Biva Rani Hazra vs Bimal Kanta Das and Others

Prabuddha Sankar Banerjee, J.—This revisional application is one u/s 115 of the CPC and is directed against Order No. 24 dated August 20, 1985 passed by the Learned Munsif, 3rd Court, Howrah in connection with Misc. Case No. 151 of 1983.

The fact leading to filing of the instant revision may be summed up thus:

(i) That one suit being T.S. No. 30 of 1968 was filed by Bimal Kumar Das against one Butto Krishna Dutta for eviction and other consequential relief.

(ii) The said suit was decreed on June 23, 1971.

(iii) The Learned Trial Judge decreed the suit and gave relief to the Plaintiff and also allowed the prayer for mesne profit which was fixed at Rs. 63/- per month.

(iv) The said mesne profit was given into effect from October 1967 till delivery of possession.

(v) Thereafter, the Decree Holder filed one execution case on May 23, 1983.

(vi) the legal heirs of Butta Krishna Dutta who died in the meantime, filed application u/s 47 of the Code of Civil Procedure.

(vii) In the said application u/s 47 of the Code of Civil Procedure, the legal heirs of the original judgment Debtor took the specific plea that the execution case is not maintainable as the matter has been settled outside the Court and the landlord Decree Holder created new tenancy in favour of the judgment Debtor on the basis of oral agreement. It is also the specific case of the judgment Debtor that as per agreement, the rent was enhanced to Rs. 150/- initially and subsequently the same was enhanced to Rs. 175/- per month.

(viii) It is also the case of the judgment Debtor that rent @ Rs. 150/- per month was paid from July 1981 which was accepted by the decree Holder landlord by issuing rent receipts. Thereafter, the rent was enhanced to Rs. 175/- per month from September 1981 and rent receipts were granted accordingly.

(ix) It is the further case of the preset Petitioners that on the basis of the oral agreement new tenancy was created and as such, the Decree Holder landlord did not put the decree in execution till May 23, 1983.

(x) it is the further case of the judgment Debtor that as the Decree Holder accepted the judgment Debtor as tenant afresh on the basis of oral agreement by accepting enhanced rent, the filing of the execution case was against the provision of law and as such, the same is not maintainable.

(xi) The said application u/s 47 of the CPC was numbered as Misc. Case No. 151 of 1983.

(xii) The Decree Holder contested the said application by filing written objection wherein specific plea was taken that the amount so received from the judgment Debtor was towards settlement of amount of mesne profit.

(xiii) The Decree Holder denied that any such agreement was entered into in between the Decree Holder and the judgment Debtor.

(xiv) The Decree Holder also denied that new tenancy was created on the basis of oral agreement and that on the basis of new tenancy, the enhanced rent was accepted.

(xv) Witnesses were examined on behalf of the parties and documents were also marked in course of said proceeding.

(xvi) The Learned Munsif dismissed the application u/s 47 of CPC and being aggrieved and dissatisfied with the said order of the Learned Munsif, the instant revision was preferred by the judgment Debtors.

Mr. S.P. Roychowdury, Learned Senior counsel for the present Petitioner in course of his strenuous argument challenged the findings of the Learned Trial Judge on the following grounds:

(i) That the Learned Munsiff did not consider that the execution case was filed after about 11 years without giving any proper explanation.

(ii) That the Learned Munsiff ought to have considered that there must have been an intermediate arrangement in between the parties for which the Decree Holder did not file the execution case earlier.

(iii) That the Learned Munsif did not consider that the matter has been settled outside the court.

(vi) That the Court did not consider that on the basis of oral agreement in between the Decree Holder and the judgment Debtor, fresh tenancy was created and the judgment Debtor paid enhanced rent on the basis of oral agreement.

(v) That the Court below did not consider that the Decree Holder accepted the said enhanced rent by issuing rent receipts.

(vi) That the Court did not consider that the letter written by the Decree Holder stating that the amount was adjusted towards the mesne profit was subsequent to the grant of rent receipts by the Decree Holder in favour of the judgment Debtor.

Mr. Roychowdhury, further contended that as the Decree Holder kept silent for about 11 years, the Court ought to have presumed that the matter has been settled amicably as agitated before the Court below on behalf of the judgment Debtors.

