Chhangani, J. - (1.) THIS is a judgment-debtor's second appeal under sec. 100 read with sec. 47 of the Code of Civil Procedure against the appellate judgment of the learned District Judge Jaipur City dated 4th November, 1959.
(2.) THE facts may very briefly be stated as follows :- Shri Adi Gour Brahmin (Murti Kalakar) Sanstha Jaipur, instituted a suit through the members of its Working Committee against Shreelal alias Shri Gopal for the ejectment from a shop and for the recovery of arrears of rent in the court of the learned Munsif, Jaipur West. This suit was compromised and decree in the following terms was passed on 4th November. 1958. "the suit of the plaintiff for the recovery of arrears of rent amounting to Rs. 316/13/3 and for ejectment is decreed on the following terms: (a) THE tenant shall pay Rs 316/13/3 and costs in monthly instalments of Rs. 100/-, the first instalment being payable on 15th of November, 1958, and the remaining amount payable by further monthly instalments of Rs. 100/commencing from 15th of December, 1958. In case the defendant made payment as aforesaid, the decree-holder would not be entitled to eject him from the shop. But in case the defendant failed to pay even one instalment, according to the terms of the decree, the decree-holder will be entitled to immediately enforce ejectment". There was one more direction in the decree, but we are not concerned with that condition for the disposal of the present appeal. The decree-holder filed an execution application in the court of the Munsif Jaipur West, on 20th of February, 1939, seeking both ejectment and the recovery of money payable under the decree. He alleged nonpayment of money by the judgment-debtor in terms of the decree and a consequent default entitling him to eject the judgment-debtor from the shop. On receiving notice to show cause why execution should not be directed against the judgment-debtor, he appeared in court and filed objections on 4th of May, 1959, to the execution of the decree. It was pleaded by him that he had given Rs. 237/8 to the Secretary of the Adi Gour Brahmin Murti Kalakar Institute on 9th of November, 1958, towards the decretal amount and further remitted an amount of Rs. 50/- by a money-order on 16th January, 1959, and a further sum of Rs. 100/- on 4th February, 1959. These money-orders, he pleaded, were refused by the decree holder. He pleaded that the payment of Rs. 237/8/- paid to the Secretary should be adjusted towards the part satisfaction of the decree. He also expressed his desire to deposit the remaining amount of Rs. 248. 58 N. P. , the balance of the decretal amount with costs and damages for use and occupation upto 19th April, 1959. The parties are at variance whether this amount was actually deposited in court or not, and the materials on the record are not sufficient to enable me to come to a definite finding on the point. However, this point has no bearing on the disposal of this appeal. Objections of the judgment-debtor were strongly opposed by the decree-holder, who pleaded that in view of the clear language of O. 21, r. 2 C. P. C. , the judgment-debtor is precluded from pleading unrecorded payments and adjustments. The execution court overruled the contentions of the decree-holder based on O. 21, r. 2 (3) C. P. C. and passed an order that evidence be recorded. The decree-holder went in appeal to the District Judge, who took a contrary view. It was held by him that it was not open to the judgment-debtor to plead unrecorded payments and adjustments, in view of the language of O. 21, r. 2 C. P. C. He accordingly accepted the appeal and set aside the order of the court below leading in substance to summary dismissal of the judgment-debtor's objections. The judgment-debtor has filed this second appeal. I have heard Shri B. L. Pagaria on behalf of the appellant and Shri P. N. Dutt, counsel for the respondent, at some great length. The contentions raised by learned counsel for the appellant are two in number : (1) That the objections by the judgement-debtor relating to alleged payments and adjustments of the decree can and should be investigated under sec. 47 C. P. C. and O. 21,r. 2 C. P. C. cannot operate as a bar. This view, it was pointed out, will prevent decree-holders from playing fraud upon the judgment-debtors. (2) That, at any rate, whenever there is a conditional decree passed on consent, O. 21, r. 2 C. P. C. should not apply to such decrees. The question whether a condition precedent to the execution of a decree has been satisfied or not, raises an independent question and this can be enquired into irrespective of the applicability of the provisions of O. 21, r. 2 C. P. C. Now, so far as the first contention is concerned, reliance was placed on Trimbak Ramkrishna Ranade vs. Hari Laxman Ranade (l ). A support is also sought in the dissenting opinion of Beg J. in Akbar Ali khan vs. Dr. Ishwar Saran (2 ). There is, however, an enormously great weight of authority against this view. Trimbak Ram Krishna Ranade vs. Hart Laxman Ranade (1) was considered in a later Bombay Full Bench case Mebebunissa Begum vs. Mehdunissa Begum (3), and was overruled. Macleod C. J very rightly observed that the words in O. 21, r. 2 (3) are too plain to admit of any other construction than that the Court executing a decree is barred in limine from considering any allegation that a payment not certified has been made. The party alleging such a payment may have a remedy, but not before the Court executing the decree. In the same judgment. Shah J. observed that the executing court cannot recognise any payment not certified or recorded as provided in sub-rules (l) and (2) of the same Rule. There are number of cases in support of this view, but I need only refer to Hari Har Prasad Singh vs. Bhubneshwari Prasad Singh{4 ). In that case, Dhavle J. after referring to a number of cases and the observations made by Rankin C. J. in Lakshman Chandra Naskar vs. Ramdas Mandal (5) and Dawson Miller C. J. in Sukhdei Kumari vs. Mabamaya Prasad (6) observed as follows : - "the view taken in some old decisions that uncertified payments ought to be inquired into under sec. 47 because the Court will not tolerate fraud is not now!, so far as I am aware, accepted in any High Court; and Mr. Mahabir Prasad's contention that the court need not look helplessly on the decree-holder's fraud but may deal with it in the exercise of its inherent jurisdiction is opposed to the scheme of the Civil Procedure Code as found in sec. 47 and O. 21, r. 2," Without