Jagdish Singh vs Kunj Lal and others

(1) This is a civil second miscellaneous appeal arising out execution proceedings. It appears that a decree for possession of land measuring 11 x 25

Karams situate in Sarwal was passed on 11th Nov. 1960. An execution application thereafter was taken out which was dismissed for default

somewhere in July 1962 Another application was presented by the decreeholder but that was dismissed as being time barred by the trial court by

its order dated 14th June, 1965. This finding was however reversed by the District Judge by his order dated 1711967 which was affirmed by the

High Court in second appeal 29111967 and the case was sent back to the trial court to enquire into the other objections raised by the

judgmentdebtor There was an objection on the part of the judgmentdebtor that the decree had been adjusted and the present execution was not

maintainable. The judgmentdebtor presented a compromise executed between the parties in the trial court on 20th May 1968. This plea has been

rejected by both the courts below on the grounds that as the adjustment alleged has not been certified within the statutory period of 90 days, as

provided under Article 174 of the Limitation Act, it could not be recognized by the Court under Order 21 Rule 2. CPC. This order is under

appeal.

(2) I have heard the learned counsel for the parties, each counsel has cited law in support of his contention.

(3) There is no doubt conflict of judicial authorities on the interpretation of Order 21 Rule 2 Civil Pr : Code. The Madras High Court has

consistently taken the view that the prohibition as contained in order 21 Rule 3 CPC applies only to decrees which either solely or among other

reliefs granted decree for money, viz AIR 1914 Madras 36 AIR 1918 Mad. 715, AIR 1920 Madras 469, AIR 1926 Madras 749 and AIR 1951

Madras 838. Mad. High Court has now been followed by the Andhra Pradesh High Court in AIR 1958 A. P. 705 and the same view has been

adopted by the Orissa High Court in an authority reported as AIR 1967 Orissa 59. But there are authorities of other High Court which are

contrary to the Madras, Andhra Pradesh and Orissa views. They are AIR 1952 All. 814 AIR 1922 Bombay 380, AIR 1928 Cal 715, AIR 1948

Nag. 374.

(4) AIR 1952 All 814 was a decree for possession of a house, AIR 1922 Bombay 828 was a decree for partition, AIR 1928 Cal. 715 was a

decree for partition, AIR 1936 Lah. 842 was a decree for possession, AIR 1935 Pat. 385 was a decree for money and AIR 1948 Nag. 374 was

a decree for ejectment.

(5) In addition to the authorities cited above there are other authorities also for both the propositions which need not be cited one and all. Before I

discuss the authorities let me humbly put my own interpretation on this rule.

The words of this rule are :

Where any money payable under a decree for any kind is paid out of Court, or the decree is otherwise adjusted in whole or in part to the

satisfaction of the decreeholder, the decreeholder 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.

(6) The interpretation put on this subrule by various High Courts other than Madras, Andhra Pradesh and Orissa does not seem to be correct If

the intention of the legislature were to make this rule applicable to all decrees of any kind then the language of the rule should have been much

simpler and much shorter.. Then the language should have been simply ""where any decree is adjusted in whole or in part to the satisfaction of the

decreeholder..."" Then there does not seem to be slightest justification for the words ""any money payable under a decree of any kind"" because if the

rule applied to all decrees whether the' relief granted was money accompanied with other reliefs or any other relief, where money did not form any

part of the decree, there was no necessity of using the word ""money"" in this subrule This is a point which has not been noticed by the High Courts

which took a contrary view.

(7) The argument in favour of my view is again plain from the language of the rule itself and has been emphasised by the High Courts namely the

