Badamo Devi and Others Vs. Sagar Sharma
EmailAppeal: Civil Appeal No. 2301 of 1999
(Arising out of SLP (C) No. 12972 of 1998)
(Arising out of SLP (C) No. 12972 of 1998)
Petitioner: Badamo Devi and Others
Respondent: Sagar Sharma
Apeal: Civil Appeal No. 2301 of 1999
(Arising out of SLP (C) No. 12972 of 1998)
(Arising out of SLP (C) No. 12972 of 1998)
Judges: S. SAGHIR AHMAD & R.P. SETHI, JJ.
Date of Judgment: Jan 04, 1999
Head Note:
CIVIL LAWS
Civil Procedure Code, 1908
Section 47 with Order 21 Rule 2(3) – Eviction decree – Objections filed in execution – Fresh agreement of tenancy at enhanced rent, after waiving the old arrears, pleaded – Agreement only with one of the decree-holders – Neither of the parties approaching the executing court for certification – Objections allowed. Held that in absence of certification under Order 21 Rule 2(3) CPC, objec-tions were not maintainable. Appeal allowed.(Paras 10, 12, 13)
Civil Procedure Code, 1908
Section 47 with Order 21 Rule 2(3) – Eviction decree – Objections filed in execution – Fresh agreement of tenancy at enhanced rent, after waiving the old arrears, pleaded – Agreement only with one of the decree-holders – Neither of the parties approaching the executing court for certification – Objections allowed. Held that in absence of certification under Order 21 Rule 2(3) CPC, objec-tions were not maintainable. Appeal allowed.(Paras 10, 12, 13)
Cases Reffered:
1. Sultana Begum v. Prem Chand Jain JT 1996 (11) SC 1
JUDGEMENT:
ORDER
1. Leave granted.
2. The respondent was the tenant of one Shiv Narayan Chowdhury in respect of Premises No. 88, Chowk Bazar, Sultanganj, Bhagalpur on a monthly rent of Rs. 60. A suit for his eviction was filed by Shiv Narayan Chowdhury who died during the pendency of the suit in 1976 and was substituted by the present appellants.
3. Since the respondent did not put in any appearance in the suit, an exparte decree for eviction and arrears of rent was passed against him on 2-9-1978. The decree was put to execution in 1984 and an Execution Case No. 29 of 1984 was registered in which the respondent filed objections under Section 47 read with Order 21 Rule 2 CPC on 25-4-1985. These objections were regis-tered as Miscellaneous Case No. 11 of 1985 in which it was set out that under an oral settlement with Appellant 2, made outside the court, he was allowed to stay in the premises in question as a tenant on a fresh tenancy on an enhanced rent of Rs. 150 p.m. He further pleaded that all previous dues were waived by Appell-ant 2 who accepted the rent at the enhanced rate and also granted receipts to him.
4. The appellants denied the agreement set up by the respondent and contended that the case set up by the respondent that a fresh tenancy at an enhanced rent was created in his favour was false. It was also contended that the decree passed against the respond-ent ought to have been executed and the agreement set up by him should not have been recognised by the High Court or the execut-ing court nor should they have certified the said agreement.
5. Originally, the objections filed by the respondent were dis-missed by the executing court on 22-8-1989 but the High Court in Civil Revision Petition No. 1980 of 1989 set aside that order and remanded the case by its judgment dated 11-4-1994 to the execut-ing court for a fresh decision. After remand, the executing court by its order dated 31-1-1997 allowed the objections under Section 47 CPC against which the appellants filed the revision before the Patna High Court which was dismissed on 1-4-1998. It is against this decision that the present appeal has been filed.
6. 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 respond-ents, 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 execu-tion 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.
7. Learned counsel for the respondent, on the contrary, has contended that since a finding of fact has been recorded by the executing court as also by the High Court that there was, in fact, an agreement entered into between the parties under which a fresh tenancy was created in favour of the respondent at an en-hanced rent of Rs. 150 p.m., the appellants were not entitled to seek the execution of decree as the decree stood adjusted and satisfied.
8. Order 21 Rule 2 provides as under :
“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 the 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 court whose duty it is to execute the decree, and the court shall record the same accord-ingly.
(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 certi-fied; 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 according-ly.
(2-A) No payment or adjustment shall be recorded 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 provided by documentary evi-dence; 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.”
9. 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 (3) of Rule 2 of Order 21 provides that a payment or adjustment which has not been certified would not be recognised by any court executing the decree.
10. 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 non-compliance with the provisions of Order 21 Rule 2 was considered by this Court in Sultana Begum v. Prem Chand Jain JT 1996 (11) SC 1 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 recognised 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 under Section 47 CPC before the executing court were not maintainable and no investigation was required to be done in those objections.
11. Apart from the above, the respondent claims to have entered into an agreement with Appellant 2 in his capacity as “karta” of the joint Hindu family. On the death of the original owner, namely, Shiv Narayan Chowdhury in 1976, the present appellants were substituted as his heirs in the suit. Appellant 1 is the widow of the original owner; Appellant 2 is the son and Appell-ants 3 and 4 are the married daughters of Shiv Narayan Chowdhury. Curiously, both the courts are silent on this aspect of the matter whether there was a joint Hindu family comprising of the appellants as members of that family and whether Appellant 2 was the “karta”.
