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Akbar Ali Khan and ors. Vs. Dr. Ishwar Saran - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 1757 of 1954
Judge
Reported inAIR1957All622
ActsCode of Civil Procedure (CPC) , 1908 - Sections 47 - Order 21, Rule 2, 2(2) and 2(3); Limitation Act, 1908 - Schedule - Article 174
AppellantAkbar Ali Khan and ors.
RespondentDr. Ishwar Saran
Appellant AdvocateM.A. Kazmi, Adv.
Respondent AdvocateB.D. Gupta, Adv.
DispositionAppeal dismissed
Excerpt:
civil -execution - sub-rule (2) and sub-rule 3 of order 21 and section 47 of code of civil procedure, 1908 - objection filed within 90 days of payment - without certification - held, objections not maintainable. - - in this application the judgment-debtor stated that on 24-6-1953 an accounting of the entire amount due to the decree-holder was done between the parties, and the entire decretal amount was satisfied by payment of rs. (bad niati se use tasdiq nahin karaya). accordingly, the judgment-debtors were giving this application with a prayer to the effect that the execution proceedings taken by the decree-holder. it clearly mentioned the date of the said adjustment. it is conceded by him that the application would have been a perfectly good one had the above words been used in the.....beg, j. 1. this is a judgment-debtors' appeal arising out of execution proceedings.2. the facts of the case are given in the judgment of my learned brother. it is, therefore, not necessary for me to repeat them.3. the sole question that arises in this appeal is whether the application of the judgment-debtors dated the 22nd september, 1953, can be treated to be an application under order 21 rule 2 of the code of civil procedure. i agree with my brother that the reply to this question will turn on the contents of the application itself rather than on any extraneous considerations. it is, therefore, necessary for this purpose to scrutinise the contents of the application itself, and to see whether it fulfils the requirements of order 21, rule 2. c. p. c. order 21, rule 2, c. p. c. deals with.....
Judgment:

Beg, J.

1. This is a judgment-debtors' appeal arising out of execution proceedings.

2. The facts of the case are given in the judgment of my learned brother. It is, therefore, not necessary for me to repeat them.

3. The sole question that arises in this appeal is whether the application of the judgment-debtors dated the 22nd September, 1953, can be treated to be an application under Order 21 Rule 2 of the Code of Civil Procedure. I agree with my brother that the reply to this question will turn on the contents of the application itself rather than on any extraneous considerations. It is, therefore, necessary for this purpose to scrutinise the contents of the application itself, and to see whether it fulfils the requirements of Order 21, Rule 2. C. P. C. Order 21, Rule 2, C. P. C. deals with the payment of money out of court to the decree-holder by the judgment-debtor. Order 21, Rule 2(1) deals with a case where such payment is to be certified by the decree-holder.

According to it, where any money payable un-der a decree of any kind is paid out of Court, or the decree is otherwise adjusted in whole or in. part to the satisfaction of the decree-holder, the decree-holder shall certify' such payment or adjustment to the Court whose duty it is to execute the decree, and the Court shall record the same accordingly. In this particular case, however, we are concerned with Order 21 Rule 2, Sub-rule (2) which deals with certification of payment by the judgment-debtor. Order 21, Rule 2(2) runs as follows:

'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 same accordingly.'

4. According to the above provision, therefore, the application by a judgment-debtor to be an application under the aforesaid provision must contain two things--(1) the information or intimation to the Court that payment or adjustment has been made, and (2) an application to the Court that a notice be issued to the decree-holder to show cause why such payment or adjustment should not be recorded as certified.

5. The question before us in the present case is whether the two conditions required by the above provision of law have been fulfilled. As mentioned by me above, the application in question was given on 22-9-1953. This application was made by the judgment-debtors. It may be mentioned at the very outset that this application was admittedly given within ninety days, and therefore, there can be no question of the bar of limitation under Article 174 of the Limitation Act coming in the way of the judgment-debtors. In this application the judgment-debtor stated that on 24-6-1953 an accounting of the entire amount due to the decree-holder was done between the parties, and the entire decretal amount was satisfied by payment of Rs. 2533/- to the decree-holder (Kul degree zar ijra bahaq ho gai), and the said decree, therefore, is not capable of execution. They further stated that the decree-holder had promised that after summer vacation ho would have the said payment or adjustment 'certified by the Court' (Darkhwast de kar adaigi ki tasdiq kara-dunga) and have the execution proceedings dismissed. It further stated that as the decree-holder was a Government servant and a man of status, the judgment-debtors believed the representation held out by the decree-holder. The judgment-debtors, however, subsequently, came to know that instead of taking proceedings for certification, the decree-holder had taken execution proceedings for the execution of the decree by the sale of the pro-perty and had dishonestly not taken any procee-dings of certification. (Bad niati se use tasdiq nahin karaya). Accordingly, the judgment-debtors were giving this application with a prayer to the effect that the execution proceedings taken by the decree-holder. be dismissed by 'recording full satisfaction of the entire decree.' (Begridar ki darkhwast ijrari ba-behaqi kul matalaba kharij farmai jawe). The prayer in the application was, therefore, a two-fold one--first, for recording full payment or adjustment of the amount due under the decree, and second, for dismissing the execution application after recording full satisfaction as above (be behaqi kul matalba). In other words, the application was a composite one. In so far as it prayed that the court should take note or re-cord payment or adjustment of the decree, it was an an plication under Order 21 Rule 2 Sub-rule (2), and in so far as it prayed that the execution application should be dismissed on that ground, it was an objection under Section 47 C. P. C.

6. Out of the two conditions of Order 21, Rule 2, Sub-rule 2, it obviously fulfils the first condition, namely, information to the court of such payment or adjustment. It clearly mentioned the date of the said adjustment. It mentioned the amount which had been arrived at as a result of account-ing between the parties, and also stated that the said amount had been fully paid off.

7. The only controversy in the present case is whether the second condition has been fulfilled. So far as the second requirement is concerned, there was a prayer that the payment or adjust-ment be given effect to or recorded. The only thine that is lacking in this application is that the words 'by issue of notice'' are not expressly used therein. The absence of these words in the application is made the main ground of attack on the proceedings by the learned counsel for the decree-holder. It is conceded by him that the application would have been a perfectly good one had the above words been used in the said application. The absence of these words in the said application, according to him, constitutes a serious lacuna that goes to the root of the matter, and deprives the court of any jurisdiction to act under Order 21. Rule 2, Sub-rule (2) C. P. C. According to this argument, therefore, Order 21, Rule 2, Sub-clause (2), contains a kind of magical formula, the express and verbatim repetition of which alone is a panacea for all the defects in the application. I find myself unable to accept this contention.

8. It is significant in this contention to note that Order 21, Rule 2, Sub-rule (2) merely contains the word 'apply'. This word is not qualified by any other words. No form of application is prescribed. The application may, therefore, be oral or written. It does not say that these words should be expressly stated in a written application. It may, therefore, be express or implied. If, therefore, the application is of such a nature as to be one in which notice must necessarily issue, the application to issue notice would be obviously implied in it. In the present case, the office reported that the process fee with notices and duplicate copies of the application should be filed. The Court 'ordered the issue of notices. The judgment-debtors also filed the required process-fee notices and duplicates. The notices were actually issued. They were served on the decree-holder along with the duplicates of the application. The decree-holder, therefore, had full notice of the entire contents of this application. I am, therefore, of opinion that there way a substantial compliance with Order 21, Rule 2 (2).

8. The objection on behalf of the decree-holder appears to me to be merely a technical one. Supposing both the decree-holder as well as the judgment-debtor are present in Court, and the judgment-debtor presents an application under Order 21, Rule 2(2) and gives a copy of it in court to the decree-holder who gets full notice of it, even then, according to the argument of the learned counsel, the court would have no jurisdiction to proceed with the application, if the application itself did not contain the words that the court should issue a notice to the decree-holder. In the present case, it is to be noted that the plea of payment or adjustment was taken in reply to the exe-cution application of the decree-holder. These proceedings were initiated by the decree-holder, and were going on at his instance. He should, therefore, be deemed to have notice of the proceedings that were going on in his case. But apart from this aspect of the matter, a duplicate of this application was actually served upon him, and he can, therefore, make no grievance on this score.

