- (1.) A substantial question of law has arisen for determination in this revision as to whether sub-rule (3) of rule 2 of Order XXI of the Code of Civil Procedure (hereinafter referred to as the Code), would be read in Punjab in spite of its having been omitted by Section 36 of the Punjab Relief of Indebtedness Act, 1934 (hereinafter referred to as the Act), after the Code of Civil Procedure Amendment Act No. 104 of 1976 (hereinafter called the Amendment Act), by virtue of Section 97 thereof under which any provision made by the State Legislature, which is inconsistent with the provisions of the Principal Act as amended, stood repealed.
(2.) The aforesaid point arises out of the following facts. Smt. Sushil Sethi respondent obtained a decree for Rs. 19,540/- with costs against Gurmit Singh petitioner on 29th of July, 1976, and thereafter she took out execution of the decree and got the agricultural land of the judgment-debtor attached. While the execution was pending, the judgment-debtor filed application dated 10th of January, 1978, under Section 47 and Order XXI, rule 2(2) of the Code, stating therein that the entire amount had been paid to the decree-holder outside the Court and the adjustment of the decree be recorded by the Executing Court. The decree-holder, in reply to the aforesaid application, took the only stand that the application was time barred as it had not been presented within thirty days of the payment or the adjustment having been made. The Executing Court framed the following preliminary issue :- (1) Whether the application for certification is within time ? O.P.D. After giving opportunity to both the parties, by order dated 19th of May, 1978, the Executing Court dismissed the application of the judgment-debtor holding the same to be time barred being beyond thirty days of the alleged payment after giving a finding that Section 36 of the Act stood repealed by virtue of Section 97 of the Amendment Act with the result that sub-rule (3) of rule 2 of Order XXI was applicable to Punjab after the enforcement of the Amendment Act and, therefore, it was obligatory on the judgment-debtor to have filed an application under sub-rule (2) for obtaining an order on payment or adjustment, as by virtue of sub-rule (3) no payment or adjustment can be recognised by the Executing Court unless the same has been certified under sub-rule (1) or recorded under sub-rule (2). Against the aforesaid order, the judgment-debtor filed an appeal before the District Judge, Jullundur, which was dismissed as not maintainable by order dated 11th August, 1978, and thereafter the judgment-debtor has come to this Court in revision.
(3.) Shri S.P. Jain, appearing for the judgment-debtor has submitted before me at the outset that the Court below has taken a wholly erroneous view of law and has misinterpreted the relevant provisions. According to him, Section 97 of the Amendment Act does not repeal the Act as the same is not inconsistent with any of the provisions of the principal Code as amendment by the Amendment Act and as such sub-rule (3) of rule 2 of Order XXI would not be read in the Code for purposes of application in Punjab as was the position before the Amendment Act. In order to appreciate the argument, it will be necessary to reproduce the relevant provisions. Rule 2 of Order XXI of the Code reads as follows :- "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 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." It is worthwhile to mention that there is no change by the Amendment Act in sub-rule (3) of rule 2 which remains the same. The amendments made in sub-rules (1) and (2) are those which are contained in brackets. Sub-rule (2A) is newly added by the Amendment Act. Without sub-rule (2A) and reading sub-rule (3) in the statute book, the position of the entire rule 2 emerges like this. Under sub-rule (1) if money is paid under any decree out of Court in whole or in part to the satisfaction of the decree-holder, the decree-holder can certify such payment or adjustment to the executing Court and the Court is bound to certify the same. Under sub-rule (2), it is the duty of the judgment-debtor to apply to the executing Court by informing it of the payment or adjustment made out of Court at which the Court is to issue a notice to the decree-holder to show cause why such payment or adjustment should not be recorded as certified and if after service of notice the decree-holder fails to show cause, the Court is duty bound to record the same. Under sub-rule (3), no payment or adjustment is to be recognised by the executing Court except those which have been certified or recorded either under sub-rule (1) or sub-rule (2), meaning thereby that if any payment is made by a judgment-debtor to a decree-holder outside the Court and neither the decree-holder nor the judgment-debtor moves the Court for certifying the payment or adjustment outside the Court, the same shall not be taken notice of by the executing Court.;