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Subhash Chand Vs. Ashok Kumar Tayal - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revision No. 3028 of 1991
Judge
Reported inAIR1992P& H257; (1993)105PLR65
ActsCode of Civil Procedure (CPC), 1908 - Sections 47 - Order 21, Rules 1, 1(1) and (2), 2, 2A and 3 - Order 23, Rules 3 and 4 - Order 34, Rule 6
AppellantSubhash Chand
RespondentAshok Kumar Tayal
Appellant Advocate R.S. Mittal, Sr. Adv.,; P.S. Bajwa and; Ms. Tarun Jain
Respondent Advocate Ashok Aggarwal, Sr. Adv. and; Satish Jain, Adv.
Cases ReferredPradyumna Kumar Mullick v. Kumar Dinendra Mullick
Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the.....order1. the petitioner is aggrieved by order dated june 8, 1991 passed by senior subordinate judge hisar vide which application moved on his behalf for removing the attachment of the shop and the goods lying therein was dismissed and the respondent-landlord was permitted to lead evidence with a view to prove the authenticity of compromise dated february 20, 1991 said to have been arrived at between the parties.2. brief facts that have driven the petitioner to seek justice by obviously setting aside the impugned order dated june 8, 1991 and to get possession of the shop as also the goods which were attached need to be briefly mentioned.3. admittedly the petitioner is a tenant under respondent landlord with regard to a shop located at hisar. on april 18, 1984 the respondent sought.....
Judgment:
ORDER

1. The petitioner is aggrieved by order dated June 8, 1991 passed by Senior Subordinate Judge Hisar vide which application moved on his behalf for removing the attachment of the shop and the goods lying therein was dismissed and the respondent-landlord was permitted to lead evidence with a view to prove the authenticity of compromise dated February 20, 1991 said to have been arrived at between the parties.

2. Brief facts that have driven the petitioner to seek justice by obviously setting aside the impugned order dated June 8, 1991 and to get possession of the shop as also the goods which were attached need to be briefly mentioned.

3. Admittedly the petitioner is a tenant under respondent landlord with regard to a shop located at Hisar. On April 18, 1984 the respondent sought possession of the premises under tenancy of the petitioner as also laid claim with regard to amount of Rs. 6,160/-said to be due towards rent. After a trial running into about three years, the landlord succeeded in getting decree for an amount of Rs. 6,160/- with costs and interest but in so far as the relief claimed by him with regard to possession is concerned, the same was declined, On July 25, 1987 the landlord filed first execution application with a view to get decretal amount from the petitioner. Admittedly on September 2, 1987 the petitioner deposited an amount of Rs. 4,000/-. It appears from the records of the case as also from the arguments that have been addressed by the learned counsel for the parties that the aforesaid execution application having partly succeeded was filed. The decree having not met with complete succeess, a second execution application was carried out on July 29, 1989 and claim for an amount for Rs. 7,749/ -was made by the respondent landlord. Before reply to the aforesaid application could be filed by the petitioner, the Executing Court, in the absence of the petitioner, issued warrant of attachment on September 15, 1989. Not only the shop in question was attached but even the goods lying therein were also put to attachment and none other than the wife's brother of the decree holder, namely Shri Vinod Kumar, was appointed as Supardar. When the petitioner found to his dismay and disappointment that the shop and the goods have been attached in the manner aforesaid, he filed an application on February 14, 1991 seeking permission to deposit the amount as demanded by the respondent landlord and on the same very day, he deposited an amount of Rs. 7,749/-. The petitioner vide application aforesaid had obviously also prayed for re-calling or setting aside the order of attachment but instead of passing appropriate orders on the said application, the Executing Court chose to issue notice of the aforesaid application to the respondent landlord. On the date fixed i.e. February 18, 1991 the respondent did not appear but on February 23, 1991 an application was filed by him along with a compromise wherein it was stated that the litigating parties have arrived at a compromise vide which the petitioner has accepted an amount of Rs. 20,000/- and promised to vacate the premises. While considering the aforesaid application, the Court first chose to record the statement of the petitioner on March 20, 1991 and the petitioner categorically stated that he had not signed any compromise nor did he receive any amount. On May 4, 1991 the Court summoned the Bank records. The petitioner then filed an . application for staying the consideration of the compromise which was styled by him to be an out right act of forgery and concoction and prayed for handing over possession of the shop and the respondent landlord filed reply to this application on May 8, 1991. The application aforesaid was fixed for orders on May 18, 1991 when the respondent filed an application under O.21, R. 2 of the Civil P. C. for recording compromise. On June 8, 1991 the Executing Court, as observed above, disposed of both the applications i.e. one filed by the petitioner for handing over the possession to him and the other filed by the respondent landlord for recording compromise. It was observed by the Executing Court that compromise dated February 20, 1991 could not be said to be a 'foreign matter' to the execution of the decree and appeared to be a case of only adjustment. It is this order which has been challenged by the petitioner in this petition.