10. Further, Order 21, Rule 2(2) does not say that in the absence of such express statement, the party failing to state it must be penalised by his application being dismissed. The words in question lay down only a rule of procedure, and the end of all procedure is to facilitate justice and not to defeat it. If in spite of the non-observance of a rule of procedure, the end is attained, then the irregularity should be condoned. In construing a provision which is a procedural one, the above cardinal rule of construction must be borne in mind. As observed by their Lordships of the Supreme Court in Sangram Singh v. Election Tribunal, Kotah : [1955]2SCR1 :

'Now a code of procedure must be regarded as such. It is 'procedure', something designed to facilitate justice and further its ends; not a penal enactment for punishment and penalties; not a thing designed to trip people up. Too technical a construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against (provided always that justice is done to 'both' sides) lest the very means designed for the furtherance of justice be used to frustrate it.'

11. Reference in this connection might also be made to Bengal Immunity Co. v. State of Bihar : [1955]2SCR603 of the judgment, their Lordships held that in construing the statutes, one of the chief matters that they should take into consideration is:

'The true reason of the remedy; and then the office of all the Judges is always to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle invention and evasions for continuance of the mischief, and pro private commodo, and to add force and life to the cure & remedy, according to the true intent of the makers of the Act, pro bono publico'.

12. So far as Order 21, Rule 2, is concerned, as observed in Chandi Charan v. Panchanan AIR 1930 Pat 526 (C).

'the object of Order 21, Rule 2, is to prevent execution proceedings from being unduly prolonged by the judgment-debtor setting up old payments. Sub-Rule (2) enables the judgment-debtor, by applying within the prescribed period of limitation, to ensure, that his payments out of Court are taken into account in those proceedings.' (527).

Thus the object of Sub-Rule (2) is fulfilled if application itself is made within 90 days and the decree-holder does actually get notice of the application. Viewing the matter in the light of the above rulings of the Supreme Court, I am of opinion that there was substantial compliance with the provisions of law in the present case.

13. Even if it be held for a moment that there was anv irregularity, and that it is necessary for the applicant to expressly mention these words in the application, I am of opinion that the defect is capable of being condoned and the application itself cannot be dismissed merely on the ground that it did not contain in it any express words regarding the issue of notice. The learned counsel for the decree-holder was unable to cite a single authority in support of the proposition which he strenuously advanced before us. On the other hand the entire current of authorities in India is against him. So far as the Allahabad High Court is concerned, the matter has been clearly decided against this contention of the learned counsel in more cases than one. Reference in this connection might be made to Khushal Singh v. Midai Lal 1881 All WN 168 (D) in which referring to Section 258 which was the section corresponding to Order 21, Rule 2 in the old Code, the following significant observations were made:

'.....It would lead to a failure of justice to refuse to give effect to the application under Section 258 and to recognise the payment, merely because the application did not, in express words, ask that notice to the respondent should issue, and a formal notice had not been served. The lower appellate Court must determine on the merit whether the payment has been made, and is therefore fit to be recorded as certified and to be recognised, and whether the decree has been satisfied.' (p. 168, Clause 2).

In this case even the service of formal notice was held to be condoned if the object of the law is fulfilled.

14. To the same effect is a Bench decision of the Allahabad High Court reported in Kishan Prasad v. Beni Ram ILR 24 All 85 (E). The position in this case was analogous to the present one as the plea of satisfaction was taken in the form of objection to the application for execution as in the present case. The plea was taken in the objection petition within ninety days as also in the present case. No prayer, for issue of notice was made, yet in spite of it, the notice was actually served as in the present case. In this situation the observations made by the learned Judges are strictly pertinent to the present case. Referring to the action of the judgment-debtors, they held as follows:

'They had 90 days within which to inform the Court of the tender having been made. They filed a petition well within that time in answer to the appellant's application, for execution. In it they stated what had taken place, and asked that the application for execution might be rejected. It is true that they did not ask for the issue of a notice to the appellants as required by the section, but, in fact, notice was served upon the appellants' pleader.' (pp. 89 and 90).

On the above facts, the learned Judges were of opinion that the Judgment-debtors were entitled to an enquiry into the matter under Order 21, Rule 2(2), and their application could not be dismissed on the ground of want of a formal prayer relating to the issue of a notice. I am in full agreement with the view taken in the above two cases. This is the main point urged by the learned counsel for the respondent; and if it fails, then the entire foundation of the argument advanced on behalf of the respondent disappears. Other points are of a merely minor nature and revolve round this central argument. They are also concluded by authorities against him.

15. The next contention of the learned counsel for the respondent was that the present appli- cation was merely an objection to the execution application under Section 47, C. P. C. Being merely an objection to an execution application, it cannot be treated as an application under Order 21, Rule 2, C. P. C. The implication behind this argument is that unless there is a separate application under Order 21, Rule 2 (2), an objection to an execution application cannot be treated as an application under Order 21, Rule 2(2). I am unable to accept this contention as well. I am of opinion that if the contents of the applicaion make out a double prayer, there can be a composite application combining both the two prayers in one application. It is now too late in the day to argue that the two prayers cannot be made in one application, and that there should be a separate application under Order 21, Rule 2(2). On this point also, the learned counsel for the respondent was unable to cite a single authority in his favour. On the other hand, the entire current of authorities in India is against him, I have already referred to the two cases of the Allahabad High Court on this point above. The cases of the other High Courts are also to the same effect.

16. In AIR 1930 Pat 526 (C) it was held that: 'Where the decree-holder flies an application for execution and the judgment-debtor opposes him on the ground of a payment made less than 90 days previously, but not yet got certified, it is not only open to the Court but also incumbent upon it to treat the judgment-debtor's petition of objection as, an application under Sub-rule 2 so that the bar under Sub-rule 3 cannot come into operation.' (head note).

17. Similarly in Kalyanji Dhana v Dharamsi Dhana and Co. AIR 1935 Bom 303 (P) it was heldthat:

'Where the defendant, in reply to an execution application, alleges an adjustment within ninety days of the alleged adjustment, that infor- mation given to the Court in a written statement put in by defendant in answer to an application for execution may be regarded as a sufficient compliance with the terms of Order 21, Rule 2(2). And such an application for recording adjustment can be entertained by the executing Court.' (head note).

18. In Maung Tin v. Ma Mi AIR 1928 Rang 62 (G) it was held that:

'Sub-Rules (2) and (3) of Rule 2, Order 21 should be read together and so long as the judgment-debtor applies under Sub-rule (2) within the time allowed for him to do so he has the right to his application being heard. Technically perhaps the correct procedure would be for the judgment-debtor 'to make an application to the Court under Sub-rule (2) and then to file a separate application in the execution proceedings asking that they may be stayed until his other application has been heard. If he did that, it is impossible for any Court to refuse to inquire into the alleged adjustment. To allow his right to such an inquiry to be defeated by reason of a trivial irregularity of procedure would obviously be unjust and would lead to an abuse of the process of the Court.'

19. The case might have been different if the judgment-debtor's application had been beyond 90 days, because in that case the application itself would not be maintainable. In the present case it is to be noted that the application is within 90 days of the adjustment and is, therefore, not barred bv limitation. Reference in this connection might also be made to A. Budrudeen v. Gulam Moideen ILR 36 Mad 357 (H), a Bench decision of the Madras High Court, in which it was held that where a decree-holder gives an application for execution & in answer to that application, an adjustment is set up by the judgment-debtor in his counter-petition, that counter-petition may be treated as an application to certify, if it is made within 90 days, but not if it is made beyond the period of 90 days. As already observed, the application in the present case was made within 90 days.

