KUNJ LAL Vs. JAGDISH SINGH

JUDGEMENT

(1.) THIS appeal under the Letters Patent is directed against the judgment of Bhat J. who granted leave to appeal in a miscellaneous second appeal decided by him.

(2.) IT appears that a decree for possession of land measuring 11x25 karams situate in Sarwal Jammu was passed in favour of the decree -holder on 11 -11 -1960. On 26 -6 -1962 the decree -holder filed an application for execution of the decree which was dismissed for default a month later, i.e., on 26 -7 -1962. A second application was filed by the decree -holder on 24 -7 -1964 and in this application the judgment debtors raised the question of limitation. On 14 -6 -1965 the execution application was dismissed as being time barred. Against this order of the court there was an appeal to the District Judge who allowed the appeal on 17 -1 -1967 and remanded the case to the executing court for a fresh decision on merits. The decision of the District Judge was upheld by this court in appeal on 29 -11 -1967. On 20 -5 -1968 the judgment debtor filed an application before the Executing Court alongwith an Iqrarnama that the parties had entered into a compromise outside the court and the decree had been satisfied on 17 -6 -1962. The Executing Court rejected the objection filed by the judgment debtor on 10 -6 -1969 on the ground that as the adjustment arrived at between the parties was not certified by this court under 0.21., r.2 of the Civil P.C., the objection was not sustainable. Against this order the judgment debtor went up in appeal to the District Judge which was dismissed on 19 -1 -1970. There was a second appeal before the High Court against the order of the District Judge which was heard by Bhat J. who differed from the view taken by the two courts below and held that no certification for the adjustment arrived at between the parties out of court was necessary and remitted the case to the executing court for decision on merits after considering other objections. As there was a serious conflict of authority on the applicability of 0.21 r.2 to the facts of the case, the learned Judge granted leave to appeal under the letters patent, and hence this appeal before us.

(3.) THE main question that falls for determination in this case is whether certification under the provisions of 0.21., r.2 of the Civil P.C. was necessary or not. The learned Single Judge was of the view that as the decree in the instant case was not a money decree in any sense of the term, 0.21., r.2 had no application and therefore the adjustment made between the parties did not require any certification. The executing court, however, had to go into the question as to whether there was a factual adjustment between the parties or not. The decree -holder supports the view before us that the language of 0.21., r.2 is wide enough to include any decree and the provisions are not confined only to decrees for payment of money.