4. The learned counsel appearing for the petitioner vehemently contends that besides the fact that the compromise sought to be recorded by the respondent landlord was a forged document, the same could not be looked into by the Executive Court as the same creates new rights which could not be subject matter of execution so particularly under the provisions of O. 21, R. 2, C.P.C.The learned counsel appearing for the respondent, on the other hand, contends that the authenticity of the compromise could not be gone into by this Court and the circumstances pointed out by the petitioner at the most could lead to a mere suspicion and till such time evidence is recorded with regard to payment of Rs. 20,000/- to the petitioner and execution of compromise deed, no finding should be recorded on this contentious issue.

5. After hearing the learned counsel for the parties, I am of the considered view that even though the genuineness of the compromise cannot be gone into by this Court and for recording a finding with regard to execution of compromise and payment of Rs. 20,000/ - evidence is required to be led by the parties in some appropriate proceedings yet the alternative argument raised by the counsel for the petitioner has merit. Admittedly, the suit of respondent landlord with regard to possession was dismissed and it is only for the arrears of rent that the suit was decreed. The crucial question that arises for determination is as to whether in execution of money decree, acceptance of an amount of Rs. 20,000/- in consequence of alleged compromise dated February 20, 1991 can squarely be styled as adjustment of decree. Obviously, it is not a case of payment of money under a decree and, therefore, the only reliance of counsel for the respondent is upon adjustment of decree as mentioned in O. 21, R. 2 of the Civil P. C. Order 21 deals with execution of decrees and orders. As per R. 1 of O. 21, money payable under a decree has to be paid in the manner indicated therein. O. 21, Rr. 1, 2, 2A and 3 which have bearing on the controversy involved in this revision read as follows:--

' I. Modes of paying money under decree--(1) All money, payable under a decree shall be paid as follows, namely:

(a) by deposit into the Court whose duty it is to execute the decree, or send to that Court by postal money order or through a bank; or

(b) out of Court, to the decree-holder by postal money order or through a bank or by any other mode wherein payment is evidencedin writing; or

(c) otherwise, as the Court which made the decree directs.

(2) Where any payment is made under clause (a) or clause (c) of sub-rule (1), the judgment-debtor shall give notice thereof to the decree-holder either through the Court or directly to him by registered post, acknowledgment due.

(3) Where money is paid by postal money-order or through a bank under clause (a) or clause (b) of sub-rule (1), the money order or payment through bank as the case may be, shall accurately state the following particulars, namely:--

(a) the number of the original suit;

(b) the names of the parties or where there are more than two plaintiffs or more than two defendants, as the case may be, the names of the first two plaintiffs and the first two defendants;

(c) how the money remitted is to be adjusted, that is to say, whether it is towards the principal, interest or costs;

(d) the number of the execution case of the Court, where such case is pending; and

(e) the name and address of the payer.

(4) On any amount paid under clause (a) or clause (c) of sub-rule (1), interest if any, shall cease to run from the date of service of the notice referred to in sub-rule (2).

(5) On any amount paid under clause (b) of sub-rule (1), interest, if any, shall cease to run from the dale of such payment.

Provided that, where the decree-holder refuses to accept the postal money order or payment through a bank, interest shall cease to run from the date on which the money was tendered to him, or where he avoids acceptance of the postal money order or payment through bank, interest shall cease to run from the date on which the money would have been tendered to him in the ordinary course of business of the postal authorities or the bank, as the case may be.

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 of any kind 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 (or any person who has become surety for the judgment-debtor) also may inform the Court of such payment or adjustment, and apply to the Court to issue a notice to the decree-holder to show cause, on 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.

(2-A) No payment or adjustment shall be recorded at the instance of the judgment-debtor unless-

(a) the payment is made in the manner, provided in Rule 1; or

(b) the payment or adjustment is proved by documentary evidence; or

(c) the payment or adjustment is admitted by, or on behalf of, the decree-holder in his reply to the notice given under sub-rule (2) of Rule 1, or before the Court.

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

'3. Lands situate in more than one jurisdiction-

Where immovable property forms one estate or tenure situate within the local limits of the jurisdiction of two or more Courts, any one of such Courts may attach and sell the entire estate or tenure.'

