Sobhagya Advertising Service And ... vs Saraswati Devi (Deceased) ...
2001 Latest Caselaw 1445 Del

JUDGMENT

Mahmood Ali Khan, J.

ADMIT,

1. On the request of the parties arguments were heard for final disposal of the case.

2. The learned Additional District Judge in an execution proceedings of a money decree directed the petitioner (judgment debtor) by an order dated 2.2.2001 to deposit the decretal amount. In compliance the petitioner deposited a sum of Rs. 8,65,165,75 in the court. On an objection raised by the decree holder that full amount of the decree has not been deposited by the judgment debtor, the executing court by order dated 30.3.2001 directed the petitioner to deposit a further sum of Rs. 2,55,079,80 which was deficient. The petitioner is aggrieved by this order and has filed the present petition civil revision.

3. For resolving the controversy it is necessary to reproduce t he decree passed by the Additional District Judge on 20.3.1998. The relevant portion of the decree is extracted as under:-

"The suit coming on this day for final disposal before me in the presence of Shri Ram Prakash, LRs of the plaintiff and Shri R.K. Mehta, Advocate for defdt. It is ordered that the defendant hand over the possession to the plaintiff is respect of their floor 7 community centre, Fast of Kailash New Delhi as shown blue in the site plan Ex.P-2. The defendants shall also pay Rs. 358.49 paisa on account of water charges up to 31.3.1991 and Rs. 1998.72 on account of statutory increased on 10% form 1.7.91 to 31.12.91 @Rs. 333.12 p.m. and interest of Rs. 164.89 on the said amount of Rs. 20,007/- on account of damages/mesne profits from 1.1.92 to 30.3.92 @Rs. 10000/-p.m. after adjusting the amount of Rs. 9993/- already paid by the defdt. Along with interest amount to Rs. 600/- on the balance amount. Further the defendants also pay Rs. 10,000/- p.m. as damages mesne profits from the date of filing of the suit till the date of handing over the possession. The possession for the suit premises was handed over to the plaintiff on 10.3.98 at 6.15 p.m. The amount of damages/mesne profits from 1.4.92 to 10.3.98 is Rs. 7,13,225.80. The requisite court fee on the decretal amount has been paid.

And it is further ordered that the defendants also pay Rs. 12277.75 the proportionate costs of the suit to the plaintiff.

COSTS OF SUIT

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   Plaintiff                Rs.P.          Defendant                     Rs.P.
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1. Stamp for plaint      12256.00          Stamp for power and Ext.      1.25
2. Stamp for power          --             Stamp for petition             --
3. Stamp for exhibits       --             Pleader's fee on Rs.C not filed
4. Pleader's fee on Rs.C not filed Substance for witness                   --
5. Substance for witness    --            Commissioners fee                -
6. Commissioner's fee       -             Miscellaneous                 18.75
7. Service of process         6.75
8. Miscellaneous             15.00
        -------     -------
                      Rs. 12277.75                               Total: 20.00
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4. In the regular first appeal filed against the judgment and decree of the trial court, this court fixed the damages payable for use and occupation for the premises @Rs. 15,000/- p.m., instead of Rs. 10,000/- fixed by the trial court for the date of the filing of the suit to the date of delivery of the possession i.e. from 6.4.1992 to 10.3.1998.

5. The executing court relying upon a letter sent by the counsel for the judgment debtor to the legal representative of the deceased decree holder on 30.11.1998, in which it was admitted that balance of the decretal amount was Rs. 7,48,632.65, and also taking into account the increase of Rs. 5,000/- p.m. in the mesne profits made by the order of this court dated 23.5.2000 rejected the contention of the petitioner that entire decretal amount due has been deposited. The court held that the decretal amount payable by the petitioner/judgment debtor was Rs. 7,48,632 plus the difference in the mesne profits @Rs. 5,000/- per month from 1.1.1992 to 10.3.1998 i.e. Rs. 3,71,612.90 making a total of Rs. 11,20,245.55 due under the decree. The court further held that out of this sum, the petitioner had deposited Rs. 8,65,165.75 leaving balance of Rs. 2,55,079.80 due. Court by impugned order directed the judgment debtor to deposit it in the court.