20. That the provisions of Order 21, Rule 2, C. P. C. should not be construed technically would also be borne out by a Bench decision of the Madras High Court reported in Kandaswami v. Narasimha Aiyar : AIR1952Mad582 in which an application by a judgment-debtor under Order 21, Rule 90, C. P. C. was construed to be an application for recording adjustment of the decrees, which can be looked into and satisfaction recorded if the same was made within the time allowed by law. In this case reliance was placed on the previous decision of the Madras High Court reported in ILR 36 Mad 357 (H) mentioned above.

21. The law on the point has been summarised by Mulla in his well-known commentary of the Code of Civil Procedure Vol. II, (12th Edition) at page 757 in the following words :

'The law allows the judgment-debtor 90 days to apply to have the payment or adjustment certified (Limitation Act, Sch. 1, Article 174). If he does not make the application, and the decree-holder applies for execution within that period, he may in answer to the application for execution, apply to have the payment or adjustment certified, but this must be within 90 days. And it has been held that objections filed by a judgment-debtor to the decree-holder's application for execution may be treated as an application to certify the payment or adjustment, provided the objections are filed within 90 days of the adjustment.'

22. The above statement of law, supported as it is by a large number of authorities mentioned above, clearly indicates that Order 21, Rule 2 (2) is not to be technically construed.

23. In Ganga Dihal Rai y. Ram Oudh : AIR1929All79 , Sulaiman Ag. C. J. held that:

'An application by the judgment-debtor praying for an adjustment to be recorded need not be a document separate from the objections filed by him on the ground of such adjustment.'

24. In Abid Husain v. Kunj Behari Lal : AIR1939All581 , it was held that :

'An application by the judgment-debtor praying for an adjustment to be recorded need not be a document separate from the objections filed by him on the ground of such adjustment.''

25. The above authorities make it amply clear that Order 21, Rule 2, C. P. C. is not to be construed technically, and, where there has been a substantial compliance with law, an application the contents of which give facts which bring the case within the purview of Order 21, Rule 2, should be entertained under th'at section, even though there is no express prayer for issue of notice, and even though the application is a composite application being made in the form of an objection to the execution application made by the decree-holder, provided that the said application is made within a period of 90 days.

26. Learned counsel for the respondent also contended that in the present case the notice served was a general one and the particular form of notice which is prescribed by Order 48, Rule 3 and is contained in Appendix E was not served on him. I fail to see how the use of a wrong form would vitiate the application, if the application itself was maintainable in law. Further, the learned counsel was unable to point out any prejudice which accrued as a result of it. It is admitted that with the notice that was served on him, a duplicate copy of the application itself was served, and he was called upon to show cause against the objection relating to adjustment contained in the application. He was therefore, fully apprised of the facts contained in the application, and he was asked to show cause against them. He cannot, therefore, make any grievance on the score that he did not know that ha was called upon to meet the question of payment or adjustment which was Bet up in the application. If the application itself was served along with the notice, then the form of notice is quite immaterial. In (1881) AWN 168 (E) mentioned above, the defect of service of formal notice was not considered to be a material one.

27. It was next argued on behalf of the respondent that the application of the judgment-debtors did not contain a prayer that the payment or adjustment be certified. It may be noted that. the judgment-debtors had in their application stated that the ground of their giving the application was that the decree-holder had promised that he would have the payment certified. (Adaigi ki tasdiq Karadunga), and that, in spite of the said promise of certification, the decree-holder had dishonestly refrained from having it certified (harah had niati uski tasdiq nahin karai). The failure of the decree-holder to take certification proceedings was the ground of his objection. Under the circumstances, a prayer for certification who clearly implied. Moreover, so far as the matter of certification is concerned, it is the duty of the Court to do it, if, on the facts stated in the application, he is found entitled to it.

A mere statement by the judgment-debtor that the payment be certified would not entitle him to certification, nor the absence of such statement deprive him of the right of such certification, if on the facts proved or alleged he is found entitled to have certification. Further, Sub-rule 3 of Order 21, Rule 2 lavs down that the adjustment shall not be recognised, if it is not 'certified or recorded'', and not certified and recorded. Learned counsel also made a grievance of the fact that it was only at the stage of the argument that a prayer was made to the Court to treat the application as an application under Order 21, Rule 2.

The well-known rule of pleadings is that parties are required to plead facts only and not law. If the judgment-debtor has applied within 90 days and his application is found to be maintainable under Order 21, Rule 2 (2) and he is able to prove his plea of payment or adjustment, then under law he becomes entitled to the remedy provided under Order 21, Rule 2.

28. Learned counsel for the respondent also argued that once an application for execution is made, the court cannot stay it, until an order of certification is produced. I am of opinion that this is a matter of discretion for the court, which would not affect the present case one way or the other. If. however, the question were to arise, I would hold that in the interests of justice and for the sake of convenience and in order to avoid further complications, where an application for execution is given, and a plea of payment or adjustment under Order 21, Rule 2 taken within the period of 90 days, it would be better for the court to stay proceedings for execution, until the question of payment or adjustment is disposed of.

In execution proceedings, the court cannot shut its eyes to a plea of payment or adjustment, and blindly go on enforcing execution proceedings regardless of the said plea. A stay is desirable because if the judgment-debtor finally succeeds in proving his plea of payment or adjustment, then the entire execution proceedings which have gone on would become futile and infructuous.

29. The observations made by the learned Judges in ILR 24 All 85 (E), would support this view. In that case it was observed that if with the objection petition an application for adjustment is filed, then:

'it would obviously have been the duty of the Court to decide, first, whether a valid tender had been made. A finding in the affirmative wouldhave been equivalent for the purpose of this caseto recording a payment as certified. The Courtwould then have taken up the application forexecution, and would have been bound to rejectit in pursuance of its finding that a valid tender,equivalent to payment, had been made. In thepresent case there was only one proceeding, butthis can make no difference.'

In that case also the plea of payment or adjustment was taken in the objection application as inthe present case, and the court held that first theplea of adjustment should be decided, and thenthe question of execution should be taken up. Theargument of the learned counsel overlooks thefact that the proceeding under Order 21, Rule 2 is apart of the execution proceedings and is ancillaryto the proceeding under Section 47.

30. TO the same effect are the observations in a case reported in Sheolal v. Bharat Swami Gross Co. 1952 Nag LJ Notes 78 p. 29 (L) summarised in the Indian Digest-1952 at page 422, point 2508. In this case it was held that where the decree-holder takes out execution and the judgment-debtor makes an application under Order 21, Rule 2, the court should stay execution proceedings and first enquire into the application under Order 21, Rule 2 before ordering attachment in execution of the decree C. Rule No. 533 of 1951, D/- 11-1-1952 (Nag) (L).

31. In the present case, the court could not dismiss the judgment-debtors' application on the ground that the payment has not been certified because the application itself was not an application for certification. What the lower court should have done was to treat the application dated the 22nd September 1953, itself as an application for certification. If that application is treated as an application for certification, it was obviously illegal for the executing court to dismiss the application on the ground that the payment was not certified. The real question in the case is whether the application of the 22nd September, 1953, can itself be treated as an application for certification.

If it is treated as an application for certification, then the lower court should have gone on to enquire into the merits of the application and staved the proceedings for execution pending the disposal of the certification application. This was so held in ILR 24 All 85 (E) and 1952 Nag LJ (Notes) 78 p 29 (L) referred to above. Moreover, mere non-certification is not enough to justify refusal to recognise the payment. As pointed out above, the words used in Order 21, Rule 2 (3) are 'certified or recorded' and not 'certified and recorded'. The lower court should, therefore, in any case, have gone on to enquire into the question whether the payment should be recorded.

