Ramchandran and defendant/respondent
no. 2 Arun Subbaya Shetty do pay to the
plaintiff/petitioner Balmer Lawrie &
Company Limited a sum of
Rs.4,45,42,894.98 (Rupees Four Crore
Forty Five Lakhs Forty Two Thousand
Eight Hundred Ninety Four and Ninety
Eight paisa only) and the application being
G.A. No. 1035 of 2018 is allowed and
disposed of accordingly."
9. From the above I find merits in the contention of the learned
senior counsel Mr. Chakraborty that liability of both the judgment-
debtor no. 1 has only 50% liability for the satisfaction of the decree.
But at the same time I find that though the judgment-debtor no. 2
along with judgment-debtor no. 1 have failed to make any inroad into
debtor no. 2 is not at all willing till date to satisfy the decree which has
been affirmed up to the Hon'ble Apex Court. Admittedly, it is found
that the judgment-debtor no. 1 and the decree-holder have come to
terms and they have filed terms of settlement before this court.
case of Ramnath Sarma Vs. Baidyanath Chatterjee reported in
11. In Law weekly 1929 Privy Council 29 XXIX Part - 4, Page -
161 (Raja Shri Prakash Singh Vs. The Allahabad Bank Ltd.) Their
XXI Rule 2(1) and (2) of the Code of Civil Procedure. The relevant
"The terms of R. 2 (1) do not provide for
any application being made by the decree-
holder.
The provision is that where money
payable under a decree is paid out of
Court to the satisfaction of the decree-
holder, the decree-holder shall certify the
payment to the Court and the Court shall
record the same accordingly.
The rule contemplates a simple
procedure, viz., a certification of payment
by the decree-holder to the Court and a
record by the Court of the payment; it does
not provide for any notice being given to
the judgment-debtor.
0. 21. R. 2 (2) provides an
opportunity for the judgment-debtor to
inform the Court of a payment made by
him out of Court, and the procedure
specified by this sub-rule is very different
from the procedure referred to in Sub-R. 1.
The judgment-debtor may inform the
Court of the payment and apply to the
Court to issue a notice to the decree-holder
to show cause why such payment should
not be recorded.
Sub-R. 2 therefore does contemplate
an application by the judgment-debtor;
further it provides for notice being given to
the decree-holder, it affords an opportunity
for the decree-holder to appear, and it
involves a judicial decision by the Court
whether the payment should be recorded."
12. In the case of Hridoy Mohan Sanyal Vs. Khagendra Nath
Sanyal reported in The Calcutta Weekly Notes Volume XXXIV page
213 the Hon'ble Court has been pleased to observe that there is no
such provision in the present code and, therefore the decree-holder
and the judgment-debtor can enter into any agreement for adjustment
of a decree. In order to enable the executing court to execute the
decree as adjusted the only requirement is that adjustment should be
certified under Order XXI Rule 2 of the Code.
13. In the case of Badri Narayan Singh & Ors. Vs. Kalyan Prasad
Shroff & Ors. reported in 1956 SCC OnLine Pat 54 the Hon'ble High
Court has been pleased to discuss about the implication of order XXI
Rule 2 and such discussion is quoted herein below:-
"28. The bar, therefore, of non-certification
would operate against the judgment-
debtor, but the decree-holder has no
disability in the matter. He can always tell
the Court what amount he has received
and the Court will not compel him
thereafter to claim a large amount. Mr.
Chatterji referred in this connection to the
case of - Lakhi Narain Ganguli v Pelamani
Dasi', 20 Cal LJ 131 (AIR 1915 Cal 235)
(H), for the proposition that a decree-holder
can certify at any time.
In my opinion, the argument is well-
founded and the bar of O 21, R. 2 of the
CPC, to which reference was made by Mr.
J.C. Sinha, is in fact no bar against the
decree-holder, if in fact he has received a
certain amount towards the decretal dues
and scales down his claim under the
decree accordingly."