At the same time, it was argued by Mr. Roychowdhury, that in a proceeding arising out of an application u/s 47 in connection with a title execution case, the Court has the power to decide whether there was any settlement outside the Court and in that case, the Court have power to dismiss the execution case.

Mr. Roychowdhury, further contended that the plea of the Decree Holder that the amount, so received by the Decree Holder against grant of rent receipt can never be treated as mesne profit as the Court directed that the Decree Holder will be entitled to get mesne profit @ Rs. 63/- per month.

On the basis of the same, Mr. Roychowdhury, contended that under no circumstances the said sum of Rs. 150/- can be the amount of mesne profit for two months which will be Rs. 126/-.

As such, he challenged the order of the Learned Munsif on the ground that the Learned Munsif committed serious error in coming to the conclusion that the Decree Holder accept the said sum of Rs. 150/- being the amount of mesne profit.

At the same time, Mr. Roychowdhury, drew the attention of the Court to rent receipts which are marked as Exhibt-1 series. On the basis of the same, Mr. Roychowdhury, contended that there is no whisper in the said rent receipts starting from July 19, 1981 that those were, in fact, receipts for mesne profit.

Mr. Roychowdhury, also drew the attention of the Court to exhibit ''A'' series and on the basis of the same, he contended that those letters were of the year 1983 i.e. long after issuance of rent receipts which were marked as Exhibit-1 series. As such, Mr. Roychowdhury, argued that under no circumstances, the said rent receipts can be converted into receipts against which were marked as Exhibit-1 series. As such, Mr. Roychowdhury, argued that under no circumstances, the said rent receipts can be converted into receipts against mesne profit.

In this connection, Mr. Roychowdhury, relied upon the case in between The Oudh Commercial Bank Ltd., Fyzabad v. Thakurain Bind Basni Kuer and Ors. He also relied upon the case in between Moti Lai Banker (dead) by his legal representative v. Maharaj Kumar Mahmood Hasan Khan 43 CWN 501.

I have gone through the case reported The Moti Lal Banker Vs. Mahraj Kumar Mahmood Hasan Khan, . In that case the compromise during execution proceeding in increasing the rate of interest in consideration of time being granted was duly recorded as adjustment.

As such, the said reported case will not help Mr. Roychowdhury''s client.

In the case reported in Moti Lai Banker. Head note runs as follows:

The execution Court can determine all questions relating to the agreement postponing the execution of the decree and the incidental term as to payment of the higher rate of interest. The jurisdiction of the executing Court to enforce such a compromise is not taken away by Order 23 Rule 4. The effect of Order 23 Rule 4 is that Order 23 Rule 3 does not apply to execution proceedings, independently of Order 23 Rule 3 the provisions of Order 21 Rule 2 and Section 47 enable the executing Court to record and enforce such a compromise in execution proceedings. Nor does Order 20, Rule 11(2) affect this power of the executing Court Order 20, Rule 11 enables the affect this power of the executing Court, Order 20, Rule 11 enables the Court passing the decree to order postponement of the payment of the decrial amount on such terms as to the payment of interest as it thinks fit on the application of the judgment Debtor and with the consent of the Decree Holder. It does not affect the power of the executing Court u/s 47 Order 21 Rule 2. AIR 1939 80 (Privy Council) , Rel. on.

Relying upon the said judgment Mr. S.P. Roychowdhury, Learned Senior counsel for the Petitioner took the specific plea that the executing Court had the power to pass appropriate order on the basis of pleadings taken in the application u/s 47 of the Code of Civil Procedure. Mr. Roychowdhury further submitted that the plenary power conferred by Section 47 of CPC upon the Court executing the decree is not thereby affected.

Mr. Roychowdhury further contended that all question relating to execution, discharge or satisfaction of decree arising between the parties shall be determined in the execution proceeding and not by a separate suit. He gave emphasis upon the word satisfaction and on the basis of the same, Mr. Roychowdhury contended that as per Section 47 of the Code of Civil Procedure, the executing Court had the power to note that the decree is not enforceable being satisfied.

