- (1.) D. K. Seth, J. Opposite parties 3 and 4 filed a suit for ejectment on the ground of arrears of rent in 1984. The suit was decreed on 2nd December, 1986. In the resultant execution arising thereout the petitioner on 11th March, 1987 had filed an objection under Section 47 of the Code of Civil Procedure alleging therein that after the decree was passed, a written agreement was executed between the decree-holder and the judgment-debtor in which the dispute between the parties was compromised and a new tenancy was created on 22nd February, 1987. There fore, the said decree was no more executable. By Order dated 2nd February, 1993, the learned executing court allowed the application under Section 47 and dismissed the execution proceedings. Against the said order dated 2nd February, 1993, a revision being Revision No. 12 of 1993 was preferred by opposite parties 3 and 4 which has since been allowed by order dated 13th October, 1993. It is against this order that the present application under Article 226 of the Constitution has been sought to be moved.
(2.) IT is alleged on behalf of the petitioner that the impugned agreement was examined by the hand- writing expert and the learned Munsif had found the same to be genuine and, therefore, had allowed the same but the learned revisional court reversed the order of the learned Munsif only on technical ground that the said agreement does not satisfy Order XXI, Rule 2, C. P. C. According to him, Order XXI, Rule 2, C. P. C. does not come into play in the present case. According to him, the application under Section 47, in itself should be treated as an application under Order XXI, Rules 2 (2) and, therefore, by reason of the finding that signature ap pearing on the agreement is genuine, the case falls within the ambit of sub-rule (2-A) of Order XXI, Rule 2. The learned counsel for the opposite parties, on the other hand, contended that the said agreement cannot be termed to be a compromise within the meaning of Order XXIII, Rule 3. The same can at best be treated as an adjustment of the decree as contained in Order XXI, Rule 2, C. P. C. As soon an adjustment is claimed, it has to be certified otherwise the same cannot be recognised or accepted by the executing Court. An application under Section 47, C. P. C. can never be treated to be an application under Order XXI, Rule 2, C. P. C. Therefore, the application should be rejected. Order XXI, Rule 2, C. P. C. deals with adjustment which runs as follows: "2. Payment out of Court to decree-holder.- (1) Where any money payable under a decree of any kind is paid is 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 or adjustment to the Court whose duty it is to execute the decree, and the Court shall record the same accordingly. (2) The judgment-holder 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. (2-A) 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. (3) A payment or adjustment, which has not been certified or recorded as aforesaid, shall not be recognised by any Court executing the decree. " Here in this case, a decree for eviction was obtained. It is alleged that the said decree was adjusted by reason of fresh agreement entered into between the parties and a fresh tenancy was created. Therefore, the claim made out is one of adjustment as contemplated under Order XXI, Rule 2, C. P. C. Sub-rule (1) of Rule 2 contemplates a certificate by the decree-holder and the same should be recorded by the Executing Court. In case the decree-holder does not certify the same, the judgment-debtor is also not without a remedy. In that event, the judgment-debtor has a right to inform the Court such adjustment whereupon a notice to the decree-holder is issued requiring him to show-cause as to why the said adjustment should not be recorded as certified. Sub-rule (2-A) provides that such adjustment is to be proved by documentary evidence or by an admission of the decree-holder. While sub-rule (3) provides that adjustment not certified or recorded as certified shall not be recognised by any court executing the decree. In the present case, admittedly, the alleged adjustment has not been certified by the decree-holder and it has not been so recorded by the executing Court. The judgment-debtor had also not informed the Court about the adjustment. Admittedly no notices have been issued requiring the decree-holder to show-cause why the adjustment should not be recorded as certified. The decree- holder has also not admitted the adjustment. The documen tary evidence being the agreement was held by the learned trial court to be a genuine document. Therefore, it appears that even if the agreement appears to be a genuine one, still then the judgment-debtor cannot claim its benefit unless the same is admitted by the decree-holder or the same is certified or recorded as cer tified. Therefore, the said agreement can not be recognised as an adjustment in the facts and circumstances of the above case.
(3.) NOW turning to the question as to whether the application under Section 47 could be treated as an application under Order XXI, Rule 2, C. P. C. and the judg ment-debtor should avail of the benefit thereof. Section 47 provides as follows : "47. Questions to be determined by the Court executing decree.- (1) All questions aris ing 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. (2 ). . . . . . . . . . . . . (3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the Court. Explanation I.- For the purposes of this section, a plaintiff whose suit has been dis missed and a defendant against whom a suit has been dismissed are parties to the suit. Explanation II.- (a) for the purpose of this section, a purchaser of property at a sale in execution of a decree shall be deemed to be a party to the suit in which the decree is passed; and (b) all questions relating to the delivery of possession of such property to such pur chaser or his representative shall be deemed to be questions relating to the execution, discharge or satisfaction of the decree within the meaning of this section. " The scope of Section 47 relates to the execution, discharge or satisfaction of the decree. All disputes with regard thereto is to be decided by the executing Court and not by a separate suit. Therefore, the question of adjustment could be gone into in Section 47. But the dispute with regard to the executability of the decree by way of discharge or satisfaction is an adjustment. Adjustment is altogether different from the question of executability of the decree. It is first to be established that there was an adjustment and then the same can be used as a shield in execution. Unless the adjustment has the seal of the Court, as contemplated in Order XXI, Rule 2, C. P. C, it does not become a shield to the judgment- debtor. The scope of Section 47 and Order XXI, Rule 2, C. P. C. are wholly different. The two provisions operate in two different fields. Both these can not be combined together. Claim, discharge and satisfaction of the decree opposing execution on account of an ad justment as pleaded in the present case are not one and the same thing. First there should be an adjustment when the benefit thereof could be claimed under S. 47.;