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1998 DIGILAW 277 (PAT)

Badamo Devi v. Sagar Sharma

1998-04-01

GURUSHARAN SHARMA

body1998
ORDER 1. Admittedly the petitioners are the owners of holding no. 88 situated at Chowk Bazar, Sultanganj. The opposite party was inducted as tenant therein. Title Suit No. 124 of 1978 was filed by the petitioners against the opposite party for eviction under the provisions of the Bihar Buildings Lease, Rent and Eviction Control Act, 1982. The suit was decreed exparte. Execution Case No. 29 of 1984 was, thereafter, levied for execution of the said decree. 2. In the execution proceeding on 25.4.1985 the judgment-debtor-opposite party herein filed a petition under Section 47 read with Order 21, rule 2 of the Code of Civil Procedure. It was registered as Miscellaneous Case No. 11 of 1985. On 3.1.1987 the decree holder-petitioners herein filed rejoinder thereto by the impugned order dated 31.1.1 997 the executing court has been pleased to allow the said miscellaneous case. 3. Section 47 deals with the power of the Court executing the decree, while Order 21 Rule 2 deals with the procedure which a court, whose duty is to execute the decree, has to follow in a limited class of cases relating to the discharge or satisfaction of decrees either by payment of money (payable under the decree) out of court or adjustment in any other manner by consensual arrangement. The general power of deciding questions relating to execution, discharge or satisfaction of decree under Section 47 can thus be exercised, subject to the restriction placed by Order 21 Rule 2 including Sub-Rule (3), which have been enacted to prevent a judgment-debtor from setting up false or cooked up pleas so as to prolong or delay the execution proceedings. Thus though it is open to the parties to adjust or compromise their rights under the decree, but if it amounts to adjustment of decree, it must be reported to the court, whose duty is to execute the decree, so that the court may record or certify the same. 4. In the present case the tenant judgment debtor advanced a claim that an oral settlement between the parties was arrived outside the court, whereby the landlord decree-holder agreed to let him continue as tenant on payment of monthly rental @ Rs. 150/-, which was enhanced from Rs. 60/-. The tenant thereafter started paying rent @ Rs. 150/-per month against receipts and thereby a new tenancy has been created. 150/-, which was enhanced from Rs. 60/-. The tenant thereafter started paying rent @ Rs. 150/-per month against receipts and thereby a new tenancy has been created. In this manner the eviction decree passed in Title Suit No. 29 of 1984 has been fully satisfied and as such Execution Case No. 29 of 1984 is fit to be dismissed. The decree-holders denied the judgment debtors' assertion and stated that neither the amount of rent was enhanced nor a new tenancy was created and they were entitled to delivery of possession of the suit premises in terms of the decree under execution. In the meantime, the original plaintiff-decree holder Shiv Narain Chaudhary died and his heirs were substituted. The crutial point, therefore, to be considered was as to whether a new tenancy was created. The tenant produced a number of rent receipts (Exts. 1/H to 1/H 111 granted by Sitaram Chaudhary, the substituted decree-holder who was examined as PW.2. He admitted those receipts to be granted by him, which were filled up by his son, Arun Kumar Choudhary, PW.1. According to Sitaram Chaudhary, the tenant was paying rent @ Rs. 150/- per month since 7-8 years ago, i.e. after the ex-parte decree dated 2.9.1978 was passed in Title Suit No. 124 of 1978. 5. It is true that, though according to judgment debtor a new tenancy was created long back, i.e. in the year 1980-81, but the petitions under Order 21 Rule 2 was filed in the year 1985. 6. The purpose of Rules 2 and 3 of Order 21 obviously is that whenever such an agreement is set up by the judgment-debtor, which has the effect of adjustment of the decree, either in whole or in part, the same has to be got recorded as certified. 7. In all cases, which fall within the purview of Rules 2 and 3 of Order 21 which contain special provisions, these Rules shall prevail over the general power exercisable by the executing court in matters pertaining to execution of decree under Section 47 of the Code of Civil Procedure. 8. It cannot be thrown out simply on the ground of delay. Here the agreement, according to judgment, debtor in substance is one where the decree holders agreed to give up all his rights under the decree in return for a compromise by the judgment debtor to do something or the other. 8. It cannot be thrown out simply on the ground of delay. Here the agreement, according to judgment, debtor in substance is one where the decree holders agreed to give up all his rights under the decree in return for a compromise by the judgment debtor to do something or the other. This clearly amounts to an adjustment of a decree and has to be got recorded as certified under Order 21 Rule 2. In this regard, reference may be made to a full Bench decision of the Madhya Pradesh High Court in Rajeev Khendelwal v. Arun Pannalal ( AIR 1987 MP 262 ). 9. In my opinion, in the facts and circumstances of the case and on the basis of the materials brought on record, the executing court rightly came to conclusion that the rent receipts Exts. 1/D to 1/G and 1/H to 1/H 111, whereby monthly rent @ Rs. 150/- was started to be taken by the landlord amounted to a fresh agreement and creation of a new tenancy. The landlord thereafter can not be heard to say that he and his son were duped by the tenant, at whose instance monthly rental of Rs. 150/- was inserted in the rent receipts, specially in view of the fact that more than hundred such rent receipts were brought on record and marked exhibits. I, therefore, do not find any reason to interfere with the impugned order. This revision application is dismissed.