At the same time, Mr. Roychowdhury took the specific plea that the case reported in between Badamo Devi and Ors. v. Sagar Sharma which was relied upon by Mr. Banerjee, Learned Counsel for the Opposite Party is not attracted in the instant case as the said judgment was delivered by a bench consisting of two Hon�ble judges of the Apex Court whereas the case in between M.P. Shreevastava v. Mrs. Veena AIR 1967 SC 1198 was disposed of by three Hon''ble Judges of the Apex Court. As such, Mr. Roychowdhury took the specific plea that the principle of per curium will apply.

The said pleas were met by Mr. Banerjee by referring some paragraphs of the case as relied in M.P. Shreevastava AIR 1967 SC 1198 upon by Mr. Roychowdhury. He relied upon paragraphs 5, 6 & 7 of the said reported case. Paragraphs 5, 6 & 7 of the said reported case runs as follows:

But it was said that the Respondent could not maintain an application for recording adjustment of the decree under Order 21 Rule 2 Code of Civil Procedure, nor could she maintain an application for recording satisfaction of the decree for restitution of conjugal rights so long as the husband did not apply to execute the decree, or did not claim a decree for divorce u/s 27 of the Special Marriage Act. Order 21 Rule 2 prescribes the procedure for recording payment of money under any decrier for adjustment of any decree to the satisfaction of the Decree Holder. If any money payable under a decree of any kind 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 is enjoined by Rule 2(1) of Order 21 to certify such payment or adjustment to the Court: the judgment Debtor may also inform the Court of such payment or adjustment and it may be recorded after enquiry: Rule 2(2) of Order 21. In the present case, however, there is no adjustment. Adjustment contemplates mutual agreement, and in the present case there is no evidence of any consent on the part of the Appellant who was never willing to take back the wife and resume conjugal relations. Order 21 Rule 2 contemplates adjustment of the decree by consent-express or implied-of the parties: where there is no such consent, Order 21 Rule 2 does not apply.

But Order 21 Rule 2 prescribes a special procedure for recording adjustment of a decree, or for recording payment of money paid out of Court under any decree. However, the plenary power conferred by Section 47 CPC upon the Court executing the decree to determine all questions arising between the parties to the suit in which the decree was passed, and relating to execution, discharge or satisfaction of the decree, is not thereby affected. Whereas Order 21 Rule 2 deals with the procedure to be followed in a limited class of cases relating to discharge or satisfaction of decrees, where there has been payment of money or adjustment or satisfaction of the decree by consensual arrangement, Section 47 CPC deals with the power of the Court execution the decree.

Counsel for the Appellant does not deny to the Court executing the decree power to decide all questions relating to execution, discharge or satisfaction of the decree arising between the parties to the suit in which the decree was passed, but contends that since the power record discharge or satisfaction of a decree is exercisable only by the Court executing the decree, or substantive petition lies at the instance of the person against whom a decree is passed to record adjustment or satisfaction so long as the Decree holder has not applied for execution. Counsel says that the expression "Court executing the decree" means the "Court which is executing the decree at the instance of the decree Holder" and in support of his contention relies upon the different expressions used in Order 21 Rules 1 and 2, C.P. Code. He points out that under Order 21 Rule 1(1) (a) money payable under a decree may be paid into the Court whose duty it is to execute the decree. Similarly an application under Clause (1) or Clause (2) of Rule 2, Order 21 for recording payment of money under or adjustment of a decree has to be made to the Court whose duty it is to execute the decree, whereas prohibition against recognition of an uncertified payment or adjustment is imposed upon the Court executing the decree by Sub-rule (3). There is no doubt that the expression "Court whose duty it is to execute the decree" means a Court which is under the law competent to, and when requested bound to execute the decree which is in law enforceable, and where an application is made under Order 21 Rule 1(1) (a) or under Order 21 Rule (2) or (9) there need (not ?) be substantive application for execution pending. It also appears, from the terms of Clause (3) of Order 21, Rule 2, that the prohibition is against the Court executing the decree. But there is no warrant for the argument that the expression "Court executing the decree" as used in Section 47, CPC means a "Court which is seized of an application for execution of a decree at the instance of the Decree Holder." Section 47 enacts the salutary rule that all questions relating to execution, discharge or satisfaction of the decree shall be determined not by a separate suit, but in execution of the decree. The power so conferred may not be limited by any strained or artificial construction of the words "Court executing the decree". The expression "Court executing the decree" has not been defined, and having regard to the scheme of the Code it cannot have a limited meaning, as argued by counsel for the Appellant. The principle of section is that all questions relating to execution, discharge or satisfaction of a decree and arising between the parties to the suit in which the decree is passed, shall be determined in the execution proceeding, and not by a separate suit; it follows as a corollary that a question relating to execution, discharge or satisfaction of a decree may be raised by the Decree Holder or by the judgment Debtor in the execution department and that pendency of an application for execution by the Decree Holder is not a condition of its exercise. An application made by the judgment Debtor which raises a question relating to execution, discharge or satisfaction of a decree in a suit to which he, or the person of whom he is a representative, was a party is an application before the Court executing the decree, and must be tried in that Court.

