1. This is an appeal against an order of Mitter, J., dated 9th March, 1959. The application was for the execution of a consent decree dated 14th December, 1955 made in Suit No. 183 of 1955 (Humayun Properties Ltd. V. Ferrazzinis (Private) Ltd.). The learned Judge has held that there will be 'no order' on the application and that the parties should bear their own costs. The facts are shortly as follows: The plaintiff in the suit, Humayun Properties Ltd., acompany incorporated under the Indian Companies Act, is the owner of premises No. 20, Lindsay Street in Calcuttaknown as 'Humayun Court'. A portion of the said premiseswas demised to the defendant, Ferrazzinis Limited, nowferrazzinis (Private) Limited. The said suit No. 133 of1955 was instituted in this Court by the plaintiff againstthe defendant for possession of the said premises, arrearsof rent and mesne profits. An application was taken outIn the suit for final judgment under the provisions ofChapter XIIIA of the rules of the Original Side of thisCourt. At the hearing of the said application, the partiessettled the suit and a decree was passed by consent on14-12-1955. The relevant terms are as follows:
'1. There will be a decree for possession in terms ofprayer (a) of the plaint with mesne profits at therate of Rs. 1550/- per month till vacant possession isdelivered.
2. The defendant will pay simultaneously with or before the filing of these terms Rs. 1550/- for rent for October, 1955 and mesne profits at the same rate from 1st November, 1955 upto date.
3. The defendant will pay Rs. 1550/- per month asmesne profits or damages within 7 days of each and every month following till vacant possession is delivered such vacant possession will be delivered within a maximum period of 11 years (eleven years) from date of the decree.
4. in default of payment of the mesne profits and/or damages for two months and in default of payment of the costs within the time mentioned in Clause 3 here-of the plaintiff will be at liberty to execute the decree forthwith.'
2. On 23-12-1957 an application was made by tabular statement by the plaintiff decree-holder a copy of which is to be found in the Paper Book at pages 1 to 8. In column 7 of the said tabular statement we find the following entry:
'By Clauses 4 and 7 of the terms of settlement of the consent decree dated 14th December 1955 it was inter alia provided that the defendant will pay Rs. 1550/- per month as mesne profits or damages within 7 days of each and every month following till vacant possession is delivered such vacant possession will be delivered within a maximum of 11 years (eleven years) from date of the decree and that the terms of the decree will not remove the original obligations of Messrs. Ferrazzinis so far as restoration of the premises is concerned. The judgment-debtors have committed breach of Clause 7 inasmuch as they have made unauthorised alterations and have abolished many portions of the tenanted premises and have also committed breach of Clause 4 by defaulting in payment of rent for all the months of 1957 as provided by aforesaid Clause 4.'
3. The decree-holder has asked for possession of the premises in the occupation of the defendant. It would be observed that there are two grounds upon which it is claimed that the plaintiff decree-holder is entitled to ask for immediate possession. The first is a breach of Clause 7 and the second is a breach of Clause 4, of the consent decree. At the hearing of the application, the decree-holder gave up the ground of any breach of Clause 7 and, so we need not consider that at all. Clause 4 requires that the defendant should pay Rs. 15507- per month as mesne profits or damages, within 7 days of each succeeding month, and Clause 5 lays down that in default of such payment for two months, the plaintiff was to be at liberty to execute the decree forthwith. Nothing has been said before us about any payments prior to January, 1957. I take it, therefore, that no question arises upon such payments. We are concerned in this case, with the payments between January, 1957 and December, 1957. According to the judgment-debtor, mesne profits for this period were paid by cheque and received by the decree-holder, but it is admitted that none of them were paid within the stipulated time, that is to say, the 7th day of each succeeding month. None of these payments were recorded or certified by Court. The legal effect of this will be presently considered. According to the judgment-debtor payments were made as follows:
Rent for the month ofReceived by the plaintiff decree-holder on
January, 195714-3-1957February, 1957144-1957March, 19574-6-1957April, 19574-6-1957May, 195728-6-1957June, 19571-8-1957July, 195727-9-1957August, 195722-11-1957September, 195717-10-1957October, 195714-11-1957November, 195723-12-1957
