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2014 DIGILAW 840 (ORI)

RAJENDRA SAHU v. KSHYAMA SAHU

2014-12-05

D.DASH

body2014
JUDGMENT : The petitioner has failed in his attempt to thwart the Execution Case No. 03 of 1999 arising out of Title Suit No. 75 of 1974 of the court of Civil Judge (Jr. Division), Patnagarh having not been to achieve success through his application under section 47 of the Code of Civil Procedure. Being aggrieved, he questioned the legality and propriety of the order passed MJC No. 09 of 2000 rejecting his petition under section 47 of the Code. in Civil Revision No. 18 of 2000 in the court of District Judge, Bolangir and said move has also yielded no fruitful result. Therefore, those orders have been further challenged by filing this writ application with the prayer of quashment. 2. Heard the learned counsel for the parties at length. Perused the order of the executing court and that of the revisional court. 3. Facts necessary of disposal of the writ application are as under:- The opposite party as the plaintiff filed the Title Suit No. 25 of 1974 for partition against the present petitioner and others. The same was decreed in the year 1975. So, an appeal was carried wherein the judgment and decree passed by the trial court were confirmed. Second appeal No. 185 of 1977 carried to this Court has been withdrawn on 10.12.1980. Thus the judgment and preliminary decree passed in the suit attained their finality. It is said that prior to said withdrawal, the opposite party and his father executed an agreement in respect of the subject matter of the suit and for that reason the second appeal was withdrawn. In the meantime, the final decree was passed on acceptance of the report of the civil court commissioner and the preliminary decree was made final. The opposite party filed the Execution Case No. 03 of 1999 for delivery of possession of the land allotted to him in the final decree passed in the said suit. The petitioner questioned its executability by filing petition under section 47 of the Code. When the petitioner claims that the decree does no more survive for being executed on the ground of that agreement with due adjustment of the subject matter of the suit between the parties having come into being in the meantime, the opposite party denies the said fact. 4. When the petitioner claims that the decree does no more survive for being executed on the ground of that agreement with due adjustment of the subject matter of the suit between the parties having come into being in the meantime, the opposite party denies the said fact. 4. Admittedly the second appeal has been withdrawn without this agreement being placed there and without recording of any compromise and passing of the decree in terms of the same. Next in the final decree proceeding, the factum of execution of an agreement by the opposite party and his father has not been placed, for being taken into consideration while passing the final decree. Such final decree when is pressed for being executed, the same is projected as the weapon in order to bulldoze the execution proceeding by putting an end to it refusing the prayer to execute. 5. Learned counsel for the petitioner submits that since the agreement wipes out the decree and when the parties are legally free to enter into an agreement as regards their right and entitlement under a decree even after the decree, the executing court ought to have held that the decree stood accordingly modified having no further force in law for being executed as it is. 6. Learned counsel for the opposite party submits that the agreement has no legal sanction without being placed for due consideration in the final decree proceeding and in the second appeal prior to it. So that cannot be taken to establish discharge or satisfaction of the decree falling within the ambit of section 47 of the Code in order to refuse to execute the decree. 7. The executing court considered the question as to whether on the ground of that so called agreement as pleaded by the petitioner, it is permissible to travel beyond the decree by honouring said agreement which has not been placed for recognisition either in the second appeal or during the final decree proceeding. The court has taken a view that any private or amicable arrangement without being taken cognizance of by the courts where during then the lis was pending, can no more stand for acceptance in the execution proceeding to deprive the D.Hr. from enjoying the fruit of the decree by denying to execute the decree. The court has taken a view that any private or amicable arrangement without being taken cognizance of by the courts where during then the lis was pending, can no more stand for acceptance in the execution proceeding to deprive the D.Hr. from enjoying the fruit of the decree by denying to execute the decree. Thus, it has been held that the requirements so as to question the executability of the decree in conformity with the provision of section 47 of the Code are not fulfilled. It is also said that the agreement cannot override the decree and therefore the petition under section 47 of the Code has been dismissed. The revisional court found no such infirmity or illegality in the order of the executing court. It has been viewed that the agreement is not entertainable in the execution proceeding and thus it has been held that the executing court by rejecting the petition under section 47 of the Code has neither failed to exercise the jurisdiction so vested nor has acted in the exercise of its jurisdiction illegally or with material irregularity. 