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2008 DIGILAW 586 (ALL)

Shyam Lal v. Shanti Devi

2008-03-14

KRISHNA MURARI

body2008
ORDER :- Heard Sri Divakar Rai Sharma, learned counsel for the applicant and Sri Atul Dayal appearing for opposite party. 2. The short question which arises for determination in this case is whether provisions of Section 5 of Limitation Act are applicable and delay can be condoned in making application to record adjustment or satisfaction of decree under O. 21, R. 2 of the Code of Civil Procedure, 1908 (for short the Code). 3. Facts, giving rise to the dispute, are as under : Suit filed by the plaintiff-respondent before the Judge, Small Causes Court for arrears of rent and ejectment was decreed vide ex-parte judgment and order dated 30-3-1990. Application filed by the tenant-application under Order IX Rule 13 of the Code was also dismissed on 24-4-1991. The said order was put to challenge by the tenant-applicant by filing Civil Revision No. 381 of 1991 before this Court which was dismissed on 10-4-2007. However, this Court allowed six months time to the tenant-applicant to vacate the premises subject to his giving undertaking before the court below to hand over vacant possession of the premises in dispute and deposit of the entire decretal amount as well as damages for use and occupation. 4. It is alleged by the applicant that after the order was passed by this Court, the respondent-landlord entered into compromise with him and he was allowed to continue as tenant in the shop in question on enhanced rent of Rs.925/- per month. It appears that the decree was put into execution by the respondent-landlord. An application dated 2-1-2008 was filed by the tenant-applicant to recall Dakhal Parvana and objection dated 5-1-2008 was also filed on the ground that the matter has been compromised between the parties on 27-10-2007 under which he has been allowed to continue as tenant on enhanced rent of Rs.925/- per month and as such the execution proceedings are not maintainable and liable to be dismissed. It was also pleaded that pendency of the execution proceedings came to his knowledge only on 12-12-2007. On 22-2-2008 applicant filed another application to transfer the execution proceedings from the court of Additional District Judge (Court No. 6), Muzaffarnagar to the court of Civil Judge (Kairana), Muzaffarnagar on the ground that pecuniary jurisdiction of the Civil Judge has been enhanced and thus execution proceedings are liable to be transferred. On 22-2-2008 applicant filed another application to transfer the execution proceedings from the court of Additional District Judge (Court No. 6), Muzaffarnagar to the court of Civil Judge (Kairana), Muzaffarnagar on the ground that pecuniary jurisdiction of the Civil Judge has been enhanced and thus execution proceedings are liable to be transferred. Application was dismissed by the executing court on 22-2-2008 which was challenged in revision before this Court which was also dismissed on 4-3-2008. Respondent-landlord filed his reply to the objection denying the compromise. Another application dated 30-1-2008 was made by the tenant-applicant seeking amendment in the application 72/Ga filed on 2-1-2008. The facts sought to be added by means of the amendment was that decree-holder/landlord had undertaken that he will get his execution not pressed and will not evict the tenant from the shop in question and also that he is 85 years old and not aware of the legal procedure and the compromise be recorded by the executing court and the delay in filing the same be condoned. Court below vide impugned order dated 28-2-2008 dismissed the amendment application on the ground that since the amendment for recording compromise was moved beyond the prescribed period of limitation and the provisions of Section 5 of the Limitation Act was not applicable as such delay was not liable to be condoned. 5. It has been urged by the learned counsel for the applicant that court below has wrongly held that amendment is barred by limitation and completely failed to appreciate that even a time barred amendment can be allowed. It has further been urged that since the objection was filed under Section 47 of the Code to dismiss the execution on the basis of compromise hence the provisions of Order XXI Rule 2 of the Code does not come in way and the same could not have been dismissed as barred by limitation. Next submission is that since the decree has been satisfied in view of the compromise dated 27-10-2007 execution cannot proceed and is liable to be dismissed. 6. Next submission is that since the decree has been satisfied in view of the compromise dated 27-10-2007 execution cannot proceed and is liable to be dismissed. 6. In reply, it has been submitted that apart from the fact that compromise was denied by the landlord-respondent being forged and fabricated since the amendment was sought to record satisfaction of the decree on the basis of compromise beyond the prescribed period of limitation, the same has rightly been rejected as provisions of Section 5 of Limitation Act are not at all attracted and delay cannot be condoned. 7. I have considered the arguments advanced by the learned counsel for the parties and perused the record. 8. A complete sequence of fact narrated above goes to show that tenant-applicant has been delaying disposal of the execution proceedings on one pretext or the other. In spite of liberty given by this Court to retain possession for a period of six months subject to certain conditions, he neither vacated the premises nor complied with condition. It was only when Parvana Dakhal was issued, he came with objection before the executing court that matter has been compromised and he has been allowed to retain on enhanced rent. Subsequently, he moved an amendment seeking to record satisfaction of the decree in view of the compromise. Admittedly, the alleged compromise is dated 27-10-2007. For the first time objection in the execution case on the basis of the said compromise was filed on 5-1-2008. Further, admittedly the amendment to record satisfaction of the decree on the basis of the compromise was made before the executing court vide application dated 30-1-2008. Article 125 to the Schedule of Indian Limitation Act, 1963 provides that an application to record an adjustment or satisfaction of a decree is to be made without 30 days of the date when the payment or adjustment is made. Without entering into the question of legality or validity of the alleged compromise even if for the sake of argument it is taken to be lawful compromise it is clear that executing court was not moved to record satisfaction of the decree within the prescribed period of 30 days and admittedly, the application was made much after the prescribed period of limitation. Section 5 of the Limitation Act is excluded in its application to the proceedings under Order XXI of the Code. Section 5 of the Limitation Act is excluded in its application to the proceedings under Order XXI of the Code. The said section reads as under : "Extension of prescribed period in certain cases.- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period." 9. In view of the aforesaid provisions, it is clear that provisions of Section 5 of Limitation Act would not be attracted in the case of an application under Order XXI Rule 2 of the Code made beyond the prescribed period of limitation. 10. The aforesaid view taken by me finds support from the judgment of learned single Judge of this Court in the case of Devi Prasad Chaubey v. Pati Ram 1981 AWC 727 : (1982 All LJ (NOC) 4) wherein the delay of one day in moving the application under Order XXI Rule 2 of the Code was held not liable to be condoned. 11. It is well settled by the pronouncement of the Honble Apex Court in the case of Lakshmi Narayan v. S. S. Pandian (2000) 7 SCC 240 : ( AIR 2000 SC 2757 ) as well as Padma Ben Banushali and another v. Yogendra Rathore and others, (2006) 12 SCC 138 : ( AIR 2006 SC 2167 ) that unless the agreement/adjustment is recorded as required under Order XXI Rule 2 of the Code it cannot be recognized by the executing court and the executability of the decree would not be effected. 12. In view of the aforesaid pronouncement of the Honble Apex Court, in the case in hand, the alleged compromise having not been presented within time before the executing court for recording adjustment of the decree and the delay being not liable to be condoned in as much as Section 5 of the Limitation Act is not applicable being expressly excluded, the alleged compromise will not effect executability of the decree in favour of the landlord-respondent and the execution is not liable to be struck off/dismissed on the basis of the said compromise. 13. 13. In view of the aforesaid facts and discussions, no illegality has been committed by the court below in rejecting the application filed by the tenant-applicant. Revision accordingly fails and stands dismissed in limine. Revision dismissed.