4. With regard to the payment for August, 1957 it was first paid by a cheque dated 27th September, 1957 for Rs. 976-83 nP. after deducting Rs. 573-95 nP. from Rs. 1550/- as price of food alleged to have been supplied under the directions of the plaintiff. This was not accepted and ultimately a cheque for Rs. 1550/- dated 22nd November, 1957 was sent and is said to have been accepted. As I have stated above, the application for execution was made on the 23rd December, 1957. On the same day, a notice was issued under Order XXI, Rule 22 of the C. P. C. calling upon the defendant judgment-debtor to show cause why the decree should not be executed. The judgment-debtor filed an affidavit affirmed by one Sudhir Kumar Chatterjee, Secretary of the defendant company, affirmed on the 7th March, 1958. Various technical objections were taken. With regard to the breach of Clause 4 of the terms, the deponent said as follows:
'..... I deny that the judgment-debtor has committed breach of Clause 4 of the terms of settlement incorporated in the decree as alleged therein or at all. I deny that the defendant has defaulted in payment of rent for any month of 1957 as alleged or at all. I say that the defendant has throughout paid and the decree-holder has accepted the rents for all the months from January 1957 to -December 1957. There has been no default in She payment of rents for any of the months of 1957. It is true that there has been some delay in making payment for the said amounts of rents for the months for which they were due but I submit that delayed payment does not entitle the plaintiff to execute the decree. There is no provision in the said decree that payment for any month after the 7th day of succeeding month would entitle the plaintiff to execute the decree. I say that only in default of the payment of the cost within the time mentioned in column 3 can the plaintiff be entitled to execute the decree. I further say that in any event there has been no default of payment of rent for two consecutive months as alleged or at all. !n any event the plaintiff has throughout accepted the said payments and has waived its objections if any to the delay in making the said payments and the plaintiff is estopped from objecting to the said payments.'
5. In answer to this, one Martin John Sarkies, Manager of the plaintiff company, has filed an affidavit in reply affirmed on the 20th March, 1958. Upon the question of default and waiver he says as follows:
'I state that the judgment-debtor has committed breach of the said terms not only for two months in 1957 but for all the months in the said year. The deponent admits that there was delay in making payments of mesne profits (wrongly stated as rents) for the months for which they were due. I state that in consequence thereof, the plaintiff became entitled to execute the decree against the judgment-debtor by ejecting it from the premises in question ......... I deny that the plaintiff havingaccepted payment out of time from the judgment-debtor has walved its objection. It was all along without prejudice to the rights and contentions of the plaintiff. I deny that the plaintiff is estopped from treating the said payments, which were out of time, as defaults.'
6. Before Mitter, J., it was contended on behalf of the judgment-debtor that the terms of settlement between the parties constituted a lease and the Court was entitledto give relief against forfeiture. The learned Judge has repelled this contention and this argument has not been repeated before us. On the question of waiver, the learned Judge says that this question 'could not be decided on affidavits' and accordingly he directed the matter to be set down for trial on evidence on two issues viz., (1) Whether there are defaults in payment in terms of Clause 4 of the consent decree, and (2) If so, has there been a waiver of the defaults? Only the judgment-debtor called evidence, and one CM. Martin, General Manager of Ferrazzinis (Private) Limited, was examined. First of all, he explained the manner in which the payment for August, 1957 was made. He said that a cheque dated 27-9-1957 for Rs. 976/- was sent with a covering letter dated 28th September, 1957. Rupees 573/- being deducted for food supplied to the Rani Saheba of Nepal. This cheque not having been accepted, another cheque dated 23-11-1957 for Rs. 1550/- was sent under a covering letter dated 23-11-1957. The payments for the remaining months in 1957 were not put to the witness in detail, but a general question was asked as to whether for the year 1957 there was any amount outstanding as rent. The answer was in the negative. Upon this evidence, the learned Judge has held that the decree-holder having accepted payment of moneys upto December 23, 1957, had waived any default committed by the defendant and could not enforce the decree for possession with regard to the defaults so committed. Accordingly, he made no order on the application. With respect, I do not understand why no order was made on the application. If the application was not maintainable, it should have been dismissed.