Madras, Andhra Pradesh and Orissa. The word ''the'' after the word ""or"" definitely suggests on ordinary grammatical interpretation that the word

the"" refers to the decree mentioned previously i. e. a decree under which money is payable solely or as one of the reliefs, otherwise the words

should have been even if we retain the first portion of this rule i. e ""any money payable under a decree of any kind"" or a decree is otherwise

adjusted ''and not"" the decree is otherwise adjusted."" In that case it could be argued with some shadow of force. I have used the word 'shadow'

because there would be no substance in the argument that the second part of the subrule after the word 'or' envisages within its compass all

decrees or decree .of any kind whatsoever. That is not the language of rule. The courts taking a contrary view have laid stress upon the fact that

there would be no purpose in singling out money decrees for this exception from other decrees and not making the rule apply to decree of all

kinds. Apparently there is some force behind this argument but it sterns there is a purpose behind the rule as drafted. Money is a thing which

changes hands more often and people have dealings in money many times more than they deal in other properties. Therefore, the legislature though

it fit that if money is to be paid under a decree whether solely or one of the reliefs under the decree was money, there should be immediate report

of payment of money to the court to earn a legal adjustment. This would lead to less of litigation and avoid chances of fraud and forgery. Bur in the

case of other property decree, take for instance immovable property, there would be far less chances of fraud and others of defeating the decree

because such properties are more or less of a permanent character and not changing and evanescent like money. This clearly explains the intention

of the legislature in drafting the rule as it is. The argument of some of the Courts for instance, the Calcutta High Court in AIR 1928 Cal. 715 which

has been referred to by some other High Courts and relied upon, even if true, cannot permit the courts to interpret a rule of law differently from its

plain language. These courts have put an interpretation on the words of this sub rule which they thought the law should have been according to their

reasoning without, I say with utmost respect, analysing the plain language and the words of this subrule. It is a well settled rule of interpretation of

statutes that when the language of the statute is plain, it is to be interpreted in its grammatical sense. Maxwell in his interpretation of Statutes (1937

edition) on page 2 says :

The first and most elementary rule of construction is that it is to be assumed that the words and phrases of technical legislation are used in their

technical meaning if they have acquired one.

And otherwise, in their ordinary meaning and secondly that the phrases and sentences are to be construed according to the rule of grammar. From

these presumptions it is not allowable to depart where the language admits of no other meaning. Nor should there be any departure from them

where the language under consideration is susceptible of another meaning, unless adequate grounds are found, either in the history or cause of the

enactment of or in the content or in the consequences which would result from the literal interpretation, for concluding that the interpretation does

not give the real intention of the Legislature. If there is nothing to modify, nothing to alter, nothing to qualify, the language with the statute contains, it

must be construed that in the ordinary and natural meaning of the words and sentences. The safer and more correct course of dealing with a

question of construction is to take the words themselves and arrive, if possible at their meaning without, in the first place, reference to cases. The

great fundamental principle in :

In construing wills and, indeed, statutes and all written instruments, the grammatical and ordinary sense of the words is to be adhered to, unless

that would lead to some absurdity, or some repugnancy or inconsistency with the rest of the instrument, in which case the grammatical and ordinary

sense of the words may be modified so as to avoid that absurdity and inconsistency, but no farther.

(8) When the language is not only plain but one meaning, the task of interpretation can hardly be said to arise. It is not allowable, says Vettal, to

interpret what has no need of interpretation. Absolute sententia expositore non indiget. Such language best declares, without more, the intention of

the lawgiver and is decisive of it. The rule of construction is ''to intend the Legislature to have meant what they have actually expressed. It matters

not, in such a case, what the consequences may be. Where, but the use of clear and unequivocal language capable of only one meaning, anything is

enacted by the Legislature, it must be enforced, even though it be absurd or mischievous. The under lying principle is that the meaning and intention

of a statute must be collected from the plain and unambiguous expression used therein rather than from any notions which may be entertained by

the court as to what is just or expedient. The words cannot be construed, contrary to their meaning, as embracing or excluding cases merely

because no good reason appears why should be excluded or embraced. However, unjust arbitrary and inconvenient the meaning is plain, it is not

the province of a Court to seen its wisdom or its policy. Its duty is not to make the law reasonable but to expound it as it stands, according to the

real sense of the words.

(9) Among Indian Cases the following may be noted : AIR 1931 All. 294 (FB) and AIR 1957 Bombay 200.

Bindra on the Interpretation of Statutes and General Clauses Act, (third edition, 1961) on page 306.07 as says that :

.........If these results are unfortunate, it is for the Legislature to take action to remedy the defects of the law as enacted, it is not for the Courts to

usurp the functions of the Legislature and by straining the meaning and ignoring the clear terms, of the Law to seek to evade consequence which, in

the opinion of the Court, may prove illgraught. The effect of the words is a question of law.

