ADHIN SINGH Vs. ADHIN SINGH

JUDGEMENT

(1.) THESE two connected appeals under Sections 47/96 and under Order XLIII, Rule 1 (m), C.P.C. have been preferred by Adhin Singh the judgment-debtor, against the judgment of the 'Civil Judge, Saharanpur, fated 12-5-1975 disposing of Miscellaneous Cases Nos. 7 and 85 of 1972. Sahab Singh and others the respondents, filed a suit for the recovery of money on the basis of a simple mortgage. The suit was numbered as 51 of 1970. A preliminary decree in the said suit was passed on 15-3-1971. As the judgment-debtor did not pay the amount within the time stipulated in the preliminary decree, an application under Order XXXIV, Rule 5 of the Code of Civil Procedure was filed by the respondents for the preparation of a final decree. This was registered as Miscellaneous Case No. 68 of 1971. During the pendency of the proceedings for the preparation of final decree, the judgment-debtor appellant filed an application on January 20, 1972, for recording satisfaction of the decree on the ground that payment of the decretal amount having been made outside the Court, the decree was liable to be entered as satisfied under Order XXI, Rule 2, C.P.C. This application was registered as Miscellaneous Case No. 7 of 1972. Thereafter, he filed another application on October 6, 1972, that the proceedings of Miscellaneous Case No. 7 of 1972 had also been compromised, and that as the respondents were not prepared to get the compromise recorded, he was entitled to the recording of the compromise under Order XXIII, Rule 3 of the Code of Civil Procedure. This application was numbered as Miscellaneous Case No. 85 of 1972.

(2.) DURING the pendency of these applications in the court below, the provisions of Order XXIII, Rule 3 of the Code of Civil Procedure were amended by the High Court in 1974. Rule 3 after the amendment is as under : "Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise in writing duly signed by the parties or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject-matter of the suit and obtains an instrument in writing duly signed by the plaintiff, the Court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith so far as it relates to the suit : Provided that the provisions of this rule shall not apply to or in any way affect the provisions of Order XXXIV, Rules 3, 5 and 8. . Explanation : The expressions, 'agreement' and 'compromise', include a joint statement of the parties concerned or their counsel recorded by the Court and the expression 'instrument' includes a statement of the plaintiff or his counsel recorded by the Court."

(3.) THE main point that arises for determination is whether the provisions of Order XXI, Rule 2, C.P.C. can be applied to the proceedings under Order XXXIV, Rule 5, C.P.C. Order XXI, Rule 2, C.P.C. only applies in execution, and since execution does not begin until a final decree has been prepared for sale of the property mortgaged, it appears to us that Order XXI, Rule 2. C.P.C. is inapplicable to the proceedings pending for the preparation of a final decree under Order XXXIV, Rule 5, C.P.C. This view of ours is fully supported by a decision of the Privy Council in Madan THEatres Ltd. v. Dinshaw and Co. (AIR 1945 PC 152). It was held by the Privy Council in this case that the mortgage continues until a final decree is passed and there is no time-limit, and as Order XXI, Rule 2, C.P.C. only applies in execution, an application for adjustment or payment is not maintainable. This concludes this appeal against the appellant.