JUDGMENT
V.S. Kokje, J.
1. This is a petition under Article 227 of the Constitution of India arising out of execution proceedings. Since a show cause notice was issued against admission of the petition and the respondent No. 1 had filed a caveat, the petition was finally heard with the consent of the parties.
2. The petitioner was a tenant in the house of the respondent No. I. A suit for ejectment was filed by the respondent No. 1 against the petitioner. When that litigation reached the High Court, a compromise was arrived at between the parties and a consent decree of ejectment was passed by the High Court. The time granted by the High Court to the petitioner for vacating the premises was up to 28-2-1993.
3. However, on 26-2-1993 the petitioner herein filed an application under Order 21, Rule 2 read with Section 151 of the Code of Civil Procedure alleging that the respondent No. 1-decree-holder and the petitioner-judgment-debtor had entered into an oral settlement on 1-2-1993 whereby the respondent No. I told the petitioner that he did not need the premises any more because one of his tenants Hafiz Bismilla had vacated a shop. It was alleged by the petitioner that respondent No. 1 agreed to let out the premises to the petitioner if, the petitioner agreed to pay Rs. 140/- per month as a rent instead of Rs. 35/- per month which was being paid by him. The petitioner further alleged that he agreed to enhancement of rent and on 1-2-1993 paid Rs. 140/- in cash to the respondent No. 1 who gave him a slip acknowledging receipt of the amount and promised to give a formal receipt the next day and had also agreed to get the suit dismissed. It was also alleged that two witnesses Gopal and Mohan-lal were present at the time of this sfettlement and had witnessed the payment of Rs. 140/-as also the passing of a slip acknowledging payment of Rs. 140/-. The slip was alleged to bear the thumb impression of the respondent No. 1.
4. The petitioner further alleged in the aforesaid application under Order 21, Rule 2, C.P.C. that when on the next day i.e. 2-2-1993 the petitioner went to respondent No. 1 for receiving the formal receipt, the respondent No. 1 told him that he will prepare and give the receipt after consulting his lawyer and called the petitioner on 5-2-1993. When the petitioner again went on 5-2-1993, the respondent No. 1 told him that receipt book had exhausted and when a new receipt book after printing is received, formal receipt will be given by him. The respondent No. 1 has also been alleged to have told the petitioner that since the slip was with him and as he was in possession, he need not bother. However, the petitioner got scared and moved the application for dismissal of the execution application because of the adjustment.
5. The respondent No. I decree-holder specifically denied all the allegations in the application by filing a written reply. In the meanwhile, the respondent No. 1 filed an application for execution of the decree and prayed for issue of warrant of possession. The petitioner-judgment-debtor opposed the application for issue of warrant of attachment on the ground that the application for adjustment of the decree was pending.
6. Both the matters were heard together and the executing court ordered enquiry into the facts alleged in the application under Order 21, Rule 2 of the Code of Civil Procedure and also rejected the prayer for issue of warrant of attachment during the pendency of the attachment proceedings. Respondent No. 1 decree-holder challenged both these orders in the District Court by filing two separate revision applications. Civil Revision No. 5/93 was against the enquiry ordered into the allegations of adjustment and Civil Revision No. 4/93 was against the order refusing to issue a warrant of attachment in the execution. Both these revision applications were heard together by the XIIth Additional Judge to the Court of District Judge, Indore and were allowed by a common order on 4-5-1993. Against this order the present petition has been filed by the judgment-debtor-petitioner.
7. The learned Counsel for the petitioner submitted that the learned revisional Court went beyond the scope of its jurisdiction in allowing the revision applications. It was submitted that the orders passed by the Executing Court did not suffer from any error of jurisdiction and did not occasion any failure of justice. It was further contended that the case could not have been decided without taking evidence and the revisional Court could not have finally decided the case in absence of oral and documentary evidence being led by both the sides. According to the learned Counsel for the petitioner, the revisional Court decided the case on affidavits presented before the executing Court alone. It was further contended, the view taken by the revisional Court that the adjustment was not evidenced by any document was against the record as the slip passed by the landlord/ respondent No. 1 was the document which evidences a settlement between the parties amounting to adjustment of the decree. It was further contended that apart from the plea of adjustment it was contended by the judgment-debtor before the executing Court that because a new contract of tenancy coming into force between the parties, the decree had been satisfied and this allegation had to be investigated under Section 47 of the C.P.C. It was also contended that the slip produced as evidence of adjustment and satisfaction of the decree was alleged to bearing thumb impression of the judgment-debtor. The authenticity of which could be verified through expert opinion. In these circumstances the revisional Court could not have rejected the slip out right. It was also contended that the petitioner had also filed a suit for declaration and injunction with a prayer for temporary injunction against execution of decree. An appeal had been filed from that order which was pending in the District Court. Pending this litigation, the revisional Court could not have passed the impugned order.