6. Whatever money is payable under a decree has to be deposited in the Court or sent to that Court by postal money order or through a Bank. When the recourse of deposit-ing the money in the Court is not adopted and the money under the decree is paid out of Court, it has to be paid by postal money order or through a Bank or by any other mode wherein payment is evidenced in writing, The third mode of paying the money due under the decree is the manner in which the Court may direct. When the money is paid out of Court as per one of the methods mentioned in clause (b) of R. 1 O. 21 under a decree of any kind, or the decree of any kind is otherwise adjusted in whole or in part to the satisfaction of the decree holder, the decree holder has to certify such payment or adjustment to the Court whose duty it is to execute the decree and the Court shall record the same accordingly. No payment or adjustment is to be recorded at the instance of the judgment-debtor unless the payment is made in the manner, provided in R. 1, or the payment or adjustment is proved by documentary evidence or the payment or adjustment is admitted by, or on behalf of, the decree holder. Payment or adjustment, which is not certified or recorded, cannot be recognized by any Court executing the decree.

7. A careful perusal of the Rules that have been quoted above, would manifest that when either money is paid or something else is done by the judgment debtor so that the decree is adjusted, the provisions of O.21, Rr. 1, 2, 2-A and 3 would be attracted. However, when money is paid or something else is done by the decree holder with a view to obtain rights that have not been conferred upon him by the decree itself and, in particular, as in the present case, when rights are sought to be created which have been specifically declined to the decree-holder then the provision quoted above would not at all be attracted. It would not be a case of either payment of money payable under a decree or adjustment of decree of any kind. As is evident from the facts that have been quoted above, the decree-holder, in the present case, claims adjustment of the decree by paying an amount of Rs. 20,000/- to the judgment debtor in lieu of the judgment-debtor vacating and handing over the possession of the shop in dispute to him. It amounts to creation of absolutely new rights and such like mattersobviously could not be dealt with by the Executing Court under the provisions contained in O. 21, R. 2 of the Civil P. C. The Executing Court immediately on payment of Rs.7,749/- which was the entire claim of the decree-holder had no choice but for to recall the orders and direct handing over the possession of the shop in dispute to the judgment-debtor. From the facts of this case, it is not clear as to how in consequence of attachment order issued by the Executing Court, the shop came to be possessed by the decree holder. However, in case it was admitted between the parties as is being now admitted by the learned counsel appearing for the parties, then specific order of handing over the possession to the petitioner ought to have been passed. The course adopted by the Executing Court, in my view, has caused incalculable harm and injustice to the petitioner.

8. The learned counsel appearing for the respondent, however, endeavoured to sustain the impugned orders on the strength of provisions contained in O.23, R. 3 of the Civil P. C. The aforesaid Rule reads thus:--

'3. Compromise of suit-- Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise, (in writing and signed by the parties) or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject-matter of the suit, the Court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance there-with (so far as it related to the parties to the suit, whether or not the subject-matter of the agreement, compromise or satisfaction is the same as the subject-matter of the suit.

Provided that where it is alleged by one party and denied by the other that an adjustment or satisfaction has been arrived at, the Court shall decide the question; but no adjournment shall be granted for the purpose of deciding the question, unless the Court, for reasons to be recorded, thinks fit to grant such adjournment.'

9. A perusal of the Rule aforesaid, of course, goes to show that the compromisecan be with regard to subject matter which may not be subject of the suit but the provisions of O. 23, R. 3 pre-eminently pertain to the pending suit and not to the decrees in which the rights of the parties have been crystallised. Further R. 4 of O. 23 clearly contains that nothing in this order which means O.23, shall apply to the proceedings in execution of decree or order. The impugned order, thus, cannot be supported on the basis of provisions contained in O.23, R. 3, C.P.C.

10. The learned counsel for the respondent has relied upon judgments reported in 'Moti Lal Banker (dead) by his legal Representative v. Maharaj Kumar Mehmood Hasan Khan', AIR 1968 SC 1087, 'S. Udham Singh v. S. Atma Singh', AIR 1941 Lahore 149, A. N. A. R. Arunachallam Chettyar v. V.M.R.P. Firm, AIR 1938 Rangoon 202, 'Pullareddigari Venkatasubba Reddi v. Pullareddigari Peddasubbareddi, AIR 1964 Andh Pra 458, Paramananda Ash v. Bhagabati Dei, AIR 1969 Orissa 32, P, Kunhikannan Nair, v. N. Krishnan, AIR 1972 Kerala 90, Jagtar Singh v. Balbir Singh, 1990 Pun LJ 17, Firm Thakar Das Kalayan Das v. (Firm) Jagan Nath Charan Das, AIR 1933 Lahore 732 (1) (Mara) Ramanarasu v. Matta Venkata Reddi, AIR 1933 Madras 28, (Firm) Jagan Nath, Charan Das v. (Firm) Thakar Das Kalian, AIR 1935 Lahore 589 and Manmohan Sanyal v. Khalishkhali Co-operative Bank, AIR 1937 Cal 236 to contend that irrespective of rights conferred upon the respondent landlord in execution of the decree that was granted in his favour for arrears of rent vide compromise that was arrived at between the parties and even if such rights were specifically declined by the decree itself or were foreign to the subject matter of the suit the same would amount to adjustment or decree.

