Research › Search › Judgment

Jharkhand High Court · body

2015 DIGILAW 513 (JHR)

Jitendra Pal Singh v. Chandrakala Jain

2015-04-22

AMITAV K.GUPTA

body2015
ORDER : The present revision application has arisen out of the decree passed in Title Suit no.44 of 1981 which was instituted by the plaintiffs-Mohri Devi Sethi and her husband-Lalchand Jain Sethi(predecessors of the opposite parties). That the said suit was decreed vide judgment dated 13.03.1986 whereby defendant-petitioner/judgment debtors were directed to be evicted from the suit premises. Against the said judgment /decree, judgment-debtors preferred Title Appeal no.23 of 1986 which was allowed by the Addl. Judicial Commissioner, 1st by judgment and decree dated 01.07.1992 and 30.07.1992 respectively. The plaintiffs/O.Ps challenged the same in Second Appeal no.109 of 1992(R). During the pendency of the appeal, the suit property was bequeathed by the plaintiffs (predecessor) to Chandrakala Jain, w/o Santlal Jain, Surender Jain and others (O.P./decree holders), in the present revision. The Second Appeal vide judgment dated 29.10.1999 affirmed and restored the decree passed in Title Suit no.44 of 1981. Thereafter O.P.-decree holders instituted Execution Case no.4 of 2011 for executing the decree. On summons/notice, the petitioner/judgment debtors filed the show cause praying therein to dismiss the Execution Case no.4 of 2011 which was rejected by the Executing Court vide the impugned order dated 07.07.2014. Being aggrieved by the aforesaid rejection order of the learned Civil Judge, Junior Division(Munsif, Ranchi), the instant revision has been preferred. 2. Mr. Manjul Prasad, learned Senior counsel, while assailing the impugned order, has argued that after the bequeathing of the suit property to the O.P./decree holder and after demise of the original landlord, Chandrakala Jain had applied for Letters of Administration in L.A.Case NO.246 of 1993 in the court of learned Judicial Commissioner, Ranchi. That L.A.Case NO. 246 of 1993 was compromised before the Lok Adalat on 27.05.2011 wherien the suit property was allotted in favour of Surendra Kumar Jain, Rahul Jain, Kiran Devi Jain and others. That Shantilal Jain was looking after the property and prosecuting the cases pertaining to the suit property and he was realising rent from the defendant/tenants i.e. the father of the judgment debtors. It is urged that after the judgment in Title Appeal no.23 of 1986, Shantilal Jain approached the tenants for creating a fresh tenancy on enhanced rent of Rs.1250/-per month which was accepted by the petitioner/judgment debtors consequent thereto Shantilal Jain realised the enhanced rent and granted rent receipts in token thereof as per Annexure-1 series. 3. It is urged that after the judgment in Title Appeal no.23 of 1986, Shantilal Jain approached the tenants for creating a fresh tenancy on enhanced rent of Rs.1250/-per month which was accepted by the petitioner/judgment debtors consequent thereto Shantilal Jain realised the enhanced rent and granted rent receipts in token thereof as per Annexure-1 series. 3. It is contended by the learned Senior counsel that the judgment debtor had filed his show cause (Annexure-3) raising the objection that the decree had become in-executable as it had been satisfied and discharged due to creation of a fresh tenancy after the judgment passed in Title Appeal no.23 of 1986 and from the rent receipts issued by Shantilal Jain at enhanced monthly rent it is manifestly clear that due to such sequence of events and development there was discharge and satisfaction of the decree. It is submitted that since there was adjustment/satisfaction of the decree by issuance of rent receipts at enhanced rate as stated by the petitioner in the show cause the Executing Court ought to have instituted Miscellaneous case in terms of Section 47 of the Code of Civil Procedure read with 459 of the Civil Court Rules for inquiry and determining the question regarding the discharge and satisfaction of the decree. In support of the contention he has relied on the decision in the case of Moti Lal Banker Vs. Maharaj Kumar Mahmood Hasan Khan, reported in AIR 1968 SC 1087 and in the case of M.P.Shreevastava Vs. Veena, reported in AIR 1967 SC 1193 . It is contended that adjustment and satisfaction of the decree by the judgment debtor can be pleaded in the execution application filed by the decree-holder and the same is not barred by limitation. In support of his contention he has relied on the decision in the case of Ram Dass Vs. Mathura Lal, reported in (1982)3 SCC 198 . 4. It is argued by the learned Senior counsel that the decree in Title Suit no.44/1981 was signed on 18.03.1986 whereas the execution case was instituted on 30.03.2011 much beyond the period of limitation as prescribed under Art. 136 of the Limitation Act of 1963. Hence, the execution case was hopelessly barred by limitation. 4. It is argued by the learned Senior counsel that the decree in Title Suit no.44/1981 was signed on 18.03.1986 whereas the execution case was instituted on 30.03.2011 much beyond the period of limitation as prescribed under Art. 136 of the Limitation Act of 1963. Hence, the execution case was hopelessly barred by limitation. It is urged that the conduct of the decree-holder in not filing the execution case for such a long period is reflective of the intention of the parties that the decree was discharged and satisfied and the Executing Court should have appreciated the fact that the judgment-debtor could get the opportunity to certify the adjustment or satisfaction of the decree, only when the execution of the decree was applied for by the decree-holder whereupon the judgment-debtor filed the show-cause/objection. 