14. In the case of Humayun Properties Ltd. Vs. Ferrazzinis
(Priviate) Ltd. reported in 1963 SCC OnLine Cal 11 the Hon'ble
High Court at Calcutta's observation is very much relevant so far as
the present case is concerned. The relevant observation is quoted
herein below:-
"11....The only point that has to be
decided is as to whether, by using an
affidavit in reply, in the form set out above,
it can be said that the judgment creditor
has certified payments in terms of clause
(i) of Order 21 Rule 2. Although no
particular form is required for such
certification by the judgment creditor, it is
obvious that the facts must be capable of
giving rise to the conclusion that it is the
decree holder who has given such
information."
15. Paragraph 12 of the aforesaid judicial decision is also relevant
for the case in hand.
"12. The next case cited is a Bench
decision of the Madras High Court
Bapanna v. Vengayya, AIR 1937 Mad
511. In that case, what happened was as
follows: The decree holder obtained certain
payments from the judgment debtor. He
assigned the decree, and the assignee
made an application for execution, with
which was enclosed a document executed
by the original decree holder, admitting
certain payments. The question was
whether such payments, although
uncertified, could be taken notice of by the
Court. Clearly the information was given to
the Court by the assignee decree holder
himself. Therefore it was rightly held that
the Court could take notice of it. Horwili J.,
however, made a sweeping statement that
the authorities on the subject established
that it did not matter under what
circumstances the payment by the
judgment debtor was brought to the notice
of the executing Court by the decree
holder, such bringing to notice in any
shape or form was sufficient to satisfy the
requirements of Order 21 Rule 2. The
cases relied upon by the learned Judge for
this sweeping proposition are the cases
mentioned above, in all of which the
information was given by the decree
holder. In the affidavit in opposition filed
by Sudhir Kumar Chatterjee it was stated
that the defendant had throughout paid
and the decree holder had accepted the
rents for all the months from January,
1957 to December, 1957 and there was no
default in the payment of rents in any of
the months in 1957, although there was
delay in making the payments. Waiver
was pleaded. Naturally, the decree holder
had to file an affidavit in reply. In
paragraph 9 of the affidavit of Mr. Sarkies,
the relevant part whereof has been set out
above, he has merely argued that upon the
admission of the 'deponent' himself there
was default and the decree holder was
entitled to ask for possession. It is
admitted that the word "deponent" refers
to Sudhir Kumar Chatterjee. The position,
therefore, is as follows: The decree holder
files a tabular statement saying that there
has been default and the right to
possession has accrued. The judgment
debtor says in his affidavit in opposition
that payments have been made but the
payments were not made in time, although
accepted by the Judgment creditor. In
answer, the judgment creditor says that
upon the admission of the judgment debtor
himself there has been default and the
decree holder is entitled to execute for
recovery of possession. It may be that from
this statement it may be deduced that the
decree holder was not denying payments.
But I do not think that it could be said that
the decree holder had given information to
the Court in compliance with clause (i) of
Order 21 R. 2, that is to say, that he has
duly certified such payments to the Court,
and the Court could take notice of the
same."
16. In the case of Zeenutinnessa Begum Vs. Nawab Syed Waris Ali
Meerza Saheb Bahadur reported in 1964 SCC OnLine Cal 80 the
Hon'ble High Court at Calcutta has been pleased to distinguish
between a decree-holder certifying a payment to court under sub-rule
1 of order XXI and a judgment-debtor doing the same under sub-rule
2. The paragraph 3 is quoted herein below:-
"3. It has been pointed out by the Privy
Council in Prakash Singh v. Allahabad
Bank Ltd. 56 Ind App 30 (AIR 1929 PC 19)
that there is a distinction between a
decree-holder certifying a payment to court
under sub-rule (1) , and a judgment-debtor
doing the same under sub-rule (2). Under
sub-rule (1), the decree-holder has merely
to inform the court about payment. No
application is necessary and upon such
information being given, the court is bound
to record the payment. There is no
limitation for the decree-holder giving such
information to court. In Eysuffzemen
Sarkar v. Sanchla Lal, ILR 43 Cal 207:
(AIR 1916 Cal 451) it has been pointed out
that the decree holder need not make a
formal application, but may simply inform
the court of the payment in his application
for execution of the decree. No particular
form of recording the certification has been
prescribed....."