12. This plea was raised in the objections, perhaps, to overcome the glaring fact that the decree for eviction against the re-spondent was passed in favour of four persons, namely, the pres-ent appellants, while the so-called agreement of fresh tenancy was entered into with only one of them. That agreement, obvious-ly, would not have the effect of compromising the claims of the three other decree-holders destroying the decree in their favour.
13. In any case, since the objections under Section 47 CPC were not maintainable and no investigation was required to be done as regards the adjustment of decree as the so-called agreement was not certified nor had the respondent approached the Court for that purpose, the appeal has to be allowed.
14. For the reasons stated above, the appeal is allowed. The judgments passed by the executing court as also by the High Court are set aside and the objections filed by the respondent under Section 47 read with Order 21 Rule 2 CPC are dismissed with the direction that the decree for ejectment passed against the re-spondent shall be executed against him. The appellants are also entitled to their cost.
1. Leave granted.
2. The respondent was the tenant of one Shiv Narayan Chowdhury in respect of Premises No. 88, Chowk Bazar, Sultanganj, Bhagalpur on a monthly rent of Rs. 60. A suit for his eviction was filed by Shiv Narayan Chowdhury who died during the pendency of the suit in 1976 and was substituted by the present appellants.
3. Since the respondent did not put in any appearance in the suit, an exparte decree for eviction and arrears of rent was passed against him on 2-9-1978. The decree was put to execution in 1984 and an Execution Case No. 29 of 1984 was registered in which the respondent filed objections under Section 47 read with Order 21 Rule 2 CPC on 25-4-1985. These objections were regis-tered as Miscellaneous Case No. 11 of 1985 in which it was set out that under an oral settlement with Appellant 2, made outside the court, he was allowed to stay in the premises in question as a tenant on a fresh tenancy on an enhanced rent of Rs. 150 p.m. He further pleaded that all previous dues were waived by Appell-ant 2 who accepted the rent at the enhanced rate and also granted receipts to him.
4. The appellants denied the agreement set up by the respondent and contended that the case set up by the respondent that a fresh tenancy at an enhanced rent was created in his favour was false. It was also contended that the decree passed against the respond-ent ought to have been executed and the agreement set up by him should not have been recognised by the High Court or the execut-ing court nor should they have certified the said agreement.
5. Originally, the objections filed by the respondent were dis-missed by the executing court on 22-8-1989 but the High Court in Civil Revision Petition No. 1980 of 1989 set aside that order and remanded the case by its judgment dated 11-4-1994 to the execut-ing court for a fresh decision. After remand, the executing court by its order dated 31-1-1997 allowed the objections under Section 47 CPC against which the appellants filed the revision before the Patna High Court which was dismissed on 1-4-1998. It is against this decision that the present appeal has been filed.
6. 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 respond-ents, 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 execu-tion 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.
7. Learned counsel for the respondent, on the contrary, has contended that since a finding of fact has been recorded by the executing court as also by the High Court that there was, in fact, an agreement entered into between the parties under which a fresh tenancy was created in favour of the respondent at an en-hanced rent of Rs. 150 p.m., the appellants were not entitled to seek the execution of decree as the decree stood adjusted and satisfied.
8. Order 21 Rule 2 provides as under :
“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 the 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 court whose duty it is to execute the decree, and the court shall record the same accord-ingly.
(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 certi-fied; 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 according-ly.
(2-A) No payment or adjustment shall be recorded 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 provided by documentary evi-dence; 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.”
9. 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 (3) of Rule 2 of Order 21 provides that a payment or adjustment which has not been certified would not be recognised by any court executing the decree.
10. 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 non-compliance with the provisions of Order 21 Rule 2 was considered by this Court in Sultana Begum v. Prem Chand Jain JT 1996 (11) SC 1 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 recognised 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 under Section 47 CPC before the executing court were not maintainable and no investigation was required to be done in those objections.
11. Apart from the above, the respondent claims to have entered into an agreement with Appellant 2 in his capacity as “karta” of the joint Hindu family. On the death of the original owner, namely, Shiv Narayan Chowdhury in 1976, the present appellants were substituted as his heirs in the suit. Appellant 1 is the widow of the original owner; Appellant 2 is the son and Appell-ants 3 and 4 are the married daughters of Shiv Narayan Chowdhury. Curiously, both the courts are silent on this aspect of the matter whether there was a joint Hindu family comprising of the appellants as members of that family and whether Appellant 2 was the “karta”.
12. This plea was raised in the objections, perhaps, to overcome the glaring fact that the decree for eviction against the re-spondent was passed in favour of four persons, namely, the pres-ent appellants, while the so-called agreement of fresh tenancy was entered into with only one of them. That agreement, obvious-ly, would not have the effect of compromising the claims of the three other decree-holders destroying the decree in their favour.
13. In any case, since the objections under Section 47 CPC were not maintainable and no investigation was required to be done as regards the adjustment of decree as the so-called agreement was not certified nor had the respondent approached the Court for that purpose, the appeal has to be allowed.
14. For the reasons stated above, the appeal is allowed. The judgments passed by the executing court as also by the High Court are set aside and the objections filed by the respondent under Section 47 read with Order 21 Rule 2 CPC are dismissed with the direction that the decree for ejectment passed against the re-spondent shall be executed against him. The appellants are also entitled to their cost.
