MANTRILAL KEDARNATH MISRA Vs. MADURNATH BADAN MISRA

JUDGEMENT

(1.) THE question before me is whether the adjustment of a decree for possession of a house falls within the ambit of Order 21, Rule 2(1), Civil P.C., and whether under Rule 2(3) the executing Court can recognise such adjustment if it has not been certified. The Madras High Court in Narayanasami Naidu v. Rangasami Naidu A.I.R. 1926 Mad. 749 has taken the view that Order 21, Rule 2 applies only to decrees under which money is payable with or without other relief. The contrary view has been taken in Baba Mohamed v. Webb 6 Cal. 786 Shaikh Namat v. Shaikh Jalil Gharry v. Gowrya A.I.R. 1922 Bom. 380 and Shadi v. Ram Ditta A.I.R. 1936 Lah. 842 With respect, the latter view appears to me to be correct. It would obviously be anomalous if a decree for possession of immovable property, for example, and for the payment of money could be adjusted by a lease which would require to be certified under Order 21, Rule 2 and a decree for possession of immovable property without any payment of money could be adjusted without being certified. Rule 2(1) provides that: Where any money payable under a decree of any kind is paid out of Court or the decree is otherwise adjusted...the decree-holder shall certify such payment or adjustment etc.

(2.) AND , in my opinion, the words "the decree" mean a decree of any kind and should not be read as meaning a decree of any kind under which money is payable. The decision of the lower appellate Court is correct and the appeal is dismissed without notice to the respondent.