6. The petitioner is aggrieved by this order. It has been contended hat while taking over the possession of he suit premises, the decree holder had also taken over possession of the furniture, fixture, sanitary fittings, dark room, reception false ceiling, wood work etc., of the value of Rs. 12.00 lacs and that the judgment debtor has filed objections under Section 47 of the CPC for adjusting this sum against the decree but this adjustment has not been allowed. The executing court has wrongly relied upon the letter sent by their counsel to the decree holder admitting that Rs. 7,48,062.65 was due against decree. That letter was written by the counsel by mistake without taking into consideration the rent which was paid during the pendency of the suit. The decretal amount as worked out in terms of the decree is Rs. 7,73,033.33 and after addition of the increase in the damages/mesne profits by the order of the court, the total amount payable under the decree was Rs. 11,14,946.23. Out of this amount a sum of Rs. 2,49,834.25 has been received by the decree holder during the pendency of the suit and after deducting that sum only a sum of Rs. 8,65,114.00 was due under the decree. Adding a sum of Rs. 12,277.75 the total decretal amount came to Rs. 8,77,391.75. Out of it a sum of Rs. 8,65,165.75 has been deposited by the petitioner in compliance with the order of the court dated 2.2.2001. Moreover, in column NO. 5 of the execution application the decree holder had admitted that a sum of rs. 13,325/- was received by him from the judgment debtor as rent for the period from December, 1997 to March, 1998 @Rs. 3331.25 per month but the court has not taken into account this admission and given adjustment from the decretal amount. It is stated that the order of the learned Additional district Judge in the execution proceedings is liable to be set aside.

7. During the hearing of the arguments counsel for the petitioner made two-fold submissions. Firstly, the trial court has not given adjustment to the sum of Rs. 13325/- which has been received by the decree holder @Rs. 3331.25 per month for the period form December, 1997 to March, 1998 and has been mentioned in column NO. 5 of the execution application. The decree holder Mr. Ram Prakash has fairly conceded it and has stated that the decree holders have no objection if the adjustment of this sum is made against the amount claimed by the decree holder.

8. The second submission of the counsel for the petitioners is that during the pendency of the case the petitioner had paid a sum of Rs. 2,49,834.25 which amount is liable to be adjusted against the decretal amount and in case this sum is adjusted out of the total decretal amount of Rs. 11,14,946.23 the balance amount of Rs. 8,65,165.75 has been rightly deposited by the judgment debtors and nothing is due from the under the decree.

9. Mr. Ram Prakash, decree holder who had argued the case in person has relied upon the provision of Order 21 Rule 2 CPC and has stated that the payment of Rs. 2,49,834.25 has not been certified in the court, therefore, no adjustment of this sum cold be claimed by the judgment debtor against the decree. He further stated that this sum is also alleged to have been paid during the pendency of the suit and that the executing court cannot re-open the suit and determine the total amount payable as no adjustment of this sum was proved and claimed by the petitioner/judgment debtor before the decree was passed. The executing court now cannot re-open the suit and determine as to how much amount of rent and damages for use and occupation was recoverable from the judgment debtor. He referred to Section 47 of the C.P.C. and relied upon judgments in Lakshmi Narayanan v. S.S. Pandian ; Mehebunissa Begum v. Mehdunissa Begum AIR 1925 Bombay 309; Sultan Begum v. Prem Chand Jain ; Badamo Devi v. Sagar Sharma and Shyamlal Jagnani and Ors. v. Sunder Singh and Ors. , Addisons Panits & Chemicals Ltd. v. Sant Ram Parmanand and Ors. ; Seth Sanwal Das v. Seth Narain Das AIR 1955 Bhopal 3. and Bhaskar Dattatraya v. Nilkanth Dattatraya AIR 1938 Nagpur 265 in support of this argument.

10. The petitioner is aggrieved by the impugned order because the executing court has not allowed adjustment of Rs. 2,49,834.25 and a sum of Rs. 13325/- against the decretal amount due and payable by the petitioner. With regard to the adjustment of Rs. 13325/- against the amount due under the decree against the petitioner, decree holder has no objection to the adjustment of this sum. In fact in para-5 of the execution application the decree holder has admitted that after the passing of the judgment the judgment debtor has paid of sum of Rs. 13325/- as rent @3331.25 for the period from December, 1997 to March, 1998. It seems that the attention of the learned executing court was not invited by the parties to this admission made in the execution application as a result the adjustment of this amount was not given by the Court while passing the order impugned in this petition. Anyhow, this amount is required to be adjusted against the amount recoverable form the judgment debtor under the decree.

