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Dhani Bahera Vs. Sushil Chandra Palit - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberMisc. Appeal No. 63 of 1965
Judge
Reported inAIR1967Ori59
ActsCode of Civil Procedure (CPC) , 1908 - Order 21, Rule 2 and 2(1); Limitation Act, 1908 - Schedule - Article 174; Limitation (Amendment) Act, 1963 - Schedule - Articles 125, 137 and 181
AppellantDhani Bahera
RespondentSushil Chandra Palit
Appellant AdvocateR.M. Mishra and ;P. Kar, Advs.
Respondent AdvocateR.N. Sinha, ;P. Roy and ;H. Sen, Advs.
DispositionAppeal allowed
Excerpt:
.....v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - the expression 'where any money payable under a decree of any kind' clearly shows that the decree referred to must be one under which one of the reliefs must be for, payment of money. for instance, the decree may be adjusted by creation of a fresh agreement between the parties whereunder the decree becomes satisfied or adjusted if a decree of such a nature is adjusted, or the payment is made thereunder out of court, the judgment-debtor is bound to certify such a payment or adjustment under order 21 rule 2, c. the..........referred to must be one under which one of the reliefs must be for, payment of money. it may be a money decree simpliciter or a composite decree under which a relief for payment of money is granted. a suit for recovery of possession and mesne profits would be of one such decree, a suit for mere recovery of possession or for injunction or for both would not come within the ambit of the rule. the words 'any kind' are not wide enough to lake within their sweep, decrees of all kinds. the aforesaid words qualify the decree which itself is restricted by the concept that under it any money is payable. it is to be noted that the word 'decree' is qualified by the indefinite article 'a' in the first part of rule 2(1) while it is qualified by the definite article 'the' in the second part. the.....
Judgment:

G.K. Misra, J.

1. Respondent is the landlord and the appellant is the tenant under him in respect of a house situate in the city of Cuttack. In House Rent Control Appeal No. 9 of 1968 the landlord obtained an order of eviction on 6-9-1963 wherein the tenant was directed to vacate the house within four months. As the tenant did not vacate the house, the landlord filed the execution case on 6-3-1964. On receipt of notice under Order 21 Rule 22, C. P. C. the appellant filed an objection under Section 47, C. P. C. alleging that there was an adjustment of the decree on 6-11-1963. The story of settlement, as stated in the objection petition, was that the parties agreed that the tenant would henceforward pay rent regularly and continue in possession of the house as a tenant as before and the landlord would not execute the eviction order dated 5-9-1963 without going into the merits of the objection by taking evidence, the learned Munsif dismissed the petition staling that no document showing settlement having been filed, the objection could not be accepted. Against that order an appeal was carried to the learned District Judge, who held that the alleged adjustment dated 6-11-68 was one under Order 21 Rule 2, C. P. C., and as the judgment-debtor did not certify the adjustment within 90 days, as required under Article 174 of the Limitation Act (Act IX) of 1908, (hereinafter referred to as the Old Act), it was barred by limitation. In this view of the matter he did not remand the case for going into evidence on merits whether in fact there was any adjustment as pleaded by the judgment-debtor.

2. In support of the judgment of the learned lower appellate court, Mr. Sinha advanced two contentions:

(1) The alleged adjustment, even if true, comes within the ambit of Order 21 Rule 2, C. P. C. and the certification not having been done by the judgment-debtor within 90 days under Article 174 the objection in barred by time; find

(2) Even if the objection of the judgment-debtor pleading adjustment does not come within the ambit of Order 21, Rule 2 and is an application under Section 47 C. P. C., it would be hit by Article 174 as being barred by limitation.

Both the contentions require careful examination.

3. Order 21 Rule 2, C. P. C., reads thus: 2. Payment out of Court to decree holder:

(1) 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 port to the satisfaction of the decree-holder, the decree-holder shall certify such payment or adjustment (o the Court whose duty it is to execute 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 where certification has been made by an endorsement of such payment or adjustment by the decree-holder or by any person authorised by him in that behalf upon the process issued by the Court, the Court shall issue such notice of its own motion. If after service of the notice, the decree-bolder 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.

There is conflict of authority on the question whether this Rule has application only to decree under which payment of money is one of the reliefs granted under them, or to all decrees without any distinction. Allahabad, Bombay, Calcutta, Lahore, Patna, Nagpur and Mysore High Courts have taken the view that the provisions of the rule apply to every kind of decree: See AIR 1952 All, 814, AIR 1922 Bom 380 (2), AIR 1928 Cal 715, AIR 1936 Lah 842, AIR 1936 Pat 385. AIR 1948 Nag 374 and AIR 1963 Mys 79. The High Courts of Madras and Andhra Pradesh have on the other hand taken the view that the Rule applied to cases where money is payable under the decree, whether there are other reliefs or not (See AIR 1920 Mad. 749 and AIR 1958 Andh Pra 705).

