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Shaikh Niamat Vs. Shaikh Jalil - Court Judgment

LegalCrystal Citation
Subject Property
CourtKolkata
Decided On
Reported inAIR1928Cal715,117Ind.Cas.833
AppellantShaikh Niamat
RespondentShaikh Jalil
Cases ReferredEllis Enas Pavlo Gharry v. Kitter Philip Gowrya A.I.R.
Excerpt:
- .....by morris, j.:it is urged on behalf of the judgment-debtor that section 258 has reference only to money decrees, and that this is apparent from its position in ch. 19 of the code in connexion with this particular section relating to money decrees alone. but a consideration of the terms of the section leads us to a different conclusion. that section corresponds in all material respects, and carries with it the same meaning as section 206, of the former procedure code (act 8 of 1859) which manifestly deals with adjustment of any decree.4. that decision of 1881 stands unquestioned so far as this court is concerned. section 258 has been replaced by order 21, rule 2 and the difference between the two provisions is that after the word 'decree' in the first sentence of sub-rule (i), rule 2,.....
Judgment:

B.B. Ghose, J.

1. This is an appeal on behalf of the judgment-debtor No. 2. The matter in controversy in this appeal arises in this way : There was a decree for partition in which the plaintiff was allotted certain lands and the defendant got certain lands. When the commissioner went to the locality for delivery of possession of the allotments made defendant 2 said that there had been an adjustment of the decree between himself and the plaintiff by which the plaintiff gave up his claim to have possession of certain plots of land in lieu of other plots and as a consideration for this concession on the part of the plaintiff he had been paid defendant 2 a sum of Rs. 85. The result of this agreement, if given effect to would be that the plaintiff would get 2.82 acres of land instead of 4-36 acres of land to which he was entitled under the decree. The plaintiff denied this adjustment. The Munsif believed the story of defendant 2 and made an order purporting to have been made under Section 47, Civil P.C., in favour of defendant 2. The plaintiff appealed against that order. The learned Subordinate Judge, while throwing some doubt on the merits of the case, stated that he need not decide the question as regards the merits of the application as he held that the application could not be given affect to as being time barred. What he held was that this judgment alleged by the judgment-debtor No. 2 falls within the provisions of Order 21, Rule 2, Civil P.C., and the adjustment ought to have been certified by the Court. As no application was made by the judgment-debtor No. 2 within the period provided by Article 174, Lim. Act, the judgment-debtor cannot ask the Court to take cognizance of the adjustment. The period for making the application by the judgment-debtor had expired before he presented the application and on that ground the Subordinate Judge set aside the order of the Munsif and directed that the possession delivered by the amin should be affirmed.

2. From that decision the judgment-debtor No. 2 appeals to this Court and the contention on his behalf is that the Subordinate Judge is wrong in holding that the application of the appellant before the Munsif fell within the provisions of Article 174, Limitation Act, or, in other words that it was not an adjustment referred to in Order 21, Rule 2, Civil P.C., and it was not necessary to have a certificate as provided in that rule in order to enable the Court to give effect to the adjustment. It is broadly contended that Rule 2, Order 21, Civil P.C., applies only to decrees for money. It is next urged that even if it does not apply solely to decrees for money there must be a decree for money even if there be other reliefs allowed under the decree, and special stress is laid upon the commencing words of Rule 2(i). It is provided there:

where any money payable under a decree of any kind is paid out of Court.

and so forth, and it is urged that if there is no money payable under a decree of any kind that rule has no application. Again, it is urged that the words

or the decree is otherwise adjusted in whole or in part

must refer to the class of decree meant in the preceding clause, that is to say, the decree must be a decree where money is payable.

3. In support of this contention the case of Narayanasami Naidu v. Rangasami Naidu A.I.R. 1926 Mad. 749, is cited. There has been a difference of opinion between this Court and the Madras High Court as regards the interpretation of Section 258, Civil P.C. of 1882. It was held by this Court in the case of Baba Mohamed v. Webb [1881] 6 Cal. 786, that Section 258 of the Code of 1882 applied to any decree. It was said in the course of the judgment delivered by Morris, J.:

It is urged on behalf of the judgment-debtor that Section 258 has reference only to money decrees, and that this is apparent from its position in Ch. 19 of the Code in connexion with this particular section relating to money decrees alone. But a consideration of the terms of the section leads us to a different conclusion. That section corresponds in all material respects, and carries with it the same meaning as Section 206, of the former Procedure Code (Act 8 of 1859) which manifestly deals with adjustment of any decree.

4. That decision of 1881 stands unquestioned so far as this Court is concerned. Section 258 has been replaced by Order 21, Rule 2 and the difference between the two provisions is that after the word 'decree' in the first sentence of Sub-rule (i), Rule 2, the words 'of any kind' have been added, and in my judgment this addition shows that the legislature wanted to make it clear that the rule applies not only to money decrees but also to other decrees. The learned Judges in the case of Narayanasami Naidu, above referred to, ob3erved at p. 723 that

the addition of the words 'of any kind' after the word 'decree' in the second line of Order 21, Rule 2 were intended to set at rest the difference of view between the Madras High Court and Calcutta High Court and the conflicting views as regards the meaning of Section 258 of the Code of 1882. By the addition of the words 'of any kind' it cannot be said that the legislature intended that the adjustment of any decree, whatever may be the relief claimed, should be certified to the Court.

5. I respectfully dissent from the expression of opinion by the learned Judges. In my judgment the addition of the words 'of any kind' goes to show that the legislature intended to approve of the rule adhered to by the Calcutta High Court. It has been held by the Bombay High Court in the ease of Ellis Enas Pavlo Gharry v. Kitter Philip Gowrya A.I.R. 1922 Bom. 380, that the provisions of Order 21, Rule 2, Civil P.C., are not confined to money decrees but refer to any decree. It seems to me that it stands to reason that the provisions of that rule should apply to every kind of decree, as Mislead, C.J., has observed in the Bombay case, that the provisions of Order 21, Rule 2 would be entirely defeated if it was permitted that an uncertified adjustment of decree should be discussed in execution proceedings The object of this rule is that any adjustment out of Court should be brought to the notice of the Court by the judgment-debtor and decided in the presence of the decree-holder within a short period of time. To hold that this rule has no application to deoree3 other than decrees for payment of money would be to leave disputes with regard to adjustment of other decrees open for discussion, say, for three years after the passing of the decree and it may be for a longer period after any application for execution is made by the decree-holder. Under these circumstances I am of opinion that the rule in question is applicable to every kind of decree and the judgment-debtor cannot ask the Court executing the decree to recognize any adjustment which has not been certified or recorded under the provisions of that rule.

6. This appeal must therefore stand dismissed with costs. The hearing-fee is assessed at three gold mohurs.

Bose, J.

7. I agree.


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