noticing and discussing numerous authorities on the subject I express my agreement with the opinion expressed by the Full Bench of the Bombay High Court (3) and the view expressed by Dhavle J. in the case referred to above (4 ). As for the dissenting opinion of Beg J. in Akbar AD Khan vs. Dr. Ishwar Saran (2) I need only observe that the reasons given by the other two Judges for taking a contrary view are by far weighty and I have no hesitation in preferring the majority opinion as against the minority opinion. The first contention of the learned counsel of the appellant, therefore, has no force and is over-ruled. Dealing with the second contention, the learned counsel has relied upon two decisions of the Lahore High Court in Wali Shab vs. Beharilal (7) and Bibarilal vs. Wali Sbab (8) which is a decision in appeal from the decision reported in Wall Shah vs. Biharilal (7 ). These authorities undoubtedly contain some observations which go to help the appellant. A contrary view has, however, been taken in Shaikh Darsan Ali vs. Babu Suraj Mal (9 ). In that case, it was pointed out that the Lahore decision was based upon a premise that Ligraj Patjosi vs. Mahadeb Ram (10) was directly in point, but Ligraj's case does not seem to have any bearing on the facts in Wali Shah vs. Beharilal (7 ). The correctness of the very premise upon which the Lahore decisions were based is thus open to doubt. The learned Judges further rightly held that when a decree-holder does not admit payments and applies for execution of the decree, the executing court has to assume that there has been no adjustment of the decree either in whole or part and that after the lapse of the period fixed by Art. 174, Limitation Act, the judgment-debtor cannot be permitted to plead any adjustment or payment under O. 21, r. 2. The conclusion reached generally in this manner is clearly contrary to the view expressed in the Lahore decisions. The learned Judges, however, at a later stage in the judgment instead of expressing a direct disent sought to distinguish the Lahore decisions on the ground that it was not a case of payment at all. It was further observed that "it may sometimes be difficult to distinguish between conditions precedent to the decree-holder taking out execution and adjustments of a decree or payments towards satisfaction of a decree. The decision in Wali Shah vs. Beharilal (7) apparently turned out on such a distinction. " The learned Judges then observed that "there was no room for such a distinction in the case before them and, therefore, the judgment-debtor could not be permitted to evade O. 21, r. 2 (3) C P. C. by giving to these payments towards satisfaction of the decree the name of conditions precedent to the decree-holder taking out execution. I have very carefully considered the reasonings or the two decisions and have also considered the language of O. 21, r, 2 (3) C. P. C. In my opinion, sub-rule (3) completely precludes the executing court from recognising uncertified payments and adjustments for any purpose. There is no room for distinguishing cases whether the decree is to be executed on default or non-fulfilment of some conditions and cases of an ordinary decree. If a judgment-debtor under the terms of the decree can resist execution only on proof of payments or any kind of adjustment of a decree, he must get the payment or adjustment certified under O. 21, r. 2 and in case of a default, he cannot be permitted to plead them in view of the clear and unambiguous language of O. 21, r. 2. A contrary view is bound to lead to very anomalous consequences in some cases. Illustrating it by the present case the decree-holder's prayer for realising money due under the decree cannot be successfully challenged on a plea of uncertified payment and the decree-holder will be certainly entitled to execute the decree ignoring alleged payments and adjustments, if not got certified in accordance with the provisions of O. 21, r. 2 C. P. C. An acceptance of the argument based on the Lahore view will imply that for the purposes of enforcing the part of the decree relating to ejectment, an inquiry could be made and uncertified payments and adjustments could be recognised. This will amount to the execution court recognising payment for one purpose and refusing to recognise it for another purpose. It was suggested on behalf of the appellant's counsel that in such cases payments should be recognised for both the purposes. This will be certainly contrary to the express language of O. 21, r. 2 C. P. C. The very purpose of this rule is to require the judgment-debtor to be very careful in getting payments and adjustments certified within the prescribed time and it further imposes an absolute penalty that in consequence of a default, such payments or adjustments could not be recognised. The rule has been incorporated for a definite purpose of avoiding long enquiries into claims by judgment-debtors based upon uncertified payments and adjustments. There is no reason why this rule should not be enforced generally without any consideration relating to the nature of the decree and why an attempt be made to engraft exceptions to it. Any relaxation of the strict enforcement of this rule will only encourage absence of alertness on the part of the judgment-debtor and will defeat the very purpose of the rule.
(3.) ON a consideration of the general principles and the purpose of the rule, I have no hesitation in concluding that the rule is imperative and mandatory and prevents an execution court from recognising uncertified payments and adjustments for any purpose whatsoever and that a judgment-debtor cannot avoid this rule by merely contending that the alleged uncertified payments should be recognised so as to enable him to plead that there was no default on his part to enable the decree-holder to enforce bis decree for ejectment. I do not see any adequate reason for importing limitations in this rule on considerations contemplated in the Lahore case. Incidentally, I may observe that even the rule of the Lahore decisions cannot help the judgment-debtor in the present case where there is a clear direction in the decree for the payment of money on account of arrears of rent. Considering the case in the light of the above discussion, the decision of the District Judge is perfectly justified and calls for no interference. The appeal accordingly fails and is hereby dismissed with costs. Learned counsel for the appellant prays for leave to appeal. The same is hereby granted.;