11. After carefully considering the contentions raised by the learned counsel on the basis of judgments quoted above, I am of the view that such is not the position of law and the judgments relied upon by him are distinguishable. In Moti Lal Banker's case (AIR 1968 SC 1087) (supra), the appellant of the said case had filed a suit for the recovery ofRs. 41,500/-. A compromise was arrived in the suit itself and under the terms of compromise, a decree was passed. Under the compromise decree, Amir AH Khan one of the defendants was liable to pay Rs. 16,500/-within a year. He discharged his liability by paying the said amount. The decree also directed the respondent to pay within six months Rs. 22,500/- carrying interest at 6 per cent per annum. This amount was not paid within the stipulated period and on May 23, 1954, the appellant took out execution for Rs. 24,150/- and got attached a building known as Iqbal Manzil, There was a compromise in the aforesaid execution application as well. The appellant agreed not to execute decree for two months. In consequence of postponement of the decree agreed by the decree holder, the respondent agreed to pay within two months Rs. 24,150/- with interest at 1 per cent per month until realisation. In default of payment, the appellant was authorised to realise the amount due under the execution proceedings. The parties agreed that in the meantime Iqbal Manzil would continue to remain attached. The Executing Court recorded the compromise. When the amount so agreed to be paid with interest was not paid, on February 18, 1955 the appellant filed yet another execution application for realising the amount so agreed to be paid in consequence of the compromise arrived at during the earlier execution proceedings with interest thereon at 1 per cent per month in execution of the decree. The question that was framed was as to whether it was open to the parties in execution proceedings to enter into a compromise postponing the execution of decree on condition of paying enhanced interest. The aforesaid question was later on reframed and the same was as to whether a compromise entered in a proceeding for execution of a decree by which the judgment-debtor undertakes to pay interest at a rate higher than the decreed rate of interest, enforceable in a proceeding for execution of the decree. The Full Bench of the High Court when the matter came before it answered the question in the negative. It may be mentioned here that the aforesaid question was framed by the Full Bench itself when the case camebefore it after having been decided one way or the other by the Courts below. After the Full Bench decided the question of law, the matter came before the Division Bench which gave effect to the ruling given by the Full Bench. It was held that the compromise vide which interest over and above the one which was granted in the decree itself could not be enforced in execution proceedings. The matter obviously thereafter came before the Supreme Court and after considering the provisions of O.23 and some other enabling provisions, the Apex Court came to the conclusion that a direction for postponement of payment of the decretal amount upon the terms that the judgment-debtor should pay a reasonable rate of interest is not an alteration of or addition to the decree. This judgment has not even a semblance of relevance upon the facts that are available me in this case. Obviously payment by the judgment-debtor or his agreement to pay a higher rate of interest than that which is granted by the decree itself on postponement of the execution of the decree would be covered under O. 21, R. 2, C.P.C but in the present case the question to be determined is as to whether such rights which are not decreed could also be granted to the decree holder in consequence of a compromise arrived at between the parties outside the Court and if such matters could possibly be dealt and consequently determined under the provisions contained in O.21, R. 2 of the Civil P. C. The facts of case Udham Singh (AIR 1941 Lahore 149) (FB) (supra) would go to show that Atma Singh obtained a decree against Udham Singh for Rs. 1632 as costs. Execution was sought in 1938 and during the proceedings on December 22, 1938, Udham Singh judgment-debtor, applied under O. 21, R. 2, C.P.C. alleging that at a panchayat held on December 16, 1938, it had been settled that the decree-holder should take in full settlement Rs. 900/- to be paid by instalments of Rs. 50/- per half year. On January 27, 1939 the decree holder entirely denied this stating that there had been not only no settlement but no discussion of the matter. The executing Court, on the dispute raised in the manner aforesaid, framed appropriate issues. After the resultant trial, the Sub Judge foundthat there was an adjustment and that it barred execution proceedings but on appeal preferred, the District Judge without giving a finding as to whether there had been settlement or not and without discussing any evidence, held that an adjustment in order to be a compromise within the meaning of O.21, R. 2, C.P.C. must be a settlement which extinguishes the decree holder's debt and not one which if carried into effect will extinguish it. In second appeal having been preferred in the High Court, it was held that there was nothing to prevent the decree holder and the judgment-debtor entering into an entirely new contract for arranging their affairs so long as the contract is complete and the intention of the parties is to extinguish the decree altogether and to rely upon the new contract. A contract to be performed in the future is based on good consideration and so long as the contract complies with the rules of law laid down concerning contracts, the decree would be adjusted within the meaning of O.21, R. 2, C.P.C. The aforesaid finding, pre-eminently came in view of the facts of the said case. As referred to above, the only new contract was that the decree which was for Rs. 1,632/ - and costs would be adjusted if an amount of Rs. 900/ - is paid by instalments of Rs. 50 per half year. Further, it was a case of payment to be made by the judgment-debtor to the decree-holder although the amount evidenced through decree was reduced. The aforesaid agreement was made to pay the money due under the decree or to-adjust the decree as such. It was not for creating new right's nor was it a case of conferring any right upon the decree-holder which might have been specifically declined under the decree.