7. A point was taken before the learned Judge that in any event he could not take any notice of the payments inasmuch as they were not certified or recorded under the provisions of Order 21, Rule 2 of the C. P. C. He has rejected this contention. I will have to examine this point presently. I will, however, first of all, deal with the question of waiver, because substantially that is the around upon which the application for execution failed in the Court below. In Dawsons Bank Ltd. v. Nippon Menkwa Kabushihi Kaish , Lord Russel has explained the difference between estoppel and waiver. Estoppel was not a cause of action. 'On the other hand', says the learned Judge, 'Waiver is contractual, and may constitute a cause of action; it is an agreement to release and not to assert a right. If an agent with an authority to make such an agreement on behalf of his principal agrees to waive his principal's right then (subject to any other question such as consideration) the principal will be bound, but he will be bound by contract not by estoppel. There is no such thing as estoppel by waiver.'
8. In Halsbury's second edition volume 13 page 207 we find the following:
'Waiver is the abandonment of a right, and is either express or implied from conduct. A person who is entitled to the benefit to the stipulation in a contract or of a statutory provision, may waive it, and allow the contract or transaction to proceed as though the stipulations or provisions do not exist. Waiver of this kind depends upon consent, and the fact that the other party has acted upon it is sufficient consideration. Where the waiver is not express it may be implied from conduct which is inconsistent with the continuance of the right.'
9. In a decision of the Supreme Court, Sha Mulchand and Company v. Jawahar Mills Limited : 4SCR351 , Bose J., says as follows :
'The expressions abandonment, waiver and so forth,when used in a case like the present, are only synonyms for estoppel and despite hallowed usage to the contrary, I prefer to call a spade a spade and put the matter in its proper legal pigeon hole and call it by its proper legal name. These other terms are, in my view, loose and inaccurate and tend to confuse, when applied to cases of the present nature. A man who has a vested interest and in whom the legal title lies does not, and cannot, lose that title by mere laches, or mere standing by or even by saying that he has abandoned his right, unless there is something more, namely inducing another party by his words or conduct to believe the truth of that statement and to act upon it to bis detriment, that is to say, unless there is an estoppel, pure and simple. It is only in such a case that the right can be lost by what is loosely called abandonment or waiver; but even then it is not the abandodment or waiver as such which deprives him of his title but the estoppel which prevents him from asserting that his interest .......... has not been legally extinguished, that is to say, which prevents him from asserting that the legal forms which in law bring about the extinguishment of his interest and pass the title which resides in him to another, were not duly observed.'
10. In an old English case Vyvyan v. Vyvyan, (1861) 54 ER 813 at p. 817, Sir John Romilly M. R. says that 'waiver or acquiescence like election, presupposes that the person to be bound is fully cognisant of his rights, and that being so, he neglects to enforce them and chooses one benefit instead of another, either, but not both, of which he might claim'. The position, therefore, seems to be as follows: A right created by contract, for example in a consent decree, may be waived. This waiver can be either express or implied. In either case, however, an unilateral giving up of rights does not by itself create any right in the other party. Such a right can be created only where it is agreed between the parties that the right created by consent shall be given up and the other side as a result thereof has altered its position. Where a party has two rights, the mere exercise of one right does not amount to waiver of the other, but if there are alternative rights, the exercise of one right might imply that the party has waived the exercise of the other. It is in the background of these principles that we have to consider the facts of this case and to decide as to whether there has been a waiver on the part of the plaintiff decree-holder to such an extent that it is estopped from exercising its light to recover possession granted to it under the consent decree as a result of certain defaults committed by the Judgment-debtor. The learned Judge has viewed the matter in this way: According to the learned Judge, the facts of the case show that right from the beginning the defendant failed to pay damages and/or mesne profits mentioned in Clause 4 of the terms of settlement, within the stipulated time. But the plaintiff decree-holder, for reasons best known to Itself chose to overlook the same, until the last week of December, 1957. According to him, the acceptance of the amounts due for October and November, 1957 were clearly inconsistent with the plaintiff's assertion that the defendant could not continue in possession of the room for default in payment of mesne profits. Ho has opined that as soon as there were two defaults to the part of the defendant, the plaintiff became entitled to put an end to the defendant's continuing in occupation, by demanding possession itself, or by taking steps to recover possession. According to the learned Judge, in case of default the plaintiff was entitled to revoke the licence and call upon the defendant to give up possession. Once the licence was revoked, the plaintiff would be entitled totreat the defendant as a trespasser and