JAGDISH SINGH Vs. KUNJ LAL

JUDGEMENT

(1.) THIS is a civil second miscellaneous appeal arising out execution proceedings. It appears that a decree for possession of land measuring 11 x 25 Karams situate in Sarwal was passed on 11th Nov. 1960. An execution application thereafter was taken out which was dismissed for default somewhere in July 1962 Another application was presented by the decree -holder but that was dismissed as being time barred by the trial court by its order dated 14th June, 1965. This finding was however reversed by the District Judge by his order dated 17 -1 -1967 which was affirmed by the High Court in second appeal 29 -11 -1967 and the case was sent back to the trial court to enquire into the other objections raised by the judgment -debtor There was an objection on the part of the judgment -debtor that the decree had been adjusted and the present execution was not maintainable. The judgment -debtor presented a compromise executed between the parties in the trial court on 20th May 1968. This plea has been rejected by both the courts below on the grounds that as the adjustment alleged has not been certified within the statutory period of 90 days, as provided under Article 174 of the Limitation Act, it could not be recognized by the Court under Order 21 Rule 2. CPC. This order is under appeal.

(2.) I have heard the learned counsel for the parties, each counsel has cited law in support of his contention.

(3.) THERE is no doubt conflict of judicial authorities on the interpretation of Order 21 Rule 2 Civil Pr Code. The Madras High Court has consistently taken the view that the prohibition as contained in order 21 Rule 3 CPC applies only to decrees which either solely or among other reliefs granted decree for money, viz AIR 1914 Madras 36 AIR 1918 Mad. 715, AIR 1920 Madras 469, AIR 1926 Madras 749 and AIR 1951 Madras 838. Mad. High Court has now been followed by the Andhra Pardesh High Court in AIR 1958 A. P. 705 and the same view has been adopted by the Orissa High Court in an authority reported as AIR 1967 Orissa 59. But there are authorities of other High Court which are contrary to the Madras, Andhra Pradesh and Orissa views. They are AIR 1952 All. 814 AIR 1922 Bombay 380. AIR 1928 Cal 715, AIR 1948 Nag. 374.