SHYAM LAL Vs. MURLIDHAR

JUDGEMENT

(1.) This is an appeal against the judgment and order passed by Sri M.C. Agarwal, Temp. Civil and Sessions Judge, Mathura, allowing the appeal against the judgment and order passed by Sri N.B. Asthana, Addl. Munsif, Mathura. The facts giving rise to this appeal are as follows: - -

(2.) The lower appellate court held that although the respondent accepted the rent the objection u/S. 47 was not maintainable because the appellant did not apply u/O. 21, R. 2 CPC for certification and, therefore, the trial court's order was set aside and the execution application was sent back to the trial court for execution of the decree expeditiously. Being dissatisfied, the appellant has filed this appeal.

(3.) The learned counsel for the appellant contended that the matter related to discharge, satisfaction and execution of the decree and there was no account of the appellant to be certified u/O. 21, R. 2 CPC and, therefore, the view taken by the lower appellate court was erroneous. The lower appellate court relied on a decision of this Court in Akbar Ali Khan v/s. Dr. Iswar Saran ( : AIR 1957 All. 622). In this reported case, the judgment -debtor had taken an objection that there was a settlement of account between the parties after the decree and the decree had been satisfied. What was held in this case was that the payment had to be certified u/O. 21, R. 2 CPC and without there being such a certificate, the objection u/S. 47 CPC was not maintainable. The other question which arose for determination in this reported case was as to whether the objection u/S. 47 CPC could be treated as an application u/O. 21, R. 2 CPC. That question was also replied in the negative because no such prayer had been made in the objection. The learned lower appellate court was, therefore, not correct in applying the above reported case to the facts of the case. In the instant case, no payment was made by the judgment -debtor and as such there was no need for an application being filed u/O. 21, R. 2 CPC. All that was pleaded in the instant case was that by accepting rent of a period subsequent to the date of decree, the respondent treated the appellant as tenant and as such the appellant was not liable to ejectment on the basis of the earlier decree.