8. On going through the orders at this stage without expressing any opinion on their legality, it may be stated that both the courts have not been able give attention and take notice of the proper provisions of law as enshrined in the Code coming to play for consideration of the matter in hand. The courts below have considered the factor that such agreement now projected to stall the execution taking aid of Section 47 of the Code having not been earlier placed either in the second appeal or in the final decree proceeding merits no consideration for the purpose of considering the executability. The courts below have gone for elaborate discussion of the factual aspects necessary for the disposal of the petition and then having taken note of the provision of section 47 of the Code have favoured the rejection of the said petition. But as is seen, the courts below have not been able to see the wood from the timber which can be known from the discussions to follow. 9. But as is seen, the courts below have not been able to see the wood from the timber which can be known from the discussions to follow. 9. In the instant case the agreement is said to have been made by opposite party and his father wherein it was agreed that the opposite party would possess the particular lands towards his share and would have no claim whatsoever over other lands divided and allotted to others. This is said to have been made in settlement of the respective claims of the parties. This has not been produced even in the final decree proceeding. Thus if this agreement is accepted for a moment it will tentamount to an adjustment of the decree and thats what is claimed by the petitioner in saying that the decree for that reason is no more executable. 10. The executing court under section 47 of the Code is conferred with the powers to determine the questions arising between the parties with regards to three things i) execution, ii) satisfaction and iii) discharge of the decree. The object of section 47 of the Code is that the court having the parties already before it, should decide all questions relating to execution, discharge or satisfaction arising between them, instead of allowing one or the other to put his adversary to the delay and cost of a separate suit in cases in which but for this section it might be possible for him to do so. The exercise of powers under said section lies in a narrow inspection hole and so far as its executability is concerned if it is found that the same is void abinitio and nullity, apart from the ground that the decree is not capable of execution under law either because the same was passed being oblivious of the provision of law or the law has been promulgated making a decree in-executable after its passing. At this stage, we may turn our attention to the provision of order 21 Rule 2 of the Code. The position as it stands is quoted below for better appreciation:- “Order 22, Rule 2 of the Code. At this stage, we may turn our attention to the provision of order 21 Rule 2 of the Code. The position as it stands is quoted below for better appreciation:- “Order 22, Rule 2 of the Code. xx xx xx “2.(1) Payment out of Court to decree-holder – (1) Where any money payable under a decree of any kind is paid out of Court, [for 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 of 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 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 the day to be fixed by the Court, why such payment of adjustment should not be recorded as be 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. [(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 rule1; or (b) the payment of adjustment is proved by documentary evidence; or (c) the payment of 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 recognized by any court executing the decree.” (Portions emphasized are brought by Amendment Act 104 of 1976) 11. It may just be kept in mind here that by the Amendment 104 of 1976 coming into force w.e.f. 01.02.1977, the definition of ‘decree’ as provided in section 2(2) of the Code, excluded from its purview an order under section 47 of the Code and thus the order no more remained appellable as it was prior to it. By the said Amendment Act, the provision of Order 22 Rule 2 of the Code also stood amended as underlined. By the said Amendment Act, the provision of Order 22 Rule 2 of the Code also stood amended as underlined. The provisions prior to amendment stood as under:- “(1) Where any money payable under a decree of any kind is paid out of Court, in whole or in part of the satisfaction of the decree-holder, the decree-holder shall certify such payment of adjustment to the Court whose duty it is to execute the decree, and the Court shall record the same accordingly. (2) 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 the day to be fixed by the Court, why such payment of adjustment should not be recorded as be certified; and if, after service of such notice, the decreeholder fails to show cause why the payment or adjustment should not be recorded as certified, the Court shall record the same accordingly. (2A) No. payment or adjustment shall be recorded at the instance of the judgment-debtor. (3) A payment or adjustment, which has not been certified or recorded as aforesaid, shall not recognized by any court executing the decree.” 