NARAHARI NAYAK Vs. CENTRAL WAREHOUSING CORPORATION

JUDGEMENT

(1.) Decree -Holder is the petitioner arising out of an application Under Section 47, CPC. There was an arbitration proceeding in between the parties and the award of the arbitrator was made a rule of the Court in Title Suit No. 243 of 1936. Decree -Holder filed the application execution of the decree which was numbered as Execution Case No. 103 of 1988. Judgment -Debtor filed a petition Under Section 47, CPC challenging the executability of the decree under various grounds. One of the specific averments in the said petition is to the effect that in 2(c) C. C. Case No. 209 of 1986 the S. D. J. M., Cuttack had passed an order directing the J. Dr. to deposit a sum of Rs. 85,307.35 towards the liability of the D. Hr. under the Labour Contract Act and the same being a statutory liability the decree -holder is entitled to adjust the same from the decree of the Decree -Holder. It was further stated that the petitioner has deposited a sum of Rs. 65,303.68 by way of a Bank draft on 22 -11 -1988 in the said Court and the same being also a statutory liability, is also to be adjusted towards the decretal dues i.e. the Judgment Debtor prayed for adjustment of Rs. 1,30,614.72. It was further prayed in the petition that if any other sum is legally payable to the Decree Holder, the same may be determined by the Court.

(2.) THE Decree Holder filed his objection stating therein that the Judgment Debtor cannot challenge the validity of the decree in Title Suit No. 243 of 1936 in the execution proceeding. The Decree Holder further submitted that the Judgment Debtor is not entitled to deduct any sum from the dues of the Decree Holder as the said sum of Rs. 1,30 614.72 had been deducted earlier and the same is not liable to be adjusted again. The executing Court after perusing the documents filed before it, came to the conclusion that since the Judgment Debtor had paid a sum of Rs. 1,30,614.72 in 2(c) C, C. Case No, 209 of 1986 and the same having been paid towards statutory liability of the Decree Holder, the same amount should be adjusted towards satisfaction of the decree and the decree passed in Title Suit No. 24 3 of 1986 is executable and enforceable for rest of the decretal dues. This order passed Under Section 47, CPC is assailed in this Civil Revision.

(3.) I find much force in the contentions of learned counsel of the petitioner. Order 21 Rule 2, CPC, prescribes the procedure to be followed when any payment is made out of the Court to the Decree Holder. Order 21, Rule 2(3) CPC, mandates payment of adjustment, which has not been certified or recorded under Order 21, Rule 2, CPC, shall not be recognised by any Court executing the decree. Admittedly, in this case the Decree Holder had not certified such payment or adjustment to Court and no such order has been recorded as visualised under Order 21, Rule 2(1) CPC. In given case, where Decree Holder does not certify any adjustment out of Court, then Order 21, Rule, 2(2) CPC entitles the Judgment Debtor to inform the Court of such payment for adjustment and apply to the Court to issue a notice to the Decree Holder to show cause and thereafter authorises the Court to record that such sum is adjustable provided the conditions under Order 21, Rule 2(2 -A) are satisfied. In the case at hand, neither the Decree Holder has certified the adjustment nor the Judgment Debtor had applied the Court to record adjustment in accordance with Order 21, Rule 2(2), CPC. But by reading the application Under Section 47 CPC, it is clear that the Judgment Debtor had prayed for adjustment of the statutory dues paid by him on behalf of the Decree Holder. Therefore, there is no adjudication as par the procedure laid down in Order 21, Rule 2, CPC. Without following any such procedure the Court has directed that the Decree Holder shall be entitled to balance decretal dues after deducting Rs. 1,30,714.72 and while passing such order, the executing Court has not taken in to consideration the mandates under Order 21, Rule 2 (2 -A), CPC.