Judgment : D. K. Seth, J. 1. Opposite parties 3 and 4 filed a suit for ejectment on the ground of arrears of rent in 1984. The suit was decreed on 2nd December, 1986. In the resultant execution arising thereout the petitioner on 11th March, 1987 had filed an objection under Section 47 of the Code of Civil Procedure alleging therein that after the decree was passed, a written agreement was executed between the decree-holder and the judgment-debtor in which the dispute between the parties was compromised and a new tenancy was created on 22nd February, 1987. There fore, the said decree was no more executable. By Order dated 2nd February, 1993, the learned executing court allowed the application under Section 47 and dismissed the execution proceedings. Against the said order dated 2nd February, 1993, a revision being Revision No. 12 of 1993 was preferred by opposite parties 3 and 4 which has since been allowed by order dated 13th October, 1993. It is against this order that the present application under Article 226 of the Constitution has been sought to be moved. 2. IT is alleged on behalf of the petitioner that the impugned agreement was examined by the hand- writing expert and the learned Munsif had found the same to be genuine and, therefore, had allowed the same but the learned revisional court reversed the order of the learned Munsif only on technical ground that the said agreement does not satisfy Order XXI, Rule 2, C. P. C. According to him, Order XXI, Rule 2, C. P. C. does not come into play in the present case. According to him, the application under Section 47, in itself should be treated as an application under Order XXI, Rules 2 (2) and, therefore, by reason of the finding that signature appearing on the agreement is genuine, the case falls within the ambit of sub-rule (2-A) of Order XXI, Rule 2. The learned counsel for the opposite parties, on the other hand, contended that the said agreement cannot be termed to be a compromise within the meaning of Order XXIII, Rule 3. The same can at best be treated as an adjustment of the decree as contained in Order XXI, Rule 2, C. P. C. As soon an adjustment is claimed, it has to be certified otherwise the same cannot be recognised or accepted by the executing Court.
The same can at best be treated as an adjustment of the decree as contained in Order XXI, Rule 2, C. P. C. As soon an adjustment is claimed, it has to be certified otherwise the same cannot be recognised or accepted by the executing Court. An application under Section 47, C. P. C. can never be treated to be an application under Order XXI, Rule 2, C. P. C. Therefore, the application should be rejected. Order XXI, Rule 2, C. P. C. deals with adjustment which runs as follows: "2. Payment out of Court to decree-holder.- (1) Where any money payable under a decree of any kind is paid is 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-holder 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. (2-A) 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 Rule 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-rule (2) of Rule 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. " 3. HERE in this case, a decree for eviction was obtained. It is alleged that the said decree was adjusted by reason of fresh agreement entered into between the parties and a fresh tenancy was created.
" 3. HERE in this case, a decree for eviction was obtained. It is alleged that the said decree was adjusted by reason of fresh agreement entered into between the parties and a fresh tenancy was created. Therefore, the claim made out is one of adjustment as contemplated under Order XXI, Rule 2, C. P. C. Sub-rule (1) of Rule 2 contemplates a certificate by the decree-holder and the same should be recorded by the Executing Court. In case the decree-holder does not certify the same, the judgment-debtor is also not without a remedy. In that event, the judgment-debtor has a right to inform the Court such adjustment whereupon a notice to the decree-holder is issued requiring him to show-cause as to why the said adjustment should not be recorded as certified. Sub-rule (2-A) provides that such adjustment is to be proved by documentary evidence or by an admission of the decree-holder. While sub-rule (3) provides that adjustment not certified or recorded as certified shall not be recognised by any court executing the decree. In the present case, admittedly, the alleged adjustment has not been certified by the decree-holder and it has not been so recorded by the executing Court. The judgment-debtor had also not informed the Court about the adjustment. Admittedly no notices have been issued requiring the decree-holder to show-cause why the adjustment should not be recorded as certified. The decree- holder has also not admitted the adjustment. The documentary evidence being the agreement was held by the learned trial court to be a genuine document. Therefore, it appears that even if the agreement appears to be a genuine one, still then the judgment-debtor cannot claim its benefit unless the same is admitted by the decree-holder or the same is certified or recorded as certified. Therefore, the said agreement can not be recognised as an adjustment in the facts and circumstances of the above case. 4. NOW turning to the question as to whether the application under Section 47 could be treated as an application under Order XXI, Rule 2, C. P. C. and the judgment-debtor should avail of the benefit thereof. Section 47 provides as follows : "47.
4. NOW turning to the question as to whether the application under Section 47 could be treated as an application under Order XXI, Rule 2, C. P. C. and the judgment-debtor should avail of the benefit thereof. Section 47 provides as follows : "47. Questions to be determined by the Court executing decree.- (1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit. (2 ). . . . . . . . . . . . . (3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the Court. Explanation I.- For the purposes of this section, a plaintiff whose suit has been dismissed and a defendant against whom a suit has been dismissed are parties to the suit. Explanation II.- (a) for the purpose of this section, a purchaser of property at a sale in execution of a decree shall be deemed to be a party to the suit in which the decree is passed; and (b) all questions relating to the delivery of possession of such property to such purchaser or his representative shall be deemed to be questions relating to the execution, discharge or satisfaction of the decree within the meaning of this section. " The scope of Section 47 relates to the execution, discharge or satisfaction of the decree. All disputes with regard thereto is to be decided by the executing Court and not by a separate suit. Therefore, the question of adjustment could be gone into in Section 47. But the dispute with regard to the executability of the decree by way of discharge or satisfaction is an adjustment. Adjustment is altogether different from the question of executability of the decree. It is first to be established that there was an adjustment and then the same can be used as a shield in execution. Unless the adjustment has the seal of the Court, as contemplated in Order XXI, Rule 2, C. P. C, it does not become a shield to the judgment- debtor. The scope of Section 47 and Order XXI, Rule 2, C. P. C. are wholly different.
