Full Judgment Text
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CASE NO.:
Appeal (civil) 3831 of 2000
PETITIONER:
Padma Ben Banushali & Anr.
RESPONDENT:
Yogendra Rathore & Ors.
DATE OF JUDGMENT: 25/04/2006
BENCH:
ARIJIT PASAYAT & TARUN CHATTERJEE
JUDGMENT:
J U D G M E N T
ARIJIT PASAYAT, J.
Challenge in this appeal is to the order passed by a
learned Single Judge of the Madhya Pradesh High Court at
Jabalpur in a Civil Revision filed under Section 115 of the
Code of Civil Procedure, 1908 (in short ’CPC’). By the
impugned order the High Court held that the petitioner who
was the plaintiff in the suit and the decree-holder in an earlier
suit was not entitled to execute the same.
Background facts in a nutshell are as follows:
The plaintiffs had filed a civil suit for eviction of the
father of respondents (Sri Narayanbhai) who was the tenant in
the disputed premises. In the suit, pleadings were to the effect
that suit property originally belonged to one Dhanji Bhai.
Narayan had taken suit premises on rent from Dhanji Bhai.
Appellant No.2 Kanji Bhai purchased the suit property in the
name of his wife Padma Ben (Appellant No.1), by registered
sale deed on 25.8.1980. Decree was granted in favour of the
landlords. Tenant filed an appeal before the District Judge.
Before the matter could be decided on merits an application
purported to be under Order XXIII Rule 1 CPC was filed before
the Appellate Court. The application was signed by the
plaintiff-landlord and the defendant. The appeal was
dismissed in terms of the application. Later on, the present
appellants tried to execute the decree which was resisted by
the defendants on the ground that (1) the decree has become
in-executable; (2) the landlords were not ready and willing to
perform their part of the contract and (3) a suit for specific
performance had already been instituted. The execution
application filed was pressed by the present appellants on the
grounds that adjustments in terms of Order XXI Rule 2 CPC
was not recorded. In any event the Court cannot take
cognizance of the adjustment under Sub-rule (3) of Rule 2,
Order XXI CPC and there was never any readiness or
willingness to perform their part of the defendants and as
such the decree was executable. The respondents raised
another plea that since the landlords have given up their
rights to execute the decree, the same amounted to conscious
waiver on their part and, therefore, the decree had become in-
executable. The Executing Court came to hold that the
application filed under Order XXIII Rule 1 CPC was an
application for withdrawal of the appeal, it led to adjustment
and as said adjustment was not certified by the Executing
Court, no claim of adjustment can be taken note of. No
question regarding executability of the decree would arise for
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consideration under Section 47 CPC. Said order was
challenged in Civil Revision by the present respondents. In the
Civil Revision, the stand taken before the Executing Court
were reiterated by the parties.
The High Court came to hold that there was no
adjustment between the parties. In fact it was a case where in
view of the agreement between the parties, the decree became
in-executable as there was a conscious waiver.
In support of the appeal, learned counsel for the
appellants submitted that the High Court proceeded to
examine the issue involved on erroneous premises. The
application which was filed under Order XXIII Rule 1 CPC did
not in essence make the decree passed in favour of the decree-
holder in-executable. Strong reliance was placed on a decision
of this Court in Sultan Begum v. Prem Chand Jain (1997 (1)
SCC 373) to contend that there was no question of any
conscious waiver as concluded by the High Court. There was
in reality adjustment which was required to be certified. The
suit for specific performance filed by the respondents has
already been dismissed and appeal is pending. That itself
shows that the conditional acceptance not to execute the
decree was not fulfilled.
In response, learned counsel for the respondent
submitted that the High Court’s judgment suffers from no
infirmity. In any event, there were two parts of the agreement
\026 one was withdrawal of the appeal filed by the present
respondents and the second was the agreement by the present
appellants not to execute the decree. There was no question of
any adjustment as claimed by the appellants, and the High
Court has rightly observed that there was conscious waiver.