32. Learned counsel for the respondent has strongly relied on three decisions. They are reported in Fatimunnissa v. Asghar Husain AIR 1928 Oudh 195 (FB) (M), Murari Lal v. Raghubir Saran : AIR1934All209 and Prank Coowbs v. Mufassil Bank Ltd. : AIR1929All674 . In all these cases it was held that a court executing a particular decree is barred by the provisions of Sub-rule (3). Rule 2, Order 21, from trying the question of the satisfaction or adjustment of the decree when an application to that effect has not been made to the Court within the period of limitation, i. e. within 90 days.

In my opinion, the proposition of law laid down in these cases is correct, but it has no relevancy to the present case. In the present case, the application was made within 90 days and the question is whether it can be treated as an application for recording adjustment under Order 21, Rule 2.

Where the application is made after 90 days, it is on the face of it not maintainable and cannot be entertained. The question in the present case is different viz. whether an application given within a Deriod of 90 days can be thrown out merely on the ground that it does not contain the words 'by issue of notice' although notice of it is actually served on the decree-holder.

33. Lastly, the learned counsel argued that as the notices in the present case were issued beyond 90 days, therefore the application is barred by limitation. This argument seems to ignore the words of the Limitation Act according to which the period of 90 days is to be counted from the date of the application and not from the date of the actual issue of notice. The date of actual issue of notice might be delayed for several reasons, but that will not be a bar if the application itself is given within 90 days. In the present case, the application itself was given within 90 days. For the above reasons I am of opinion that the application of the judgment-debtors should not have been thrown out on the preliminary ground that it is not maintainable as an application under Order 21, Rule 2 (2), and the plea of payment or adjustment should have been enquired into by the executing court on merits.

34. I would, therefore, set aside the judgment of the court below, allow the appeal with costs, and remand the case to the execution court for decision of the application on merits. DESAI J. :

35. This is an appeal by the judgment-debtors whose objection under Section 47 C. P. C. against execution of a decree obtained against them by the respondent has been dismissed by the courts below.

36. On 22-9-1953 the appellants objected to the execution of the decree under Section 47 C. P. C. alleging that on 24-6-1953 accounts had been settled between them and the respondent, that the amount of Rs. 2,500/- found due from them had been paid by them to the respondent in full satisfaction of the decree and that consequently it was not executable, that the respondent had promised to get the payments certified under Order XXI Rule 2 (1) C. P. C., on the court's reopening after the vacation and get the execution case dismissed, that he turned dishonest and did not get the payments certified and proceeded with the execution, and that they learnt of his dislionesty when a proclamation for sale of their property that had been attached was issued. The only prayer made by them in the objection was that the respondent's application for execution be dismissed as fully satisfied (hababaqu). On the objection the office reported that it was not accompanied by a copy of it. a notice to be served upon the respondent and the process-fee. It seems that the appellants removed the defects and the office reported on 26-9-1353 that they had filed a copy of the objection, a notice etc. Then a notice of the objection was ordered to be issued to the respondent on 28-9-1953. The notice, that was filed by the appellants, and was actually issued by the office to the respondent, was a general notice calling upon them to show cause against the objection. The respondent appeared in court and contended that the executing court could not recognise the alleged payment made out of court because it had not been certified and that the receipt, which the appellants relied upon in support of their plea of payment out of court, was forged.

During the argument it was pressed upon the executing court on behalf of the appellants that the objection might be treated as an application under Order XXI, Rule 2 (2) for certification of the payment but by then more than 90 days had elapsed since the alleged payment and the excuting court refused to treat it as such an application. It is a fact that the payment said to have been made out of court has not been certified by even now. The executing court refused to receive any evidence about the alleged payment and dismissed the objection. Its order has been upheld by the lower appellate court.

37. Under Order XXI, Rule 2 when any money payable under a decree is paid out of court the decree-holder must certify such payment to the court whose duty it is to execute the decree and the court must record it. It is laid down in Sub-rule(2) that;

'The judgment-debtor also may inform the Court of such payment .....and apply tothe Court to issue a notice to the decree-holder to show cause ..... why such payment.....should not be recorded as certified; andif after service of such notice, the decree-holder fails to show cause.....,the Court shall record the same accordingly.'

Sub-rule (3) is as follows :

'A payment . . . . .which has not been certified or recorded as aforesaid, shall not be recognised bv any Court executing the decree.'

The payment set up by the appellants has not yet been certified and the courts below were bound not to recognise the payment. When they proceeded to execute the dacree they have done only what they were required to do by law. Even if an application for certification had been pending, they were not bound to stay execution so long as it was pending. In the absence of a certification they could not possibly recognise it and refuse to execute the decree on the ground that it had been satisfied. An executing court can go on executing a decree in spite of the pendency of an application for certification because unless it is granted and the payments certified it is of no effect.

38. Under Rule 2 (2) it is not enough for a judgment-debtor to inform the executing court; he is also required to apply to it to issue a notice to the decree-holder to show cause. What the appellants have done in the present case is simply to inform the court below of the payment; they have not applied to it to issue a notice to the respondent to show cause why it should not be certified. They alleged dishonesty on the part of the respondent by not certifying the payment but themselves did not make any request to the court to issue a notice to the respondent to show cause why it should not be certified.

They did not refer to Order XXI Rule 2(2) at all in their objection; they expressly filed it under Section 47. Any objection by a judgment-debtor to execution of the decree on the ground that the decree had been satisfied by payment out of court is undoubtedly an objection to be decided by the executing court under Section 47. It may dismiss the objection on the ground that the payment has not been certified but it does not follow that it is not an objection under Section 47. Not only did the appellants not apply to the executing court for issue of a notice, but also no notice'has ever been issued, to the respondent asking him to show cause why the payment should not be certified.

There is a prescribed form for the issue of a notice contemplated by Rule 2 (2); this form must be used when such a notice is to be issued but it was not used in the present case. What the respondent was asked to show cause against was the objection of the appellants that the execution case should be dismissed on the ground that the decree had been fully satisfied. This is no kind of notice required to be issued under Rule 2 (2). When the respondent appeared in court he did not go to meet any request for certification; he went there only to meet the objection that the execution case couid not go on.

The only possible reply he could give was the reply stated in Rule 2 (3) itself; a payment not certified or recorded 'shall not be recognised by any court executing the decree.' The objection of the appellants was deemed to fail on the ground that the payment had not been recognised by any court executing the decree and this was the only reply that the respondent could give when he went to the court in response to the notice, and it was a sufficient reply.

39. The meaning of Rule 2 (3) is that no en-quiry into the fact of the payment can be made at all: the executing court is divested of jurisdiction to receive any evidence about the payment. The only evidence of payment that it can receive is the certification; any other evidence is barred. See AIR 1928 Oudh 195 (M) and : AIR1934All209 . In the former case Stuart C. J. at page 198 observed :

'A Court executing the decree is not permitted to go into the question as to whether a payment or adjustment, which has not been recorded according to the provisions of this rule, has been made or not.'

40. It was contended that the objection that was filed by the appellants before the expiry of 90 days from the date of the alleged payment, should have been treated as an application for certification by the executing court. The period of limitation prescribed under Art. 174 Limitation Act for an application by a judgment-debtor under Rule 2 (2) is 90 days. Merely because the appellants filed some application within 90 days, it could not be treated as an application contemplated by Rule 2(2). If a law requires a particular application to be filed, within a certain time, it is certainly not the law that any application made for any other purpose and seeking any other relief should be deemed to be that application.

Merely giving an application or merely giving an information and seeking another relief cannot be treated a compliance with the law. The very object behind the bar imposed by Rule 2(3) is that the executing court shall not make any enquiry into a Payment not certified. What is required under the law is not that the judgment-debtor should make some kind of application; a particular kind of application requiring the court to issue a certain notice to the decree-holder is required under Sub-rule (2). An executing court cannot try a question of payment, expressly prohibited by sub-rule (3) simply because it could have tried it if an application had been made by the judgment-debtor as contemplated by Sub-rule (2). If the objection has been made by the respondent more than 90 days from the date Of the alleged payment it could not have been treated as an application for certification: I do not see any logic in holding that if it is made within 90 days it must be or even can be treated as an application for certification.