12. In Pullareddigari Venkatasubha Reddi's case (AIR 1964 Andh Pra 458) (supra), the facts would reveal that the suit was for partition and separate possession filed by the respondents in the said case. The property of which separate possession was sought was joint family property. A preliminary decree was passed by consent. A Commissioner was appointed and further steps were taken but ultimately there was a compromise on December 15, 1951 whichformed the basis of the final decree. In view of the compromise decree, the property set out in schedules A and A-1 was allotted to the plaintiffs-respondents of the said case and that comprised in schedules B and 8-1 was allotted to the defendants. The decree provided for taking out execution and obtaining possession through Court. The respondents applied for delivery of possession of item (i) of A-1 schedule as well as other properties forming part of A and A-1 schedules. The Court made an order directing delivery of the property and in fact some of the properties were then delivered. Thereafter the judgment debtors complained that delivery was ordered without notice to them. Thereupon the executing Court vacated the previous orders and after hearing the objections of the judgment debtors, delivery of all the items except item (1) of A-1 schedule was again ordered. When the matter was being adjourned enabling the parties to file correct particulars, the litigating parties adjusted some of the properties. The plaintiffs were to get another property described in schedule A annexed to the agreement which was allotted to the defendants in addition to a sum of Rs. 5,000/- payable within six months. It was further agreed between the parties that proper documents would be executed to give effect to the terms of the agreement. The appellants thereafter filed a petition praying for the adjustment of the decree. This application was not pressed and, therefore, the same was dismissed. Sometimes thereafter the decree holder filed another execution proceedings for delivery of two items of the properties. The trial Court was of the view that the execution need not proceed so far as it pertained to the item in question. It dismissed the whole of the execution petition without confining it to the property in dispute and without deciding whether execution could not proceed with regard to other items. The plaintiffs brought an appeal against the aforesaid order and in appeal the order passed by the trial Court was set aside on the ground that the matter was referred to the Arbitrators after passing of the final decree and an award was given by them, it was not open to the parties to plead the award in defence to the execution proceedings withouttaking proceedings to get a decree passed in terms of the award and that the document relied upon was inadmissible since it defeats the rights of the plaintiffs in immovable property. In the Letters Patent Appeal filed, the Court came to the conclusion that it was not disputed that a document like Exhibit B-1 would come within the terms of O. 21, R. 2 as it embodied a contract to do something in future. It was further held that a promise to do something in future or an executory contract could operate as an adjustment of the decree and the absence of registration does not stand in the way of the document taking effect since it contemplates only something being done in future. After discussing some case law on the point, it was also held that a contract to be performed in future is based on good consideration and a decree could be adjusted on the basis of that contract This judgment does not directly deal with the question that is involved in the present case.

13. Reliance upon Paramananda Ash's case (AIR 1969 Orissa 32) (supra) is totally misplaced. In fact the aforesaid judgment supports the contention raised by the learned counsel for the petitioner. It is clearly held in -the aforesaid judgment that if by agreement, the decree is superseded and abandoned and an altogether new contract is entered into, the contract would constitute the basis of subsequent suit and it is only when the agreement does not supersede the decree, the Executing Court can inquire into the effect of the agreement and decide the question under S. 47, C.P.C. subject to the provisions of O.21, R. 2, C.P.C. where an agreement amounts to adjustment of the decree. The terms of the agreement in the aforesaid case were not intended to supersede the decree. It only contained a clause that in case of default on the part of judgment-debtor, either to vacate possession or to pay arrears of rent, the decree would be executable and the possession and arrears were to be recovered only through execution proceedings. Such an agreement would not create any bar to the execution and no separate suit on the basis of the said agreement would be maintainable. Such a matter can obviously be gone into by the Executing Court. As has been demonstrated above, not only that by the allegedcompromise, the decree has been suprseded but it has perhaps been set aside by the conduct of the parties. The relief of possession was declined and the same is sought to be conferred upon the decree holder by virtue of the agreement.

