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ISHWAR CHAND versus A.D.J.,MEERUT AND OTHERS

High Court of Judicature at Allahabad

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Ishwar Chand v. A.D.J.,Meerut And Others - WRIT - C No. 16563 of 1998 [2007] RD-AH 12996 (27 July 2007)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No.35

Civil Misc. Writ Petition No. 16563 of 1998

Ishwar Chandra Vs. Additional District Judge/Special Judge (A.C.), Meerut and others.

~~~~~~

Hon. Dilip Gupta, J.

This petition has been filed for quashing the order dated 28.4.1998 that has been passed by the learned Additional District Judge, Meerut by which the Revision, that had been filed against the order dated 6.3.1998 passed by the learned VIIth Additional Civil Judge (Senior Division), Meerut, was dismissed. The VIIth Additional Civil Judge (Senior Division), Meerut by the order dated 6.3.1998 rejected the objections filed by the petitioner under Section 47 of the Code of Civil Procedure (hereinafter referred to as the 'CPC') in Execution Case No. 120 of 1978.

The petitioner was a tenant of the shop. The predecessor-in-interest of respondent Nos. 3 to 10 late Bankey Lal had instituted Original Suit No. 625 of 1976 in the Court of Judge Small Causes, Meerut for recovery of arrears of rent as well as for eviction of the petitioner from the shop in dispute. The Suit was decreed by the judgment and decree dated 26.7.1978 and the Civil Revision filed by the petitioner against the said order was also dismissed by the learned Vth Additional District Judge,  Meerut by the judgment and decree dated 22.1.1981. The petitioner then filed Writ Petition No. 3587 of 1991 in this Court which was also dismissed on 3.10.1996 with the observation that the petitioner shall deposit the entire decretal amount within a period of three months and if it was so deposited, the petitioner was granted nine months' time to vacate the shop.

The judgment-debtor-landlord filed Execution Case No. 120 of 1978 as the tenant did not vacate the premises within the stipulated time. The petitioner filed objections under section 47 CPC asserting that a compromise had taken place between the petitioner and the landlord and in view of the said compromise, the decree stood satisfied and there was,  therefore, no question of proceeding any further with the execution case which deserved to be struck off. The landlord filed objections clearly denying that any compromise as alleged by the petitioner had taken place. The Executing Court by the order dated 6.3.1998 rejected the objections filed by the petitioner. The petitioner then filed  Civil Revision against the said order dated 6.3.1998 which was dismissed by the judgment and order dated 28.4.1998.

I have heard the learned counsel for the petitioner and Sri Amitabh Agrawal, learned counsel appearing for the respondents.

Learned counsel for the petitioner submitted that the Courts below have not properly construed the provisions of Section 47 CPC and have acted illegally and with material irregularity in rejecting the objection filed by the petitioner. He further submitted that the decree was fully satisfied under the compromise that had been entered into between the parties and,  therefore, the Executing Court could not have proceeded with the execution.

Learned counsel for the respondents, however, submitted that there is no infirmity in the orders passed by the Courts below.

The facts clearly reveal that the petitioner was a tenant of a shop in respect of which the landlord had filed a Suit for ejectment and recovery of arrears of rent. The Suit was decreed and the Civil Revision filed by the petitioner-tenant was also dismissed. The writ petition filed by the petitioner was also dismissed by this Court by the judgment and order dated 3.10.1996 but nine months' time was given to the petitioner to vacate the shop provided a written undertaking was given before the Court below that he will vacate the shop within the time prescribed by the Court. The tenant,  however, did not comply with the directions issued by this Court and instead filed objections under Section 47 CPC before the Executing Court alleging that on 9.6.1997 the decree-holders have entered into an agreement of new tenancy with him and the decree stood satisfied. The landlord-decree-holder filed objections clearly stating that no agreement was ever executed by him in favour of the tenant-judgment-debtor and further the alleged agreement cannot be taken into consideration as the provisions of Order 21 Rule 2 CPC had not been complied with. The Executing Court rejected the objections filed by the petitioner on the ground that the adjustment or satisfaction of the decree had not been certified by the decree-holder and nor had it been recorded by the Court.

In order to appreciate the contentions advanced by the learned counsel for the parties, it would be necessary to refer to Section 47 (1) CPC and Order 21 Rule 2 CPC and they are as follows:-

Section 47. "Questions to be determined by the Court executing decree.- (1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit.

(2)..............

(3).............."

Order 21 Rule 2. "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.

(2-A) No payment or adjustment shall be recorded at at the instance of the judgment-debtor unless-

(a) the payment is made in the manner, provided in                                                   rule 1; or

(b) the payment or adjustment is proved by

documentary evidence, or

(c) the payment or adjustment is admitted by, or on behalf of, the decree-holder in his reply to the notice given under sub-rule (2) of rule 1, or

before the Court

(3) A payment or adjustment, which has not been

certified or recorded as aforesaid, shall not be recognised by any Court executing the decree."

It is, therefore, clear that Sub-rule (1) of Rule 2, noted above, requires that where any money payable under a decree is paid out of Court or the decree of any kind is otherwise adjusted in whole or in part to the satisfaction of the decree-holder, he shall certify that payment or adjustment in the Court which is to execute the decree and the Court is enjoined to record the same. Sub-rule (2) thereof enables the judgment-debtor or a person who has become surety for him to inform the Court of such payment or adjustment and prescribes the procedure to have it recorded. Rule 3 prohibits every Court executing the decree from recognising a payment or adjustment which has not been certified or recorded by the Court under the aforementioned sub-rules.

In Sultana Begum Vs. Prem Chand Jain, (1997) 1 SCC, 373 the Supreme Court observed as follows:-

"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. An agreement, contract or 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 approached, 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 Supreme Court in Lakshmi Narayanan Vs. S.S. Pandian AIR 2000 SC 2757 examined the provisions of Section 47 CPC and Order 21 Rule 2 CPC and pointed out that where in any execution proceedings objection to executability of a decree is taken under Section 47 of the C.P.C. on the ground that by virtue of a compromise, the decree got extinguished and became inexecutable, the germane question that should be asked is whether the compromise was recorded by the Court whose duty it is to execute the decree. It was then observed that since there was no recording of the compromise as contemplated under Order 21 Rule 2 CPC the Court cannot recognise the compromise having regard to the language of sub-rule (3).

In the present case, it is not in dispute that the decree holder did not certify to the Court that such payment had been made and neither did the Court record the same. The Revisional Court has also confirmed the order of the Executing Court rejecting the objections filed by the petitioner-tenant on this ground. In view of the law laid down in the aforesaid decisions of the Supreme Court the order of the Courts below do not suffer from any infirmity.

The writ petition is, accordingly, dismissed.

Dt/-27.7.2007

Sharma


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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