Whether it is an application for certification or for another purpose does not depend upon the time when it is made; it depends upon its contents. I do not understand why a judgment-debtor should call upon an executing court to treat his objection as an application for certification when it is in his own hands to make such an application. If he does not make an application for certification but simply objects to the execution on the ground of payment the law clearly comes in his way and the executing court is debarred from recognizing his plea of payment. The bar imposed by Sub-rule (3) does not 'come into operation only when 90 days have elapsed since the alleged payment; it comes into operation regardless of the time of the alleged payment.

41. It was stated in AIR 1930 Patna 526 (C) that where a judgment debtor contests an application for execution on the ground of payment made less than 90 days previously, it would be permissible to treat the objection as an applica, tion under Order 21 Rule 2(2) and reliance was placed upon certain observations made in Radhakant Lal v. Mst. Parbati Kuer, AIR 1921 Pat 135 (P) and Mehbunnissa Begum v. Mahedunissa Begum AIR 1925 Bom 309 (FB) (Q). in Radhakant Lal v. Mst. Parbati Kuer (P), Jwala Pd. J. relied upon certain observations made by Heaton J. in Hansa Godhaji v. Bhawa Jogaji, ILR 40 Bom 333: (AIR 1916 Bom 217) (R). But the decision in Hansa Godhaji v. Bhawa Jogaji's case (R) was overruled in Meh-bunnissan's case (Q). The basis of the decision in Hansa Godhanji's ease (R) was that when a decree-holder does not certify payment and proceeds to execute the decree ignoring it, he acts fraudulently as against the judgment-debtor and the court and that court would be chary of allowing him to take advantage of the fraudulent execution. The fallacy in the reasoning lies in the court's assuming the very fact that has been taken out of its cognizance.

An execution court is prohibited from taking any notice of a plea of payment and without flouting the legislature, it cannot proceed on the assumption that the payment has been made and the decree-holder is acting fraudulently in executing the decree. Assuming that the alleged payment was made and acting upon the assumption is nothing but recognising it, and recognising it without certification--an act the court is in clearest terms forbidden to do. Further whether the payment was made or not is the very question to be determined by the court; if it is found to have been made there is an end to the execution case which must he struck off. If the payment is assumed I do not understand what remains in the case, and where is the necessity of treating the objection to the execution as an application for certification and of certifying the payment.

Certifying the payment is not the end; it is the means of proving the payment. What is to be borne in mind is that the certification must precede, and form the basis of the Court's finding that the payment was made; without the certification, it must, and it has no choice, ignore the allegation of payment. I say 'must' because if it wants to administer the law as it finds it, and not as it would like it to be it cannot entertain the plea of payment, enquire into it and give effect to its finding. In Chandi Charan's case (C) the learned Judge observed at page 527 :

'On what principle can it be held that even if such a payment is believed, the execution must still be allowed to continue because the judgment-debtor did not in so many words apply for the issue of a notice under Sub-rule (2) ?''

The very assumption that the payment can be believed is without foundation because any enquiry into payment is barred and there arises no question of receiving any evidence of payment and believing it. In that case the decree-holder had received some payment from the judgment-debtor but he concealed it and applied for execution of the entire decree and so his conduct was held to be fraudulent. In the present case the respondent did not conceal any payment in his execution application ; his alleged failure to apply for certification under Sub-rule (2) cannot be said to be a fraudulent conduct. In P.R.P.L. Chetty Firm v. G. Lon Pow AIR 1923 Rang. 103 (S) it was observed at page 106 that it is open to the executing court to oppose fraud so far as it can do so within the law, and where an application for execution is opposed on the ground payment, the court may rightly treat the objection as an application to the Court to certify the alleged payment provided the objection is taken within ninety days.

42. This observation was an obiter dictum. The legislature has laid down what kind of an application should be made by a judgment-debtor under Rule 2(2) and it is not open to any court to say that an application which does not come within the scope of that rule shall be deemed to be such an application. When a certain act required to be done and another act is deemed to be that act, the legislature itself provides so; a court cannot treat one act as another act because that is the legislature's function. To say that an application which is not an application for certification is suchi an application is to usurp the role of legislature & amend Rule 2 (2). An executing court must not circumvent the provisions of Rule 2 by treating any objection or any application made by a judgment-debtor as an application under it. If there is a prayer for certification then whatever may be its form it may be treated as an application but when there is no prayer whatsoever for certification and when a prayer is required in addition to information, mere information cannot be treated as an application.

The plain meaning of Rule 2 (3) is that if execution of a decree is contested on the plea of payment, the Court must ignore the plea unless it is supported by a certificate. Here the execution is objected to on the ground of payment, and the courts below have ignored the plea, because it is not supported by a certificate, and are proceeding with the execution. Not only are they right but any other action by them would be illegal. If every objection to execution on the ground of payment were treated as an application under Rule 2 (2) there would be no sense in Rule 2 (3). To me it seems absurd to contend that a prayer to a court to recognise a payment should be treated as an application for certification.

Even if an executing court may treat an objection as an application under Rule 2 (2) it cannot be argued that it is bound to do so and if it refuses in its discretion, to treat a certain objection as an application it cannot be said to have acted wrongly or illegally. If the matter is at its discretion no appeal would succeed against the exercise of it unless it is found to have exercised it arbitrarily or erroneously. Even if the objection were treated as an application still so long as there has been no certification the court cannot strike out the case, and does not act illegally, or even improperly, in going on with the execution. An execution case would be dismissed only when thg decree is satisfied; it cannot be dismissed merely on the ground that an application for certification is pending.

43. In : AIR1929All79 and : AIR1939All581 . it was stated by this Court that it is not essential that an application for certification and an objection against execution under Section 47 C. P. C. should be two different documents. There is certainly no bar to a judgment-debtor's applying for certification, in the objection which he makes under Section 47 against the execution; but it does not follow that a plain objection under Section 47 asainsts the execution should be deemed to contain a prayer for certification. If it contains a prayer for certification the Court will go into the question of the payment and decide whether it should be certified or not; but If it does not contain any prayer it is not required under the authority of the two cases to treat it as an application for certification.

In the case of Ganga Dihal Rai (J) there wasan express prayer for certification under Rule 2 (2)in the objection. The cases of : AIR1952Mad582 and Pattu Kumari v. Nirmal Kumar : AIR1939Cal569 relied upon by the appellants are irrelevant and do not support the contention that aplain objection under Section 47 may be treated as anapplication for certification. Kandaswami v. Nara-simha Aiyar (I) was not a case of payment of decretal amount and there was no question of certification; the only question decided in the case ofPattu Kumari v. Nirmai Kumar Singh (T) waswhether a certain transaction amounted to adjustment of the decree.

44. In the case of Mehbunnissa Begum v. Mehmedunnissa Begum (Q) Macleod C. J. stated at page 309 :

'The words in Order 21, Rule 2 (3), are too plain to admit of any other construction than that the Court executing a decree is barred in limine from considering any allegation that a payment not certified has been made. The party alleging such a payment may have a remedy, but not before the Court executing the decree.'

Shah J., observed on the same page:

'The wording of Sub-rule (3) is quite clear and admits of no escape therefrom on such general considerations as have been referred by Hea-ton J. . . . . .in. Hansa v. Bhawa (R). Suchconsiderations may afford a sufficient ground to modify the provisions of Sub-rule (3) or to repeat Art. 174 of the Indian Limitation Act, so as to make it permissible to the judgment-debtor to apply at any time to have the payment recorded. But they cannot afford any sufficient ground for refusing to give effect to the plain and unambiguous words of the sub-rule in question.'

In the case of P. R. P. L. Chetty (S), Robinson C. J. and Macgregor J., observed at page 105 that:

'The provisions of Sub-rule (3) are not to be rendered nugatory by the application of the general provisions of Section 47 C. P. C.'

