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Amarnath and anr. Vs. Jai Dayal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtHimachal Pradesh High Court
Decided On
Case NumberCivil Revn. No. 48 of 1954
Judge
Reported inAIR1956HP63
ActsCode of Civil Procedure (CPC) , 1908 - Section 47 - Order 21, Rule 2, 2(2) and 2(3)
AppellantAmarnath and anr.
RespondentJai Dayal
Advocates: C.L. Puri, Adv.
DispositionPetition rejected
Cases ReferredA.P. Bagchi v. Mrs. P. Morgan
Excerpt:
- .....urged that the provisions of order 21, rule 2 are not attracted, since, in the present case, the decree-holder has denied the alleged compromise. i must say that i have had some difficulty in following learned counsel's argument. if the decree-holder admitted the judgment-debtors' plea of adjustment out of court, obviously, he would not have pursued the execution petition any further.order 21, rule 2(2) clearly empowers a judgment-debtor to inform the court of payment or adjustment out of court. thereupon, the court has to issue a notice to decree-holder to show cause why such payment or adjustment should not be recorded as certified. if the decree-holder fails to show cause why such payment or adjustment should not be recorded as certified, the court is bound to record the same.....
Judgment:
ORDER

Ramabhadran, J.C.

1. This revision petition by judgment-debtors fails on more than one ground.

2. In the first place, this petition arises out of execution proceedings relating, admittedly, to a suit of the nature of small causes of less than Rs. 1,000/- valuation. Therefore, it is expressly barred by proviso (ii) to para. 35, Himachal Pradesh (Courts) Order.

3. Confronted with this difficulty, learned: counsel for the petitioners suggested that the Courts below have acted, in the exercise of their jurisdiction, with material irregularity. The point, at issue, is a very simple one. The petitioners-judgment-debtors pleaded adjustment of the decree outside the Court. Both the Courts below have rightly pointed out that such adjustment should have been certified under Order 21, Rule 2(2), Civil P. O.

Instead of adopting this course, the judgment-debtors filed an objection purporting to be under Section 47, alleging that the matter has been adjusted out of Court. Obviously, such an objection could not be entertained in view of the provisions of Order 21, Rule 2(3), which expressly debars any such plea from being recognized, unless it had been certified or recorded as provided in Order 21, Rule 2 (1 and 2).

Mr. Puri for the petitioners urged that the provisions of Order 21, Rule 2 are not attracted, since, in the present case, the decree-holder has denied the alleged compromise. I must say that I have had some difficulty in following learned counsel's argument. If the decree-holder admitted the judgment-debtors' plea of adjustment out of Court, obviously, he would not have pursued the execution petition any further.

Order 21, Rule 2(2) clearly empowers a judgment-debtor to inform the Court of payment or adjustment out of Court. Thereupon, the Court has to issue a notice to decree-holder to show cause why such payment or adjustment should not be recorded as certified. If the decree-holder fails to show cause why such payment or adjustment should not be recorded as certified, the Court is bound to record the same accordingly.

Thus, the mere denial on the part of the decree-holder does not ipso facto put an end to the matter. Mr. Puri cited A.P. Bagchi v. Mrs. P. Morgan, 1935 All 513 (AIR V 22) (AT. There, it would appear that the decree-holder, at no stage, accepted the position that the decree had been adjusted out of Court. As Niamatullah J. observed:

'Mutual understanding is of the essence of the rule. It may be that the decree-holder and the judgment-debtor at first agreed to a certain adjustment of the decree, but subsequently when the judgment-debtor moved the Court, the decree-holder denied the alleged adjustment. In such a case if the judgment-debtor proves by evidence that the adjustment had taken place and the decree-holder is falsely denying it, the position would be different from a case in which the decree-holder and judgment-debtor never arrived at any understanding.'

4. The facts of the present case before me are, however, different. Here, according to judgment-debtors the decree-holder agreed to the adjustment out of Court, but subsequently resiled from it. Had the judgment-debtors moved the Court under Order 21, Rule 2(2), Civil P. C., within the period of limitation, notice would have been issued to the decree-holder and the Court would have disposed of the matter on merits, after making an inquiry. Admittedly, this was not done.

5. I concur with the Courts below that underthe circumstances, it was not open to the judgment-debtors to fall back upon the provisions of Section 47,Civil P. C., such a course being expressly barred by Order 21, Rule 2(3), Civil P. C. I reject the revisionpetition.


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