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Madhya Pradesh High Court · body

2001 DIGILAW 526 (MP)

MOHINI DEVI HEERWANI v. KUNDANLAL JAIN

2001-07-23

S.C.PANDEY

body2001
S. C. PANDEY, J. ( 1 ) THIS revision under Section 115 of the Code of Civil Procedure is directed against the order, dated 4-4-2001, passed by the Court of IIIrd Civil Judge Class I, Bhopal, in Execution Case No. 22a/85, whereby the application dated 11-12-2000 purporting to be under Order 21 Rule 2 and Order 21 Rule 97 read with Section 151 of the Code of Civil Procedure was dismissed by the Court below. The learned trial Judge has relied on a decision of Full Bench of this Court reported in the case of Rajeev v. Arun, AIR 1987 Madh Pra 262. In that case it was held that the Executing Court had no jurisdiction to consider the application filed by the applicant for the reason the adjustment was not recorded in terms of Order 21, Rule 2 (1) of the Code of Civil Procedure. ( 2 ) LEARNED counsel for the applicant in this revision has argued that the matter is covered by Order 21, Rule 2 of the Code of Civil Procedure and therefore his application should have been allowed. It was argued that the Court below has not considered the effect of Order 21 Rule 2 (2) of the Code of Civil Procedure read with Rule (2-A) thereof. The Full Bench's decision is liable to be distinguished on the particular facts of that case. ( 3 ) AS against this, the learned counsel for the non-applicant decree-holder argued that the Full Bench case is applicable to the facts on all its fours. The Court below has rightly applied that decision for rejecting the application of the applicant. ( 4 ) THE facts of this case disclose that the applicant had suffered a decree obtained by the non-applicant. The decree was for ejectment. The applicant claimed that the aforesaid decree was subsequently adjusted by enhancing the rent from Rs. 440. 00 per month to Rs. 1000. 00 per month. Pursuant to the agreement the applicant had paid a bearer cheque of Rs. 50,000. 00 bearing No. 053734 dated 7-12-2000 payable by Jharneshwar Shakari Bank Limited, Bairasia Road, Bhopal. It was alleged that as a consequence of the agreement a fresh Kirayanama (rent note) was executed in presence of witnesses. The non-applicant had agreed, as per terms mentioned in paragraph-11 of the Kirayanma that he would get the execution application for ejectment dismissed. 50,000. 00 bearing No. 053734 dated 7-12-2000 payable by Jharneshwar Shakari Bank Limited, Bairasia Road, Bhopal. It was alleged that as a consequence of the agreement a fresh Kirayanama (rent note) was executed in presence of witnesses. The non-applicant had agreed, as per terms mentioned in paragraph-11 of the Kirayanma that he would get the execution application for ejectment dismissed. In the prayer clause, it was prayed that the rent note as well as the other documents filed along with the application may be considered for recording the complete adjustment of the decree, and thereafter, the execution application for execution of the decree be disposed of. ( 5 ) IT is apparent that the applicant was pleading adjustment of the decree which is sought to be proved by leading documentary evidence. This is not a case where an objection was raised regarding the execution of the decree on the foundation of an oral agreement. ( 6 ) THE controversy can be resolved by quoting Order 21, Rule 2 of the Code of Civil Procedure which reads as under :-2. Payment out of Court to decree-holder:- (1) Where any money payable under a decree of any kind is paid out of Court, or the 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 anyperson 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. ( 7 ) IT is apparent from fair reading of Order 21, Rule 2 (1) of the CPC that Sub-rule (1) thereof refers to recording of satisfaction of payment or adjustment at the instance of the decree-holder. The decree-holder is required to file an application whether the money is received by him in the mode provided by Order 21, Rule 1 (b) or (c ). This satisfaction may be wholly or in part but it refers to the application of the decree-holder. 7-A. It is also clear from the Order 21, Rule 2 (2) of the CPC that the legislature has taken care to give inter alia right to the judgment-debtor to apply for recording payment or adjustment of a decree provided for in Order 21, Rule 2 (1) of the CPC. In such a case, the Court is required to issue notice to the decree-holder to show cause why such payment or adjustment should not be recorded as certified. After due enquiry the Court is required to record payment or adjustment as certified, if the decree-holder does not proved otherwise. Sub-rule (2a) refer to the manner of recording payment or adjustment at the instance of decree-holder as well as judgment-debtor. It provides for three contingencies. Firstly, where the application is made by a decree-holder, then the recording of satisfaction and adjustment has to be done in terms of Order 21, Rule 2 (1) of Code of Civil Procedure. This is the first contingency. The rest of the two contingencies provided by Order 21, Rule 2 (2-A) are referable to the application made by the judgment-debtor under Order 21, Rule 2 (2) thereof. This is the first contingency. The rest of the two contingencies provided by Order 21, Rule 2 (2-A) are referable to the application made by the judgment-debtor under Order 21, Rule 2 (2) thereof. The recording of payment or adjustment can be done by the executing Court it is proved by documentary evidence