JUDGMENT B.L. Yadav, J. - This is the revision by the defendant judgment debtor filed u/s 25 of the Provincial Small Cause Courts Act, 1987 (for Short the Act) against the order dated 24.4.1991 passed by the IInd Additional District Judge, Jhansi rejecting the objection filed by the judgment debtor in execution proceedings u/s 47 of the Code of Civil Procedure, 1908, (for short the Code). 2. The facts in brief are that a suit for ejectment and arrears of rent was filed by the decree holder plaintiff opposite parties against the judgment debtor, the defendant under the provisions of Section 15 of the Act and that suit was decreed by the judgment and decree dated 16.12.1986 that decree became final and was put in execution. An objection was filed by the defendant judgment debtor u/s 47 of the Code, stating that he has paid a sum of Rs. 10,000/ - outside court and agreement was executed that the rent of the shop may be enhanced to Rs. 250/ - from Rs. 50/ - and the amount of Rs. 10,000/ - may remain in deposit as advance as the decree holder required the amount in connection with the marriage of his sister. Consequently it was prayed that the execution proceedings may be struck off as the decree has been executed and satisfied. However the objection has been dismissed under the impugned order holding that the payment of Rs. 10,000/ - and the execution of agreement between the objector and the decree holder has not been proved nor the payment out of court was certified. 3. Learned Counsel for the applicant urged that on the. basis of evidence on record it was proved that a sum of Rs. 10,000/ - as advance was paid to the decree holder outside court in connection with the marriage of his sister and the rate of rent was enhanced from Rs. 50/ - to Rs. 250/ -, consequently the decree stands satisfied, even though technically the payment was not certified, that the learned Additional District Judge erred in rejecting the objection u/s 47 of the Code. 4. Having heard learned Counsel for the applicant I am of the view that the legislature has provided special procedure for payment of money due under a decree for recovery of certain amounts.
4. Having heard learned Counsel for the applicant I am of the view that the legislature has provided special procedure for payment of money due under a decree for recovery of certain amounts. The proper procedure for payment of a money decree is to deposit the money payable under the\decree in court. But special precautions have been taken to ensure that money is paid to the decree holder. In case it is paid to the decree holder by money order or otherwise by deposit in Bank etc. or as directed by the court. In case the amount is paid through money order, in that event particulars as specified under Sub-rule (3) of Rule 1 of Order 21 have to be specified by the judgment debtor, i.e. number of suit, names of petitioners, etc. 5. The object of Order 21 Rule 2 was that in case the payment under by a money decree has been made out of court, in that event it must be certified the decree holder that such payment has been made. Consequently the execution court may also adjust the payment. It may be that out of court the payment is made, but the decree holder does not certify the payment to the execution court and the execution court remains in dark, the execution proceeding would continue. Hence the avowed object of the rule is to ensure that the court executing the decree is not to be troubled under any dispute between the parties with regard to any payment or adjustment in case the same has not been certified. (See Ata Ullah Khan v. State of Uttar Pradesh 1972 AWR 416 (DB) , Akbar Ali Khan and Others Vs. Dr. Ishwar Saran, AIR 1957 All 622 . Sub-rule (1) contemplates certificates by the decree holder that the execution court may also record adjustment or payment. In case the aforesaid conditions have not been complied with about the certificate by the decree holder, the information to be furnished by the judgment debtor to the court, in that event consequences set out in Sub-rule (2A) of Rule 2 and 3 would follows. 6. Normally while providing procedure the word 'may' indicate permissive nature of compliance or the directory in nature, is used by the Legislature. But it appears that the legislature was over-cautious while enacting Rules 1 and 2 of Order 21 and has designedly used the word 'shall'.
6. Normally while providing procedure the word 'may' indicate permissive nature of compliance or the directory in nature, is used by the Legislature. But it appears that the legislature was over-cautious while enacting Rules 1 and 2 of Order 21 and has designedly used the word 'shall'. In some cases the word 'shall' may be interpreted as directory. But in the present case as the consequences are known and the compliance has also been indicated under Sub-rule (2A) and (3) of Rule 2 of Order 21, hence the provisions of Rule 2 are mandatory and not directory. In other words, for an accurate construction of Rules 1 and 2 of Order 21, these rules may be read together. The intention, motive and philosophy of the legislature has to be ascertained with the help of the language employed. There is no doubt that Rules 1 and 2 of Order 21 as indicated above, are mandatory and not directory. (See Ganesh Prasad Sah Kesari and Another Vs. Lakshmi Narayan Gupta, AIR 1985 SC 964 ; and Skandia Insurance Co. Ltd. Vs. Kokilaben Chandravadan and Others, (1987) 1 ACC 413 . 7. Neither the payment of Rs. 10,000/ - out of court was certified by the decree holder nor the same was proved before the execution court as required by Rule 2(2A)(b), nor any such documentary evidence was furnished nor the payment and adjustment was admitted by the decree holders, and as the payment or adjustment was not certified or recorded by the execution court as provided under Rules 1 and 2, consequently the said payment cannot be recognized by the court executing the decree. 8. Order 21 Rule 1 of the CPC provides that all the money payable under a decree 'shall' be paid as follows: (a) by deposit into the court whose duty it is to execute the decree; (b) out of court to the decree holder by postal money order or through a bank or by any other mode where in a payment is evidenced in writing or (c) otherwise, as the court which made the decree, directs. Where any payment is made under Clause (a) or Clause (c) of Sub-rule (1), the judgment debtor 'shall' give notice there of to the decree holder either through the court or directly to him by registered post acknowledgement due.
Where any payment is made under Clause (a) or Clause (c) of Sub-rule (1), the judgment debtor 'shall' give notice there of to the decree holder either through the court or directly to him by registered post acknowledgement due. Where as in case any money payable under a decree is paid outside court or 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. This was required by Rule 2 of Order 21. In case the amount was paid outside the court the same should have been certified and it must have been brought to the notice of the execution court. In the instant case neither the payment of Rs. 10,000/ - was certified by the decree holder nor the same was proved before the execution court as required by Rule 2 of Order 21. Consequently the said amount of Rs. 10,000/ - paid out side the court cannot be said to have been paid in satisfaction of the decree. The court below has correctly rejected the objection u/s 47 of the Code. 9. Consequently, Consequently the present revision fails and it is hereby dismissed. However, under the circumstances of the case and keeping in view the hardship of the tenant, the judgment debtor is allowed three months time till 10th August 1991 to vacate the premises. Learned Counsel for the applicant has given an undertaking that the applicant would vacate the premises by 10th August, 1991 and would deposit by 10th July, 1991 the entire arrears of decretal amount including the rent and other dues. In case the said amount is not paid by the aforesaid date, it shall be open to decree holder to proceed with the decree. However, the amount already paid, if any shall be adjusted.