8. The learned Counsel Shri H. S. Uberoi for the respondents submitted tht the petitioner is mala fide trying to stall the execution of the decree in an attempt to deprive the respondent No. 1 of the fruits of the decree with the ulterior motive of staying on the premises and thereby causing loss to respondent No. 1-landlord and pressurising him to enter into another compromise with the petitioner. Shri H. S. Uberoi stated that the decree which is being executed was a decree passed in Second Appeal filed by the petitioner. By that decree time up to 28-2-1993 was given for vacating the premises. According to Shri H. S. Uberoi, there was hardly any reason for the respondent No. 1 to forego his rights under the decree and there was still lesser reason for the respondent No. 1 to resile from the compromise if he had really entered into one. Shri H. S. Uberoi further submitted that the respondent No. 1 has specifically denied all the allegations made in the application for recording of adjustment. He has specially denied having passed any slip. According to him, if, executions are allowed to be stalled like this by abuse of provisions of Order 21, Rule 2, C.P.C. even after the amendment obliging the judgment-debtor to produce a document evidencing adjustment, there will be no end to the litigation and the judgment-debtor would merrily go on making application after application alleging adjustment or satisfaction of the decree and stalling thereby the execution of the decree. According to Shri H. S. Uberoi every application for recording of adjustment has to be considered on the basis of allegations made and documentary proof on which the application is based. There cannot be a general rule that wherever such an application is made it has to be enquired into and during the pendency of the enquiry the execution has to be stayed. It was also pointed out by the learned Counsel that the miscellaneous appeal filed by the petitioner against refusal of interim injunction in the suit for declaration and permanent injunction has also been rejected by the District Court.
9. The parties have stated before us following decisions :
Rajeev Khanndelwal v. Arun Pannalal, AIR 1987 MP 262 : (1987 MPLJ 599); Bherulal v. Dauram, S.A. No. 74/87 decided on 1-4-1988; Govindlal v. General Radio & Electric Co., 1991 (2) MPJR 197; M/s. Cut-lary House v. Kamruddin, AIR 1993 MP 13.
10. In Rajeev Khandelwal’s case (supra) a Full Bench of this Court took the view that if an agreement set-up by the respondent against the execution of a decree falls within the purview of ‘adjustment’, it has to be recorded as per the provisions of Order 21, Rule 2, C.P.C. before it is acted upon by the Executing Court. The Executing Court cannot take cognizance of such unrecorded adjustment even though the allegations may amount to satisfaction of the decree under Section 47 of the Code of Civil Procedure. This decision has been followed in Second Appeal No. 74/87 (Bherulal v. Dauram).
11. Thus, so far as the plea that because of the allegations of a new contract of tenancy having come into force, the decree had become inexecutable having been satisfied by implication, Rajeev Khandelwal’s case (supra) is the complete answer. It is clear that unless and until the adjustment of decree is not recorded the same result cannot be obtained on the plea of satisfaction of the decree by entering into a new tenancy. In other words, the general and broader provisions of Section 47 of the Code clothing the Court with the jurisdiction to decide all questions pertaining to execution, discharge and satisfaction of a decree cannot be allowed to defeat the special provisions of Order 21, Rule 2 of C.P.C. dealing with adjustments of the decree. When the satisfaction of the decree is sased on an adjustment, provisions of Section 47 cannot be pressed into service unless the adjustment is recorded in accordance with Rule 2 of Order 21 of C.P.C.
12. Govindlal’s case (supra) was on the point of grant of stay of executing during the pendency of the proceedings for recording of adjustment. It was held therein that the Executing Court is not bound to mechanically stay the execution of the decree on an application under Order 21, Rule 2 of the Code of Civil Procedure being made before it.
It has the discretion to judge whether there was any prima facie case in favour of the judgment-debtor and whether balance of convenience would be in favour of staying the execution and whether irreparable loss would be caused to the party claiming stay, if the execution is not stayed. The similar view has been taken in M/s. Cutlary House & another (supra).
13. In the present case, the question is whether the application under Order 21, Rule 2 read with Section 151, C.P.C. was maintainable at all in view of the bar under Order 21, Rule 2. On the answer to this question would depend as to whether an enquiry should have been ordered into the allegations by the executing Court and whether the executing Court should have stayed its hands pending decision on the allegations made in the application for adjustment. One thing is clear. The question was as to the jurisdiction of the executing Court to entertain the application and, therefore, the revisional Court had jurisdiction to entertain the revision applications. The revisional Court has set aside the orders passed by the executing Court holding that the application for adjustment was not maintainable. Consequently, it was also held that there was no justification for refusing to issue of warrant of possession.