The Hon''ble Supreme Court in that case came to the conclusion that there is no antithesis between Section 47 and order 21 Rule 2, the former deals with the power of the Court and the later with the procedure to be followed in respect of a limited clause of cases relating to discharge of satisfaction of decree.

Now the question arises whether the said case was considered by the Hon''ble supreme Court in connection with case between Badamo Devi and Ors. v. Sagar Sharma (Supra).

Paragraph 10 of the said judgment runs as follows:

Admittedly, neither the Decree Holder nor the Respondent had applied to the Court for certification of the compromise entered into between the parties which had the effect of adjustment of the decree in its entirely. What would be the effect of noncompliance with the provisions of Order 21 Rule 2 was considered by this Court in Sultana Begum v. Prem Chand Jain in which the entire case-law was reviewed and it was laid down that any payment or adjustment which is not certified under Order 21 Rule 2 would not be recognized by the executing Court. Since the Respondent had not approached the Court under Order 21 Rule 2 for certifying the adjustment of the decree in terms of the so-called agreement between him and Appellant 2, the objection filed u/s 47 CPC before the executing Court were not maintainable and no investigation was required to be done in those objections.

It is clear from the said paragraph that the Hon''ble Supreme Court consisting of the two Hon''ble Judges discussed the case in between Sultana Begum Vs. Prem Chand Jain,

Now I will discuss the case in between Sultana Begum Vs. Prem Chand Jain, .

That was also the judgment passed by two of the Hon''ble Judges of the Hon''ble Supreme Court.

In paragraph 20 of the said judgment the Hon''ble Supreme Court came to the conclusion that 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 recognize them and will proceed to execute the decree.

The Hon''ble Court further opined that Order 21, Rule 3, however, places a restraint on the exercise of that power by providing that the executing Court shall not recognize 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 later, in view of legislative mandate, has to ignore it if it has not been certified or recorded by the Court. I Quote paragraph 24 of the said judgment which runs as follows:

If Section 47 and Order 21 Rule 2 are read together, as had been done by us in this case, the so-called conflict (we say "so called" as, in fact, there is none) stands dispelled by employing the rule of "harmonious construction" or the other rule that the general provision must yield to the special provision.

Paragraph 33 of the said judgment goes to show that the Court duly considered the case in between M.P. Srivastava v. Mrs. Veena (Supra) which was relied upon by Mr. Roychowdhury.

In view of the said position, I cannot accept the plea as taken by Mr. Roychowdhury that the principles of per curium will come into play.

Mr. Banerjee, in Course of his argument took the specific plea that the execution case was filed within the stipulated period and as such, no explanation is required to be given for the alleged delay. In other words, it was the contention of Mr. Banerjee that as per statute he filed the executor case within the stipulated period and accordingly; the Court rightly accepted the same and there is no need for giving any explanation of so called delay.

It should be worth mentioning that Mr. Roychowdhury, Learned Counsel for the Petitioner admitted that the execution case was filed within the stipulated period but he took the specific plea that the Decree Holder waited for long unnecessary period. As no explanation has been given why the Decree Holder waited unnecessarily for this long period, the Court ought to have presumed that there was settlement outside the Court as taken by the judgment Debtor in their application u/s 47 of the Code of Civil procedure.

Mr. Banerjee drew the attention of the Court to Article 125 of the Limitation Act and on the basis of the same, he contended that if there is any adjustment that is to be recorded within 30 days when the payment or adjustment is made.