11. The real dispute is about the adjustment of a sum of Rs. 2,49,834.25 alleged to have paid by the judgment debtor during the pendency of the suit. This claim was not put forth and proved by the judgment debtor before the decree was passed. The question is whether after the passing of the decree, the executing court can look into this claim and allow adjustment of this amount against the decreed amount when there is no admission from the side of the decree holder on this claim. There are two provisions Order 21 Rule 2 and Section 47 of the CPC which come in the way of the executing court to inquire into and adjudicate upon this claim. The provision of Order 21 Rule 2 CPC as amended and applicable to Delhi, being relevant to the controversy is being reproduced below:-

"2. Payment out of Court to decree-holder:-

(1) Where any money payable under a decree of any kind is paid out of Court, or a decree of any kind is otherwise, = adjusted in whole or in part to the satisfaction of the decree-holder, t he decree-holder shall certify such payment of adjustment to the Court whose duty it is to execute the decree, and the Court shall record the same accordingly.

(2) The judgment-debtor or any person who has become surety for the judgment debtor also may inform the Court of such payment or adjustment, and apply to the Court to issue a notice to the decree-holder to show cause on a day to be fixed by the Court, why such payment or adjustment should not be recorded as certified; and if , after service of such notice, the decree-holder fails to show cause why the payment or adjustment should not be recorded as certified the Court shall record the same accordingly.

(2A) No payment or adjustment shall be recorded at the instance of the judgment-debtor unless-

(a) the payment is made in the manner provided in the Rule 1 :or

(b) the payment or adjustment is proved by documentary evidence; or

(c) the payment or adjustment is admitted by, or on behalf of, the decree-holder in his reply to the notice given under Sub-rule (2) of Rule 1, or before the Court.

12. Sub-rule(2) of Rule 2 of Order 21 cast a duty upon the judgment debtor to inform the court about the payment which has bene made to the decree holder towards the satisfaction of the decree for money. The court after issuing notice to the decree holder if satisfied that the payment or the adjustment of the decree has been made is required to certify this payment or adjustment. Sub-rule (2A) of this rule dis-allows certification of the payment or adjustment of the decree at the instance of the judgment debtor otherwise that made under Rule 1 or the payment or adjustment is proved by documentary evidence or it is admitted by the decree holder in reply to the notice issued under Sub-rule(2). As the opening word of this rule suggest the provision covers only those cases where the money is payable after the passing of the decree. It is inapplicable where the money is claimed to have been paid before the suit was finally disposed of by passing the decree.In the case in hand the plea of the petitioner is that the money was paid before the judgment and decree was passed against him. It clearly falls outside the purview of this provision.

13. The question them will arise whether the petitioner judgment debtor could prove the payment of the money adjustable against the claim of rent and damages etc. of the decree holder before the judgment and decree were passed resorting to Section 47 of CPC. This section provides as under:

"47. Questions to be determined by the Court executing decree:-

(1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit."

14. Under Section 47 questions which arise between the parties to the suit in which the decree was passed, or their representatives, and which relate to the (i) execution (ii) discharge; or (iii) satisfaction of the decree shall be determined by the Court which is executing the decree. A separate suit on these question if raised is barred. The power given by Section 47 for deciding the question as above mentioned, is subject to the restrictions placed by Order 21 Rule. In other words the payment or adjustment of the decree has to be reported to the executing court for certifying the payment and the adjustment and uncertified payment or adjustment will not be taken into consideration while deciding the question of discharge and satisfaction of the decree in a petition filed under Section 47. It is also noteworthy that resort to Section 47 can be taken only after a decree has been passed and not before that. It cannot be used for the purpose of investigating the claim of the petitioner that some money which was paid to the decree holder for the period for which the claim was pleaded by him in the suit has not been given adjustment while passing the final judgment and the decree by the court. The executing court will have no power and jurisdiction to embark on an enquiry into the facts which if established would show that the amount decreed was wrong. The case of the petitioner is that some money which was adjustable against the claim of arrears of damages and mesne profits had not been taken into consideration and has been ignored while passing the decree. Such a dispute would not relate to the execution, discharge and satisfaction of the decree. It is thus, impermissible for the judgment debtors to plead payment and claim adjustment if it relates to the period prior to the decree even though it is witnessed by a document.

