NARAYANASWAMI NAIDU Vs. RANGASWAMI NAIDU ADD ORS

JUDGEMENT

(1.) A. Razinamah decree was passed on 22nd October, 1914 in O.S. No. 11 of 1913 in which it was provided that in case the 1 defendant or the 4 defendant were to pay to the decree- holders Rs. 17,000 within two years the property should be reconveyed to the 1 defendant, but if default be made in such payments the decree-holders themselves should enjoy the properties with absolute rights. The plaintiff-decree-holders entered into an agreement on 19 April, 1916 with the 2nd defendant whereby they relinquished their interest in the property for Rs. 7,000. The 2nd plaintiff applied to the Lower Court for execution of the decree. The learned District Judge held that the decree had been adjusted by the arrangement of 1 April, 1916, evidenced by Exs. A and B and that the 2nd plaintiff was not entitled to execute the decree. He also held that the 2nd plaintiff released his right to the property by another document, Ex. E. dated 15 July, 1922. Against his order plaintiffs 2 to 4 have preferred this appeal.

(2.) The contention of Mr. Srinivasagopalachari for the appellants is that the decree was a money decree, and any adjustment out of Court not certified to the Court should not be recognised. The sole question in this case is whether the decree is a decree coming within Order 21, Rule 2, Civil Procedure Code. The terms of the Razi decree are such that the plaintiffs could not recover Rs. 17,000 from the defendants if the latter did not choose to pay the amount. There is no decree in favour of the plaintiffs for Rs. 17,000. What is stated in the decree is that if the 1 defendant or the 4 defendant were to pay Rs. 17,000 to the decree- holders they should re-convey the property to the 1 defendant. It is open to the defendants 1 and 4 not to pay the amount in which case the decree-holders will not be bound to reconvey the property. If the 1 defendant or the 4 defendant did not choose to pay the amount to the plaintiffs the decree did not empower them to realise the amount by execution. The decree is not one "where any money" is payable under a decree and therefore does not come within the provisions of Order 21, Rule 2.

(3.) The next contention is that Rule 2 applies to all kinds of decrees whatever may be the nature of the relief granted and reliance is placed upon Gharry V/s. Ghourya (1921) ILR 46 Bom 226. In that case the learned Chief Justice and Mr. Justice Shah held that Rule 2 applied to all kinds of decrees. With very great respect to the learned Judges we are unable to accept this view. There is no discussion in the case of the decisions bearing; on the question. The learned Judges contended themselves by merely saying the words, " Where any money payable under a decree of any kind is paid out of Court, or the decree is otherwise adjusted" as justifying their view, that the words did not confine the provisions of the rule to money decrees and that and decree was provided for. The rule says where any money payable under a decree of any kind is paid out of Court i. e. where any money payable under a decree, whatever may be its nature, is paid out of Court, it has to be certified, or if the decree is otherwise adjusted, either in whole or in part that also has to be certified. The words " the decree" can only mean the decree under which any money is payable. The use of the definite article clearly indicates that the decree can only mean a decree where any money is payable, and the rule means any decree under which money is payable. whether there be other reliefs or not if adjusted out of Court should be certified to the Court within the time allowed by law. But where no money is payable under a decree as, for instance, in the case of recovery of immoveable property or grant of injunction or any other relief in which the plaintiff is not entitled to enforce by execution payment of money, that decree does not come within the purview of Rule 2.