recover from it, damages on the basis of trespass, which damages would not be confined to Rs. 1550/- per month as stipulated In the consent decree. I might at once say with respect that this cannot be a correct enunciation of the law, in the circumstances of the present case. There was no question here of revoking a licence granted to the defendant. What would happen when the default occurred is clearly laid down in the decree itself. Upon two defaults having been made, in terms of Clause 4, the plaintiff was at liberty to execute the decree forthwith. It was not necessary for it to revoke any licence. The decree itself has provided that the plaintiff company was entitled to mesne profits at the rate of Rs. 1550/- per month commencing from 1st November, 1955 until delivery of possession by the defendant to the plaintiff. Therefore, there is no scope for claiming any damages other than at the rate of Rs. 1550/-per month, even when execution for possession has to be levied. Be that as it may, the question is whether on the facts of the present case, it should be held that there was a waiver which estopped the plaintiff decree-holder from asking for recovery of possession. Whether the Court was entitled to take notice of the payments or the dates of payments at all, is a matter which I shall presently deal with. Assuming however that we accept the payments and the dates of payment as have been put forward by the judgment-debtor, the question is whether, upon such payments having been made and accepted a case of waiver on the part of the plaintiff decree-holder can necessarily be made out. The way that the matter has been approached by the Court below is briefly as follows: Upon a default being made for two months, the right accrued to the plaintiff decree-holder to proceed forthwith to levy execution. If, when such a default occurred, the plaintiff decree-holder did not make an application forthwith for possession, out accepted the mesne profits due, beyond the stipulated time, then it could be 'said' that he has given up his right to ask for possession based on such defaults. Firstly, it must be borne in mind that the decree lays down that as long as the defendant is in possession it must pay mesne profits. Because it does not choose to pay within the stipulated time, it does not cease to be liable to make the payment. When mesne profits have already accrued due it is not as if the decree-holder was entitled to mesne profits or alternatively is possession in case of default. Where the default had occurred, the decree-holder was entitled to both, the arrears of mesne profits as well as to immediate possession. Does he lose his rights by mere inaction? It has been clearly held that mere laches or inaction does not amount to waiver, especially where it is an executed consideration and not an executory consideration. See : 4SCR351 (supra). But the waiver must clearly amount to an agreement between the parties. In other words, it must be agreed that the party having the right, was giving it up and the parties must have changed their positions as a result of the agreement. As I have stated above, this agreement can certainly be either express or implied. Where it Is express, there is very little difficulty. But one must be extremely cautious in the case of an implied agreement of waiver. It must be clearly made out that a party, fully knowing of its rights has clearly agreed to give it up for a consideration. In the present case, no express agreement has been made out. What is suggested is an implied agreement by conduct of the parties. It is true that if we accept the evidence of payment on the dates mentioned above, then there is default of payment within the stipulated time and acceptance of mesne profitseven after such default. We must however be clear in our minds as to whether this by itself would amount to a waiver or whether further facts are required to establish it. The nature of the rights and liabilities created by the consent decree must be clearly borne in mind. When an amount has fallen due for arrears of mesne profits, it is not that the decree-holder has two alternative rights namely, either to get the money or get possession. Upon default, it is entitled to both. Clearly therefore, that acceptance of money after the default cannot by itself amount to a waiver. It is further said that the right to immediate possession having arisen, if it is not enforced at once, but if the decree-holder is content to allow the judgment-debtor to continue in possession, receiving mesne profits, it amounts to a waiver. Here also the distinction between a waiver and an abandonment of a right should clearly be borne in mind. In order that there should be an abandonment of right, something more than unilateral waiver is required. In order to amount to an abandonment of a right, parties must agree that the right should no longer be enforced or there should arise an estoppel which prevents the decree-holder from enforcing the right. For an estoppel to arise, it requires a representation on behalf of the judgment creditor and a change of position on behalf of the judgment-debtor consequent thereto. This I would he a sufficient consideration for a new agreement and if it comes into force, the old right is lost. In this background, I would proceed to consider the defaults in payments between August and November, 1957. The amount for August, 1957, namely, Rs. 1550/- became payable on the 7th September, 1957. On the 27th September, 1957 a cheque was issued for Rs. 976/- only, after deduction of Rs. 5737- alleged to be due for food supplied to the Rani Saheba of Nepal. This was clearly not a payment in terms of the decree and was rightly refused. This payment was ultimately made on the 22nd