He gave emphasis upon the words "satisfaction of a decree". On the basis of the same, Mr. Banerjee argued that no such adjustment was recorded either in the suit or in the execution case within 30 days from the date of alleged payment of any amount.

Mr. Banerjee also drew the attention to the provision of Order 21 Rule 1, Order 21 Rule 2 (3) of CPC and on the basis of the same, it was contended by him that the Court is to certify such payment and the same is mandatory.

Order 21 Rule 2 runs as follows:

Payment out of Court to decree holder. -

(1) Where any money payable under a decree of any kind is paid out of Court, [or a 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.

Order 22 Rule 2(3) runs as follows:

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

On the basis of the provision of Order 21 Rul9 2(3), Mr. Banerjee contended that as or certificate has been issued by the Court regarding payment of any amount outside the Court, the same shall not be recognized by any Court executing the decree.

It is admitted position that neither the decree Holder nor the judgment Debtor asked for any certificate from the Court regarding payment of any amount as part of settlement outside the Court.

Order 21 Rule 2(3) clearly provides that no Court shall recognize the said payment outside the Court in the absence of any certificate.

On the basis of the said provision of law and on the basis of the case in between Badamo Devi and Ors. v. Sagar Sharma Mr. Banerjee contended that the executing Court rightly dismissed the application u/s 47 of the CPC as the Court cannot recognize the settlement of the dispute outside the Court by payment of any amount without obtaining any certificate from the Court.

Paragraph 6 of the said reported case runs as follows:

It is contended by the Learned Counsel for the Appellants that the eviction decree was passed against the tenant in 1978 and if there was an agreement between the Appellants and the Respondent, the same should have been brought to the notice of the Court for being certified and since this was not done, it could not have been recognised subsequently at the time of the execution of the decree. The executing Court and the High Court were wholly wrong in not giving effect to the mandatory provisions contained under Order 21 Rule 2(3) CPC.

Mr. Banerjee also relied upon paragraphs 9 and 10 of the said case, which runs as follows:

Under this rule, if any payment due under the decree is made out of Court or a decree of any kind is otherwise adjusted in whole or in part to the satisfaction of the decree holder, it becomes the duty of the decree holder to certify such payment or adjustment to the Court and the Court has to record the same. Under Sub-rule (2) of Rule 2 of Order 21, a right has also been given to the judgment debtor to apply to the Court for certifying the payment or adjustment. If any application to this effect is made by the judgment debtor, the Court after issuing notice to the decree holder would record the said adjustment or payment provided no cause is shown by the Decree Holder. Sub-rule (Supra) of Rule 2 of Order 21 provides that a payment of adjustment which has not been certified would not be recognized by any Court executing the decree.

Admittedly, neither the Decree Holder nor the Respondent had applied to the Court for certification of the compromise entered into between the parties which had the effect of adjustment of the decree in its entirety. What would be the effect of noncompliance with the provisions of Order 21 Rule 2 was considered by this Court in Sultana Begum v. Prem Chand Jain in which the entire case law was reviewed and it was laid down that any payment or adjustment which is not certified under Order 21 Rule 2 would not be recognized by the executing Court. Since the Respondent had not approached the Court under Order 21 Rule 2 for certifying the adjustment of the decree in terms of the so-called agreement between him and Appellant 2, the objections filed u/s 47 CPC before the executing Court were not maintainable and no investigation was required to be done in those objections.

On perusal of the said reported case, it is clear that the fact of the said case was practically identical with the instant case.

The Apex Court on the basis of above discussions dismissed the application u/s 47 filed by the judgment Debtor in that case.

On the basis of the said findings of the Hon''ble Apex Court, it is immaterial whether the judgment Debtor paid any amount towards enhanced rent to the Decree Holder outside the Curt as per settlement.

As the plea of settlement outside the Court and payment of rent on the basis of the said settlement was not certified by the Court, the said plea� cannot be considered by this Court in this revisional application on the basis of decision of the Hon''ble Supreme Court.

In view of the said position and considering the materials on record, I am of clear opinion that the instant revisional application is devoid of any merit and is dismissed but without any cost.

Order of stay, if any, is vacated.

Urgent Xerox certified copy of this order be given to the parties within 7 days from the date of this order on proper application.