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PETITIONER: M. P. SHREEVASTAVA

       Vs.

RESPONDENT: MRS. VEENA

DATE OF JUDGMENT: 24/08/1966

BENCH: SHAH, J.C. BENCH: SHAH, J.C. WANCHOO, K.N. BACHAWAT, R.S.

CITATION:  1967 AIR 1193            1967 SCR  (1) 147

ACT: Code of Civil Procedure (Act 5 of 1908), s. 47 and O. 21  r. 2-Scope  of-Decree  for restitution of  conjugal  rights--No application   for   execution   by    decree-holder-husband- Application    by   judgment-debtor-wife    for    recording satisfaction-When maintainable.

HEADNOTE: The appellant (husband of the respondent) obtained a  decree for  restitution of conjugal rights against his  wife.   The wife made various attempts to persuade the appellant to take her  back into the marital home, but was unsuccessful.   She then  applied  to the Court which passed the decree  for  an order that the decree be recorded as satisfied.  There  was, at  that time, no pending application by the  appellant  for execution of the decree or for a decree for divorce. On  the question, whether the application of the  respondent was  maintiable  either 0. 21, r. 2 or under s.  47  of  the Civil Procedure Code, HELD  : It was maintainable under s. 47 but not under O.  21 r. 2. Under  s.  47,  which  deals with the  power  of  the  Court executing  the decree all questions relating  to  execution, discharge  or satisfaction of a decree and  arising  between the parties to the suit in which the decree is passed, shall be  determined  in the Aexecution proceeding and  not  by  a separate suit.  The expression "Oourt executing the  decree" in the section does not mean a "court which is seized of  an application for execution of a decree at the instance of the decree  holder." A question relating to execution  discharge or  satisfaction  of a decree may be raised by  the  decree- holder or by the judgment-debtor in the execution department and  the  pendency of -an application for execution  by  the decree-holder  is  not a condition for the exercise  of  the Court’s  power.  An application made by the judgment  debtor in  relation  to execution, discharge or satisfaction  of  a decree. in ’a suit to which he or the person of whom he is a represenitative  was a party, is an application  before  the court executing the decree, and must be tried in that court. [150 G-H; 151 B, C] Observation contra in Mst.  Bhagwani v. Lakhmi Ram and  Anr.

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A.I.R. 1960 Punj. 437, disapproves. Order 21, r. 2 deals with the procedure to be followed in  a limited class of cases relating to discharge or satisfaction of  decrees  where  there  has  been  payment  of  money  or adjustment  or  satisfaction  of the  decree  by  consensual arrangement.   It contemplates ’adjustment of the decree  by consent-express or implieded the parties.  Where there is no such  consent the rule does not apply.  In the instant  case there  was  not evidence of any consent on the part  of  the appellant, who was never willing to take back his wife. [149 F-H; 150 B-C]