November, 1957. On the 7th-8th November, 1957 the decree-holder, through his solicitors gave notice to the judgment-debtor to quit and vacate the premises. It is true that the ground was a violation of Clause 7 of the consent decree; but it clearly shows the intention of the parties. The acceptance of arrears of mesne profits for August on 22nd November, 1957 could not be attributed to any agreement on behalf of the parties that the judgment-debtor would be entitled to continue in possession and the decree-holder would not enforce its right to recover possession. Notice had already been given to the judgment-debtor to give up possession and correspondence on the subject was going on. The amount due for September, 1957 was paid on the 17th October, 1957. There was another default on the part of the judgment debtor. With regard to the October payment, a cheque for Rs. 15507- dated 4th November 1957 was sent to the decree-holder on the 15th November, 1957. As I have stated above, on 7th/8th November, 1957 notice had already been given to the judgment-debtor to give up possession. This letter was only answered on the 15th November, 1957. In that letter, the judgment-debtor not only dealt with the alleged violation of Clause 7, but also dealt with the question of payment. It was stated that the judgment-debtor had not done anything contrary to the terms of settlement and that rents (mesne profits) had been paid up to date. It was not stated however that default had occurred and that the parties had agreed that the default should be waived. While this correspondence was going on, it is clearly impossible to deduce an implied agreement that the decree-holder had waived the defaults in payment and had given up its right to demand possession. At the highest, It can be saidthat the judgment creditor was accepting payments in spite of default. But at the same time, it clearly intimated to the judgment-debtor that possession would be recovered. In my opinion, it is not so very important that the reason given for taking over possession was a violation of Clause 7. It would Be unreal to conclude that the judgment creditor agreed to give up its rights of possession on the ground of default and yet demanded possession on the ground of violation of Clause 7. We cannot deduce an implied, agreement by any such involved process of reasoning. The implied agreement must arise clearly upon the facts. Coming now to the payment for November, 1957 the amount was paid on the 23rd December, 1957. Again, there was a default, but the fact remains that on the very same day an application was made by tabular statement praying for execution and recovery of possession. The acceptance of the mesne profits on that date could not, under the circumstances, have been the subject-matter of a waiver. When the judgment creditor was receiving money which it was entitled to receive, and was at the same time enforcing its rights, to apply for recovery of possession, it is impossible to come to the conclusion that there was an implied agreement between the parties by which the decree-holder agreed to give up its right to recover possession. The right to recover the mesne profits, which had already become due, was an executed consideration and not executory. Therefore, the mere acceptance of payment is not enough. It will have to be shown that the acceptance was accompanied by something which would amount to an abandonment of the right to ask for recovery of possession. In the circumstances of the present case, I can find no evidence of an abandonment. There is ample evidence to the contrary. Talking about evidence, the learned Judge below stated in his judgment that he could not decide the question of waiver upon the affidavits filed before him. Thereupon, the matter was set down for evidence and the parties disclosed their documents by letter. These documents are to be found in the supplementary paper book. Some of the documents are common to both sides, but there are documents which have been disclosed exclusively by one side or the other. Only one witness was called on behalf of the judgment debtor to give evidence. I have already indicated what was proved. There was no attempt to prove the documents or their content. It is true that some documents are common to both the parties, but the mere disclosure of documents does not amount to proof of their content. Assuming however that It was proved that all payments for the year 1957 were made, although belatedly, I do not find how waiver was proved thereby. There was no attempt to prove waiver as a fact. After all, the onus is upon the judgment debtor to prove waiver on the part of the decree-holder to exercise a right which had arisen under the decree. However, even assuming that we should take note of the payments, the date of payments, and the facts related in the correspondence between the parties, it is clear that the judgment debtor has not been able to establish waiver which would estop the judgment creditor from demanding execution of the decree by recovery of possession, on the 23rd December, 1957.
11. I think this is sufficient to dispose of the appeal. I will however deal with certain technical points that have been mooted before us. The first point is as to whether we can take notice of the payments, which admittedly, have neither been recorded nor certified under the provisions of Order 21 Rule 2 of the C. P. C. Order 21 Rule 2 provides as follows :
'(1) Where any money payable under a decree of anykind 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.
(ii) 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.
(iii) A payment or adjustment which has not been certified or recorded as aforesaid, shall not be recognised by any court executing the decree.'