At page 106 they observed that :--

'It is not for a Court of Justice to refuse to observe the provision because hardship may result in consequence. The Court has merely to interpret and apply the law as laid down by the Legislature, and we should not be doing our duty if we acted otherwise .....'

A Court's duty is to act within the law and it has no power to do justice according to its own whims. If a Court finds a certain law unjust or harsh it is not open to it to ignore it in the supposed interests of justice. It is for the. legislature to lay down how justice is to be done raid the Court's duty is to do it according to its dictates. An executing court cannot take into consideration an alleged payment in the absence of a certification merely on the ground that it is unjust to do so, when the legislature has required it to ignore it.

In : AIR1929All674 Sen. J stated at page 675, with reference to Rule 2 (3) that it is very clear and however undesirable consequence may be in individual cases it has to be given effect to. He dealt with a case in which an application was made by a judgment-debtor to an executing court informing it of some payment made outside the court and depositing the balance and he held that it could not be treated as an application under Rule 2 (2). He also relied upon the fact that no notice had been issued to the decree-holder to show cause.

45. Really there arises no question of any hardship to the judgment-debtor from Rule 3 (3), if the execution is allowed on the ground that the payment had not been certified it is open to him to recover the excess amount from the decree-holder through a suit; see : AIR1934All209 .

46. The courts below rightly proceeded to execute the decree and I would dismiss the appeal with costs. I would also dismiss the appellant's application to implead the auction-purchaser. He was not a party in the courts below; he has only purchased the property in execution. Merely by purchasing property he does not become a party to the proceedings and it is not necessary to implead him as a respondent in this appeal.

BY THE COURT.

47. Since we disagree on the following question, we order the case to be laid before the Hon'-ble the Chief Justice for obtaining a third Judge's opinion on it. 'Is the order of the executing court dated 5-12-1953 correct in law

On a difference of opinion between Beg and Desai JJ., the case was referred to Mukerji J., who delivered the following.'

OPINION

48. This appeal is by a judgment-debtor arising out of execution proceedings in respect of a decree for arrears of rent obtained by the decree-holder on the nth of December, 1952. Execution in respect of the decree was initiated on either the 26th or 27th March, 1953, and the prayer in the execution application was apparently to sell a 'house belonging to the judgment-debtors which had been under attachment by an earlier order. On the 22nd of September, 1953, the judgment-debtors filed certain objections to the execution.

These objections were headed as objectionsunder Section 47 of the Code of Civil Procedure. Inthese objections the judgment-debtors assertedthat the entire decretal amount had been paid upand, therefore, the decree was unexecutable. Onbehalf of the decree-holder it was contended, first,that there had in fact been no payment, and se- condly, that under the law the executing court was precluded from taking into account the pay- ment or adjustment pleaded by the judgment-debtors because such payment or adjustment hadnot been certified in accordance with the provisions contained in Order 21, Rule 2 of the Code of Civil Procedure.

It may be mentioned that there was 'in form no application on behalf of the judgment-debtors as contemplated by p. 21, Rule 2 (2). The judgment- debtor's contention in answer to the decree-holder's contention was that since the objections which they had filed on the 22nd of September, 1953, were in substantial compliance of Rule 2 of Order 21,the executing court was competent to go into the question and decide the matter by taking into account the alleged payment or adjustment.

49. The appeal originally came up for hearing before Mr. Justice V. D. Bhargava who referred the case for decision to a Bench. The appealthereafter came up before a Bench consisting ofMr. Justice Desai and Mr. Justice Beg. There wasa difference of opinion between the two learnedJudges and they have, therefore, referred theundermentioned' question for the opinion of athird Judge and this case has been set down before me for such an opinion.

50. The question which the Bench has refer- red is in these words :--

'Is the order of the executing court dated the 5th December, 1953, correct in law?''

It may now be stated that the executing court dismissed the objections holding that the payment set up by the Judgment-debtors could not be recognised in execution since the payment had not been certified in accordance with the provisions of Order 21, Rule 2 (2) C. P. C. An appeal was preferred from the order of the executing court, which was the court of the Munsif of Rampur, to the District Judge of that place. The learned District Judge dismissed the appeal agreeing with the trial court that the payment or adjustment pleaded by the executing court inasmuch as the same had not been certified in accordance with Order 21, Rule 2 (2) C. P. C.

51. Mr. Justice Desai agreed with the view taken by the courts below and was of the opinion that the 'objections' which had been preferred by the judgment-debtors on the 22nd of September, 1953, and which objections were headed as objections under Section 47 of the Code or Civil Procedure, could not be treated as an application under Rule 2 (2) of Order 21, and, therefore, there could be no recognition by the executing court of the payment by virtue of the provisions of Order 21, Rule 2 (3) of the Code of Civil Procedure.

52. Mr. Justice Beg, on the other hand, held the view that the 'objections' which had been preferred by the judgment-debtors could be read to contain a prayer for certification and that the executing court could, therefore, give effect to the plea of payment raised by the judgment-debtors by recording certification of the payment.

53. The question that has been referred for opinion is very widely worded, indeed it is so widely worded, I say so with great respect, as to cover the decision in respect of the entire controversy. In a second appeal the decision of a court below can only be assailed if the decision is contrary to law or to some usage having the force of law or if the decision failed to determine some material issue of law or usage having the force of law, or if there was a substantial error or defect in the procedure. In the instant case apparently all that could be contended was that there was an error of law inasmuch as the order of the learned Munsif, which order was affirmed by the Judge below in appeal, was contrary to law.

54. In order to determine whether the order of 5-12-1953, was 'correct in law' or not, the following questions, to my mind, have first to be determined:

(1) Whether a judgment-debtor's plea of payment which has not been certified previously under Order 21. Rule 2 C. P. C. can be taken into account by the executive court?

(2) Where in order to have certification within the meaning of Bule 2 of Order 21 it is necessary to make an application in terms stated by Rule 2, or is it possible that even though strict compliance has not been made of the provisions of Rule 2, certification can still be made? In order to know the true scope of the second question that I have formulated above it is, in my view, essential to bear in mind two other ancillary questions that have to be considered in connection thereof. These ancillary questions are:

(a) Whether it is incumbent on the Judgment-debtor to make a prior application for certification before he can raise the question of payment or adjustment in the objections filed by him under Section 47 C. P. C., or would it be deemed to be sufficient compliance with the requirements of law if he alleges the payment in his objections without specifically making a prayer that the payment alleged by him should first be certified?

(b) Whether the plea of payment set up by a Judgment-debtor, in whatever form the plea may be set down without an actual prayer in his objections can be taken into account by the Court and certification made by the Court, so to speak, suo motu, and then to give effect to it?

55. At the Bar a large number of authorities Were cited. An examination of those authorities indicates that there has been some conflict of judicial opinion on the questions which I have formulated earlier. Before dealing with the cases which were cited it is necessary to know the actual words of Order 21, Rule 2 of the Code of Civil Procedure, The rule is in these words :

'2 (1) Payment out of Court to Decree-holder :-- Where any money payable under a decree of any kind is paid out of Court, or the decree is otherwise adjusted in whole or in part to the satisfaction of the decree-holder, the decree holder shall certify such payment or 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 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 same accordingly.

(3) A payment or adjustment which has not been certified or recorded as aforesaid, shall not be recognised by any Court executing the decree.'

