JUDGMENT
Viney Mittal, J.
1. On the request made by the learned counsel for the petitioner, the present petition is treated to be filed under. Article 227 of the Constitution of India.
2. The decree holder is petitioner before this Court. A suit for possession of the property in dispute was filed by him. The matter was contested by the defendant.
3. After the decree was passed by the learned trial Court, the matter was taken up in appeal and in second appeal. The defendant failed in appeal also. The decree for possession of the learned Trial Court was upheld. The decree holder sought the execution of the aforesaid decree. An objection petition was filed by the judgment debtor. He claimed vhat there was a compromise between the parties and in view of the aforesaid compromise, the judgment debtor had paid Rs. 8,000/- to the decree holder and on the payment of the aforesaid amount, the decree for possession stood satisfied and no more executable. The factum of any such compromise was contested by the decree holder. He also disputed receipt of any amount of Rs. 8,000/- as claimed by the judgment debtor. He claimed that the decree was executable and he was entitled to get the possession of the suit property inasmuch as the decree for possession had attained finality between the parties. The learned executing Court has accepted the objections filed by the judgment debtor and has held that the judgment debtor has paid an amount of Rs. 8,000/- to the decree holder and on that basis the decree for, possession has been satisfied.
4. The decree holder has felt aggrieved against the aforesaid order passed by the learned executing Court and has approached through the present revision petition.
5. I have heard Shri Ajay Jain, the learned counsel for the petitioner and Shri Daljit Singh, the learned counsel for the respondent and with their assistance have also gone through the record of the case.
6. Shri Ajay Jain, the learned counsel for the petitioner has, argued that in fact the evidence on the record did not prove the plea of the judgment debtor-respondent inasmuch as the learned executing Court was totally wrong in holding that there was a compromise between the parties. According to the learned counsel, there was no such compromise. Shri Jain has further relied upon Order 21 Rule 2 of the Code of Civil Procedure to contend that since the claim of the judgment debtor was with regard to the adjustment of the decree on the payment of the money, the money had to be paid in terms of Sub-rule 1 of Rule 2 of Order 21. If the money had not been paid in terms of the aforesaid provisions, then as per the provisions of Rule 2-A of Order 21 no such finding with regard to payment or adjustment of the decree could be given by the learned executing court.
7. On the other hand, Shri Daljit Singh, the learned counsel appearing for the judgment debtor contends that the amount of Rs. 8,000/- had duly been paid by the judgment debtor and thereafter the decree in question could not be executed any further.
8. I have given my thoughtful consideration to the rival contentions raised by the learned counsel for the parties.
9. At the outset, the provisions of Order 21 Rule 2 may be noticed:
“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, the 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 Rule 1; or
(b) the payment or adjustment is proved by documentary evidence; or
(c) the payment of 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.
(3) A payment or adjustment, which has not been certified or recorded as aforesaid shall not be recognised by any Court executing the decree.”
10. It is not in dispute that the aforesaid alleged payment of Rs. 8,000/- was not paid by the judgment-debtor in terms of Sub-rule 1 of Rule 2. The reliance has been placed by the judgment-debtor merely on some writing which is Ex.JDW/1.
11. I have also perused the aforesaid writing. The aforesaid writing is undated and is shown to be mere thumb marked by the decree holder. There are no witnesses to the aforesaid document, nor the same has been signed or thumb marked by the judgment-debtor himself. The same in any case is not in conformity with the provisions of Order 21 Rule 2. In view of the aforesaid fact, the said writing could not have been relied upon by the learned executing Court in any manner and it could not be taken to be adjustment of the decree for possession passed in favour of the decree holder-petitioner.
12. One more fact which needs to be noticed is that the suit for possession was filed
by the plaintiff. An appeal filed by the defendant was dismissed by the learned first ap
pellate Court. Even a second appeal filed by him failed before this Court. Once the par
ties had contested for a long period of more than 14 years and the decree had attained
finality, then it is absolutely unthinkable that the aforesaid decree could be treated to be
satisfied merely on the basis of some out of the court settlement on the alleged payment
of Rs. 8,000/-.
13. In view of the aforesaid fact, I find that the learned executing court has completely erred in holding that the decree stood satisfied or adjusted. Accordingly, the revision petition is allowed and the order dated December 1, 1983 passed by the learned Senior Sub Judge, Narnaul is set aside. The matter is remitted back to the learned executing Court to decide the execution application afresh in accordance with law.
14. The parties through their learned counsel have been directed to appear before the learned executing Court on March 31, 2004.
15. Before parting with this order, it is further directed that since the mater has remained pending for a sufficiently long time and decree pertains to the year 1983, therefore, the learned executing Court shall conclude the execution proceedings as expeditiously as possible and in any case within a period of six months.