12. The law regarding the recording and certification of payments under a decree has been the subject matter of numerous decisions. As a result of these authorities, the position has become clear. A payment of money made under a decree or an adjustment, casts a duty upon the decree holder to certify such payment or adjustment to the court, whose duty it is to execute the decree. There is no particular form for such certification, and there is no period of limitation for doing so. It has been held that the decree holder can at any time give the information to the court, and this need not be on notice to the judgment-debtor and the court automatically records the information, and this is a mere ministerial act. The information so certified and recorded is not binding upon the judgment-debtor, if he has not been given prior notice of it, and he may dispute its accuracy. This has been laid down in Full Bench decision of this court - Amar Krishna v. Jagat Bandhu : AIR1931Cal719 . Where however, the judgment creditor has not done his duty, the judgment debtor 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 why such payments or adjustments should not be recorded or certified. This gives rise to a judicial proceeding. In other words, the court has then to adjudicate as to whether there has been payment or adjustment. For such an application on the part of the judgment debtor, a time limit has been prescribed. Under Article 174 of the Limitation Act, such an application must be made within 90 days from the date of the alleged payment or adjustment. In the present case, no payments have been either recorded or certified. It is admitted that, even if the judgment debtor, made such an application, then for the relevant payments, the bar of limitation applies. The judgment debtor has tried to get out of this difficulty by ciling certain authorities which have held that the judgment creditor can at any time give information to the court of 3 payment and there is no particular form in which such information could be given and no time limit. The learned Judge below has held that in the affidavit in opposition filed on behalf of the judgment debtor, the factum of payment has been aliened, and since in the affidavit in reply there was no denial, it must be held that information was given to the court by the judgment creditor in terms of Clause (i) of Order 21 Rule 2. With respect. I am unable to endorse this view.. In my opinion, this is not in accordance with the scheme of Order 21 Rule 2 of the C P. C. It may not be strictly in accordance with principles of equity that a decree holder who has received payment or has entered into an adjustment of a decree should ever be permitted to enjoy a position as IF it was never paid or adjusted. But this is what the lawallows under certain circumstances and there is no scope for imparting equitable principles to defeat it. Even as summing that there has been a payment or an adjustment, if the decree-holder fails to do his duly, a right is given to the judgment-debtor to take action under Clause (ii) of Order 21 Rule 2. In such a case, however, a time limit has been imposed and where the time expires the court is powerless to take cognisance of any uncertified payment or adjustment, at the instance of the judgment debtor. In certain cases, the judgment debtor may sue the judgment creditor for damages. That, however, is a matter which need not be considered here. The only point that has to be decided is as to whether, by using an affidavit in reply, in the form set out above, it can be said that the judgment creditor has certified payments in terms of Clause (i) of Order 21 Rule 2. Although no particular form is required for such certification by the judgment creditor, it is obvious that the facts must be capable of giving rise to the conclusion that it is the decree holder who has given such information. If a statement in the affidavit in reply, not denying an alleged payment or adjustment alleged by the judgment debtor be a sufficient compliance with Clause (ii) of Order 21 Rule 2, then in every case, where there has been such a payment or adjustment and an application by the judgment debtor for certification is barred by limitation, all he has to do is to allege payment or adjustment. Then the decree holder would be in this invidious position that if he denied the payment or adjustment in his reply he would be guilty of perjury and if he did not deny it, it will be said that he has admitted it. In my view that is not what is contemplated under Order 21 Rule 2. A number of authorities were cited before us showing under what circumstances it was deemed that information had been given to the court under Clause (i) of Order 21 Rule 2. The head-notes of some of these cases are misleading. But when we started reading the cases, it invariably appeared that it was the judgment creditor who had given the information. The first case cited before us is a Madras decision - C. M. Royal v. Raja S. C. Royal : AIR1929Mad783 . In that case, the decree holder, In his execution application, gave information of the payments but the dispute was as to the period for which these payments had been made. It was held that the court was not preclude from making an enquiry, and that the provisions of Order 21 Rule 2 were satisfied. It will be noted therefore, that the information was given by the decree holder himself to the court. In another decision of the Madras High Court - Cinnaswamy v. Periathanlai : AIR1929Mad811 . The information was given by the decree holder in an affidavit, averring that the money had been received from the judgment debtor towards the decretal amount. It is not quite clear however whether this was done by way of reply to any allegation made by the Judgment debtor. The application which the court was considering was a petition to set aside an order directing a sale in execution. If in such an application, the judgment creditor volunteers information of payment, then it might amount to a certification under Clause (i) of Order 21 Rule 2. The next case cited was a Bench decision of the Madras High Court Lodd Govindadoss v. Raja of Karvetnagar, (1915) 29 Mad LJ 219 : (AIR 1916 Mad 795 (2)). In that case, the decree holder made an application for sale and himself have information to the court of certain payments. The only question that was considered was as to whether if the decree-holder in-formed the court of certain payments or adjustments the court could enquire into the arithmetic of the payment or it was never paid or adjusted. But this what the lawyer informed the court of the factum of payment, the court was not precluded from entering into the arithmetic of it. The learned Judge said as follows:
'The cardinal principle no doubt is to see that neither party over-reaches the other. But where no intimation is conveyed by the decree holder it is doubtful whether the Court can start an enquiry on the ground that the decree holder should have certified payment or adjustment. The better view stems to be that in all cases where the Court is seized of the question either from intimation conveyed by the decree holder at any time before orders are passed or from the judgment debtor within the prescribed period, the Court will be bound to enquire into the truth or correctness of the statements made ... in the present case the decree holder did say in the petition for execution that moneys have been received, but he coupled it with an assertion that it has been appropriated towards the expenses of the management. The truth of this assertion is a legitimate subject for enquiry.'
