Annapoorni Ammal and Others vs Appu alias V.V. Venkateswaran

S.S. Subramani, J.—Plaintiffs 2 to 4 in O.S. No. 163 of 1979, on the file of Sub Court, Thanjavur, are the revision petitioners.

Predecessor of the petitioners, late V.V. Swaminathan filed the above suit for partition. The matter was settled and a compromise was entered

into between the parties. As per paragraph 3 of the compromise, it was agreed that since the plaintiffs were allotted properties of a greater value,

they should pay a sum of Rs. 1,00,000 to the defendant. The said amount was agreed to be paid in instalments of Rs. 1,000 permensem. The

amount so paid will also carry interest at 6% per annum. The compromise was recorded and thereafter the original plaintiff died. It is the case of

the petitioners that pursuant to the compromise, the amounts were paid to the respondent. From the accounting year 1979-80 to 1985-1986,

every month, amount was paid and the same is reflected in the accounts which are maintained by them. It is said that the receipt of the amount is

also admitted by defendant in his Income Tax returns. It is their case that after payment of instalments and also the interest the petitioners were to

pay by the end of Financial year 1985-86, only a sum of Rs. 61,585-65. In the meanwhile, the respondent also filed an Execution Petition without

giving any reduction to the amount alleged to have been received. The petitioners,""therefore, filed the present execution petition without giving any

reduction to the amount alleged to have been received. The petitioners, therefore, filed the present execution application u/s 47, C.P.C. to enter

satisfaction of the decree, and for the said purpose. they sought the assistance of court for an enquiry. They also wanted to issue summons to the

Income Tax Department to produce the accounts, and also wanted the defendant to produce the accounts wherein the defendant has admitted

receipt of the amount. The said execution application was not numbered by the Court below, and after hearing the objection of the respondent, the

same was dismissed/The said order is now under challenge.

The court below has held that the application filed by the revision petitioners u/s 47, C.P.C. cannot be entertained by the Executing Court and it

has no jurisdiction to pass order on that application.

Challenging the legality of that Order, learned Counsel for revision petitioners relied on Order 21, Rule 2, Sub-rule (2), (a) and (b), C.P.C. to

contend that if any payment or adjustment is proved by documentary evidence, satisfaction of the decree could be entered under Order 21, Rule

2, C.P.C. It is his case that the defendant has already admitted receipt of the amounts in his accounts and also in his returns to the Income Tax

Department. Therefore, they are entitled to call for those documents.

According to me, the order of the lower court does not call for any interference in view of the binding precedents.

In a very recent decision of the Supreme Court in Sultana Begum Vs. Prem Chand Jain, ; , their Lordships considered the scope of Section 47

read with Order 21, Rules 2 and 3, C.P.C. The argument before the Supreme Court was that since Section 47, C.P.C. provides for determination

of all questions relating to execution, discharge or satisfaction of the decree, the question whether any payment was made also could be decided

u/s 47, C.P.C. even though the payment is not certified or recorded. The said contention was replied by the Supreme Court paragraph 18 to 24 of

the judgment read thus:

Under Section 38 of the Code a decree may be executed either by the court which passed it or by the court to which it is sent for execution. The

court which passed the decree has been defined in Section 37. Transfer of decree to another court for its execution has been provided for in

Section 39. Section 40. provides for transfer of decree to a court in another State. Section 42, lays downs that the court to which a decree is

transferred for execution shall have the same powers in executing that decree as if the decree was passed by itself. These revisions including

Section 37 thus clearly speak of the powers and jurisdiction of the Court executing the decree.

Order 21, Rule 2 applies to a specific set of circumstances, If any money is payable under a decree, irrespective of the nature of decree, and such

money is paid out of court, the decree holder has to certify such payment to the Court whose duty it is to execute the decree and that court has to

record the same accordingly. Similarly, if a decree, irrespective of its nature is adjusted in whole or in part to the satisfaction of the decree-holder,

the decree holder has to certify such adjustment to that court which has came to record the adjustment accordingly. If the payment or adjustment is

not reported by the decree-holder, the judgment-debtor has been given the right to inform the court of such payment or adjustment and to apply to

that court for certifying that payment or adjustment after notice to the decree-holder. Then comes Sub-rule (23) which provides that payment or

adjustment which has not. been certified or recorded under Sub-rule (1) or (2) shall not be recognised by the court executing the decree. The

words ''or the decree of any kind is otherwise adjusted'' are of wide amplitude. It is open to the parties namely, the decree-holder and the

judgment-debtor to enter into a contract or compromise in regard to their rights and obligations under the decree. If such contract or compromise

amounts to an adjustment of the decree it has to be recorded by the court under Rule 2 of Order 21. It may be pointed out that an agreement,

contract of compromise, which has the effect of extinguishing the decree in whole or in part on account of decree being satisfied to that extent will

amount to an adjustment of the decree within the meaning of this Rule and the court, if approved, will issue the certificate of adjustment. An

uncertified payment of money or adjustment which is not recorded by the court under Order 21, Rule 2, cannot be recognised by the Executing