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 609 of 1966. 148 Appeal  from the judgment and order dated March 8,  1965  of the  Punjab High Court (Circuit Bench) at Delhi in L. P.  A. No. 96-D of 1964. H.  R. Gokhale, Rajini Mathur, O. C. Mathur and J. B.  Dada- chanji, for the appellant. Bishan Narain and Lily Thomas, for the respondent. The Judgment of the Court was delivered by Shah,  J. On July 25, 1958 the parties to this  appeal  were married  under the Special Marriages Act 43 of 1954.   There was a child of the marriage.  Alleging that on November  10, 1959,  his  wife Veena-who will hereinafter be  called  ’the respondenthad without reasonable cause deserted him and  had failed  to  return and live with him in  spite  of  repeated requests, the husband, M.P. Shreevastava hereinafter  called ’the  appellant’-filed  a  petition  in  the  Court  of  the District  Judge,  Delhi,  for a decree  for  restitution  of conjugal  rights.   This petition was decreed  ex  parte  on March 13, 1961.  On May 21, 1961 the respondent returned  to the residence of the appellant and offered to live with him. She  also wrote letters to the appellant requesting  him  to allow her to go to his house and live with him as his  wife, but the appellant refused to receive the letters.   Attempts made  through certain friends of the family to persuade  the appellant to take the respondent back into the marital  home were also unsuccessful.  The respondent then applied to  the District  Court,  Delhi,  for an order that  the  decree  be recorded  as satisfied, since the appellant had  failed  and neglected  to  allow  the  respondent  to  resume   conjugal relations  even  after  she went to his  house  and  made  a request  to  that effect.  The District Judge,  Delhi,  held that  the decree for restitution of conjugal rights  against the  respondent  stood  satisfied, and ordered  that  it  be recorded  that the decree was satisfied.  In appeal  to  the High Court of Punjab, Dua, J., confirmed the order passed by the  District  Court.  An appeal under  the  Letters  Patent filed by the appellant met with no success.  The  husband-M. P. Shreevastava-has then appealed to this Court with special leave. Two  contentions were raised by the appellant in support  of the appeal :               (1)  The Court of the District Judge  and  the               High   Court  were  in  error   in   recording               satisfaction  of the decree, because the  acts               done  by  the respondent do not in  law  cons-               titute   an   attempt   to   resume   conjugal               relations; and               (2)   that   the  application  filed  by   the               respondent  was not maintainable,  because  at

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             the material date no application for execution               of  the  decree  filed by  the  appellant  was               pending,  and the District Court was  on  that               account not a court executing the decree. 149 The  District Judge observed that the respondent had made  a genuine  effort  . . . to come and live with  the"  husband, "but  he (the husband) has spurned that offer", that  "there was no obstinacy or disinclination on the part of the"  wife "to come back and live with her husband", and that the  wife "has  all  along been keen to live with him and has  made  a number  of attempts to prevail upon him to take  her  back." Dua,  J.,  observed  that "the  decree  for  restitution  of conjugal rights can be obeyed and satisfied if the wife goes and lives with the husband as a wife or reasonably does  all she  can  do in that direction. . . In  case,  however,  the judgment-debtor  is  willing  to obey  the  decree  but  the unjustified  obstruction  towards  the  performance  of  the decree  comes  from the decree-holder, then,  the  judgment- debtor  would  be fully entitled to approach the  Court  and pray  that the decree be recorded as satisfied so  that  the decree-holder may not fraudulently and mala fide utilise the decree  for the purpose of securing a decree  for  divorce". On  a review of the evidence, the learned Judge agreed  with the  Trial Court.  The High Court hearing the  appeal  under the Letters Patent agreed with that view. It was never argued on behalf of the appellant in the  Court of First Instance and the High Court that attempts proved to have  been  made  by  the  respondent  to  resume   conjugal relations  could  not in law amount to satisfaction  of  the decree,  and we do not think we would be justified  at  this stage  in allowing that question to be raised for the  first time in this Court. But  it was said that the respondent could not  maintain  an application for recording adjustment of the decree under  0. 21 r. 2 C.P. Code, nor could she maintain an application for recording  satisfaction  of the decree  for  restitution  of conjugal  rights  so long as the husband did  not  apply  to execute  the decree, or did not claim a decree  for  divorce under  s.  27 of the Special Marriages Act.  Order 21  r.  2 prescribes  the  procedure for recording  payment  of  money under  any  decree or for adjustment of any  decree  to  the satisfaction  of  the decree-holder.  If any  money  payable under  a  decree of any kind is paid out of  Court,  or  the decree  is  otherwise adjusted in whole or in  part  to  the satisfaction  of  the decree-holder,  the  decree-holder  is enjoined  by  r. 2(1) of 0. 21 to certify  such  payment  or adjustment  to  the  Court : the  judgment-debtor  may  also inform  the Court of such payment or adjustment, and it  may be recorded after enquiry: r. 2(2) of 0. 21.  In the present case,   however,   there  is  no   adjustment.    Adjustment contemplates  mutual  agreement, and in  the  present  case, there  is  no  evidence of any consent on the  part  of  the appellant  who was never willing to take back the  wife  and resume  conjugal  relations.   Order 21  r.  2  contemplates adjustment of the decree by consent-express or impliedof the parties: where there is no such consent, 0. 21 r. 2 does not apply. 150 But O. 21 r. 2 prescribes a special procedure for  recording adjustment  of a decree, or for recording payment  of  money paid  out  of court under any decree.  However  the  plenary power conferred by s. 47 C.P. Code upon the Court  executing the  decree to determine all questions arising  between  the parties  to  the suit in which the decree  was  passed,  and

