Tarun Agarwala - (1.) -A suit for divorce was filed by the petitioner which he allowed it to be dismissed for want of prosecution. But, during the pendency of the suit, an order of maintenance @ Rs. 200 per month was granted in favour of the opposite party No. 2. Upon the dismissal of the suit, an application for the execution of the order of maintenance was filed by the opposite party praying that the interim maintenance @ Rs. 200 per month be given to the applicant for the period 1986 to 1996. The petitioner appeared and filed his objections and, one of the grounds was, that the petitioner had paid maintenance outside the Court to the opposite party which was required to be adjusted. In paragraph 4 of the objection, the petitioner contended that for the period 28th August, 1986 to March, 1992 payments were made on various dates and receipts was given by the opposite party. In paragraph No. 5 it has been alleged that for the period 1992 to 1996, payment in cash was made to the opposite party, but no receipt was issued by the opposite party.
(2.) IN reply to the objection of the petitioner, the opposite party-decree holder has alleged in paragraph 5 that her memory has become weak and that she does not remember as to whether any payment had been received by her and whether she had issued any receipt or not. The opposite party, however, contended that if the receipts are produced by the judgment-debtor, the said amount may be deducted from the amount claimed by her. It has come on record that various receipts were filed. The executing court instead of examining its genuineness, has rejected the objection of the petitioner filed under Section 47 on the ground that the payment has been disputed by the opposite party, and therefore, it has not been certified, and consequently the payments cannot be taken into consideration under the provisions of Order XXI, Rule 2 of the Code of Civil Procedure. The petitioner, being aggrieved by the aforesaid order, has filed the present writ petition. Heard Shri K. Ajeet, the learned counsel for the petitioner and Shri Ashish Agrawal, the learned counsel for the opposite party. For facility, the provisions of Order XXI, Rule 2 of the Code of Civil Procedure as applicable in the State of U. P. is quoted 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 the 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-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 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."
(3.) IN Padma Ben Banushali and another v. Yogendra Rathore and others, AIR 2006 SC 2167 : 2006 (3) AWC 2406 (SC), the Supreme Court has explained the provision of Order XXI, Rule 2 as under : "17. Order XXI, Rule 2 applies to a specific set of circumstances. If any money is payable under a decree, irrespective of the nature of decree, and such money is paid out of Court, the decree-holder, has to certify such payment to the Court whose duty it is to execute the decree and that Court has to record the same accordingly. Similarly if a decree, irrespective of its nature, is adjusted in whole or in part to the satisfaction of the decree-holder, the decree-holder has to certify such adjustment to that Court which has to record the adjustment accordingly. If the payment or adjustment is not reported by the decree-holder, the judgment-debtor has been given the right to inform the Court of such payment or adjustment and to apply to that Court for certifying that payment or adjustment after notice to the decree-holder. Then comes sub-rule (3) which provides that a payment or adjustment which has not been certified or recorded under sub-rule (1) or (2), shall not be recognised by the Court executing decree. 18. The expression "or the decree of any kind is otherwise adjusted" are of wide amplitude. It is open to the parties namely, the decree-holder and the judgment-debtor to enter into a contract or compromise in regard to their rights and obligations under the decree. If such contract or compromise amounts to an adjustment of the decree, it has to be recorded by the Court under Rule 2 of Order XXI. It may be pointed out that an agreement, contract or compromise which has the effect of extinguishing the decree in whole or in part on account of decree being satisfied to that extent will amount to an adjustment of the decree within the meaning of the Rule and the Court, if approached, will issue the certificate of adjustment. An uncertified payment of money or adjustment which is not recorded by the Court under Order XXI, Rule 2 cannot be recognised by the executing court. IN a situation like this, the only enquiry that the executing court can do is to find out whether the plea taken on its face value, amounts to adjustment or satisfaction of decree, wholly or in part, and whether such adjustment or satisfaction had the effect of extinguishing the decree to that extent. If the executing court comes to the conclusion that the decree was adjusted wholly or in part but the compromise or adjustment or satisfaction was not recorded and/or certified by the Court, the executing court would not recognise them and will proceed to execute the decree." In Badamo Devi and others v. Sagar Sharma, 2000 (1) AWC 471, the Supreme Court held as under " "Admittedly, neither the decree-holder nor the respondent had applied to the Court for certification of the compromise entered into between the parties which had the effect of adjustment of the decree in its entirety. What would be the effect of non-compliance with the provisions of Order XXI, Rule 2 was considered by this Court in Sultana Begum v. Prem Chand Jain, JT 1996 (11) SC 1, in which the entire case law was reviewed and it was laid down that any payment or adjustment which is not certified under Order XXI, Rule 2 would not be recognised by the executing court. Since the respondent had not approached the Court under Order XXI, Rule 2 for certifying the adjustment of the decree in terms of the so-called agreement between him and appellant No. 2, the objections filed under Section 47, C.P.C. before the executing court were not maintainable and no investigation was required to be done in those objections." ;