56. We are in the instant case directly concerned with the provisions of Sub-rules (2) and (3) quoted above. There can be no manner o doubt that what was set up by the judgment-debtors in their objections filed on the 22nd of September, 1953, was a payment: it is also obvious that this payment, which was set up, had not been certified in accordance with the provisions of Sub-rule (2) in so far as the judgment-debtors had not informed the Court of that payment earlier, nor had they applied to the Court for the issue of a notice to the decree-holder to show cause why such payment or adjustment should not be recorded as certified, nor in fact had such payment been recorded as certified by the Court. A period of limitation has been prescribed under Article 174 of the Indian Limitation Act which prescribes a period of ninety days from the date of payment for making an application lor the issue of the notice under Order 21, Rule 2 (2) C. P. C. At this stage we may notice the apparent distinction that there is .for obtaining certification of payment by a decree-holder and that by a judgment-debtor, both in regard to the manner in which the certification is to be obtained as also the period of limitation within which certification can be had. Under sub-rule (1) there is ho obligation, for a decree-holder to make an application for certification He can certify such payment or adjustment either orally or through a writing, and the Court is bound on such certification by the decree-holder to record the same.

In the case of a judgment-debtor, howeyer, certification can be had under Sub-rule (2) only on an application, and further, when the prayer in that application is 'to issue a notice to the decree-holder to show cause why such payment or adjustment should not bo recorded as certified,' the Court can record as certified the payment or the adjustment only after the decree-holder fails to show cause, not otherwise. As I have already said, Article 174 prescribes a period of ninety days for making the aforementioned application, for Article 174 is in these words :

'174 For the issue of a notice under the same Code, to show cause why any payment made out of Court of -any money payable under a decree or any adjustment of the decree should not be recorded as certified. Ninety days. When the payment or adjustment is made.'

57. This distinction, which I have pointed out, has been brought out in the Full Bench case of Vidyadhar v. Ramzan : AIR1952All715 .

58. The purpose of Rule 2 appears to be to shut out a controversy at a stage when the decree is actually being executed in regard to the payment or adjustment of such decree. If this were so, then it necessarily follows from it that the enquiry which could be entered into by a Court cbnsider-ing questions under Section 47 of the Code could not relate to the consideration of questions which in effect were in regard to payments. The matter, however, could not be said to be free from difficulty, for the words of Section 47 are these;

'All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit.....'

It could be argued that an alleged payment set up was a question which related to the satisfaction of the decree or that en adjustment may relate in certain casts to a discharge of the decree, if there was nothing else in the Code, except the words as in Section 47 then there could be little doubt that the afore-mentioned argument would be sound, but Section 47, being the general section conferring a general jurisdiction, so to speak, on the executing court in regard to matters relating to execution, has to be interpreted not necessarily on its general words but subject to what may have been provided for specifically elsewhere in the Code.

59. The two learned Judges, before whom this appeal was up for hearing earlier, differed not only on the scope of Order 21, Rule 2(2) and (3) but also on the scope of the objections which had been specifically filed by the judgment-debtors under Section 47. According to Mr. Justice Desai, the objections did not contain a prayer, even indirectly, seeking certification under Sub-rule (2), while according to Mr. Justice Beg, such a prayer could be read in the objections. The prayer contained in the objections was in these words:

'Ummeedwar ki degreedar ki darkhast ijrai bebaqi kul matalba kharij farmai jae aukharcha dilaya jae.'

Translated, it would be. It is expected that the decree-holder's application for execution be dismissed on the finding that the entire decretal amount has been paid up; costs to be awarded. In the body of the objections it was alleged that after accounting it was found that a sum of Rs. 2,533/13/-was due to the decree-holder and the said amount had been paid up on the 24-6-1953. On the allegations of the judgment-debtors in their objections, the payment set up was within ninety days of the date when the objections were filed. The objections also made pointed reference to the fact that the decree-holder had promised to have the payment certified in court and that the decree-holder did not keep his promise. The judgment-debtors, in a way. made complaint of the fact that the decree-holder had abused the trust which was placed on him by the judgment-debtors because of the decree-holder's status and position in life. The judgment-debtors further alleged that they came to know of the fact that the decree-holder had not had the payment certified in court when the sale proclamation was issued. There was, however, no request in the objections to certify the payment or even to treat the payment as certified. So that, whether a prayer in respect of certification could be read into the objections or not has to be determined on what has been stated above. To my mind, it could not legitimately be said on the words of the objection filed by them that the judgment-debtors ever intended to have a certification of the payment as contemplated by Order 21, Rule 2. What appears to have been the intention of the judgment-debtors was to contend on the facts alleged by them that the payment should be given effect to and the objections allowed in view of those payments.

60. Learned counsel for the appellants contended that the judgment-debtors should be deemed to have known that an executing court could not take into account payment that had not been certified and, therefore, it must be held that the intention of the judgment-debtors by alleging the facts in regard to payment in their objections was to obtain a certification of the payment and then have that payment recognised in execution. As I have already said, the allegations made in the objections in regard to payment could not be read to contain, even indirectly, a request for certification, if the judgment-debtors were aware of the fact that the executing court could not take into account an uncertified payment, then they must also be presumed to have the knowledge of the fact that certification could be had only in accordance with toe procedure prescribed in the Code of Civil Procedure.

61. Reliance was placed by learned counsel on the decision of AIR 1930 pat 526 (C) for the contention that if a judgment-debtor opposes a decree-holder's application for execution on the ground of a payment made within 90 days prior to the date of objections & even if such payment had not been certified by that time, then it is not only open to the Court but is incumbent upon it to treat the judgment-debtor's objection as an application un, der Sub-rule (2) of Rule 2 of Order 21, and that Sub-rule (3) could be no bar to such a prayer. This decision no doubt supports the contention put forward, but I have found it difficult, with great respect, to-agree with the view expressed therein. The learned Judges, who decided Chandi Charan Chakra-varti's case (C) appear to have decided the matter mainly on the ground that the procedure prescribed by the Code for certification was merely a matter of form and not of substance and, therefore, the form could be subordinated, for the sake of justice, to the substance of the matter. In my view, there is no question of subordinating form to substance in a case of this character. It is, in my judgment, not conducive to justice as dispensed by courts of law to ignore statutory provisions, particularly when those provisions are mandatory in their nature, for the sake of what has been called 'justice' of the matter. Courts dispense justice in accordance with the procedure laid down by law and they cannot and, in my judgment, should not invent or by-pass a procedure laid down by the legislature. It is no doubt true that there is ample judicial authority for the view that Courts can in proper circumstances mitigate the rigours of procedural law in order to give a party a relief but this principle, in my view, is obtainable for appli- cation only in cases where a party would have no other remedy to have the wrong undone or where the procedure is purely a technical procedure involving no rights acquired by any other party by virtue of non-compliance with any procedure. In the Instant case by not having the payment certified in accordance with the prescribed procedure the judgment-debtors were precluded from raising that question in execution, that is, a right had accrued to the decree-holder to have his execution proceeded with by ignoring the alleged payments. Under the law the decree-holder was entitled, before certification could be made, to an opportunity to contest the payment or to contest the right to certification on all the grounds available to him in that respect. It was pointed out in Chandi Charan Chakravarti's case (C) that a duty was cast on the decree-holder to certify the payment which was alleged to have been made by the judg-ment-debtor. The fact that the decree-holder did not so certify the payment was in the nature of a fraud practised by the decree-holder on the Court. The learned Judges took into account the fact that the court below in that case had as a matter of fact found that, the payment had been made within 90 days of the date of the objections. So they held the view that to ignore such payment simply because there was no certification in respect of it would be to do injustice to the judgment-debtor. Some stress was laid on the fact that the payment, which had been found to have been made, was made within 90 days of the objections. Therefore, there could be no bar of limitation for certification of that payment. It does not, however, appear from the facts given in the reported decision as to whether or not there was in the objections a prayer on behalf of the judgment-debtor to certify the payment. In case there was such a prayer, then the mere fact that there was no further prayer by the judgment-debtor to issue a notice to the decree-holder to show cause why the payment or adjustment should not be regarded as certified would be a matter of mere 'petty form,' particularly in view of the fact that the decree-holder was 'already there with his application for execution.' If, however, there was no prayer for certification either directly or indirectly, in the objections, then the mere presence of the decree-holder by the fact that he had initiated the execution in respect of which objections were made would not be a matter of 'petty form'' but would be a matter of substance in so far as it would mean recognising a payment, or calling upon the decree-holder, without his having had notice of the fact that the judgment-debtor wanted an alleged payment made by him certified, to show cause why a payment should not be certified, when a right had accrued to the decree-holder to have an uncertified payment unrecognised. A decree-holder cannot be presumed to be ready always to meet the case of ail alleged payment when under the law he could ignore a payment which had not been certified.