14. For deciding the maintainability of the application under Order 21, Rule 2, C.P.C. we have to look to the allegations made in it. A gist of the allegations have already been reproduced in this order. The agreement pleaded is essentially that of adjustment of the decree. What was pleaded is that a proposal was moved by the respondent No. 1 that he did not need the suit premises any more because another shop was vacated by a tenant and, if, the petitioner agreed to pay four times the existing rent of Rs. 35/- per month, the respondent No. 1 was ready to again rent it out to the petitioner. This proposal was said to have been accepted by the petitioner and an amount of Rs. 140/- was paid. There is no allegation that this new agreement was reduced into writing. What is alleged is that a slip purporting to be provisional receipt for the payment of Rs. 140 was issued by the respondent No. 1-decree-holder under his thumb impression. This is being touted as the documentary evidence of adjustment for the purpose of Clause, (b) of Sub-rule (2A) of Rule 2 of Order 21, C.P.C. Sub-rule (2-A) of Rule 2 of Order 21, C.P.C. reads as under:–
“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 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.”
15. The aforesaid provision declares that no payment or adjustment shall be recorded at the instance of the judgment-debtor unless the payment or adjustment is proved by documentary evidence. What the slip alleged to have been issued by the respondent No. 1 decree-holder evidences is the payment of Rs. 140/- as a rent for the premises. It does not evidence payment of any decretal amount. The slip said to have been issued by the respondent No. 1 does not by itself amount to any direct proof of adjustment. What is being contended is that the slip is the document evidencing payment of Rs. 140/-and if, it is proved that Rs. 140/- were accepted as rent by the decree-holder-respondent No. 1, it will imply a renewal of contract of tenancy on enhanced rent which would amount to satisfaction of the decree. In other words, it is being canvassed that the words “adjustment is proved by documentary evidence” in the aforesaid provision does not require direct documentary evidence of adjustment. If an inference of adjustment can be drawn by certain facts which are proved by documentary evidence, even then according to the petitioner, the adjustment will have to be taken as proved by documentary evidence. |We are unable to agree. The plain and simple meaning of the words used is that the payment or the adjustment has to be directly proved by the document pressed into service. The document evidencing payment or adjustment must directly relate to the subject-matter of the decree. Adjustment can be taken to be proof by documentary evidence only if the document itself narrates that an adjustment of a particular decree has taken place between the parties and the decree-holder has signed it. There cannot be any other proof by documentary evidence of payment or adjustment.
16. The intention of the legislature in incorporating Sub-rule (2A) in Rule 2 of Order 21 was surely to curtail Privolous allegations of payment or adjustment of the decree and not to provide for further avenues of litigation. When the legislature required proof of payment or adjustment by documentary evidence, it wanted to put an end to claim of oral adjustment and payments without receipt to defeat the decree. The intention was therefore clearly to require a direct documentary proof of the payment or the adjustment. Such a documentary proof could be a receipt signed by the decree-holder for payment of decretal amount received by him or a memorandum of adjustment of the decree signed by the decree-holder. That the legislature thought it fit to incorporate Clause (c) in Sub-rule (2A) of Rule 2 of Order 21, C.P.C. is enough proof of the fact that the legislature wanted direct documentary proof of payment or adjustment in Clause (b) and for the cases not covered by Clause (b) the payment or the adjustment not proved by documentary evidence directly under the signatures of the decree-holder could still be recorded, if they are admitted by or on behalf of the decree-holder in its reply to the notice given under Sub-Clause (2) of Sub-rule (1) or before the Court. In the present case, at best there was a case for issue of a notice under Clause (c) of Sub-rule (2A) of Rule 2 of Order 21, C.P.C. The moment after issue of notice, the decree-holder denied the adjustment before the Court, there was no case even under that provision.
17. For the aforesaid reasons, the decision of the revisional Court does not deserve to be interfered with. The application for adjustment was clearly not maintainable. It has rightly been ordered to be dismissed. Consequently, there was no reason for withholding the warrant of possession and the decision of the executing Court in that behalf has also been rightly set aside by the revisional Court. Even otherwise, in view of the decisions in Govindlal’s case (supra) and M/s. Cutlary House’s case (supra), there was no justification for stay of execution in the circumstances of the case. This petition is therefore dismissed. The petitioner shall pay the cost of respondent No. 1 in the case. Counsel’s fee Rs. 1500/-.