MADESHI JOGESWAR DORA Vs. KAILASH NATH MUNDRA

JUDGEMENT

(1.) PETITIONER 's application for action in terms of Sub -rule (2) of Rule 2 of Order 21 of the Code of Civil Procedure, 1908 (in short, 'CPC') having been held to be not maintainable by the leaned Munsif, Sambatpur, the application for revision under consideration has been filed. The dispute in which the application was filed has a fairly chequered career including several jcurneys to this Court and the Apex Court.

(2.) THE fact situation, as highlighted by the laarned Munsit. which is almost undisputed is as follows : The subject -matter of the dispute is a pucca double storied building bearing municipal holding No. 223 (now) (old 713 - A/1) In Ward No. 7 of Jharsuguda Municipality standing on H. S plot No. 1191 measuring AO. 09 decimals appertaining to H. S. Khata No. 164 of Jharsuguda, and an area of AO. 01? decimals appertaining to Nazal plot No 338 of Jharsuquda town which originally belonged to one Samir Kumar Chowdhury, and was subsequently transferred to the present opp. party Nos. 1 to 5 by a registered sale -deed dated 2501 - 1978. One Dr. C. V. Lankey was staying in the said house as a monthly tenant under the original owner Samir Kumar Chowdhury before transfer of the house to the opp. party Nos. 1 to 5. After death of Dr. Lankey, his widow Smt. Basanti Dei Lankey continued to stay there. The original landlord Samir Kumar filed H. R. C. Case No. 2 of 1977 for eviction of Smt. Lankey on the ground of non -payment of rent within stipulated time, requirement for personal use and occupation, and for unauthorised sub -letting to the present petitioner. The proceeding was instituted under Orissa House Rent Control Act, 1967, (in short, 'Rent Act'). During pendency of the HRC Case, opp. party Nos. 1 to 5 purchased the house, and thereafter Samir Kumar did not press the case. On 25 -1 -1978 opp. party Nos. 1 to 5 filed another HRC case bearing No. 41 of 1978, for eviction of Smt. Lankey. In the said proceeding Smt. Lankey filed her written statement. In the year 1980 she was set ex parte. Her application under Order 9, Rule 13, CPC (Misc. Case No. 3 of 1980) was dismissed tor default. Another application was filed to restore the said misc. case which was dismissed for default and the same was also dismissed. Another misc. case was filed to restore the earlier misc. case which was allowed, but after due contest, Misc. Case No. 3 of 1980 was dismissed. H. R. C. Appeal No. 15 of 1981 filed by Smt. Lankey before the Learned Chief Judicial Magistrate, Sambalpur did not bring her any relief. This Court was moved in OJC No. 1752 of 1981, which was also dismissed. In between on 15 -12 -1979, the learned House Rent Controller had passed an order in HRC Case No. 41 of 1978 directing Smt. Lankey to deliver vacant possession of the house to the present opp. party Nos. 1 to 5 within one month from the data of the order. Thereafter execution case No. 11 of 1980 was filed by them on account of Smt. Lankey's failure to deliver possession. In the said case she appeared at the stage when writ of delivery of possession was issued, but had not Wed any objection in terms of Order 21, Rule 23, CPC. During pendency of the execution ease, present petitioner filed Title Suit No. 74 of 1981 before the learned Subordinate Judge, Sarnbalpur. in the said suit an application under Order 39, Rule 1. CPC read with Section 151, CPC was filed with a prayer to stay further proceedings in Execution Case No. 11 of 1980. The present opp. party Nos. 1 to 5 appeared and resisted the prayer.The said application was dismissed. Against the said Order of dismissal. Misc. Appeal No. 375 of 1981 was preferred before this Court, which was subsequently withdrawn on 13 -9 -1382. The present petitioner filed HRC Appeal No. 24 of 1981 before the Chief Judicial Magistrate, Sambalpur, against the original order of eviction passed on 15 -12 -1978 in HRC Case No. 41 of 1978 which was dismissed by order dated 3 -12 -1982. Thereafter petitioner filed OJC No. 2327 of 1982 before this Court. On 1 7 -12 -1982 stay was granted in the aforesaid writ application, which was subsequently vacated on 24 -9 -1984. Against the order vacating stay, the petitioner moved the Apex Court in Special Leave Petition, SLP No. 11572 of 1984. On 29 -10 -1984 stay was granted by the Apex Court, but subsequently the SLP was dismissed on 13 9 -1989, and the order of stay automatically got vacated. After dismissal of the Special Leave Petition, Misc. Case No. 48 of 1984, the proeeadings wherein were kept in abeyance, were resumed and the same was dismissed at the stage of admission, and writ of delivery of possession was issued for giving delivery of possession to present opposite parties. A process server of Civil Court delivered possession of the disputed premises 26 -9 -1990. It is relevant to note at this juncture that in Misc. Case No. 48 of 1984 filed Under Section 47, CPC read with Section 151, CPC, it was observed that the petitioner cannot resist the decree passed in the original HRC case as he was not a party. At that stage an application purported to be one under Order 21, Rule 2, CPC was filed inter alia taking a stand that at the time of execution of the writ by the concerned process server, at the spot a compromise was arrived at between the contesting parties in presence of some local gentlemen and police officials and the said compromise was reduced into writing on 27 -9 -1990 ' wherein the present parties have appended their signatures. It was pleaded that the contents of compromise agreement were drafted, corrected and explained to both parties by an Advocate of Jharsuguda in presence of the local gentlemen and police officers, and thereafter the same was forwarded by the concerned process server to the executiug Court. Possession was not delivered by the process server, and petitioner continued to be in possession. There was a stipulation that requisite registered sale -deed shall be executed within fifteen days from the date of argument. It was consequentially pleaded that the present opp. parties gave up their claim of possession, and relinquished their right, title and interest over the suit property, and therefore, an adjustment should be recorded. Further, the compromise agreement having been forwarded to the Court by the process server the same is to be accepted as certification made by the decree holders with the meaning of Order 21. Rule 2(1), CPC. The opp. parties objected to the stand taken by the petitioner, primarily on the ground that the petitioner being a stranger so far as the original execution case is concerned, had no locus standi to move the Court for adjustmant. Further, there was no compromise as claimed by the petitioner. The learned Munsif after making elaborate analysis of the Circumstances came to hold that the application was not to be entertained, and accordingly dismissed the same at the stage or admission.