62. It may here be pointed out that Chandi Charan Chakravarti's case (C) was not followed in the case of Banarsi Lai v Borho Sahu AIR 1936 Pat 253 (V) where it was held that Order 21, Rule 2(3) is mandatory and means that if there is a question of any payment in satisfaction of the decree or adjustment of the decree which has not been certified the Court shall refuse to recognise it in execution proceedings. It was further held in the above case that Sub-clause (3) of Rule 2 of Order 21 contemplated a certification before the objection is taken to the execution on the basis of an adjustment or payment in satisfaction of the decree.

63. In Firm Surajmal Badri Das of Daulat Khan v. Firm Manbodh Bhagat Lal Chand Ram AIR 1933 Pat 204 (W) again, the view, taken in Chandi Charan Chabravarti's case (C) appears not to have been followed, for in this case it was held that Order 21, Rule 2 refers to the stage when there is no execution pending and when the judgment-debtor comes to notify to the Court an adjustment outside the court. It was held that the rule did apply when the execution case was pending. Whether the view, that the rule did not apply when execution case is pending, is the right view or not, in view of some decisions of our own High Court, it is unnecessary for me to consider. The point that I wish to make in referring to AIR 1936 Pat 253 (V) and AIR 1938 Pat 204 (W) cases is that the view expressed in Chandi Charan Chakravarti's case (C) appears not to have been consistently followed even in that Court.

64. Reliance was next placed by learned counsel for the appellants on the decision in AIR 1928 Rang 62 (G). In this case Carr J. held that Sub-rules (2) and (3) of Rule 2 of Order 21 should be read together and so long as the judgment-debtor applies under Sub-rule (2) within the time allowed for him to do so he has the right to have his application heard, even though technically the correct procedure was for the judgment-debtor to make an application to the Court under Sub-rule (2) and then to file a separate application in the execution proceedings asking that they may be stayed until his other application had been heard. This case to my mind, is not strictly applicable to the facts and circumstances before me, for in this case there was an application in terms to record satisfaction of the decree by an adjustment made on the 14-10-1926, which date was within 90 days of the application.

65. A similar view appears to have been taken by Acting Chief Justice Sulaiman in : AIR1929All79 where the learned Judge held that an application by a judgment-debtor praying for an adjustment to be recorded need not be a separate-application from the application of objections filed by him on the ground of such an adjustment, that is, it was open to a judgment-debtor to make a prayer for certification in the objections filed by him.

66. Ganga Dihal Rai's case (J) was followed by Verma, J. in : AIR1939All581 .

67. In the case of : AIR1929All674 Sen, J. held that the endorsement of payment even if appearing in the handwriting of the decree-hol- der's pleader could not fall within the purview of Order 21. R, 2 Sen J. apparently took the view that the provisions of the rule had to be strictly followed.

68. I may at this stage point out a very old case of this Court to which reference was made, namely, the case of 1881 All WN 168 (D) where-Oldfield and Broadhurst, JJ., held that the judgment-debtor's application of the 16-6-1881, whereby he not only informed the Court of a payment which had just been made in satisfaction of the decree but which was with the clear object of having the payment recorded as certified, can be recognised by the Court in the pending execution proceedings. It is not clear from the reported decision whether there was a specific prayer for certification or not; nevertheless, it is clear from the report of the decision that on the circumstances of that case such a prayer was implicit in the application. This case, therefore, has no clear-application to the case before me.

69. Reliance was further placed by learned counsel for the appellants on the case of ILR 36 Mad 357 (H) where it was held that though a judgment debtor's 'counter petition.' could be treated as an application to certify, yet the same could not be so treated in the absence of any fraud if the same was beyond 90 days of the adjustment. The aforesaid observation of the learned Judges was, to my mind, in the nature of an obiter. In the above case, however, the learned Judges did hold that under Section 258 C. P. C. (Act XIV of 1882 corresponding to Order 21, Rule 2 of the 1908 Code), a payment or adjustment of a decree could not be recognised by any Court executing the decree unless the same had been certified in the manner allowed by law. They however, held that the 'clause is applicable where in answer to an application for execution an adjustment is set up by the judgment-debtor.'

70. Reliance was also placed on the case in : AIR1952Mad582 , but the facts of this case were different from the facts of the case before me.

71. Reliance, was next placed on the case of AIR 1935 Bom 303 (F) where Broomfield, J. held that where a defendant in reply to an execution application alleges an adjustment within 90 days of the alleged adjustment then that information given to the Court in a written statement put by the defendant in answer to an application for execution should be regarded as sufficient compliance with the terms of Order 21 Rule 2(2). It does not appear from the reported decision whether or not there was any specific prayer in the judgment-debtor's application for certification. The point that was raised before Broomfield, J., was that it was obligatory on the judgment-debtor to make a separate application for certification and that after such certification had been made to raise that question, a point which is not before me. It has already been noticed that so far as this Court is concerned it had been held by Acting Chief Justice Sulaiman that a separate application for certification was not really essential and that certification could be had by the judgment-debtor if he in substance prayed for such certification in the objections filed by him to the decree-holder's execution.

72. In the case of : AIR1934All209 Young and Rachhpal Singh JJ. held that they were clearly of the opinion that:

'having regard to the provisions of Rule 2, Order 21 C. P. C. and Article 174, Limitation Act, it is not open to a judgment-debtor to prove adjustment or satisfaction, if he did not take steps to have the same certified within a period of 90 days from the date on which the alleged payment or adjustment was made.'

73. In AIR 1928 Oudh 195 (M) a Full Bench of the Oudh Chief Court held that:

'A Court executing a decree is barred by the provisions of Sub-rule (3) Rule 2, Order 21 from trying ths question of the satisfaction or adjustment of the decree when such satisfaction has not been certified to the Court under Sub-rule (1) or Sub-rule (2) of the same rule.'

It was pointed out in this case that if the meaning which Heaton J. gave to the word 'recognised' in the ca,se of Trimbak Ramkrishna v. Hari Laxman ILR 34 Bom 575 (X) were to be accepted, then Sub-rule (3) would be 'surplusage.'

74. In the case of AIR 1925 Bom 309 (Q) a Full Bench of the Bombay High Court held that:

'The Court executing a decree is barred in limine from considering any allegation that a payment not certified has been made.'

75. In AIR 1923 Rang 103 (S) a Bench of the Rangoon High Court held that:

'The provisions of Clause 3 of Rule 2 of Order 21 are not to be rendered nugatory by the application ofthe general provisions of Section 47 of the Code.'

They however expressed the view that there may be cases where a judgment-debtor's counter petition could be treated as an application for certification if there was no bar of limitation.

76. On an examination of the authorities cited and considered above, t am clearly of the opinion that under the law it is not possible for the executing court to recognise an uncertified payment during the course of the execution and that certification of such payment can only be had if there is a proper prayer to that effect, whether by means of a separate application or in the objections filed by the judgment-debtor provided such prayer is made within 90 days of the payment but not otherwise. In the instant case, as I have already said, there was no specific prayer for certification by the judgment-debtors, nor could such a prayer, in my view, be properly inferred from the words of the objections and, therefore, the executing Court could not consider the alleged payment or adjustment.

77. For the reasons given above, I would answer the question referred to me in the affirmative.

78. Let this opinion of mine be now laid before the Bench which made the reference.

BY THE COURT.

Desai and Beg, JJ.

79. In accordance with the opinion of thethird Judge, we dismiss the appeal with costs.


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