(10) In R. Vs. Archbishop of Canterbury, 0948) 11 Q. B. 665, Lord Denman observed 'My brother Coleridg's admirable argument has

confirmed me in the opinion of the danger of exposing an Act of Parliament and the most simple construction of the plainest language.........to the

speculation of those who will bring their forgotten books down and wipe the cobweb from decretales and cannons before they can find one

argument for disturbing the settled practice of 300 years.' Having then so expounded the enactment it only remains to enforce and administer the

law as it is found to be, political or otherwise and notwithstanding that it may be a very generally received opinion that the particular enactment in

question 'does not produce the effect which the Legislature intended, or might with advantage be modified. If said Pollock, C. B, in Miller Vs.

Salomons (1852) 7 Ex 560, ""the language used by the Legislature be clear and plain, we have nothing to do with its policy or impolicy, its justice

or unjustice justice being ramed according to our views of right or the contrary : we have nothing to do but to obey it and administer it as we find it

; and I think to take a different course is to abandon the office of the judge and assume that of a legislature.

(11) Another rule of interpretation is that a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void,

or insignificant, if by any other construction they may all be made useful and pertinent See also AIR 1920 PC 181 and AIR 1957 Patna 358.

(12) This rule 2 of Order 21 CPC has under gone a number of amendments. In section 258 of Code of 1877 and 1882 the words ""of any kind"" in

subrule (1) did not occur. They were inserted by the Code of 1908. Under the Codes of 1877 and 1882 it was held by the High Court of Calcutta

that Sec. 258 applied to the adjustment of any decree whatever may be the nature of the relief granted by the decree. On the other hand, it was

held by Madras High Court that the section referred only to decrees under which money was payable and did not apply to other decrees i. e.

decrees for possession of immovable property. It was in this state of authorities that the words ""of any kind"" were added. But the Madras High

Court held that only effect of the addition of the words ""of any kind"" is that the decree is not required to be one exclusively for the payment of

money as held bythat court under the Code of 1982 but that it may be a complex decree providing partly for the payment of money and partly for

any other relief or reliefs i. e. delivery of possession of immovable property, in other words one of the reliefs granted by the decree must be for the

payment of money.

(13) After mentioning the legislative changes in this rule let me consider the authorities briefly.

(14) AIR 1922 'Bombay 380(2) simply lays down after quoting the words of this subrule, that the provisions of this rule are not confined to money

decrees. No further reasoning is given.

(15) AIR 1928 Cal. 715 is an authority on which many other High Courts have implicitly relied. The learned Judges after discussing the Madras

High Court's view say :

I respectfully dissent from the expression of opinion by the learned Judges. In my Judgment the additional 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 case of

Ellia Enas Pavlo Gharry Vs. Kitter Philip Gowrya (AIR 1922 Bombay 384 above referred to) that the provisions of O. 21 R. 2 Civil PC 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 Macleod C. J. has observed in the Bom. case, that the provisions of O. 21 R. 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 judgmentdebtor and decided in the presence of the decreeholder within a short period of time.

To hold that this rule has no application to decrees 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 decreeholder. Under these circumstances I am of opinion that the rule in question is applicable to every kind of decree

and the judgmentdebtor cannot ask the court executing the decree to recognize any adjustment which has not been certified or recorded under the

provisions of that rule.

(16) His Lordship Justice Ghose has been mainly influenced by the mischief that would accrue if the interpretation of this rule were confined only to

decrees relating to money solely or partly. But with all respects to the learned Judge, he has not cared to discuss the plain language of the rule but

has only discussed the policy that he thought should apply to the rule. On that point also I have made some remarks in an earlier portion of this

Judgment,

(17) AIR 1935 Patna 385 only lays down that ""decree of any kind"" in Order 21 rule 2 mean decree of any kind capable of execution.

(18) AIR 1936 Lahore 842 is a very short judgment> does not discuss any authority nor the words of the subrule. It simply says that the words

the decree ''in Order 21 Rule 2 surely mean 'a decree of any kind' and would include a decree for possession of a house.

(19) AIR 1948 Nag. 374 again is a very short judgment and only says that the words 'the decree' in Order 21 Rule 2 refer to a decree of any

kind. No reasons appear to have been given.