17. In the case of A.S. Mallick & Ors. Vs. Board of Trustees for
the Port of Calcutta reported in 1979 SCC OnLine Cal 33 the
Hon'ble High Court at Calcutta has been pleased to observe as
hereunder:-
"11....In the case relied on by Mr.
Mukherjee the record itself was not
available and it was found as a fact that
full satisfaction of the decree was certified
by the decree holder in an application
made by him. In that context, it was laid
down by Sir Ashutosh Mookerji that the
decree holder having certified the
adjustment the court should recognise
such adjustment even if recording thereof
is not available to the court."
18. In the case of Dilipkumar Chimanlal Maniar Vs. Industrial
Credit and Development Syndicate Limited & Ors. reported in
(2004) 2 MHLJ 626 the Hon'ble Court has dealt with the issue of
certification and adjustment. Paragraph 9 of the said decision is
quoted herein below:-
"9. Insofar as the payment of Rs.
6,25,587/-, is concerned there is no
admission made on behalf of the plaintiffs
that they received the same in satisfaction
of the decree. The record indicates that
this amount was received by the plaintiff
from the plaintiff's assignees towards cart
payment for the purchase of the decree
though the pay order was made out at the
behest of M/s Laxmi Construction Co. It
cannot be lost sight of that by the time this
payment was made, the Court had
already passed an order permitting an
assignment in favour of M/s Laxmi
Construction Co. or their nominees. It may
be that on the date of the said payment,
M/s Laxmi Construction Co, were duty
bound to honour their obligation as
sureties but this by itself would not
prevent them from investing money for the
purchase of the decree. It was open for the
defendants to move the executing Court for
recording the payment or adjustment and
they have failed to do so. In the absence of
any clear certification by the plaintiff and
also in the absence of any application for
recording of the said payment, we are
unable to hold that the defendants can
obtain any benefit in respect of this
amount and the said amount of Rs.
6,25,587/- cannot be marked as paid in
satisfaction of the decree dated
09.01.1980."
19. In the case of Dina Misra & Ors. Vs. Ramdas Tiwary & Anr.
Reported in 1933 SCC OnLine Pat 92 the Hon'ble High Court has
also dealt with the issue of payment or adjustment according to the
Hon'ble Court:-
"2. The argument on behalf of the
respondents before us is that the
compromise in question was certainly not
a payment of the decree nor was it an
adjustment because it left the decree
unaltered in amount and it could be put
into execution against the other judgment-
debtors and it is said that the words
"payment or adjustment" are merely
limited to a step which reduces or
eliminates the amount for which the decree
was passed, and therefore that the
agreement can be used to bar the
execution. On the other hand it is, I think,
rightly contended that the word
"adjustment" includes any step which
alters the liability under the decree
whether by reducing the amount
recoverable or by reducing the number of
persons against whom the decree would
otherwise be executed."
20. In the case of Mahomed Khan Bahadur Vs. Mohomed
Munawar Sahib reported in 1908 SCC OnLine Mad 85 the Hon'ble
High Court at Madras has also held the similar views. According to the
Hon'ble Court:-
"We agree with this decision under the
section, if a decree, is adjusted in whole or
in part, the adjustment must be certified
and unless certified cannot be recognized.
Where there is a money decree against
two defendants, an agreement discharging
one of them is, in our opinion, an
adjustment in part of the decree and so
requires to be certified. In Laldas v.
Kishore (I.L.R, 22 Bom, 463) agreement set
up was made before decree and all that
was decided was that the existence and
validity of such an agreement should be
decided in execution under section 244,
Civil Procedure Code. In Krishnamachariar
v. Rukmani Ammal (15 M.L.J, 370) also the
agreement referred to was also entered
into before decree. We are not called upon
to consider the effect of such agreements
before decree in this case, but, when after
decree, an agreement is made discharging
some of the defendants, we think such an
agreement is clearly an adjustment in part
of the decree. The appeal is dismissed
with costs. The order staying sale in Civil
Miscellaneous Petition No. 719 of 1908 is
discharged."
