YOGENDRA RATHORE Vs. PADMA BEN

JUDGEMENT

(1.) THE plaintiff/landlords/non -applicants filed a civil suit for eviction of the present applicants in which a decree was granted in favour of the landlords. The tenant being dissatisfied by the said decree, preferred a regular appeal No. 14 -A/1996 in the Court of the Third Additional District Judge, Bilaspur. Before the matter could be disposed of finally, an application under Order 23, Rule 1 CPC was filed before the appellate Court. The application was signed by the present applicants/defendants and was also counter -signed by the non -applicants/landlords. In view of the terms of the application, the appeal was dismissed. Later on, the landlords tried to execute the decree which was resisted by the present/applicants on the grounds (1) that the decree has become in executable, (2) the landlords were not ready and willing to perform their part of the contract and (3) the present applicants have already instituted a suit for specific performance. The respondents/landlords contested the application inter alia on the grounds (1) that as the adjustment was not recorded under the provisions of Order 21, Rule 2 CPC, the Court cannot take cognizance of the adjustment under sub -rule 3 of rule 2 of Order 21, (2) the present applicants were never ready and willing to perform their part of the contract, and (3) the decree would not become in executable. The present applicants subsequently raised one more objection that in view of the application filed under Order 23, Rule 1 CPC, the landlords having given up their right to execute the decree and as the same was a waiver of their rights, the decree has become in executable. The respondents contending otherwise, submitted that the decree has become in executable because in any case when the decree was put to execution, the applicants were required to submit to the executing Court that the decree had been adjusted out of Court and as they have not done it, the Court was justified in not taking cognizance of the alleged adjustment.

(2.) THE executing Court, after hearing the parties, came to the conclusion that the application filed under Order 23, Rule 1 CPC was an application for withdrawal of the appeal, it led to adjustment and as the said adjustment was not certified by the executing Court, the executing Court would not take into cognizance the said adjustment and no question regarding excitability of the decree would arise for consideration under section 47 CPC. Being dissatisfied by the said order, the judgment -debtors have preferred this revision petition.

(3.) HE submits that the application filed before the appellate Court was nothing but an adjustment. 1997 (1) S.C.C. 373. Shri Agrawal submits that the Supreme Court has considered the impact and effect of conscience waiver and, therefore, this Court should also consider this aspect of the matter. He submits that the Supreme Court does not say that if the right of execution is waived, then too the same is required to be certified under the provisions of Rule 2 of Order 21. On the other hand, Shri Shroti submits that the Supreme Court has clearly observed that if the agreement amounted to adjustment of the decree, then it is required to be certified under Rule 2 of Order 21. For appreciating the matter, a look to the provisions of Order 21, Rule 2 and section 47 CPC would be necessary. Order 21, Rule 2 CPC reads as under -