14. Facts of case P. Kunhikannan Nair's case (AIR 1972 Kerala 90) (supra) would reveal that the judgment-debtor in the said case had filed an application under O.21, R. 2, C.P.C. to record full satisfaction of the decree passed against him. The decree itself was one for arrears of rent and also for removal of certain kuzhikkoors planted in Item 1 of plaint schedule by the defendant. He wanted to file an appeal but instead he made the application aforesaid wherein he pleaded that the parties had come to an agreement pursuant to which he wanted adjustment of the decree. The lower Courts recorded part satisfaction of the decree on the strength of compromise pressed into service by the judgment-debtor and dissatisfied with the said order, the decree holder filed an appeal. His main contention in the appeal was that the compromise did not actually amount to an adjustment of decree but envisaged such adjustment on the fulfilment of certain conditions which remained yet to be fulfilled. In the circumstances aforesaid, the only question that came to be determined by the Kerala High Court was as to whether the terms of a compromise operate as an adjustment of the decree in part or only contemplate such adjustment on the performance of certain conditions. It was held that agreement between the decree holder and judgment-debtor to divide the disputed properties and exercise full ownership over their respective shares amounts to an adjustment of decree despite the executory nature of that contract. It was further held that the terms of the agreement made it clear that the parties were to execute assignments whereby the property covered by the lease to the defendant was to be divided and each was to become the full owner of the part which was set apart to him and that if there were promises to be fulfilled, the next enquiry is as to whether the fulfilment of those conditions alone could operate as an adjustment or whether there was no immediateextinguishment of the decree (in part). The decree holder having accepted the promise as good consideration for the adjustment of the decree, the agreement amounted to an adjustment of decree. It would be made out from the reading of the aforesaid judgment that no reference is made as to what properties by the agreement that was put up by the judgment-debtor were transferred and who was to become the full owner of which property. However, while dealing with the matter, reliance was placed upon a Full Bench decision of Rangoon High Court in Arunachallam Chettyar's (AIR 1938 Rangoon 202) (supra). A portion of the judgment rendered by Dunkley J. was quoted which runs as follows:--

'Dunkley J explained the correct law by an example. 'If A holds a decree against B and B offers to transfer certain property to A and A accepts that promise to transfer in whole or part satisfaction of his decree that is a binding contract which constitutes an adjustment of the decree in whole or in part and can be pleaded by B in bar of execution. But if A, as is usually the case agrees to accept the transfer of the property in whole or part satisfaction of his decree, at that stage there is no concluded agreement between the parties but A has realty made a counter offer which can be accepted by B only by performance i.e. by the actual transfer of the property. In this latter case, there is no adjustment until the property has been actually transferred. The question referred will be answered in the above sense'.

15. Inasmuch as the counsel for the respondent has relied upon the aforesaid decision as well, I would like to deal with the same while dealing with the said judgment but suffice to say for the time being that the decision recorded in P. Kanhikannan Nair's case (AIR 1972 Kerala 90) (supra) cannot be successfully relied upon by the respondent decree holder as nothing is mentioned in the facts of the said case as to whether the division of the property/properties by conferring full ownership rights would amount to adjustment as envisaged under the provisions of O. 21, R. 2, C.P.C. Further present is a casewhere the decree holder is claiming adjustment and not the judgment-debtor.

16. In so far as case Jagtar Singh (1990 Pun LJ 17) (supra) is concerned, the matter pre-eminently pertains to O. 23, R. 3, C.P.C. whether a compromise can be arrived at even with regard to the property which is not the subject matter of the suit is the only question dealt therein. The facts of the aforesaid case would go to show that only a part of compromise that was arrived at between the parties of the said case did not strictly speaking relate to the suit property and yet the Court decided that it relates to the suit and incorporated it in the operative portion of the decree and passed a decree in terms of the compromise. Decree was not held to be a nullity on the ground that some of the properties that were conveyed to either of the parties were one which were not the subject matter of the suit. As has been mentioned above, the provisions of O.23, C.P.C. are not applicable to the proceedings in execution of decree or order as is made out from O.23, R. 4, C.P.C. As also, parties are permitted to compromise and deal with properties which are not subject matter of suit as per provisions of O. 23, R. 3 itself.