5. It is canvassed that Order 21 Rule 2 C.P.C. mandates and casts a duty on the decree-holder to file an application for recording the discharge and satisfaction of a decree. The provision of Order XXI Rule 2 C.P.C. does not make it mandatory for the judgment-debtor to file an application for certifying adjustment/satisfaction of a decree. It is contended that the Executing Court has erred in law by not adhering to the mandate of registering Misc. case under Section 47 of C.P.C. The Court below has committed error in law by recording a finding that there was no certification of adjustment for satisfaction of the decree without assigning any cogent reason while rejecting the show-cause filed by the petitioner/judgment debtor. 6. In reply to the contention of the learned counsel for petitioner, Mr. Amar Kumar Sinha, learned counsel for O.P. has submitted that the show cause filed by the judgment-debtor on receipt of the notice in the execution case is not an objection. It is argued that even if the show-cause is treated as an objection, as stipulated under Section 47 C.P.C., then also Misc. Case, can be rejected in view of direction in the case of Dasrathi Rai Chaudhury vs. Kali Charan Ghosh, reported in AIR 1951 Patna 372, wherein it has been observed that there is no authority for the proposition that an application under Section 47 C.P.C should not be summarily dismissed. Case, can be rejected in view of direction in the case of Dasrathi Rai Chaudhury vs. Kali Charan Ghosh, reported in AIR 1951 Patna 372, wherein it has been observed that there is no authority for the proposition that an application under Section 47 C.P.C should not be summarily dismissed. It is submitted that consequent to the decision so rendered, a letter by the Registrar, Patna High Court was issued on 3rd of October, 1977 to all the courts impressing upon the officers to make a preliminary hearing of all petitions filed under Section 47 of C.P.C. in execution proceedings before admission and before registering them as Misc. Case. That a direction was given to the courts to hear the party on the points raised and if the contentions raised in the petition have no merit then the court can summarily dismiss the application. Learned counsel has urged that the petitioner has not come with clean hands and, in fact, the judgment-debtor had filed Title Suit no.150 of 2014 for the same relief. It is urged that if a decree has been adjusted or satisfied then it has to be certified by the Executing Court as per provision under Order 21 Rule 3 C.P.C. and such application for adjustment or settlement of decree should be filed within 30 days, in terms of Article 125 of the Indian Limitation Act. It is pointed out that the payment at enhanced rate was made on 27.06.2008 as per the rent receipts filed by the petitioner, but no application was filed in the court under Order 21 Rule 2 of C.P.C. for certifying the said adjustment or settlement of the decree. The application was filed after three years on receipt of rent hence, the plea is hopelessly barred by limitation. 7. Learned counsel has also referred to the decision in the case of Sultana Begum vs. Premchand Jain, reported in (1997) Supreme Appeals Reporter (SC) 30 wherein it has been held by the Apex Court that Section 47 empowers the executing court to determine questions relating to execution, discharge and satisfaction of the decree but Order 21 Rule 3 of C.P.C. restrains the exercise of such power. Reliance has also been placed in the decision in the case of Badamo Devi vs. Sagar Sharma, reported in (1999)3 PLJR (SC) 90, to fortify his contention on this point and on the decision in the case of Rajeev Khandelwal Vs. Arun Pannalal, reported in AIR 1987 M.P. 262 (FB). Learned counsel has also filed several decisions to controvert the argument of the learned counsel for the petitioner that the execution case is barred by limitation in terms of Article 136 of the Limitation Act, 1963. On the above grounds it is contended that the civil revision is devoid of any merit and is fit to be dismissed. 8. Heard. 9. The contention of the learned senior counsel that the decree dated 18.03.1986 passed in Title Suit no. 44 of 1981 is barred by limitation as prescribed under Article 136 of Limitation Act, is not acceptable for the simple reason that it is well settled that an appeal preferred against a decree is continuation of suit. It is not disputed that by the judgment dated 29.10.1999 passed in the Second Appeal, the judgment/decree of the trial court was affirmed and restored. Consequently, as per the doctrine of merger, the decree of the trial court merged with the decree of the appellate court resulting in the extinguishment of the independent identity of the decree of trial court with the coming in existence of the decree of the appellate court. Thus, the time runs from the date of decree of the appellate court giving a new starting point for the period of limitation. There are decisions a -galore on this settled legal position and reference to such decision or deliberation and elaboration of the judicial pronouncement would be wasteful and uncalled for in view of the established proposition of law. It is relevant to point out that the language and words used in Article 136 of the Limitation Act, 1963 are “any decree” and the words are also used “when the order become enforceable.” That from the plain reading of the language of Article 136 it is manifestly clear that it refers to enforceability of a decree and as discussed above, the decree attains finality when it is passed by the appellate court. Thus, once it is sought to be enforced for the purpose of execution, irrespective of being original or appellate, the date on which it is pronounced, would be considered as the starting point of limitation since the appellate decree replaces the decree of the lower court, appeal being continuation of a suit. The reason being that in terms of the doctrine of merger there cannot be more than one decree determining the same subject matter in terms of the definition of a decree, as enshrined in Clause (2) of Section 2 of the Code of Civil Procedure. 