(3.) TO appreciate the rival submissions, it is necessary to deal with the scope and ambit of Sub -rule (2) of Rule 2 of Order 21. Sub - rule (1) of Rule 2 of Order 21 makes it clear that. where any money payable under a decree of any kind is paid out of Court. or is otnerwise 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. In a case covered under Sub rule (i) the denree - holaer plays a vital role. He can certify any payment or adjustment in respect of full or part satisfaction of the decree. If such certifica - tion is done by the decree -holder, the Court shall record the same in accordance with law. The learned counsel for petitioner states that though this is not strictly a case which is covered by Sub rule (1), yet in view of the compromise effected the decree -holder shall be -; deemed to have certified the adjustment. It is to be noticed here that the decree -holder has disputed the so -called compromise and has labelled the same to be a myth.Since there is no material to show that the decree - holder certified the adjustment. Sub -rule (1) will have no application. So far as Sub -rule (2) is cencerned, petitioner's stand is that the judgment -debtor is authorised under the said Sub -rule to inform the Court of payment or adjustment, and apply to the Court to issue a notice to the decree -holder to show cause, on a day to be fixed by the Court. why such payment or adjustment should not be recorded as certified. According to him, the expression 'judgment debtor' would also include a 'Sub -tenant' or a 'Sub -lessee' under the original tenant or lessee.