code. The Supreme Court had occasion to consider whether there is antithesis between S.47 and O.21 R.2. In the decision reported in AIR 1967 SC 1193 (M. P. Shreevastava v. Mrs. Veena) it was held that there is no antithesis between these provisions. The former deals with the power "of the court and the latter with the procedure to be followed in respect of a limited class of cases relating to discharge or satisfaction of decrees. The Supreme Court held: "But O.21 R.2 prescribes a special procedure for recording adjustment of a decree, or for recording payment of money paid out of Court under any decree. However the plenary power conferred by S.47 C. P. Code upon the Court executing the decree to determine ail questions arising between the parties to the suit in which the decree was passed, and relating to execution, discharge or satisfaction of the decree, is not thereby affected. Whereas O.21 R.2, deals with the procedure to be followed in a limited class of cases relating to discharge or satisfaction of decrees, where there has been payment of money or adjustment or satisfaction of the decree by consensual arrangement, S.47 C. P. Code deals with the power of the Court executing the decree." 7. The powers of the court under S.47 and the procedure to be followed under O.21 R.2 came up for consideration in Bherulal v. Ramautar (AIR 1981 M. P. 181). It was held that the executing court is conferred with powers to determine objections with regard to three things under S.47. They are (i) execution (ii) satisfaction and (iii) discharge.
The powers of the court under S.47 and the procedure to be followed under O.21 R.2 came up for consideration in Bherulal v. Ramautar (AIR 1981 M. P. 181). It was held that the executing court is conferred with powers to determine objections with regard to three things under S.47. They are (i) execution (ii) satisfaction and (iii) discharge. It was held that a specific procedure has been provided under O.21 R.2 so far as 'satisfaction' is concerned and if that is not followed sub-r.3 of R.2 provides that the question cannot be gone into by the executing court. It was held that there would be no difficulty when the objection pertains to the execution of the decree. Alter referring to the decision of the Supreme Court in AIR 1967 SC 1193 (supra) it was observed that if the satisfaction of the decree has not been certified as prescribed under O.21 R.2 the executing court could not go into that question and to that extent with regard to the satisfaction of the decree the powers of the executing court may be affected. But the question whether the decree could or could not be executed is altogether independent of O.21 R.2 and such a question can be gone into by the executing court under S.47. The position has been summarised by the Court thus: "It is therefore clear that under S.47 of the Code of Civil Procedure the executing Court is conferred with powers to determine objections with regard to three things: (i) execution, (ii) satisfaction, and (iii) discharge So far as 'satisfaction' is concerned, a specific procedure has been provided under O.21 R.2 and if that is not followed, sub-r.(3) of R.2 provides that the question cannot be gone into by the executing court." 8. The position is that if the satisfaction of the decree or adjustment of the decree has not been certified as prescribed under O.21 R.2 the executing court cannot go into that question. On the other hand if the question relates to execution, discharge or satisfaction of the decree that can be gone into under S.47 subject to the recording of the payment or adjustment under O.21 R.2 which relate only to the discharge or satisfaction of the decree. The question whether a decree could be executed or not is independent of O.21 R.2 and can be gone into under S.47. 9.
The question whether a decree could be executed or not is independent of O.21 R.2 and can be gone into under S.47. 9. Reliance is placed on the decision in P. S. Gulam Mohamed Rowther v. Narendranath Reddi and others ( AIR 1963 Mad. 261 ) where it was held that when the performance of the conditions imposed by the agreement is asserted by one party and denied by the other, it is the duty of the Court to go into this dispute to find out if as a matter of fact the adjustment has taken place. That was a case where the judgment debtor agreed to pay a portion of the decree debt in cash on or before a particular date and had further agreed to convey some immovable properties to the decree holder before that date. The decree holder had undertaken to get the adjustment certified by the court. He defaulted to certify the adjustment to the court. The judgment debtor moved the court under R.2(2) of O.21. It was in these circumstances that the Madras High Court held that it was the duty of the court to have gone into the dispute to find out whether an adjustment had taken place. No reference is seen made to sub-r.3 of R.2 of O.21 or about the effect of not recording the payment as stipulated in sub-r.1 and 2. This decision is therefore of no help to the revision petitioner to contend that the plea of adjustment could be made even without the same being certified to the court. 10. I am also referred to another decision of the Madras High Court in Ramaganesan Pillai and others v. Rajah Ayyar and others ( AIR 1964 Mad. 53 ). It was held that: "It was undoubted that the parties had the right to enter into agreement in the course of execution proceedings. A court executing the decree would be competent to enforce an agreement entered into between the decree holder and the judgment debtor in the course of execution proceedings if the agreement was a lawful one not extraneous to the decree but on the other hand governed the liability under the decree and related to the manner of its enforcement. 11. The agreement in that case was entered into during the course of execution proceedings with reference to the subject matter of the decree.
11. The agreement in that case was entered into during the course of execution proceedings with reference to the subject matter of the decree. It was held that the court would be entitled to enforce the agreement in execution and the judgment debtors would be estopped from disputing the authority of the court depart from procedure to which they agreed. The question that arise for consideration was whether a court executing the decree will be competent to enforce an agreement entered into between the decree holder and the judgment debtor in the course of execution proceedings. Such an agreement could be enforced under S.47 of the Code and there is no bar in the parties setting up such an agreement. Whether the court is competent to recognise any adjustment or arrangement not recorded by the court under O.21 R.2 was not considered in this decision also. 12. It has now to be seen whether the agreement set up by the judgment debtor can be relied on by him in order to contend that he is liable to pay only the amount mentioned therein. The decree holder had consented to receive Rs. 2500/- in full satisfaction of the decree debt provided the judgment debtor pays Rs. 2500/- out of which Rs. 1000/- had to be paid on the date of the agreement and the balance before 3-3-1988. An amount of Rs. 1000/- was paid on the date of the agreement, but judgment debtor defaulted to pay the balance as stipulated under the agreement. The agreement was not certified by the court either at the instance of the decree holder or at the instance of the judgment debtor. The liability to pay anything more than the amounts stipulated in the agreement was questioned by the judgment debtor only in answer to the execution petition filed by the decree holder. So long as the agreement was not recorded by the court the same cannot be recognised. The agreement or adjustment related to discharge and satisfaction of the decree. That should have been got recorded under R.2 of O.21. The same cannot now be recognised by the executing court. No material irregularity has therefore been committed by the executing court in refusing to recognise the agreement set up by the judgment debtor. The revision is therefore liable to be dismissed and I do so. No costs.