Court. In a situation like this, the only enquiry that the executing court can do is to find out whether the plea taken on its face value amounts to

adjustment or satisfaction of decree, wholly or in part, and whether such adjustment or satisfaction had the effect of extinguishing the decree to that

extent. If the executing court comes to the conclusion that the decree was adjusted wholly or in part but the compromise or adjustment or

satisfaction was not recorded and, or certified by the court, the executing court would not recognise them and will proceed to execute the decree.

The problem can be looked into from another angle on the basis of the maxim ''generalia soeciablibbus non derogant.

Section 47 as pointed out earlier, gives full jurisdiction and power to the Executing Court to decide all questions relating to execution, discharge

and satisfaction of the decree. Order 21, Rule 3, however, places a restraint on the exercise of that power by providing that the Executing Court

shall not recognise or look into any uncertified payment of money or any adjustment of decree. if any such adjustment or payment is pleaded by the

judgment-debtor before the Executing Court, the latter, in view of the legislative mandate, has to ignore if it has not been certified or recorded by

the court.

The general power of deciding questions relating to executing discharge or satisfaction of decree u/s 47 can thus be exercised subject to the

restriction placed by Order 21, Rule 2 including Sub-rule (3) which contains special provisions regu-lating payment of money due under a general

provision u/s 47 has, therefore, to yield to that extent to the special provisions contained in Order 21, Rule 2 which have been enacted to prevent a

judgment-debtor from setting up false or cooked up pleas so as to prolong or delay the execution proceedings.

If Section 47 and Order 21, Rule 2 are read together, as has been done by us in this case, the socalled conflict. (We say ""socalled"" as, in fact,

there is none) stands dispelled by employing the rule of harmonious construction'' of the other rule that the general provision must yield to the

special provision.

Their Lordships held that Order 21, Rule 2, C.P.C. is a special procedure, and if the payment or adjustment is not recorded as provided under

Order 21, Rule, C.P.C. the Executing Court cannot take evidence regarding the same or declare an adjustment.

In Manuraj Chandrakant Babar v. Babusaheb Babasaheb Deshmukh AIR 1955 Bom. 41. It was held thus:

Any payment made by a judgment-debtor to the decree-holder outside the court or any adjustment made by him with the decree-holder outside

the court cannot be recognised in the absence of the same being recorded under Order 21, Rule 2 of the Code. Sub-rule (2) of Rule 2 which

empowers the Executing Court to record or certify any payment or adjustment contemplates a judicial decision by the court whether the payment

or adjustment should be recorded or not. The Executing Court is bound by virtue of Order 21, Rule 2(3) not to recognise the payment or

adjustment which has not been certified or recorded by Sub-rules (1) and (2) of Rule 2 of Order 21.

In Nandagopal Gounder Vs. Kannan and Another, , in paragraphs 7 to 9, a learned Judge of this Court held that any payment outside the court

cannot be recognised in the absence of the same being recorded under Order 21, Rule 2, C.P.C. The said paragraphs read thus:

There is no express article in the Limitation Act, applicable to the certification by the decree-holder of a payment made out of court to him. It is not

necessary for me to go into the question why the Legislature should have prescribed a specified time for the application under Order 21, Rule 2(2),

C.P.C. and should have made no specific provision of limitation with regard to the procedure of certifying by the decree holder under Order 21,

Rule 2(21), C.P.C. if such procedure were regarded as an application within the meaning of the Limitation Act, Rule 2(3) provides that a payment,

which has not been certified as recorded as aforesaid, shall not be recognised by any court executing the decree. The provision in Rule 2(3) no

doubt was inserted for good reasons known to the Legislature. Obviously, such a provision has been made to simplify and expedite the

proceedings in the execution proceedings. Insofar as the application to be made by the judgment-debtor is concerned, the old Limitation Act

provides 90 days and under the present Limitation Act, Article 125 provides only 30 days for filing such an application In view of this positive

position, the only question to be decided is, whether there is any area of discretion available to the court to recognise an uncertified payment when

as a matter of fact, such payment has been proved. "" This question was considered by a Full Bench of this Court in the decision reported in Nalam