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relating to the execution, discharge or satisfaction of  the decree,  is not thereby affected.  Whereas O. 21 r. 2  deals with  the  procedure to be followed in a  limited  class  of cases  relating  to discharge or  satisfaction  of  decrees, where  there  has  been payment of money  or  adjustment  or satisfaction of the decree by consensual arrangement, s.  47 C.P.  Code deals with the power of the Court  executing  the decree. Counsel  for  the  appellant  does not  deny  to  the  Court executing the decree power to decide all questions  relating to  execution,  discharge  or  satisfaction  of  the  decree arising between the parties to the suit in which the  decree was  passed,  but contends that since the  power  to  record discharge or satisfaction of a decree is exercisable only by the Court executing the decree, no substantive petition lies at  the  instance  of the person against whom  a  decree  is passed  to record adjustment or satisfaction so long as  the decreeholder  has not applied for execution.   Counsel  says that  the expression "Court executing the decree" means  the "Court which is executing the decree at the instance of  the decree-holder", and in support of his contention relies upon the  different  expressions used in O. 21 rr.  1  &  2  C.P. Code.   He  points  out that under O. 21  r.  l(1)(a)  money payable under a decree may be paid into the Court whose duty it is to execute the decree.  Similarly an application under cl.  (1) or cl. (2) of r. 2 O. 21 for recording  payment  of money under or adjustment of a decree has to be made to  the Court  whose  duty  it is to  execute  the  decree,  whereas prohibition against recognition of an uncertified payment or adjustment is imposed upon the Court executing the decree by sub-rule (3).  There is no doubt that the expression  "Court whose duty it is to execute the decree" means a Court  which is under the law competent to, and when requested bound  to, execute the decree which is in law enforceable, and where an application is made under O. 21 r. 1(1)(a) or under O. 21 r. 2(1)  or  (2) there need be no substantive  application  for execution  pending.  It also appears, from the terms of  cl. (3) of O. 21 r. 2, that the prohibition is against the Court executing  the  decree.   But there is no  warrant  for  the argument that the expression "Court executing the decree" as used in s. 47 C.P. Code means a "Court which is seized of an application for execution of a decree at the instance of the decree-holder".   Section 47 enacts the salutary  rule  that all   questions   relating  to   execution,   discharge   or satisfaction  of  the decree shall be determined  not  by  a separate suit but in execution of the decree.  The power  so conferred  may not be limited by any strained or  artificial construction of 151 the  words  "Court executing the  decree".   The  expression "Court  executing  the  decree" has not  been  defined,  and having  regard  to the scheme of the Code it cannot  have  a limited  meaning,  as argued by counsel for  the  appellant. The principle of the section is that all questions  relating to  execution,  discharge or satisfaction of  a  decree  and arising between the parties to the suit in which the  decree is passed, shall be determined in the execution  proceeding, and not by a separate suit: it follows as a corollary that a question relating to execution, discharge or satisfaction of a  decree  may  be raised by the  decree-holder  or  by  the judgmentdebtor in the execution department and that pendency of an application for execution by the decree-holder is  not a  condition  of its exercise.  An application made  by  the judgment-debtor   which  raises  a  question   relating   to execution,  discharge or satisfaction of a decree in a  suit