The scope and ambit of Section 47 and Order XXI Rule 2
CPC need to be noted:
"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) Where a question arises as to whether any
person is or is not the representative of a
party, such question shall, for the purposes of
this section, be determined by the Court.
Explanation I. - For the purposes of this
section, a plaintiff whose suit has been
dismissed and a defendant against whom a
suit has been dismissed are parties to the suit.
Explanation II. - (a) For the purposes of this
section, a purchaser of property at a sale in
execution of a decree shall be deemed to be a
party to the suit in which the decree is passed;
and
(b) all questions relating to the delivery of
possession of such property to such purchaser
or his representative shall be deemed to be
questions relating to the execution, discharge
or satisfaction of the decree within the
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meaning of this section.
ORDER XXI - EXECUTION OF DECREES AND
ORDERS
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 surely 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 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 or, 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 contended by the learned counsel for the appellants
that since it is specifically provided by Section 47 that
questions relating to the execution, discharge or satisfaction of
the decree shall be determined by the executing court, it would
prevail over Order XXI Rule 2 including sub-rule (3) which
prohibits the executing court from recognising any payment or
adjustment which has not been certified or recorded under
Order XXI Rule 2.
Part II of the Code of Civil Procedure, comprising Sections
36 to 74, as also the whole of Order XXI consisting of Rules 1
to 106, deal with the execution of decree. Section 47, as also
Order XXI Rule 2 are, therefore, part of the same legal or
statutory system dealing with the same subject, namely,
execution of decree. That being so, the rule of interpretation
requires that while interpreting two inconsistent, or, obviously
repugnant provisions of an Act, Courts should make an effort
to so interpret the provisions as to harmonise them so that the
purpose of the Act may be given effect to and both the
provisions may be allowed to operate without rendering either
of them otiose.
The statute has to be read as a whole to find out the real
intention of the legislature.
In Canada Sugar Refining Co. v. R. [1898 AC 735 : 67
LJPC 126], Lord Davy observed :
"Every clause of a statute should be construed
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with reference to the context and other clauses
of the Act, so as, as far as possible, to make a
consistent enactment of the whole statute or
series of statutes relating to the subject-
matter."
The Court has adopted the same rule in M. Pentiah v.
Muddala Veeramallappa [AIR 1961 SC 1107]; Gammon India
Ltd. v. Union of India [(1974) 1 SCC 596], Mysore SRTC v.
Mirja Khasim Ali Beg [(1977) 2 SCC 457], V. Tulasamma v.
Sesha Reddy [(1977) 3 SCC 99], Punjab Beverages (P) Ltd. v.
Suresh Chand [(1978) 2 SCC 144], CIT v. National Taj Traders
[(1980) 1 SCC 370], Calcutta Gas Co. (Proprietary) Ltd. v. State
of W.B. [AIR 1962 SC 1044] and J.K. Cotton Spg. & Wvg. Mills
Co. Ltd. v. State of U.P. [AIR 1961 SC 1170].
This rule of construction which is also spoken of as "ex
visceribus actus" helps in avoiding any inconsistency either
within a section or between two different sections or provisions
of the same statute.
On a conspectus of the case-law indicated above, the
following principles are clearly discernible :
(1) It is the duty of the courts to avoid a head-on clash
between two sections of the Act and to construe the provisions
which appear to be in conflict with each other in such a
manner as to harmonise them.
(2) The provisions of one section of a statute cannot be used to
defeat the other provisions unless the court, in spite of its
efforts, finds it impossible to effect reconciliation between
them.
(3) It has to be borne in mind by all the courts all the time that
when there are two conflicting provisions in an Act, which
cannot be reconciled with each other, they should be so
interpreted that, if possible, effect should be given to both.
That is the essence of the rule of "harmonious construction".
(4) The courts have also to keep in mind that an interpretation
which reduces one of the provisions as a "dead letter" or
"useless lumber" is not harmonious construction.
(5) To harmonise is not to destroy any statutory provision or to
render it otiose.
Interpreting the provisions of Section 47 and Order XXI
Rule 2 in the light of the above principles, there does not
appear to be any antithesis between the two provisions.