12. This Court have held in case of Dhani Behera Vrs. Sushil Chandra Palit; AIR 1967 Orissa, 59 that “Order 21 Rule 2 of the Code (prior to amendment of 1976) applies where money is payable under the decree. The expression ‘where any money payable under a decree of any kind’ indicates that the decree must be one under which one of the reliefs must be for payment of money. In case of composite decree like a decree for recovery of possession and mesne profits, the relief for money is available and the rule is applicable. The word “any kind” are not wide enough to include all kinds of decree, and they qualify the decree under which money is payable. The word “decree” is qualified by “a” in the first part of the rule 2(1) while it is qualified by “the” in the second part. The words “the decree” in the second portion of the rule refer to the words “a decree” in the first portion of the rule. “The decree” in the second portion must therefore be of the same character as “the decree” in the first portion. The words “the decree” in the second portion of the rule refer to the words “a decree” in the first portion of the rule. “The decree” in the second portion must therefore be of the same character as “the decree” in the first portion. The words “otherwise adjusted” in the second part of the rule is in contradistinction to the words “out of court” in the first part. Therefore the payment of money under a decree, in which one of the reliefs is for payment of money is to be made either out of the court or such payments or adjustments under O.21 R. 2 within the period of limitation of 90 days prescribed under Article 174 of the Limitation Act, 1908 (as it stood prior to amendment of 1963). Provision does not apply to a decree for mere eviction and the judgment debtor is not bound to certify the adjustment under O.21 R.2. This Court differed with the view taken by Allahabad, Bombay, Calcutta, Lahore, Patna, Nagpur and Mysore High Courts that the provisions of the rule applies to every kind of decree ( AIR 1952 All 814 , AIR 1922 Bom 380(2), AIR 1928 Cal 715, AIR 1936, Lah 842, AIR 1935 Pat 385, AIR 1948 Nag 374 and AIR 1963 Mys. 79). But agreed and followed the view of Madras and Andhra Pradesh (AIR 1926 Mad 749 and AIR 1958 AP 705 ) that the rule applies where money is payable under the decree, whether there are other reliefs or not. 13. However, in view of the amendment by 1976 Act, particularly the view has undergone a decent burial as regards the confinement of the application only to the decree under which money is payable. The changes made be noticed in rule 2 of Or 21 of the Code in place of “or the decree is otherwise adjusted in whole or in part to the satisfaction of the D.Hr”; the words “or a decree of any kind is otherwise adjusted” have been inserted. By virtue of such change in rule 2 of Order 21, the interpretation made in case of Dhani Behera (supra) no longer stand. It now refers to money payable under a decree of any kind as also to ‘decree of any kind is otherwise adjusted’ in whole or in part to the satisfaction of the D.Hr. By virtue of such change in rule 2 of Order 21, the interpretation made in case of Dhani Behera (supra) no longer stand. It now refers to money payable under a decree of any kind as also to ‘decree of any kind is otherwise adjusted’ in whole or in part to the satisfaction of the D.Hr. Thus the above provision as it stands now not only applies to decree where money is payable but also to every kind of decree if otherwise adjusted in whole or in part. The intention of the legislature in bringing such amendment to make the provision absolutely clear and unambiguous leaving no scope for any interpretation to the contrary as in case of Dhani Behera (supra) is to curtail frivolous allegations of payment or adjustment of the decree and not to provide for further avenues for litigation. This derives more strength when we see the insertion of rule 2A under Order 21 of the Code by said amendment This is because as per the provision legislature required proof of payment of adjustment by documents, thus putting an end to resort to or bank upon oral evidence of payment or adjustment to defeat the decree. However, care has been amply taken where payment or adjustment stands admitted. 14. The question which really arises here for consideration is about the scope and purport of the term ‘adjustment’ used in Order 21, Rule 2 of the Code. In this connection it would be pertinent to notice that S. 47 of the Code does not use the word ‘adjustment’ but uses the words relating to the execution, discharge or satisfaction of the decree. If the purpose of enacting Order 21, Rule 2 of the Code, was to confine its applicability to ‘satisfaction’ of the decree alone, there was no difficulty in using the word ‘satisfied’ in Order 21, rule 2 of the Code. The Legislature, however, purposely made a departure in this behalf and in place of using the word ‘satisfied’ used the word ‘adjust’. Not only that, it also prefixed the word ‘adjusted’ with another word of significance, namely, ‘otherwise’. The Legislature, however, purposely made a departure in this behalf and in place of using the word ‘satisfied’ used the word ‘adjust’. Not only that, it also prefixed the word ‘adjusted’ with another word of significance, namely, ‘otherwise’. The purpose of Order 21, Rule 2 of the Code obviously, therefore, is that an agreement which had the effect of adjusting the decree in any manner had to be got recorded as certified and on failure to do so, the executing Court is prohibited from recognizing any agreement which had the effect of adjustment of a decree in the manner stated above. 