(20) AIR 1952 All. 814 after reciting the various authorities lays down that :

As regards the point that O. 21 Rule 2 of the CPC is applicable only to money decrees, there is the solitary case of the Madras High Court

Narayanaswami Naidu Vs. Rangaswami Naidu, AIR 1926 Madras 749 as against Ellis Enas Pavlo, Ghary Vs Kitter Philip Goweya, 46 Bombay

226; Naimat Vs. Jalil, AIR 1928 Cal. 715 Shadi Vs. Ram Ditta. AIR 1936 Lab 842 Harihar Prasad Vs. Goptal Saran, AIR 1935 Pat. 385 and

Devidas Ganpati Vs. Shree Bala Sahab Sansthan Old Balaji, Basin, AIR 1948 Nag. 374 In all these cases it was held that the provisions of Order

21 Rule 2 of the Civil Pr : Code are not confined to money decrees but extend to any decree. The weight of the authorities is thus decidedly

against the view taken by the Madras High Court in Naravanaswami Naidu vs. Rangaswami Naidu AIR 1926 Mad. 749. There is no reason to

confine the provisions of O. 21 R. 2 of the Civil PC to money decrees. There is no reason to distinguish between a money decree and any other

kind of a decree for the purpose of recording an adjustment under O. 21. R. 2 Civil PC.

(21) AIR 1963 Mysore 79 mainly bases its judgment on the Calcutta High Court ruling, the material portion whereof has been quoted earlier.

(22) These are the authorities holding the contrary view. With utmost respect to all these learned Judges, eminent though they are, they have not

cared to have examined the plain language of the rule and most of them have been influenced by the policy which should underlie the rule as

envisaged by the Calcutta High Court. On the other hand the view taken by the Madras High Court followed by Andhra Pradesh and Orrisa High

Court, has considered the language of the subrule and then come to the conclusion that this' subrule' even after the amendment of the 1908 only

refers to decree where the sole relief or one of the reliefs granted is in the form of money.

(23) AIR 1926 Mad. 749 has clearly laid emphasis on the words ""a decree"" and donot mean any money which the party may, if he chooses to

pay, but money which is recoverable by a party in execution against the party liable to pay it. It further says that :

.........Order 21 Rule 2 refers to a decree under which money is payable whether there are other reliefs or not and if no money is payable under a

decree then Rule 2 cannot be held to apply to such a decree.........

(24) AIR 1958 A. P. 705 is a very elaborate authority on the point and has considered the authorities and the language of the rule itself. After

considering the various authorities the view taken by that court is as follows :

We think the intention as could be gathered from the words as used in the rule is to confine it to decrees where one of the reliefs granted is

payment of money. Therefore, by the addition of these words, the scope of this rule was extended to any kind of decree even complex decrees,

even if other reliefs were granted, so long as there was a provision for payment of money. The disjunctive ""or"" (before the words ""the decree is

otherwise adjusted) denotes an adjustment other than payment out of court. The use of the definite article in ""the decree"" relates to the decree that

precedes it. Both the clauses only talk of mode of adjustment where money is payable under the decree so that the only difference between the old

provision and the new one is while in the latter the decree is not required to be exclusively for payment of money and it applies to complex decree

partly for payment of money and partly for other reliefs, in the earlier one itwas confined to money decrees only.

(25) We feel that the interpretation placed by the Calcutta and other High Court is opposed to the plain language of the section and is not in

conformity with the principle underlying that provision. We donot feel that there are any grounds for departing from the ruling of Madras High

Court and we think that ILR 49 Mad. 714 (AIR 1926 Mad. 749) (A) is good law, As a corollary it follows that the adjustment could be pleaded

as a defence to the excitability of the decree.

(26) In my opinion, therefore disqualification contained in Order 21 Rule 2 subrule 3 does not apply to this case where a decree for possession of

the land exclusively has been passed. The result is that this appeal is accepted and the orders of the courts below are set aside. The case is sent

back to the trial court to further consider the objections of the judgmentdebtor and then dispose off the case according to law.

(27) In view of the conflict of the authorities on this point, leave to file a Letters Patent Appeal is granted.