17. The case of Thakar Dass Kalayan Das (AIR 1933 Lahore 732(1) (supra) will also provided no support to the respondent decree holder. Ail that was held therein was that a compromise which involves future payment cannot be said to be no adjustment and that the question in each case is not a question of terms to be performed in the future or the present, but the question is whether the parties intended to make the decree no longer executable in whole or in part. If they intended that the decree shall no longer be executable, it would be an adjustment. Nothing besides what has been stated above has been mentioned in the judgment aforesaid. In (Mara) Ramanarasu's case (AIR 1933 Madras 28) (supra), the decree holder had obtained a decree for sale on a mortgage against one Venkata Reddi for an amount of Rs. 3,500/ -. The decree-holder had got another mortgage deed executed in his favour by Venkata Reddi's brother, Rami Reddi. He brought theproperty to sale and himself purchased the same for Rs. 1,750/- minus what was due on Rami Reddi's mortgage and for an amount of Rs. 1,750/- he obtained a personal decree against Rami Reddi. After that he brought the property covered by both the mortgages to sale in execution. A person in the name of Saiyed Murtaza Sahib was the successful bidder at auction and he deposited in the court Rs. 950/- as 25% of the amount of bid. A few days after the sale, it is admitted that decree holder Venkata Reddi and Saiyed Murtaza entered into an agreement on November 3, 1926. According to the agreement aforesaid, the land put up for sale in execution of the decree against Venkata Reddi for which Saiyed Murtaza was the successful bidder was to be transferred to the decree holder with the crops on it except the crops on two field and the amount paid by Saiyed Murtaza in Court i.e. Rs. 952/- was to be got back from the Court and paid to the decree holder. The part of the land which the decree holder had bought in execution of the decree against Rami Reddi, Venkata Reddi was to give up a claim which it appeared he had put forward; four other items of land were to be transferred to Venkata Reddi or, if he chose, in respect of one of them Rs. 1,000/- were to be paid by the decree holder the other consideration on his side was the amount of his decree against Venkata Reddi and the balance of his decree against Rami Reddi. The agreement said to have been arrived at between the parties covered several matters beyond the scope of decree. An application was thereafter filed by Venkata Reddi for recording adjustment of the decree in terms of the compromise reference of which has been given above. The decree holder resisted the aforesaid application by mainly alleging that he had been induced by fraud to execute the agreement. It was also alleged that Venkata Reddi wanted to keep the property to himself and to reap the crop. He, therefore, denied that there had been any satisfaction or adjustment of the decree. On the facts that have been narrated above, the Madras High Court came to the conclusion that any transaction which extinguishes the decree as such in whole or in part and results in a satisfaction of the wholeor a portion of the decree in respect of the particular relief or reliefs granted by the decree is an adjustment of the decree. It was further held that if a decree holder enters into a fresh contract with the judgment-debtor with reference to the satisfaction of the decree then unless there be anything illegal with reference to the new contract, the new contract, even if it stipulates that the judgment-debtor is to do something in future, would be aground for the judgment-debtor applying to the Court to enter satisfaction of the decree. It shall be seen from the terms of the contract that were arrived at that the land put up for sale in execution of the decree against Venkata Reddi for which Saiyed Murtaza had been the successful bidder was to be transferred to the decree holder with the crops on it except the crops on two fields and the amount paid by Saiyed Murtaza into Court was to be got back from the Court and paid to the decree holder. In so far as the decree which was being executed against Rami Reddi, is concerned, Venkata Reddi was to give up a claim which he had put forward. Four other items of land were to be transferred to Venkata Reddi or, if he chose in respect of one of them, Rs. 1,000/- were to be paid by the decree holder. The other consideration on his part was the amount of his decree against Venkata Reddi and the balance of his decree against Rami Reddi, It immediately transpires that the agreement pertained to the properties that were sold in execution of money decree which was either purchased by the decree holder himself or Saiyed Murtaza. While coming to the compromise with regard to some properties or making some adjustment therein, it could be said that the matter pertained to adjustment of decree as envisaged under O. 21, R. 2, C.P.C. It shall also be seen that it was the judgment-debtor who was claiming adjustment and not the decree holder.

18. In Jagan Nath Charan Dass case (AIR 1935 Lahore 589) (supra) it was observed that it is a question of fact to be determined whether the alleged adjustment is intended to extinguish the decree; if it does the adjustment will be complete, no matter whether the compromise that is made to wipe out the decreeis to be performed at some future date.

19. In Manmohan Sanyal' case (AIR 1937 Cal 236) (supra), the question was only as to whether the compromise between the parties that the decretal amount should be paid by instalments would come within the meaning of word adjustment as mentioned in O.21 R.2 C.P.C. and it was held that the parties have a right to arrange their own procedure and give jurisdiction to the Executing Court to adopt that procedure.

