Patel Mohallah Sunnah Jamath Majeeth v. S. S. Mohammed Kasim (deceased) & Others
2004-03-18
T.V.MASILAMANI
body2004
DigiLaw.ai
Judgment :- These revision petitions are filed questioning the orders dated 10.3.1995 passed by the Executing Court in E.A.No.702 of 1994 in E.P.No.305 of 1992 in O.S.No.124 of 1981 and E.A.No.703 of 1994 in E.P.No.306 of 1992 in O.S.No.126 of 1981 on the file of the I Additional District Munsif, Coimbatore in respect of the demised premises. 2. Heard counsel for both sides. Since the parties to the proceedings are the same, these revisions are disposed of by a common order. 3. The revision petitioner is the landlord and the respondents are the tenants of the demised premises which had been the subject matter of the execution proceedings. The respondents/tenants filed petition under Section 47 C.P.C. in E.A.No.702 of 1994 in E.P.No.305 of 1992 in O.S.No.124 of 1981 and a similar petition under Section 47 C.P.C. in E.A.No.703 in E.P.No.306 in O.S.No.126 of 1981 in respect of the demised premises claiming that by means of subsequent arrangement between the tenants and the landlord, new tenancy agreement had been created and that therefore the execution proceedings were not maintainable against them. 4. The Executing Court after recording evidence and after hearing the arguments advanced on either side allowed the said petitions and consequently dismissed the execution petitions laid by the landlord. Hence, the revisions. 5. The learned counsel for the revision petitioner has argued at the outset that the petitions filed by the tenants under Section 47 C.P.C. without resorting to the aid of Order 21 Rules 2(3) Civil Procedure Code in order to certify the subsequent arrangement arrived at between the parties is not maintainable in law. Reliance is placed on SULTANA BEGUM v. PREM CHAND JAIN ( 1997 (I) S.C.C. 373 ) in support of such contention. 6. The learned counsel for the respondents/tenants has argued with reference to the evidence adduced before the Executing Court to show that a fresh cause of action arose as soon as the subsequent rental agreement between the parties had been arrived at and that therefore, the impugned orders passed by the Executing Court have to be affirmed. 7.
6. The learned counsel for the respondents/tenants has argued with reference to the evidence adduced before the Executing Court to show that a fresh cause of action arose as soon as the subsequent rental agreement between the parties had been arrived at and that therefore, the impugned orders passed by the Executing Court have to be affirmed. 7. After elaborately dealing with the precedents of authority laid down by the High Courts and the Supreme Court with reference to Order 21 Rule 2 C.P.c., the Hon'ble Supreme Court laid down the dictum of law in paragraph 27 of the said decision as follows:- "The plea relating to the delivery of possession in pursuance of the compromise decree, if accepted, would amount to an adjustment of the decree which shall consequently be treated to have been partially satisfied to the extent of eviction of the respondent as a tenant from the disputed property. That being so, it had to be recorded and certified under Order 21 Rule 2. Since this was not done, the provisions of Order 21 Rule 2(3) prohibiting the executing court from giving effect to the said plea were applicable and the executing court acted erroneously in refusing to executing the decree for eviction of the respondent on the ground that possession having been delivered to the appellant's attorney, the decree to that extent stood satisfied." 8. Though the factual aspect of the case is admitted by both sides, the principle enunciated in the decision cited supra mandates that before ever the judgment-debtor pleads adjustment of the decree, he has to come forward with a petition under Order 21 Rule 2(3) C.P.C. before the executing court to certify such arrangement whereby the decree had been satisfied under Order 21 Rule 2 C.P.C. 9. Order 21 Rule 2 C.P.C. reads as follows:- " Payment out of Court to decree-holder.-- (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 of the satisfaction of the decree-holder, the decree-holder shall certify such payment or adjustment to the Court whose duty it is to execute he 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 sale 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 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." 10. On the contrary, in this case, admittedly, no such petition was filed by the respondents pleading adjustment of the decree by subsequent tenancy agreement so as to obtain necessary certification as to the adjustment of the decree passed against them. Hence, this Court is of the considered view that in the light of the ratio laid down in the said decision and the said provisions of law, the petitions filed by the respondents under Section 47 C.P.C. are not maintainable in law and therefore Civil Revision Petition Nos.2308 and 2383 of 1995 are allowed setting aside the impugned orders. Consequently, Civil Revision Petition Nos.2044 and 2307 of 1995 are also allowed setting aside the impugned orders passed in the executing proceedings. 11. For the above said reasons, these Civil Revision Petitions are allowed. The executing Court is directed to restore the execution proceedings to file and to dispose of the same within three months from the date of furnishing copy of this order. The records if any are directed to be sent forthwith to the court below. However, there will be no order as to costs.