Unless the adjustment has the seal of the Court, as contemplated in Order XXI, Rule 2, C. P. C, it does not become a shield to the judgment- debtor. The scope of Section 47 and Order XXI, Rule 2, C. P. C. are wholly different. The two provisions operate in two different fields. Both these can not be combined together. Claim, discharge and satisfaction of the decree opposing execution on account of an adjustment as pleaded in the present case are not one and the same thing. First there should be an adjustment when the benefit thereof could be claimed under S. 47. 5. IN case the adjustment is certified and so recorded by the executing Court, then there would be no necessity even for filing an application under Section 47. IN order to avoid unnecessary complications and opening un-ending front thereby prolonging the execution by ingenuine and ingenious method, it was the intention of the Legislature to circumscribe the scope of discharge and satisfaction of the decree on the ground of adjustment. Order XXI, Rule 2, C. P. C. has been laid down. The incorporation of the said provision at the very out-set for the part dealing with execution pre-supposes that execution should be clinched at the thereshold without letting the parties to travel unnecessarily a long path in the process. The incorporation of such provision in the very second rule of Order XXI only after the first rule by which the decree is satisfied in respect of payment of money without the aid of the Court pre-supposes that the question of adjustment knocks the execution at the threshold which if certified or recorded as certified, then only that part of the decree which remains un-adjusted shall be proceeded with and if it is adjusted wholly, the execution would not proceed at all. The framing of the rules in Order XXI suggests that for the purpose of obtaining an adjustment certified or recorded as certified it is necessary that it is to be done, even without an execution being levied and a judgment-debtor is not required to wait for levy of execution of decree. 6.
The framing of the rules in Order XXI suggests that for the purpose of obtaining an adjustment certified or recorded as certified it is necessary that it is to be done, even without an execution being levied and a judgment-debtor is not required to wait for levy of execution of decree. 6. SECTION 47 does not empower the Court to exercise the power conferred under Order XXI, Rule 2, C. P. C. Under SECTION 47 a court has to decide the dispute with regard to the executability of the decree and to see that the adjustment claimed by the parties can be recognised as an adjustment. While determining such question, the court never called upon to record such certification and over reach the provisions contained in Order XXI, Rule 3 C. P. C. and thereby negative the same. Inasmuch as unless the adjustment is certified or recorded as certified, the same can not be recognised by the Court executing the decree. If while dealing with the application under SECTION 47, the Court embarks upon certifying or recording as certified the adjustment, it would be recognising an adjustment which has not been certified or recorded as certified. Such a situation had never been contemplated by the framers of the Code of Civil Procedure. Neither the same can be conceived of by any stretch of interpretation. My above view finds support by the use of the expression "to the Court whose duty it is to execute the decree, and the Court shall record" in sub-rule (1) of Rule 2 of Order XXI as well as the expression "may inform the court. . . . . . . and apply to the Court to issue a notice. . . . . . on a day to be fixed by the Court. . . . . . . the Court shall record" in sub-rule (2) of Rule 2 of Order XXI, and "before the Court" in sub-rule (2a) of Rule 2 of Order XXI. The above expression does not use the expression "court executing the decree". Therefore, this recording of satisfaction has no nexus with the execution of the decree. It can be done even without the execution being levied, but by a court whose duty it is to execute the decree.
The above expression does not use the expression "court executing the decree". Therefore, this recording of satisfaction has no nexus with the execution of the decree. It can be done even without the execution being levied, but by a court whose duty it is to execute the decree. While in sub-rule (3) of Rule 2 of Order XXI the expression has been used "court executing the decree" meaning thereby that the executing Court is entitled to look into the adjustment and recognise the same only when it is certified or recorded as certified. It is immaterial even if the document relied on is genuine. When special provision is made out and the Legislature has laid down a manner in which a particular act has to be done, the same can only be done in the manner provided therein, when there has been a restriction put to the effect of such action, namely, by enactment of such provision as provided in sub-rule (3) of Rule 2 of Order XXI. 7. THEREFORE, the claim that the application under Section 47 could be treated as an application for adjustment can not be sustained. In view of the foregoing observations, I do not find any reason to interfere with the order dated 13th October, 1993 passed by the learned District Judge, Haridwar in Revision No. 12 of 1993. Over and above, it does not appear that this is a case where the fundamental principle of law has been violated as has been laid down in the case of Ganga Saran v. District Judge, Hapur, AIR 1991 All 114 . 8. THEREFORE, the writ petition can also not be maintained. The writ petition is, therefore, accordingly dismissed. There will, however, be no order as to costs. Petition dismissed.