21. The Hon'ble High Court at Calcutta in the case of Ramdas
Mukherji Vs. Udat Chand Mahatab reported in 1948 SCC OnLine
Cal 115 has dealt with the issue of recording different liabilities of the
different judgment-debtors. The relevant observation is herein below:-
"The next question which has been urged
is that the decree-holder cannot, at his
option, break up the liability without the
consent of the judgment-debtors. There is
nothing in law to prevent a decree-holder
from giving up part of his claim and
executing his decree only for a portion. He
certainly cannot split up his claim and ask
for separate execution proceedings to be
started in regard to each particular portion
of the claim, but there is nothing to prevent
him from starting execution proceedings
with regard to part of the claim provided
that he does not proceed with the other
part. Subsequently, he is not allowed in
law to proceed with the part which was
not proceeded with before. Therefore, in
the present case, there is nothing in law to
prevent the decree-holder from
relinquishing one-sixth share of the
decretal dues and proceeding with five-
sixths of his dues."
22. The case law of Sait Hemraj Ratanchand Firm By partner,
Sait Veerchand Vs. Katta Subrahmanyam & Anr. reported in 1959
SCC OnLine AP 87 the Hon'ble High Court has dealt with the issue of
pre-decree arrangement between the decree-holder and the judgment-
debtors which is not relevant for the case in hand.
23. The judicial decision (1999) 4 SCC 396 (Budhia Swain & Ors.
Vs. Gopinath Deb & Ors.) has dealt with the issue of recalling a
previous order by the self-same court. As per above decision a tribunal
or court may recall an order which it made on earlier occasion on
certain grounds, namely, the proceedings culminating in the order
suffered from inherent lack of jurisdiction which is patent, or fraud or
collusion have been used to obtain the judgment, or there has been a
mistake by the court prejudicing a party, or a judgment has been
rendered in ignorance of the fact that a necessary party had not been
served at all or had died and the estate was not represented.
24. I have also considered the judicial decision reported in A.R.
Antulay Vs. R.S. Nayak reported in (1988) 2 SCC 602, the Hon'ble
Constitution Bench of the Supreme Court held that an MLA is not a
public servant and, therefore, no sanction is required for his
prosecution. The court accordingly set aside the relevant order of
discharge of the accused made by the Special Judge and directed that
the trial shall proceed further from the stage where the accused were
discharged. The court further observed that by the prosecution
launched against the appellant, his character and integrity came
under a cloud, and that nearly two and half years had rolled by and
the case had not moved further and that an expeditious trial was
required for the interest of both the prosecution and the accused. The
court gave a further direction withdrawing the said cases against the
accused pending in the court of Special Judge and transferring the
same to the High Court of Bombay with a request to the Chief Justice
to assign the cases to a sitting Judge of the High Court for holding the
trial from day to day. Subsequently, the matter came before the
Supreme Court once again wherein the appellant questioned the High
Court's jurisdiction to try the case in violation of Article 14 and 21 and
the provisions of the Act 46 of 1952. A two Judge Bench formulated
several questions that arose for consideration and referred the matter
for hearing by Bench of seven Judges of the Court on the points viz., i)
whether the direction of the constitution Bench of Supreme Court on
16.02.1984 directing transfer of the case from Special Judge to the
High Court are inoperative or illegal and ii) whether, if so the Supreme
Court can and should recall, withdraw, revoke or set aside the same in
the present proceedings. By a majority decision, the Hon'ble Supreme
Court has held that the Supreme Court has no jurisdiction to suo
moto direct withdrawal of case from the court of Special Judge and
transfer thereof to the High Court for speedier trial. It was held that
directions of the Bench of five Judges of Supreme Court given suo
moto were in violation of fundamental rights and principles of natural
justice and therefore the same were made without jurisdiction and
hence a nullity.
