GEORGE SARA Vs. VARGHESE ANNAMMA

JUDGEMENT

(1.) THE question is raised regarding the executability of the decree in O.S.No.122 of 1970,Munsiff's Court,Kanjirappally.The decree dated 19th December 1970,directed recovery of possession of item 2,a building,from the defendants,and granted a permanent injunction against them from taking profits from item 1,the land on which the building stood.Six months 'time was granted to vacate the building.The plaintiffs and the defendants are relations,the 1st defendant being the widow of a deceased son of the two plaintiffs,and the other defendants being her children.After the decree,on 19th November 1971,the 1st plaintiff and defendants executed an exchange deed Ext.B -1 by which the plaint properties were allotted to the defendants in exchange for another property.When the plaintiffs applied for execution and recovery of possession of item 2,it was objected that in view of Ext.B -1,the decree had become unexecutable.The decree -holders admitted Ext.B -1,but maintained that the same cannot avail against their right to execute the decree according to its apparent tenor and purport.Both the courts below overrul­ed the objection of the judgment -debtors and held that as the adjustment of the decree had not been certified to the court,as required by the provisions of Order XXI,rule(2)of the Civil Procedure Code the same cannot be recognised.Our learned brother,Khalid,J.referred this second appeal to a Division Bench in view of the conflict of judicial opinion on the question of law involved.

(2.) ORDER XXI,rule 2 of the Civil Procedure Code in so far as it is material reads: "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 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)***** (3)A payment or adjustment,which has not been certified or recorded as aforesaid,shall not be recognised by any court executing the decree." There is conflict of judicial opinion in regard to the scope and content of sub -rule(1)of the above rule.One view is that the rule is applicable only to a decree "under which money is payable "whether as the sole,or as one of the reliefs granted by it.The decision in Narayanaswami Naidu v.Rangaswami Naidu A.I.R.1926 Mad.749 may be taken as representa­tive of this view.The other view is that the sub -rule is applicable to decrees "of any kind "whether they direct payment of money at all or not.The decision in Shaikh Naimat v.Shaikh Jalil A.I.R.1928 Cal.715 sufficiently reflects this view.The majority of the High Courts have adopted or accepted the Calcutta view.The conflict of judicial opinion is notified in Mulla's C.P.C .,13th Edition,Vol.II,at page 960.The Andhra High Court has followed the Madras view.The Bombay,Lahore,Patna,Nagpur,Allahabad and Mysore High Courts take the same as that of the Calcutta High Court.We do not think it necessary to notice in detail all the decisions of the various High Courts.But we may briefly indicate the scope of the controversy and our view in regard to the same.

(3.) IN the,Code of 1859,section 206 provided that no adjustment of the decree,in whole or in part,shall be recognised by the court,unless it was certified within the time allowed by law.The rule covered all kinds of decrees,as was noticed in Sankaran Nambiar v.Kanara Kurup I.L.R.22 Mad.182.In the Code of 1877,section 258 corresponded in all material respects to section 206 of the earlier Code.It was ruled in Baba Muhamed v.Webb I.L.R.6 Cal.786 with respect to this provision that it dealt with adjustment of any decree.The Code of 1882 altered the language of section 258 from what it was in the 1877 Code.It was in respect of this section that the Madras High Court ruled in Sankaran Nambiar v.Kanara Kurup I.L.R.22 Mad.182 that it applies only to decrees,under which money was payable and had no application to decrees for possession of the immovable properties.It was observed that the difficulty of proving or disproving payment of money is greater than the difficulty of proving an alleged delivery of immovable property and that the legislature may well have made a special provision in the case of money,which it thought was unnecessary in regard to immovable property.In the Code of 1908,the corresponding provision in Order XXI,rule 2(1)was amended by the addition of the words "of any kind " ;.This was to reconcile the conflict of views between the Madras and the Calcutta High Courts reflected in I.L.R.6 Cal.786 and I.L.R.22 Mad.182.But,according to the Madras High Court,as stated in A.I.R.1926 Mad.789,although composite decrees were also within the scope of the rule,the decree had to direct payment of money as one of the reliefs granted by it.