Section 47 deals with the power of the court executing the
decree while Order XXI Rule 2 deals with the procedure which
a court whose duty it is to execute the decree has to follow in a
limited class of cases relating to the discharge or satisfaction
of decrees either by payment of money (payable under the
decree) out of court or adjustment in any other manner by
consensual arrangement.
Since Section 47 provides that the question relating to
the execution, discharge or satisfaction of the decrees shall be
determined by the court executing the decree, it clearly confers
a specific jurisdiction for the determination of those questions
on the executing court.
Under Section 38 CPC, a decree may be executed either
by the court which passed it or by the court to which it is sent
for execution. The court which passed the decree has been
defined in Section 37. Transfer of decree to another court for
its execution has been provided for in Section 39. Section 40
provides for transfer of decree to a court in another State.
Section 42 lays down that the court to which a decree is
transferred for execution shall have the same powers in
executing that decree as if the decree was passed by itself.
These provisions including Section 37 thus clearly speak of
the powers and jurisdiction of the court executing the decree.
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Order XXI Rule 2 applies to a specific set of
circumstances. If any money is payable under a decree,
irrespective of the nature of decree, and such money is paid
out of court, the decree-holder, has to certify such payment to
the court whose duty it is to execute the decree and that court
has to record the same accordingly. Similarly if a decree,
irrespective of its nature, is adjusted in whole or in part to the
satisfaction of the decree-holder, the decree-holder has to
certify such adjustment to that court which has to record the
adjustment accordingly. If the payment or adjustment is not
reported by the decree-holder, the judgment-debtor has been
given the right to inform the court of such payment or
adjustment and to apply to that court for certifying that
payment or adjustment after notice to the decree-holder. Then
comes sub-rule (3) which provides that a payment or
adjustment which has not been certified or recorded under
sub-rule (1) or (2), shall not be recognised by the court
executing decree.
The expression "or the decree of any kind is otherwise
adjusted" are of wide amplitude. 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 XXI. It may be pointed out
that 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 the 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 XXI 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 problem can be looked into from another angle on
the basis of the maxim "generalia specialibus non derogant".
Section 47, as pointed out earlier, gives full jurisdiction
and power to the executing court to decide all questions
relating to execution, discharge and satisfaction of the decree.
Order XXI Rule 3, however, places a restraint on the exercise
of that power by providing that the executing court shall not
recognise 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 latter, in view of the legislative mandate, has to ignore it if
it has not been certified or recorded by the court.
The general power of deciding questions relating to
execution, discharge or satisfaction of decree under Section 47
can thus be exercised subject to the restriction placed by
Order XXI Rule 2 including sub-rule (3) containing special
provisions regulating payment of money due under a decree
outside the court or in any other manner adjusting the decree.
The general provision under Section 47 has, therefore, to yield
to that extent to the special provisions contained in Order XXI
Rule 2 which have been enacted to prevent a judgment-debtor
from setting up false or cooked-up pleas so as to prolong or
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delay the execution proceedings.
The aforesaid aspects were highlighted in Sultan Begum’s
case (supra).
As emphasized by learned counsel for the appellants, the
agreement of the appellants who were respondents in the
earlier appeal not to execute the decree was conditional on the
appellants in the said appeal executing a sale-deed after
receiving the amounts agreed upon. In other words, there were
two components of the agreement. Second part related to the
agreement not to execute the decree which was dependant
upon the execution of the sale-deed. Undisputedly, the same
has not been executed and on the other hand suit for specific
performance of the agreement has been filed, and that matter
is pending in appeal.
We do not think it necessary to express any opinion on
the merits of the said suit. But the facts remain that there
was no certificate as needed under Order XXI Rule 2 CPC. The
question of conscious waiver, in the circumstances does not
arise. Ultimately, it has to be decided on the facts and
circumstances of this case as to what was the intention of the
parties and to determine as to whether rights on the decree
were given up or not. On the facts, the rights had not been
surrendered and the decree remained preserved.
That being so, the High Court’s order is indefensible and
set aside. The appeal is allowed but with no order as to costs.