Lakshmi Ammal vs V. Ram Chetti

K. Govindarajan, J.—The petitioner/plaintiff aggrieved against the order passed in E.P. No. 106 of 1987, dated 25.8.1992, filed the above

revision.

The petitioner got a decree in O.S. No. 1039 of 1984 on the file of the learned District Munsif, Arur, on 20.12.1984. After obtaining the decree

he filed E.P. No. 106 of 1987. In the said execution petition, the defendant filed an application in E.A. No. 352 of 1987 to record full satisfaction

on the ground that there was a panchayat in which the plaintiff agreed to receive the sum of Rs. 3,250 towards full satisfaction and the said amount

was paid on 18.1.1987 for which the plaintiff has passed on a receipt. That was rejected by the executing court on 29.11.1991 as it is barred by

limitation as contemplated under Article 125 of the Limitation Act, 1963. Thereafter, the same plea was taken in the execution petition to give

adjustment to the said sum of Rs. 3,250. That was accepted by the executing court and held that the plaintiff is entitled to proceed with the

execution petition only to the balance amount. Aggrieved against the same, the petitioner has filed the above revision.

Admittedly, the petition filed under Order 21, Rule 2 of the CPC by the judgment-debtor was rejected as it is time-barred. Once the same is

rejected, the executing court is not correct in accepting the same for adjustment even though the payment is established. Order 21, Rule 2(3) of the

Code bars such adjustment. If the adjustment is not certified as contemplated under the said provision, it cannot be recognised by any court

executing the decree. u/s 47 of the Code the executing court is vested with the powers to determine the objections with respect to the execution,

discharge or satisfaction of the decree. Section 47 of the Code deals with the power of the executing court, while Order 21, Rule 2 deals with the

procedure which a court whose duty is to execute the decree has to follow in a limited class of cases relating to discharge or satisfaction of decree,

either by payment of money out of court, or adjustment in any other manner by mutual agreement. If any money is payable under a decree

irrespective of the nature of the decree and such money is paid out of court, the decree ""holder has to certify such payment to the court and the

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

holder has to certify such adjustment to the court, which has to discharge the adjustment accordingly. If the payment or adjustment is not reported

by the decree-holder, the judgment-debtor can inform the court of such payment or adjustment within the stipulated time for certifying that payment

or adjustment, after notice to the decree-holder. As contemplated under Sub-Rule (3) to Rule 2 of Order 21, a payment or adjustment which has

not been certified or recorded as stated above, it shall not be recognised by the court executing the decree. Then the only remedy available to the

judgment-debtor is to sue the decree-holder for damages for such breach of contract. His cause of action arises on the presentation of an

application by the decree-holder to execute the decree. When the judgment-debtor has paid any money under adjustment, he may sue the decree-

holder to recover it, as soon as the decree holder applies to the court to execute the same. 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.

While dealing with the scope of Order 21, Rule 2 of the Code, the Apex Court in Sultana Begum Vs. Prem Chand Jain, , has held as follows:

The High Court has relied upon its own decision in Indra v. Narayan Chand (1979)2 Ren.C.R. 1 (Raj.) and a decision of the Allahabad High

Court in Chitra Talkies Vs. Durga Dass Mehta, . In both the cases, it was a fresh tenancy which was granted to the judgment-debtor and not a

licence as in the instant case. That apart, on principles of law, both the decisions, in our opinion, have not been correctly decided. As observed by

us earlier, it is no doubt open to the parties to adjust or compromise their rights under the decree, but if it amounts to adjustment of decree, it must

be reported to the court whose duty it is to execute the decree so that that court may record or certify the same. If it is not done, the court before

whom the execution proceedings are initiated will proceed to execute the decree. It is not every time that the decree-holder and judgment-debtor

enter into a compromise after the decree. The judgment-debtor may even set up a false case of compromise and creation of fresh tenancy after the

decree. It is in order to prevent such judgment-debtors that Order 21, Rule 2 has been enacted so that if such compromise or creation of fresh

tenancy has not been recorded, the judgment-debtor be not encouraged to initiate another round of litigation u/s 47, C.P.C.

The Apex Court in the abovesaid decision has also held as follows:

The general power of deciding questions relating to execution, 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 contain special provisions regulating payment of money due under a decree

outside the court or in any other manner adjusting the decree. The 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.

In Moti Lal Banker Vs. Mahraj Kumar Mahmood Hasan Khan, in P. Narasaiah Vs. P. Rajoo Reddy, and also the Full Bench decision of the

Madhya Pradesh High Court in Rajeev Khandelwal Vs. Arun Pannalal, , the learned Judges have taken the view that uncertified payment or

adjustment cannot be entertained u/s 47. In the said decisions, the courts have taken a view that even if the judgment-debtor pleaded fraud, the

executing court would not look into a payment or adjustment which had not been recorded or certified under Order 27, Rule 2 of the Code.

In view of the above discussions, the order of the court below directing the decree-holder to execute the decree only for the balance amount

cannot be sustained. Hence the order of the court below is set aside and the court below is directed to proceed with the execution petition as

prayed for. With the above observation, this revision is allowed. No costs.