13. The next case cited is a Bench decision of the Madras High Court Eapanna v. Vengayya AIR 1937 Mad 511, in that case, what happened was as follows: The decree holder obtained certain payments from the judgment debtor. He assigned the decree, and the assignee made an application for execution, with which was enclosed a document executed by the original decree holder, admitting certain payments. The question was whether such payments, although uncertified, could be taken notice of by the Court. Clearly the information was given to the Court by the assignee decree holder himself. Therefore it was rightly held that the Court could take notice of it. Horwill J., however, made a sweeping statement that the authorities on the subject established that it did not matter under what circumstances the payment by the judgment debtor was brought to the notice of the executing Court by the decree holder; such bringing to notice in any shape or form was sufficient to satisfy the requirements of order 21 Rule 2. The cases relied upon by the learned Judge for this sweeping proposition are the cases mentioned above, in all of which the information was given by the decree holder. In the affidavit in opposition filed by Sudhir Kumar Chatterjee it was stated that the defendant had throughout paid and the decree holder had accepted the rents for alt the months from January, 1957 to December, 1957 and there was no default In the payment of rants in any of the months in 1957, although there was delay in making the payments. Waiver was pleaded, naturally, the decree holder had to file an affidavit in reply, in paragraph 9 of the affidavit of Mr. Sarkies, the relevant part whereof has been set out above, he has merely argued that upon the admission of the 'deponent' himself there was default and the decree holder was entitled to ask for possession. It is admitted that the word 'deponent' refers to Sudhir Kumar Chatterjee. The position, therefore, is as follows: The decree holder files a tabular statement saying that there has been default and the right to possession has accrued. The judgment debtor says in his affidavit in opposition that payments have been made but the payments were not made in time, although accepted by the judgment creditor. In answer, the judgment creditor says that upon the admission of the judgment debtor himself there has been default and the decree holder is entitled to execute for recovery of possession. It may be that from this statement it may be deduced that the decree holder was not denying payments. But I do not think that it could be said that the decree holder had given information to the Court in compliance with Clause (i) of Order 21 Rule 2 thatis to say, that he has duly certified such payments to the Court, and the Court could take notice of the same.
14. In view of my decision on the merits of the case however, and particularly on the question of waiver, it is not necessary to decide this application solely on the point of want of certification. As I have stated above even assuming that the Court was to take cognisance of all the payments and the dates of payments and the circumstances in which they were paid, it must still be held that in the facts and circumstances of this case there was default in terms of Clause 4 of the decree and that on 23rd December 1957 the decree holder had a right to execute the decree for possession under Clause 5, and that it had not waived or abandoned its right so as to preclude it from asking for recovery of possession on that date.
15. The result is that in my opinion the appeal should succeed and the order of Mitter, J., dated 9th March, 1959 should be set aside and there should be an order for possession as prayed for in column 10 of the tabular statement. The respondent must pay the cost of the appeal, and the cost of the application in the Court below. Certified for two -counsel.
16. Let the operation of this order remain in abeyance for a fortnight from today, as prayed for.
17. I agree.