10. The argument of learned Sr. counsel that it is mandatory for the court to register a Misc. case under Section 47 of the Civil Procedure Code to decide all questions raised in the show-cause filed by the petitioner/judgment debtor regarding discharge, adjustment or satisfaction of the decree on the ground that rent receipts were issued on enhanced monthly rates and Rules 459 of the Civil Court Rules mandates the institution of Misc. case under Section 47 C.P.C. when an objection is raised in the execution of the proceeding, is not tenable as it is apparent that Civil Court Rules have been framed with an object to streamline the functioning and administration of the Civil Courts and they categorize and classify the different heads of the proceedings for up-keeping and maintenance of records and institution of cases. In this context, the decision relied on by the learned counsel for O.P. in the case of Dasrath Rai (supra) is relevant as it has been observed in the said decision in para-18 “….... that there is no authority for the proposition that an application under Section 47 should not be summarily dismissed. It is always open to a court to which a petition is presented to consider it on its merit at the time of presentation if it is clear that the contentions raised in the petition have no merit, it is not right that public time and money should be wasted and the O.P. be harassed and put to additional expense by deferring the passing of orders until both parties have been heard at length …....”. In this connection, it will also be pertinent to note that in the case of Sultan Begam (supra) the Apex court, has discussed and elaborated the dictum of various decisions, while interpreting the provision of Section 47 and Order XXI Rule 2 C.P.C. and held that the Rule of harmonious construction should be adhered to in avoiding any inconsistency between two different sections of provisions of the same statute. Elaborating on the rule of construction, it has been held that though Section 47 contemplates that the question relating to execution, discharge or satisfaction of the decree shall be determined by the court in executing the decree whereas Order 21 Rule 2 C.P.C. enumerates the procedure to be followed by the court in a limited class of cases in execution of a decree relating to the discharge or satisfaction of a decree by payment or adjustment of the decree out of the court. In the said decision reference has also been made to the case of M.P. Shreevastava (Supra) relied on by the learned counsel for the petitioner wherein it was held that the application under Section 47 C.P.C. was maintainable even though execution proceeding had not been initiated. The judicial pronouncement and the plain reading of the provisions of Section 47 and Order 21 Rule 2 and sub-rule (3) makes it abundantly clear that Order 21 Rule 3 places a restraint on the exercise of the power under Section 47 by providing that the Executing Court shall not recognize or look into any uncertified payment of money or any adjustment of decree as mandated under Sub rule 3 of Order 21. It is well settled that general provision under Section 47 in such circumstances has to yield to the special provisions of Order 21 Rule 2. Learned Senior counsel has contended that the words and language used in sub-rule (1) of Rule 2 is “... that the decree-holder shall certify such payment or adjustment....” whereas in sub-rule (2) of Rule 2 words used are “......the judgment debtor …. may inform the court of such payment or adjustment ….” meaning thereby that the legislative mandate is that the judgment debtor is not obligated to get the satisfaction of the decree to be recorded and certified rather it is imperative for the decree-holder to get the adjustment/satisfaction certified. may inform the court of such payment or adjustment ….” meaning thereby that the legislative mandate is that the judgment debtor is not obligated to get the satisfaction of the decree to be recorded and certified rather it is imperative for the decree-holder to get the adjustment/satisfaction certified. Judgment debtor can get it certified only when the execution proceeding is taken out by the decree-holder. That in the instant case the judgment-debtor did so by filing his show-cause detailing the facts regarding adjustment and discharge of the decree. The above argument is not acceptable by this court, given the fact that there is no explanation as to what prevented the judgment-debtor from filing such application even prior to the filing of the execution case which was filed in 2011 when admittedly the Second Appeal was decided on 29.10.1999 whereas the rent receipts at enhanced monthly rent were issued in 2008. In the case of M.P. Shreevastava (supra) relied on by the learned counsel for the petitioner, it has been held that an application under Section 47 C.P.C. can be filed in the court even prior to the filing of the application by decree-holder for execution