TMI Blog1996 (12) TMI 388X X X X Extracts X X X X X X X X Extracts X X X X ..... esisted by the respondent by means of objections filed under Section 47 of the Code of Civil Procedure, in which it was pleaded by him that possession of the premises in question was handed over to Ramesh B. Sharma on 31.10.1991 who, however, allowed the respondent to remain in possession of the premises as a licence on payment of the licence fee of ₹ 5,000/- per month. It was pleaded that since possession of the disputed premises was handed over to Ramesh B. Sharma, who was the legally constituted attorney of the appellant, the decree stood satisfied and as such it could not be executed. It was also pleaded that in terms of the fresh licence, the respondent had already paid the licence fee @ ₹ 5,000/- to Ramesh B. Sharma, who had also issued a receipt to him. 3. The appellant, in reply, pointed out that the power of attorney executed by her in favour of Ramesh B. Sharma was cancelled by notice dated 1.12.1991 and by another notice dated 31st January, 1992 Ramesh B. Sharma was required not to act as the appellant's attorney in any manner whatsoever. It was pleaded that since the power of attorney in favour of Ramesh B. Sharma had already been cancelled, there was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was delivered to the appellant's attorney and the decree for eviction stood satisfied. 7. Learned counsel for the respondent, on the contrary, contended that in view of Section 47 CPC, which specifically lays down that all questions relating to execution, discharge or satisfaction of decree shall be determined by the court executing the decree, it was open to the respondent to raise the plea regarding the inexecutability of the decree and the executing court was under an obligation to decide the question whether the decree was inexecutable as possession had already been delivered to the attorney who had reinducted him in the premises in question as a licencee. 8. Section 47 and Order XXI Rule 2 of the Code of Civil Procedure provide as under: 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 parson is or is not the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arge 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. It is contended that there is an obvious conflict between the two provisions and, therefore, the only way in which the conflict can be resolved is to hold that Section 47 would prevail over Order XXI Rule 2. We do not agree. 10. Part II of the Code of Civil Procedure, comprising of 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 At, the courts should make an effort to so interpret the provisions as to ha 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 with 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. 14. 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. 15. Under Section 38 of the Code, 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 whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... action 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. 18. The problem can be looked into from another angle on the basis of the maxim generalia speciallibus non derogant. 19. 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. 20. The general power of deciding questions relating to execution, discharge or satisfaction of decree under Section 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... XI Rule 2(3)_ prohibiting the executing court from giving effect to the said plea were applicable and the executing court acted erroneously in refusing to execute the decree for eviction of the respondent on the ground that possession having been delivered to the appellant's attorney, the decree, to that extent, stood satisfied. 25. P. Narsaiah vs. P. Rajoo Reddy AIR 1989 AP 164, Bhabani Dasya vs. Tulsi Ram Keot AIR 1990 Guwahati 90 as also a full Bench decision of the Madhya Pradesh High Court in Rajeev Khandelwal vs. Arun Pannalal AIR 1987 MP 262 are cases which have taken the view that uncertified payment or adjustment cannot be entertained under Section 47. The High Courts have gone to the extent of saying that even if judgment-debtor pleaded fraud, the executing court would not look into a payment or adjustment which had not been recorded or certified under Order XXI Rule 2. Same view was also taken in Krishna Gobind Patil vs. Moolchand AIR 1941 Bombay 302, and by the Calcutta High Court in Sham Lal Chatterjee Ors. vs. Hazarimal Babu 15 Calcutta Law Journal 451 and in Biroo Gorain Ors. vs. Musstt, Jaimurat Koer 16 Calcutta Weekly Notes 923. Even this Court in Mot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n order to prevent such judgment-debtors that Order XXI Rule 2 has been enacted so that if such compromise or creation of fresh tenancy has not been recorded, the judgment-debtor be not encouraged to initiate another round of litigation under Section 47 CPC. The decision of this court in M.P. Shreevastava vs. Mrs. Veena 1967(1) SCR 147 was a case where the husband had obtained a decree for restitution of conjugal rights against his wife, who, after the decree, 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. Even the attempts of certain friends of the family to persuade the appellant to take the respondent back into the marital home also proved to be unsuccessful. The wife then moved an application under Order XXI Rule 2 that the decree be recorded as satisfied as the appellant had failed to allow the respondent to resume conjugal relations even after she went to his house, which was allowed and it was held by the District Judge, Delhi, that the decree stood satisfied. This order was upheld by the High Court. In this Court, the principal q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rty Subudhi vs. Gopinath Naik Ors. 1968 (2) SCR 559 = AIR 1968 SC 919, this Court relied upon the theory of intention and held that the intention of the parties was the decisive test as to whether the rights under the decree were given up of not. In that case, the landlord had filed a suit for eviction of the tenant which was dismissed by the trial court, but was compromised at the appellate stage. The decree was passed in terms of the compromise which provided that the tenant could continue in possession for five years but if he did not pay rent for three consecutive months he would be evicted by executing the decree. When execution proceedings were initiated against the tenant, an objection was raised by him that the compromise decree created a fresh lease and, therefore, the decree was inexecutable. This plea was rejected and it was held that the intention of the parties, which was the decisive test, was not to enter into the relationship of landlord and tenant. Reliance in this case was placed on the decision of Subba Rao, J. (as he then was) in Associated Hotels of India Ltd. vs. R.N. Kapur 1960 (1) SCR 368 = AIR 1959 SC 1262, in which one of the propositions laid down was: ..... X X X X Extracts X X X X X X X X Extracts X X X X
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