15. Since Order 21, Rule 2 of the Code, uses the words” in whole or in part “after the words” “Otherwise adjusted,” even a partial adjustment of the decree is clearly permissible under this rule. Consequently, where a decree has been adjusted in whole or in part, it has to be got recorded as satisfied under Order 21, Rule 2 of the Code.” Thus provision of Section 47 of the Code cannot be so construed as to render Order 21, rules 2 and 3 otiose. It also cannot be so construed as to encourage frivolous litigation by providing a judgment-debtor who having lost in the suit is trying to avoid the execution of the decree as far as possible with a second innings to delay the execution proceedings and to enjoy the boon of delay at the cost of the decree-holder. Such an attempt on the part of the judgment-debtor would, there can be no manner of doubt, amount to an abuse of the process of Court and interpreting section 47 of the Code in a manner which assists the judgment-debtor in his design would be against all canons of rules of interpretation. In my considered view rules 2 and 3 of Order 21 of the Code were really intended to curb this tendency. The purpose of rules 2 and 3 of the Order 21 obviously is that whenever such an agreement as the one pleaded in the instant case 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. The purpose of rules 2 and 3 of the Order 21 obviously is that whenever such an agreement as the one pleaded in the instant case 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. The advantage of the requirement of such an agreement being placed before the executing Court for the purpose of recording would be that in the very proceedings for recording the adjustment, the question as to whether any such agreement was really arrived at or not would be decided. If it is decided in favour of the judgment-debtor and the adjustment is recorded, he would become entitled to the benefits of the adjustment. On the other hand, if it is found that no such agreement as set up by him was ever entered into, recording or certification of the claimed adjustment of the decree would be refused and the decree-holder would be saved from being compelled to face a second innings on the execution side. 16. If an objection pertains to the ‘execution’ of the decree, it has to be investigated under section 47 of the Code. This provision, however, is clearly subject to the specific provision contained in this behalf in rules 2 and 3 of Order 21 of the Code. The clear intendment of these two rules is that notwithstanding the general power of making investigation in an objection pertaining to the execution of the decree contained in section 47 of the Code, the said power shall not be exercised if it would have the effect of recognizing an adjustment which has not been recorded as contemplated by rules 2 and 3 of Order 21 of the Code. Thus it has to be said that the provision contained in this behalf in section 47 of the Code is general whereas the constraint or restriction placed on the power exercisable under section 47 of the Code by rules 2 and 3 of Order 21 is special. In all cases, therefore, which fall within the purview of Rules 2 and 3 of Order 21 of the Code which contain special provision, 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. In all cases, therefore, which fall within the purview of Rules 2 and 3 of Order 21 of the Code which contain special provision, 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. The general and wider provision of section 47 of the Code empowering the Court with the jurisdiction to decide all questions pertaining to execution, discharge and satisfaction of a decree cannot be allowed to defeat the special provisions of Order 21, Rule 2 of the Code dealing with adjustment of the decree. When the decree is based on an adjustment, provisions of section 47 of the Code cannot be pressed into service unless the adjustment is recorded in accordance with rule 2 of Order 21 of the Code. In view of the foregoing discussion, this Court find that the agreement set up by the petitioner in the instant case comes within the purview of the term ‘adjustment’ and since that agreement has not been got recorded as certified under Order 21 rule 2 of the Code, his objection as advanced is not recognizable by the court executing the decree in view of rule 3 of Order 21 of the Code and he cannot question the said decree on that ground. 17. For the aforesaid discussion and reasons, even without delving into the correctness or otherwise of the grounds on which the order of the executing court as well as that of the revisional court is founded upon, it is held that the application under section 47 of the Code has rightly been dismissed and the orders do not deserve to be interfered with. 18. The writ petition thus fails with costs assessed at Rs. 2000/-(Rupees two thousand) to be paid by the petitioner to the opposite party.