25. From the above judicial decisions, it appears to me that if a
payment is made out of court for the purpose of satisfying a decree
from the side of the judgment-debtor, the parties are to follow certain
procedures. If such payment is really made out of the court, it is the
obligation of the decree-holder to certify such payment before the
executing court and if such certification is received, the court should
record such payment. From the above judicial decisions it is also clear
that there is no particular form by which a certificate of payment is to
be furnished by the decree-holder. In other words, actually there is no
definite form by which the decree-holder is to certify the payment
received from the judgment-debtor. Even oral admission of the decree-
holder in court acknowledging such payment from the judgment-
debtor can be accepted by the court for recording such payment. There
is no need for the decree-holder or the judgment-debtor to file an
appropriate application in each and every case under sub-Rule (i) of
Rule 2 of XXI of the Code. In our case, it is found that on 13.02.2024,
the decree-holder has admitted before the court in presence of learned
counsel of the judgment-debtor no. 1 and also learned counsel of the
judgment-debtor no. 2 that judgment-debtor no. 1 has paid a sum of
Rs. 2.31 crores to satisfy the decree in part. Subsequently, an affidavit
was filed to fortify such factum of payment. Accordingly, on the basis
of submission of the learned counsel of both the decree-holder and the
judgment-debtor no.1, the court has recorded in its order dated
13.02.2024 that such payment was made on behalf of the judgment-
debtor no. 1. It appears that although the learned counsel of
judgment-debtor no. 2 was very much present but she chose not to
raise any objection against such recording of payment made on behalf
of the judgment-debtor no. 1 and certified by the decree-holder.
26. However, on the basis of consent of the decree-holder, the status
quo order in respect of one property of the judgment-debtor no. 1 was
withdrawn from the time being, and further the judgment-debtor no. 1
was also allowed to operate his relevant bank account, and at that
point of time also the learned counsel of the judgment-debtor no. 2 did
not raise any objection.
27. I again say, even at the cost of repetition, that from the relevant
decree it appears that the liability of the judgment-debtor no. 1 and
judgment-debtor no. 2 is joint and not severable, and further, neither
the decree-holder nor the judgment-debtor no. 1 has prayed for
release/discharge of the judgment-debtor no. 1 from the instant
execution case and , therefore by recording the factum of payment
made on behalf of the judgment-debtor no. 1 and certified by the
decree-holder under XXI, Rule 2 of the Code, the court has rightly
dwelt on its jurisdiction , and as such there is no scope for recalling
the order dated 13/02/2024 on that score alone. The case law of A.R.
Antulay (supra) is not applicable in the case in hand since the Hon'ble
Supreme Court passed an order without having jurisdiction to do so,
but in this case this court has jurisdiction to record the payment by
the judgment-debtor after being certified by the judgment creditor. As
the relevant decree was passed acknowledging the joint liability of the
judgment-debtor no. 1 and judgment-debtor no. 2 in satisfying the
said decreetal amount, it is needless to mention that the order dated
13.02.2024 was passed without prejudice to the rights and obligation
of the judgment-debtor no. 2. Further, the order of status quo and
restraint order on bank accounts were previously imposed on the
prayers of the decree holder. Now, if the decree holder chooses to
withdraw such status quo order and restraint order partially knowing
fully well that the liabilities of the judgment debtor nos. 1 and 2 are
joint as per terms of the decree, let the decree-holder to do so at its
own risk. As the order dated 13/02/2024 does not truncate the
original decree as alleged, I am constrained to reject the prayer for
recalling the said order. In fine, the GA 03/2024 is, thus, dismissed on
contest. No costs.
28. The matter be released from this Bench. Liberty to mention
before the appropriate Bench.
29. Urgent Photostat certified copies of this Judgment, if applied for,
be supplied to the parties on compliance of all necessary formalities.
(APURBA SINHA RAY, J.)