of a decree. It is necessary to reiterate that for interpretation and construction of a statute or section it has to be read in its entirety. No doubt, in sub-rule (1) of Rule 2 the word used is 'shall' for decree-holder and in sub-rule (2) of Rule 2, it is 'may' for the judgment-debtor. However, in sub-rule (3) the language is explicit that such payment or adjustment shall not be recognized by the court unless it is certified in accordance with sub-rules (1) and (2) of Order 21. It is natural for the judgment-debtor to be more concerned in informing the court regarding the adjustment and satisfaction of the decree. Thus, in view of the language used in Order 21 Rule 2, sub-rule (3), it is imperative for the judgment-debtor to inform the court and the use of the word 'may' cannot absolve the judgment debtor from his obligation to move the court for getting the satisfaction or adjustment certified by the court which passed the decree as there is no requirement under the Section to wait till the decree is put into execution by the decree-holder. It is necessary to point out that in the scheme of the provision and settled legal position the payment or adjustment has to be recorded within a period of thirty days in terms of Article 125 of Limitation Act, 1963. 11. From the nature of the language used in Order 21 Rule 2 it is abundantly clear that the payment or adjustment of the decree has to be agreed to by the decree-holder and if it is not, then the Executing Court is restrained to recognize such payment or adjustment until and unless it is certified by the decree-holder. Therefore, in the absence of admission by the decree-holder regarding such adjustment/satisfaction of payment made out of the court by the judgment debtor, such plea or document cannot be recognized, accordingly, in view of the settled law the Executing Court has rightly rejected the application/show cause filed by the petitioner. 12. Another aspect of the matter requires attention. Even if it is assumed, for the sake of argument, that prior to the filing of the application for execution the petitioner paid rent to the opposite party at an enhanced rate. Whether the same amounts to creation of a new tenancy or whether the same amounts to discharge or satisfaction of the decree. The answer is 'No'. The decree for eviction passed by the trial court and affirmed by the High Court in Second Appeal cannot be satisfied by mere receipt of rent at the existing rate or at a higher rate. Acceptance of rent does not waive a cause of action for default, then how can the same amount to satisfaction of a decree for eviction passed under Section 11 of the Jharkhand Building(Lease, Rent & Eviction) Control Act, 2000. Hence this question was not at all required to be examined by the executing court as the plea of payment of rent at an enhanced rate would not come under the purview of discharge or satisfaction under Section 47 of Civil Procedure Code or Order 21 Rule 2 of C.P.C. 13. Before parting it should be necessary to state that when a decree is joint or indivisible then the payment or adjustment and satisfaction must be certified by all the decree-holders. The learned Sr. counsel has argued that this a case of holding out in terms of Section 116 of Transfer of Property Act. Before parting it should be necessary to state that when a decree is joint or indivisible then the payment or adjustment and satisfaction must be certified by all the decree-holders. The learned Sr. counsel has argued that this a case of holding out in terms of Section 116 of Transfer of Property Act. Such argument is unacceptable as there is no element or ingredient to make out a case of holding out in the factual scenario of the instant case. It is well settled that the object of sub-rule (3) of Order 21 Rule 2 C.P.C. is to foreclose and debar any plea of payment or adjustment which is not recorded or certified under the provisions of Order 21 Rule 2 so as to preclude a judgment debtor from setting up such pleas to prolong or delay the execution proceeding. 14. To sum up, it is noticed that the payment or adjustment as claimed by the petitioners was not certified in terms of provision of Order 21 Rule 2 C.P.C. Moreover, it is barred by limitation under Article 125 of Limitation Act. The decisions relied on by the learned Sr. counsel are of no help. The judicial pronouncements establish that Section 47 C.P.C. is not in antithesis to Order 21 Rule 2 C.P.C. and as per rule of construction Section 47 C.P.C. has to give way to the provision of Order 21 Rule 2 as the power under Section 47 C.P.C. is to be exercised subject to the restriction imposed by Order 21 Rule 2 inclusive of sub-rule (3) wherein legislative mandate rules that an adjustment/payment not certified is to be ignored. Lastly at the cost of repetition it is pertinent to note that the Eviction Suit was instituted in the year 1981. Second Appeal was allowed confirming the judgment of the trial court in the year 1999. 16 long years have lapsed after the Second Appeal and almost 35 years have lapsed since the institution of the suit Hence I direct the petitioner/tenant to handover possession of the suit property to the opposite party/landlord within 60 days from the date of the receipt of a copy of the order in the Executing Court and the Executing Court shall send a compliance report forthwith ensuring that possession is delivered and execution of the decree is satisfied within the said period. 17. 17. In view of the discussions made above it is held that the revision is devoid of merit. Consequently, it stands dismissed. Revision dismissed.