15. The view taken above is fortified form a plethora of case law. A compromise between the parties regarding satisfaction of the decree, after the decree was passed if not certified under Order 21 Rule 2 CPC cannot be recognised by the executing court (Lakshmi Narayanan v. S. S. Pandian, ). Any payment under a decree made out of Court or any adjustment of the decree has to be certified under Order 21 Rule 2 CPC failing which the same would not be recognised by the executing court (Badamo Devi Versus Sagar Sharma, . Compromise of rights of parties amounting to adjustment of decree not reported to the executing court and not certified under Order 21 Rule 2 C PC the executing court may proceed to execute the decree (Sultana Begum v. Prem Chand, ). Objection to the decree that it was obtained by fraud or misrepresentation are outside the scope of Section 47 CPC. The executing court cannot inquire into facts, if established will tend to show the court passing the decree had no jurisdiction to do so under Section 47 CPC (Addisons Paints and Chemicals Limited Versus Sant. Ram Parmanand and Ors. .). Adjustment and satisfaction of a decree has to be applied for certification under Order 21 Rule 2 CPC within limitation and it cannot be described as one under Section 47 CPC (Shaymlal Jagani and Ors. Versus Sunder Singh and Ors. ). The executing court has no jurisdiction to inquire into a payment or adjustment before the decree at variance with the decree. The question does not fall within the purview of the question relating to the execution, discharge, or satisfaction of the decree. The executing court has jurisdiction only with regard to the decree as it stands (Seth Sanwal Das Versus Seth Narain Dass, AIR 1955 Bhopal 3). The defendant paid money to the plaintiff while the suit is in progress. It is his duty to see that adjustment is given for that amount in the decree. He cannot allow the decree for amount more than due and they say in the execution proceeding that it is not binding on him (Bhaskar Dattatraya v. Nilkanth Dattatraya, AIR 1938 Nagpur 265). The court executing the decree is barred from considering any allegation that a payment has bene made is view of Order 21 Rule 2 CPC (Mehebunissa Begum v. Mehdunissa Begum, AIR 1925 Bombay 309).

16. Applying the above principles of law to the facts of this case, there is no escape from holding that the judgment debtor/petitioner cannot now be allowed to get the decree re-opened and modified by giving adjustment to some money which he had paid to the decree holder during the pendency of the suit or even before that and which payment ought to have pleaded and got adjusted upon before the decree was passed. The claim of the petitioner, as such for adjustment of Rs. 2,49,834.25 cannot be accepted by the executing court.

17. Another contention of the petitioner is that the executing court had come to the conclusion that a sum of Rs. 11,20,245.55 was recoverable from the judgment debtor under the decree solely on the basis of a letter which the counsel for the judgment debtor had written to the LRs of decree holder on 30.11.1998 and in which it was stated that the total decretal amount due was Rs. 7,48,632.65 for which a cheque had been drawn and was lying with the counsel for the judgment debtor. It is stated that this letter was written by the counsel for the judgment debtor by mistake without taking into consideration the admitted rent paid during the pendency of the suit and it would not give right to the decree holder to recover the rent in excesses of amount which was actually due. Counsel for the petitioner has submitted that a sum of Rs. 2,43,172.75 was paid to the landlady and after her death to her LRs has not been adjusted against the amount due under the decree. This claim even if true cannot be enquired into and decided by re-opening the decree in an execution proceeding. The judgment debtor who has suffered the decree cannot say during execution proceeding that the decree has not been passed of the correct amount due against him.

18. No other fault or mistake is pointed out to the amount admitted in the letter apart from non-adjustment of the amount of Rs. 2,43,172,.75. Since this amount cannot be allowed to be deducted from the decretal amount the learned executing court as perfectly justified in calculating the amount payable under the decree on the basis of this letter Moreover, during the hearing of this matter, counsel for the petitioner has not pointed out any error in the calculation of the amount payable in the decree in case the claim of the judgment debtor for adjustment of Rs. 2,43,172.75 in not accepted.

19. Having regard to the above discussions I do not find any error of jurisdiction or irregularity of exercise of jurisdiction by the executing court warranting interference by this court. The petition has not merit and is accordingly disposed of.