as per Rule (2-A) (b) of Order 21, Rule 2 of the Code of Civil Procedure. The alternative mode is given by Rule (2-A) (c) of the Order 21, Rule 2 of the Code of Civil Procedure. The payment or adjustment can be recorded when the decree-holder admits the adjustment in his reply to the notice issued to him after receiving application under Order 21, rule 2 (2) of the Code of Civil Procedure. ( 8 ) IN this case, the applicant sought adjustment to be proved by the documentary evidence. He is entitled to do so under the terms of Order 21, Rule 2 (2) of the Code of Civil Procedure. The non-applicant denied the existence of such written agreement. Consequently a dispute of fact has arisen between the parties and this dispute can be decided only by an enquiry as to the existence of true fact. This can be done by giving the parties an opportunity to lead evidence regarding their respective stands. However, the Executing Court says that it has no jurisdiction whatsoever make an enquiry on the basis of decision rendered by the Full Bench in Rajeev v. Arun (AIR 1987 Madh Pra 262) (supra ). ( 9 ) IN the opinion of this Court, in the Full Bench case, the question involved was altogether different. In that case execution of decree of ejectment was objected to by the judgment-debtor on the basis of an alleged agreement saying that a decree has already been satisfied. The Full Bench was of the view that, to such a case, Order 21, Rule 2 (1) of the CPC is applicable for the reason it refers to the adjustment of decree of any kind. However, it appears from the facts stated in that order of the Full Bench that there was no plea to the effect that there was a fresh agreement which was supported by documentary evidence. In fact there was no application under Order 21, Rule 2 (2) of the Code of Civil Procedure. However, it appears from the facts stated in that order of the Full Bench that there was no plea to the effect that there was a fresh agreement which was supported by documentary evidence. In fact there was no application under Order 21, Rule 2 (2) of the Code of Civil Procedure. In that case the judgment-debtor appeared to have raised an objection to executability of decree on the basis of alleged new agreement which gave full discharge to the decree sought to be executed. It was pleaded by the judgment-debtor that the decree was satisfied by placing decree-holder in possession symbolically and thereafter pursuant to a new agreement of tenancy he was placed in possession after the rent was enhanced. The Executing Court rejected the objection on the ground that the objection was not covered by S. 47 of the Code of Civil Procedure. The District Judge differing from the order passed by the Executing Court came to the conclusion that objection covered by S. 47 of the CPC. The Full Bench was of the opinion, that in absence of certifying of adjustment under Order 21, Rule 2 (1) of the CPC, it was not possible to sustain the objection. The Full Bench says that Order 21, Rule 2 (1) was attracted to the facts of that case. Accordingly the judgment of the District Judge was set aside and that of the executing Court was upheld. ( 10 ) IN the opinion of this Court, decision of the Full Bench in case of Rajeev v. Arun (AIR 1987 Madh Pra 262) (supra) does not deal with the application of judgment-debtor under Order 21, Rule 2 (2) of the Code of Civil Procedure. The facts of this case confined the decision to Order 21, Rule 2 (1) of the CPC and Order 21, Rules 2 (2) and 2 (2-A) were not considered. It cannot be said that the Full Bench laid down that the manner of recording satisfaction is confined to Order 21, Rule 2 (1) only. Even otherwise, the Full Bench could not have gone against the express language of the Order 21, Rules 2 (2) and 2 (2-A ). It is well established that a case is an authority for the proposition what it decides and not follows from that the decision. Even otherwise, the Full Bench could not have gone against the express language of the Order 21, Rules 2 (2) and 2 (2-A ). It is well established that a case is an authority for the proposition what it decides and not follows from that the decision. It is, therefore no authority for the proposition that a judgment-debtor cannot file an application for getting the adjustment certified. The Full Bench dealt with the objection to the execution of decree on the ground that it was adjusted. No application for adjustment was filed by the judgment-debtor under Order 21, Rule 2 (2) of the Code of Civil Procedure. Perhaps oral agreement alone was alleged. However, the case in hand is covered by Order 21, Rule 2 (2) read with Rule 2 (2a) (b ). The applicant has already filed certain documents and prayed that satisfaction be recorded. Consequently, the Executing Court was bound to issue notice to the applicant and since he denied the adjustment of decree, it incumbent upon the executing the Court to decide the dispute by recording evidence. In case the executing Court came to conclusion that in fact there was no adjustment, it may reject the application filed by the applicant and proceed to execute the decree. If the decision is against the non-applicant it has no option but record the adjustment in terms of Order 21, Rule 2 (2) of Code of Civil Procedure. ( 11 ) FOR all these reasons, this revision is allowed. The impugned order is hereby set aside and the Executing Court is directed to make an enquiry in accordance with law. ( 12 ) CONSEQUENTLY, M. C. P. No. 1936/2001 is dismissed as it has become infructuous. Revision allowed. .