BAHADUR SINGH GUPTA Vs. MOHAMMAD ALI

JUDGEMENT

(1.) This letters patent appeal has been filed by the judgment -debtor on a leave being granted by a Single Bench of this Court and it arises out of execution proceedings.

(2.) THE appellant got a decree for ejectment and damages at the rate of Rs.20/ - per month against the respondent in civil suit no. 122 -A of 1952 on 17 -2 -1954. The decree was confirmed by this Court in second appeal no. 906 of 1955 on 31 -10 -1953. The appellant then sought to execute the decree by presenting an application for execution on 29 -7 -1959. The respondent took certain objection to the execution of the decree but on 22 -9 -1961 the appellant in the absence of the respondent informed the Court that he does not want to prosecute the execution application which was accordingly dismissed, Thereafter, a second application for execution of the decree was presented on 11 -8 -1965 seeking ejectment of the respondent from the suit land. The respondent filed an objection on 22.6.1966 purporting to be one under Section 47 of the Code of Civil Procedure contending amongst other, that there has been a settlement between the parties under which the appellant has given up his right of ejectment and has made the respondent his tenant on a fresh contract of tenancy on an enhanced monthly rent of Rs. 71/ - fram 9 -2 -1961 and the respondent has paid Rs. 1001/ - towards the compromise on the same day to the appellant. It was, therefore, prayed that the execution application be dismissed. The learned executing Judge took the view that the objection taken by the respondent amounts to an adjustment of decree but since it was not certified within time it was barred under Order 21 Rule 2 of the Code. The order was maintained in appeal by the learned Additional District Judge. In Second appeal the learned Single Judge of this Court disagreed with the views taken by the Courts below and held that since a fresh contract of tenancy has been created there has been no adjustment of the decree and since there was no delivery of possession to the appellant by the respondent there could not be any adjustment of decree but the agreement between the parties has rendered the decree unenforceable which can be enquired into under Section 47 of the Code and Order 21 Rule 2 has no application. He therefore, remitted the case to the executing Court for investigating the agreement alleged by the respondent on merits. Accordingly, the appeal was allowed and the orders of the Courts below were set aside. However, leave was granted and hence this letters patent appeal has been filed.

(3.) RULE 2 of Order XXI of the Code reads as under: -