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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.