20. In my considered view, all the judgments that have been relied upon by the learned counsel for the respondent are distinguishable, and cannot be applied to the facts and circumstances of the present case. On the other hand, the matter seems to be covered in favour of the petitioner from a judgment rendered by the Privy Council in 'Pradyumna Kumar Mullick v. Kumar Dinendra Mullick', AIR 1937 PC 256. The facts of the aforesaid case would go to show that Kumar Dinendra Mullick and Kumar Ganendra Mullick executed mortgage in favour of Nandalal Roy and Pullin Krishna Roy, with regard to a house situated in the town of Calcutta with a view to secure repayment of loan of Rs.3,00,000/- with interest thereon at 9 per cent per annum. The property was not redeemed within the stipulated period and, therefore, the mortgagees brought an action to recover the money due to them by a sale of the mortgaged property. A decree for sale of the property was passed in favour of the mortgagees which was to be sold by public auction. However, the sale was postponed for one year in accordance with an arrangement arrived at between the parties for the satisfaction of the claim of the decree holder. One Pradyumna Kumar Mullick who thereafter brought a suit giving rise to the proceedings which culminated in the judgment agreed to discharge the entire debt due to the decree holders and also to advance an amount of Rs. 21,923/- to the judgment debtors on certain terms. He paid an amount of Rs. 1,00,000/- to the decree holders and promised to pay another sum of Rupees 2,87,411/- which was the balance of the money due under the final decree for sale. Hepaid the same to the decree holders and also the additional amount as a loan to the judgment debtors. Two deeds were executed. One of those was a deed of assignment by the decree holders of their rights under the preliminary and the final decrees for sale with 'the full benefit of all powers, rights, remedies and securities conferred upon them by the mortgage deed and the decrees. The second document, which was executed, by the judgment debtors was a mortgage deed, by which they covenanted to pay to Pradyuman Kumar Mullick two sums of money, i. e. Rs. 3,87,411/- which was paid to satisfy the decree and Rs. 21,923/- advanced by him to the mortgagors. The mortgage money was to carry interest at 11 per cent per annum and the re-payment thereof was to carry interest at 11 per cent per annum and the re-payment thereof was secured, not only by the property specified in the first deed of mortgage, but also by two other houses conveyed by the second deed. A clause was inserted in the deed wherein it was mentioned that in the event of mortgagors' failure to redeem the property within the stipulated period, the mortgagee was to include the newly mortgaged properties. The new mortgagee was substituted for the decree holders in the final decree for sale obtained by them on the mortgage of house which were mortgaged by that deed, were sold and the price realized by the sale was paid. The properties conveyed by one of the deeds was privately sold and after giving credit for the amounts realized by the sales, the mortgagee was entitled to a large sum of money, which when calculated on the basis of covenants amounted to Rs. 2,67,513/-. It was for the recovery of this sum that he made an application under O.34 R. 6 C.P.C. praying that the Court may make a personal decree for the recovery of that sum from the mortgagors. This application was dismissed on the ground of limitation. The mortgagee thereafter filed a suit for the recovery of money on the personal covenant contained in the deed. Obviously the claim was resisted but ultimately it resulted into a decree. The decree was set aside by the Division Bench and the suit was dismissed. Against the judgment of the Division Bench, an appeal was preferredwhich came to be disposed of by the Privy Council. It was held that the parties had no authority to add to the decree something which was not included in the claim on which it was based. It was also held that the parties could not confer upon the Court jurisdiction to enforce a claim which had not been embodied in a decree or an order having the force of decree. Any attempt to enforce the claim in the manner prescribed by the clause referred to in the mortgage decree, in the opinion of the Privy Council, was to fail. It was further held that even if the clause could be legally enforced, the plaintiff was not debarred from availing himself of his undoubted right to bring a suit on the footing of the second mortgage. In so far as the provisions of O.21 R. 2 C.P.C. are concerned, it was held that the second mortgage could not be treated as an adjustment of the decree. The mortgage was independent transaction by which new rights were created in favour of the mortgagee. The deed conveyed, by way of security, certain house property which was not previously mortgaged. It is true that the plaintiff of the Said case was substituted by virtue of settlement arrived at between the parties in the final decree but that alone would not make any difference.

21. The petitioner in the first execution preferred by the respondent landlord had paid an amount of Rs. 4,000/-. In the second application that was carried by the decree holder, the only claim was of Rs. 7,749/- and admittedly the aforesaid amount was also said in the Court on February 14, 1991. The compromise pressed into service by the decree holder is of February 20, 1991. Once the entire amount that was claimed by the decree holder in second execution application was paid by the judgment debtor and by which date the alleged compromise had not come into existence, I find neither any reason nor any justification for the Executing Court to have proceeded in the matter on the application filed by the decree holder for recording satisfaction of adjustment of decree. Nothing survived in the matter and the only appropriate orders that were required to be passed were to release the shop and the goods lying therein and in case the possession of the shophad been taken by the decree holder to forthwith restore the same to the judgment debtor. The converse course adopted by the Executing Court has caused incalculable harm and injustice to the petitioner.

22. In view of what has been said above, this revision petition is allowed with costs which are quantified at Rs. 3,000/-. The order passed by the trial Court dated June 8, 1991 is set aside and a direction is issued to the respondent to hand over possession of the shop to the petitioner forthwith. In case goods are still in the shop, the petitioner would be entitled to possession of the same as well. Obviously order of attachment of shop and goods passed by the Executing Court are also set aside.

23. Petition allowed.


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