Subramanyam Vs. Devara Ramaswami and Others, , wherein this Court has held as follows: ""Where a decree has been adjusted if the decree-

holder does not certify such adjustment to the court, the judgment-debtor himself may apply to the court to issue a notice to the decree-holder, to

show cause why such an adjustment should not be recorded as certified. Under Article 274, Limitation Act, he has 90 days in which to do this, If

the decree-holder has not certified the adjustment and the judgment-debtor has not got the adjustment recorded with in that period, such an

adjustment cannot be recognised by the court executing the decree.

The same question was considered by the Privy Council in the decision reported in Raja Sri Prakash Singh v. The Allahabad Bank Ltd. 56 M.L.J.

233 : AIR 1929 P.C. 19 : 29 L.W. 161 wherein has been held as follows:

The terms of Rule 2(1) of Order 21 of C.P.C. do not provide for any application being made by the decree-holder. The decree holder would

comply with the terms of the rule if he were to certify to the court that money payable under the decree has been paid to him out of court and it

would then rest with the Court to record the payment in accordance with the provisions of the rule. Sub-rule (2) of Order 21 does not contemplate

an application by the judgment-debtor. "" Again another Full Bench of this Court interpreted the scope of Order 21, Rule 2, C.P.C. in the decision

reported in Chowdri Abdul Subhan v. Kante Ramanna, ILR 1945 Mad. 827 : AIR 1945 Mad. 161 : 58 L.W. 163 wherein it was held that it is

not open to judgment-debtor or any one standing in his shoes to plead an uncertified adjustment of a decree by way of defence to a suit filed by an

auction purchaser for possession of property sold in execution of the decree. Similar view was taken by a Full Bench of the Bombay High Court in

the decision reported in Krishna Govind Patil v. Moolchand Keshavachand Gujar 43 Bom. L.R. 751 : AIR 1941 Bom. 302 which is in the

following terms:

Where an assignee of a decree makes an application under Order 21 Rules 11 and 16, C.P.C., 1908 to the court passing the decree for executing

it, the court is hearing the applications as an Executing Court and is bound in virtue of Order 21, Rule 2(3) not to recognise payment or adjustment

which has not been certified or recorded as required by Rule 2(1), (2).

Almost all the courts in India and the Privy Council have taken similar view on the question and, therefore, there is no difficulty in holding that any

payment made by a judgment-debtor to a decree holder outside the court cannot be recognised in the absence of the same being recorded under

Order 21, Rule 2, C.P.C. these principles have already been considered by this Court in A.V. Kannappa Mudaliar Vs. V.C. Chellakutti Udayar, .

Therefore, I am of the view that the payment pleaded by the petitioner in the execution proceedings cannot be recognised.

In Thangavel v. Kuppusamy Muddaliar (1996) 1 L.W. 128 also, a learned Judge of this Court has taken a similar view and has held thus:

... the amendment to CPC made in 1973 introducing Sub-rule (2-A) to Order 21, makes it compulsory for recording satisfaction, that only if the

payments were made in the modes mentioned in Order 21, Rule 1 and Sub-rule (2-A), the satisfaction could be recorded. The contention taken

by the learned Counsel for the petitioner is against the purport of Sub-rule (2-A) and the court below is perfectly correct in rejecting the petition in

view of the sub-rule introduced in the amendment in 1976.

In this connection, the decision reported in K.R. Shankar Raj Vs. State Bank of India, Vellore Branch, , also requires consideration. In that

case, Srinivasan, J., as he then was, held that Sub-rule (2-A) to Rule 2 of Order 21, C.P.C. is in the nature of a provision and if only the judgment-

debtor proves the payment in accordance with Sub-rule (2-A) the question regarding adjustment will arise. 11. The application filed by the

judgment-debtor should also be within 30 days from the date of the respective payments to have the adjustment recorded. If no such application is

filed within the prescribed time, the Executing Court has no jurisdiction to enquire into the same. (See: Article 125 of the Indian Limitation Act,

1963). In this case, the judgment-debtor has no case that he has moved the application within the prescribed time. Either way, the finding of the

lower court that it has no jurisdiction to decide the matter is correct. The civil revision petition is, therefore, dismissed. No costs. C.M.P. No. 5588

of 1992 for stay is also dismissed consequently.