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to which he, or the person of whom lie is a  representative, was a party is an application before the Court executing the decree, and must be tried in that Court. There is a catena of cases in which it has been held that s. 244 of the Code of 1882 and s. 47 of the Code of 1908  apply to  disputes  arising between the  parties  contemplated  by those  sections  in relation to a decree even after  it  has been  executed.  In Imdad Ali v.  Jagan Lal(l) a decree  for possession was executed against the heir of a defendant (who had  died during the pendency of a suit) without  notice  to him.  The heir then applied to the Court which had  executed the decree for an order restoring him to possession.  At the date  of application by the heir no application  to  enforce the decree by the decree-holder was pending.  The High Court of   Allahabad  however  held  that  the   application   was maintainable. In Dhan Kunwar v. Mahtab Singh and others (2) an application by  the judgment-debtor to recover an amount found to be  in excess  of the amount lawfully due, the decree  having  been amended since the execution, was held maintainable under  s. 244 of the Code of 1882. In Collector of junpur v. Bithal Das and Anr(3) it was  held that  an  application to recover from  a  decree-holder  the proceeds  of a sale in execution, such sale having been  set aside, falls within s. 244 C.P. Code, 1882.  It was observed by  the  Court  that s. 244 "applies as well  to  a  dispute arising  between  the  parties after  the  decree  has  been executed,  as  it  does to a dispute  arising  between  them previous to execution." In Gopal Rai v. Rambhajan Rai (4) an application for  refund of  the  decretal  amount paid into Court  by  the  judgment debtor, after the decree had been satisfied by payment  made by another (1) I.L.R. 17 All. 478. (3) I.L.R. 24 All. 291. (2) I.L.R. 22 All. 79. (4) I.L.R. 1 Pat. 336. 152 judgment-debtor was held maintainable under S. 47 C.P.  Code against the decree-holder who had withdrawn the amount. In  B. V. Patankar & Others v. C. G. Sastry,(1)  this  Court hold that an application by the judgment-debtor for an order for  restoration  of possession of property from  which  the judgment-debtor was evicted without notice, in execution  of a  decree  which had become unenforceable,  because  of  the Mysore House Rent and Accommodation Control Order, 1948, was maintainable. It  is not necessary to multiply cases-and they are  many-in which  applications  by judgment-debtors  raising  questions relating to execution, discharge or satisfaction not failing within  0. 21 r. 2 were held maintainable, and absence of  a proceeding  by the decree-holder to execute the  decree  was held  not  to  be  a  bar  to  the  maintainability  of  the applications.   In  our view, the High Court of  Madras  was right  in its interpretation of s. 244 of the Code of  Civil Procedure, 1882, when they observed in Erusappa Mudaliar  V. Commercial and Land Mortage Bank Ltd.(2) .lm15 "We  are  unable  to accede to  the  contention  that,  with reference  to the terms of section 244, the question  raised by  the petition could only be raised in answer to  a  claim made....  on  an application for  execution.   That  section simply  provides that questions arising between the  parties to  the  suit and relating to the  execution,  discharge  or satisfaction  of the decree shall be determined by order  of

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the Court executing the decree and not by separate suit.  We cannot  construe the words ’a Court executing a  decree’  as meaning,  that the section only covers cases of  proceedings initiated  by the decree-holder and does not include  appli- cations   (relating   to   the   execution,   discharge   or satisfaction of the decree) made by the judgment-debtor." We  are  unable to hold that the dictum of the  Punjab  High Court  in Mst.  Bhagwani v. Lakhim Ramun and  Another(3)that "arm  no  executtton  proceedings (at the  instance  of  the decree-holder)  were  pending, the Court (which  was  called upon  to  determine  whether there was an  adjustment  of  a decree  by an executory contract) could not be  regarded  as one  which was ’executing the decree’," is  correct.   There is,  in our judgment, no antithesis between s. 47 and 0.  21 r.  2: the former deals with the power of the Court and  the latter  with  the procedure to be followed in respect  of  a limited class of cases relating to discharge or satisfaction of decrees.    The appeal fails and is dismissed with costs. V.P.S                 Appeal dismissed (1) [1961] 1 S.C.R. 591. (2) I.L.R.23 Mad. 377, 380. (3) A.I.R.1960 Punjab 437, 438. 153