I am inclined to follow the Madras view The plain language of the Rule justified the latter view. The expression 'where any money payable under a decree of any kind' clearly shows that the decree referred to must be one under which one of the reliefs must be for, payment of money. It may be a money decree simpliciter or a composite decree under which a relief for payment of money is granted. A suit for recovery of possession and mesne profits would be of one such decree, A suit for mere recovery of possession or for injunction or for both would not come within the ambit of the Rule. The words 'any kind' are not wide enough to lake within their sweep, decrees of all kinds. The aforesaid words qualify the decree which itself is restricted by the concept that under it any money is payable. It is to be noted that the word 'decree' is qualified by the indefinite article 'a' in the first part of Rule 2(1) while it is qualified by the definite article 'the' in the second part. The words 'the decree' in the second portion of the Rule refer to the words 'a decree' in the first portion of the Rule. 'The decree' in the second portion must therefore be of the same character as 'the decree' in the first portion. The words 'otherwise adjusted' in the second part of the Rule is in contradistinction to the words 'out of Court' in the first part of the Rule. In other words the payment of money under a decree, in which one of the reliefs is for payment of money, is to be made either out of the Court, or such a decree may be otherwise adjusted. For instance, the decree may be adjusted by creation of a fresh agreement between the parties whereunder the decree becomes satisfied or adjusted If a decree of such a nature is adjusted, or the payment is made thereunder out of Court, the judgment-debtor is bound to certify such a payment or adjustment under Order 21 Rule 2, C. P. C., and the period of limitation prescribed for such certification by a judgment-debtor is 90 days under Article 174 of the Old Act.

In this case, the decree under execution was merely for eviction. It is not a decree under which one of the reliefs is for payment of money. To such a decree Order 21 Rule 2 C. p. C. has no application. The judgment-debtor was not required to certify the adjustment under Order 21 Rule 2. The best exposition of law as to the meaning of Order 21 Rule 2, C. P. C is to be found in AIR 1958 Andh Pra 705.

4. Mr. Sinha further contended that even assuming that the objection of the judgment debtor does not fall within the ambit of Order 21 Rule 2, still is barred by limitation under Article 174 of the Old Act. All questions relating to discharge and satisfaction of the decree as between the parties must be decided by the Executing Court under Section 47 C. P .C. A payment of money or adjustment of the decree relates to satisfaction of the decree. The objection, in terms, comes within the purview of Section 47, C. P. C. If Article 174 would apply to a case of such adjustment, the objection would be barred by limitation even though it does not specifically fall within the ambit of Order 21 Rule 2 and comes within the purview of Section 47. This necessitates an examination of Article 174 of the old Act which reads as follows-

For the issue of a notice under the same Code, to showcause why any payment made out of Court of any money payable under a decreeor any adjusment of the decree should not be recorded as certified

Ninety days

When the payment or adjustment is made

On a plain reading of the article it is clem that the payment or adjustment referred to in the article is almost identical with the language used in Order 21 Rule 2 except for the words 'of any kind' qualifying the decree. The decree referred to in this article is one under which one of the reliefs must be for payment of money. The reasons, already given while construing Order 21 Rule 2 apply with full force to it also. Article 174 prescribes the period of limitation for payments and adjustments coming within the ambit of Order 21 Rule 2, C. P. C. This article has no application to cases of adjustment falling outside Order 21 Rule 2. The limitation for such adjustment is three years under the residuary Article 181 of the old Act

The position would be clear by reference to Article 125 of the Limitation Act (Act XXXVI of 1963) This corresponds to Article 174 of the Old Act.

It runs thus. To record anadjustment or satisfaction of a decree

Thirty days

When the payment or adjustmentis made

Thus the new article has enlarged the scope of the old article. The new article would apply to adjustment or satisfaction of all kinds of decrees irrespective of their nature or class.

5. Both the contentions fail and the judgment under appeal cannot be upheld. The case must go back to Executing Court which should go into the merits and determine whether the judgment-debtor has established the plea of settlement. Parties should be given full opportunity for adducing evidence and the Executing Court would decide whether the alleged settlement is true and enforceable in law. The case should be disposed of within four months from today with intimation to this Court. The records of the lower Court be sent down at once.

6. In the result the affirming judgmentof the lower appellate Court is set aside andthe appeal is allowed. In the circumstances,parties to bear their own costs upto this stage.


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