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Madho Prasad and anr. Vs. Shambhoo Nath - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberExecution Second Appeal No. 779 of 1964
Judge
Reported inAIR1973All432
ActsCode of Civil Procedure (CPC) , 1908 - Sections 2 and 47 - Order 21, Rule 2
AppellantMadho Prasad and anr.
RespondentShambhoo Nath
Appellant AdvocateR.S. Misra and ;Radhey Shyam, Advs.
Respondent AdvocateK.P. Singh and ;C.M. Srivastava, Advs.
DispositionAppeal allowed
Excerpt:
civil - adjustment of decree - sections 2 and 47, order 21, rule 2 of code of civil procedure, 1908 - order striking off the execution - on the ground that there has been an adjustment of the decree between the parties outside the court - is appealable or not has to be determined - considering whether the order relates to execution, discharge or satisfaction of the decrees and arises between the parties to the suit- in a money decree an adjustment is pleaded and court is called upon to record and certify the payment - such an order would be a decree and is appeal able. - - i fail to understand how the learned judge treated this case as an authority for the proposition that no appeal was competent against an order passed under order xxi.k.n. seth, j.1. this appeal is bythe decree-holders. the appellants obtained a money decree against the respondent and put that decree into execution. in the execution court an application dated 16-7-1958 was received by post purporting to have been signed by the decree-holders stating that a compromise had been arrived at between the parties and praying that the execution of the decree be postponed. it is not necessary to refer to the terms of compromise set out in that application. on 17-7-1958 the court passed on order 'the execution is struck off in terms of the compromise'. on 26-7-1958 the decree-holders made an application (10-c) under section 151. civil p. c. praying that the order striking off the execution be recalled and the execution restored on the ground that the application.....
Judgment:

K.N. Seth, J.

1. This appeal is bythe decree-holders. The appellants obtained a money decree against the respondent and put that decree into execution. In the execution Court an application dated 16-7-1958 was received by post purporting to have been signed by the decree-holders stating that a compromise had been arrived at between the parties and praying that the execution of the decree be postponed. It is not necessary to refer to the terms of compromise set out in that application. On 17-7-1958 the Court passed on order 'the execution is struck off in terms of the compromise'. On 26-7-1958 the decree-holders made an application (10-C) under Section 151. Civil P. C. praying that the order striking off the execution be recalled and the execution restored on the ground that the application dated 16-7-1958 was a forged document and did not contain the signature of the decree-holders. The judgment-debtor filed an objection supported by an affidavit to this application. Thereafter the decree-holders filed another petition (20-C) wherein it was stated that the judgment debtor might have obtained some blank paper already signed by the decree-holders and used that paper for making the application dated July 16, 1958. It was, however, prayed that as the aforesaid application was not made personally by the decree-holders in Court, no action could be taken on that application. From the record it appears that on 6-2-1959 the Court passed an order to the effect that the order dated 17-7-1958 striking off the execution be set aside and the execution be revived. It was observed in that order that it would be open to the judgment debtor to move the Court by a proper application for recording any settlement that might have been arrived at between the parties.

2. The execution Court thereafter considered the various applications and objections filed by the parties and arrived at the conclusion that the application dated 16-7-1958 had been signed by the decree-holders and could be acted upon. The subsequent applications made by the decree-holders (10-C and 20-C) were dismissed and the order dated 17-7-1958 striking off the execution case was maintained. Against this order of the execution Court dated 14-11-1960 an appeal was preferred by the decree-holders. The learned Additional Civil Judge dismissed the appeal holding that the appeal was not competent as the impugned order was in effect an order under Order XXI Rule 2, Civil P. C. and no appeal lay against such an order. Reliance was primarily placed on a Bench decision of this Court in Munni Lal v. Kishun Prasad : AIR1948All443 . In that case an objection was raised that the appeal was not competent. That case related to an appeal against an order of an Arbitrator to whom objections under Order XXI, Rule 90. Civil P. C. had been referred. The Bench rejected the objection that the appeal was not maintainable on the ground that the appeal in question was filed under Section 39 of the Arbitration Act. However, the Court observed that even if it be held that no appeal lay, the Court was competent to interfere with the impugned order under its revisional jurisdiction. I fail to understand how the learned Judge treated this case as an authority for the proposition that no appeal was competent against an order passed under Order XXI. Rule 2, Civil P. C. A very curious reasoning was adopted by the learned Judge. In this opinion this Court did not dispel the contention of the learned counsel for the respondent in that case that the appeal was not competent. After holding that the appeal was competent under Section 39 of the Arbitration Act, it was not necessary for this Court to go into the question whether the appeal would also be competent under the provisions of Civil P. C.

3. In order to determine whether an order striking off the execution on the ground that there has been an adjustment of the decree between the parties outside the Court is appealable or not the crucial question to be considered is whether the order relates to the execution, discharge or satisfaction of the decrees and arises between the parties to the suit. There can be no dispute that the question was between the parties to the suit. Where in a money decree an adjustment is pleaded and the Court is called upon to record and certify the payment, the order relates to execution or satisfaction of the decree and would be covered by Section 47, Civil P. C. such an order would then be a decree and, therefore appealable. In Tulsha v. Badri Das, 1889 All WN 95 a judgment-debtor applied to the Court executing the decree to call upon the decree-holder to certify the receipt of payment in part of the decretal amount under Section 258 of the Code (Corresponding to Order XXI, Rule 2 of the present Code). The Court dismissed the application on the ground that it was beyond time. The judgment-debtor then brought a suit for cancellation of the order for disallowance of the decree-holder's objection, and for a declaration that the alleged payment had been made and that the application for a certificate had been presented in time. A Bench of this Court held that the question involved being one relating to the execution.satisfaction or discharge of the decree, within the meaning of Section 244 of the Code (Corresponding to Section 47 of the present Code), could not be made the subject of a separate suit Similarly in Jamna Prasad v. Mathura Prasad, (1894) ILR 16 All 129 the question arose whether an appeal lay against an order refusing the application of the judgment debtor to record the alleged adjustment of the decree out of Court. Aikman, J. felt no hesitation in holding that such an order was an order determining a question between the parties to a suit and related to the satisfaction of the decree and was, therefore, a decree within the meaning of Section 2. Civil P. C. and hence appealable. No decision of this Court taking a contrary view has been brought to my notice. It is not necessary to refer to other decisions of various Courts on the question whether an order passed under Order XXI, Rule 2 is not appealable or not. The preponderance of judicial opinion appears to be that such an order would be appealable. The mere feet that an order under: Order XXI. Rule 2. Civil P. C. is not, mentioned as one of the appealable orders under Order XLIII of the Code would, not lead to the conclusion that such an order would not be appealable. If the order passed amounts to an order relating to execution, discharge or satisfaction of the decree, it would be covered by Section 47 of the Code and would be appealable as a decree. The view taken by the Court below appears to be erroneous and must be set aside.

4. The appeal is accordingly allowed and the case is sent back to the Court below for hearing the appeal on merits. The costs shall abide the result.


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