M.J. Singh and ors. Vs. Samara Enterprises - Court Judgment

Excerpt:
civil procedure code, 1908 - section 47--objections against the execution of the decree--sought adjustment of the amount allegedly paid before filing of the suit--same plea taken in the leave to defend application--decree passed despite the said plea--cannot reagitate the same plea before the executing court.order 21 rule 1 & 2--power to executing court--cannot go behind the decree--any payment allegedly made before filing of the suit--adjustment has to be given by the court which passes the decree and not by the executing court. - - it was contended by the judgment debtors in these applications that the defendants having already paid the amount covered by the cheques, the decree passed by the court stood satisfied and nothing was, thereforee, due from the judgment debtors to the petitioners. the learned trial court by judgment dated 9.9.2000, dismissed both the applications of the judgment debtors after holding that the objections were based upon the same documents which were relied by the judgment debtors in their application for leave to defend and the court having passed a decree inspire of these documents having been placed before the court, after deeming the contents of the plaint as correct, the judgment debtor could not now claim that the decree dated 25.9.97 stood satisfied by payment of the amount in suit much prior to filing of the suit. the supreme court on these facts held that the plea relating to delivery of possession in pursuance of the compromise decree, if accepted, would amount to an adjustment of a decree which shall consequently be treated to have been partially satisfied to the extent of eviction of the respondent as a tenant from the disputed property. 10. from a perusal of the judgment, it is clear that till such time an adjustment is registered or certified in terms of the provisions of rule 21 rule 2, the judgment debtor could not take a plea that the decree stands satisfied by filing objections under section 47 of the code. 12. for the foregoing reasons, i am of the opinion that the pleas which are now sought to be taken by the petitioners, are clearly false and dishonest and have been taken with a view to delay the execution of the decree passed against them.s.k. mahajan, j.1. admit.2. with the consent of parties the matter has been heard and is being disposed of finally.3. plaintiff filed suit for recovery under order 37 of the code of civil procedure on the allegations that four cheques issued by the defendant for a total sum of rs. 1,82,373/- were dishonoured on presentation to the bank and as such the plaintiff was entitled to a decree for the said amount with interest.4. in his application for leave to defend the suit, it was contended by the defendants that they had already made payment of the amount covered by the cheques and consequently no amount was due to the plaintiff from the defendant. the court after hearing the parties on the application of the defendants for leave to defend the suit, granted leave to the defendants to defend the suit subject to the defendants furnishing bank guarantee to the satisfaction of the court. the bank guarantee having not been furnished the court deeming the allegations made in the plaint to be correct, passed a decree along with interest against the defendants. defendant filed an appeal in this court against the judgment and decree of the trial court. the appeal was, however, dismissed. a special leave petition against the judgment and decree passed in the regular first appeal was also dismissed by the supreme court.5. the decree having become final, the decree holder filed execution for recovery of the amount under the decree. the defendants filed two applications one under order 21 rule 26 read with section 151 cpc and second under section 47 read with section 151 cpc being the objections against the execution of the decree. it was contended by the judgment debtors in these applications that the defendants having already paid the amount covered by the cheques, the decree passed by the court stood satisfied and nothing was, thereforee, due from the judgment debtors to the petitioners. the learned trial court by judgment dated 9.9.2000, dismissed both the applications of the judgment debtors after holding that the objections were based upon the same documents which were relied by the judgment debtors in their application for leave to defend and the court having passed a decree inspire of these documents having been placed before the court, after deeming the contents of the plaint as correct, the judgment debtor could not now claim that the decree dated 25.9.97 stood satisfied by payment of the amount in suit much prior to filing of the suit. on 9.9.2000, when the arguments were heard and detailed order dismissing the applications of the judgment debtors was passed on merits, no one on behalf of the judgment debtors was present in court. the judgment debtors, thereforee, filed an application under section 151 of the code for recalling the order dated 9.9.2000. after hearing arguments on this application, the learned trial court was of the view that the application under section 151 of the code for recalling the order was not maintainable and the same was, accordingly, dismissed by order dated 22.9.2000. being aggrieved by order dated 22.9.2000, the present revision petition has been filed by the judgment debtors/defendants.6. i have heard learned counsel for the parties not only on the application of the judgment debtors under section 151 cpc which was dismissed on 22.9.2000 but also on the objections filed by the judgment debtors under section 47 of the code. the contention of the learned counsel for the judgment debtors is that since the payment had been made to the decree holder before the filing of the suit, the same ought to have been adjusted against the decretal amount and consequently decree could not be executed against him. the learned counsel for judgment debtors submits that payment made by them before the filing of the suit can be adjusted against the decretal amount and for this he has relied upon two judgments of the supreme court reported as sultana begum v. prem chand jain : air1997sc1006 and lakshmi chand & balchand v. state of andhra pradesh, : [1987]1scr108 .7. i have gone through both these judgments, in my view, none of the judgment are applicable to the facts of the present case. adjustment of a particular amount against the decree necessarily implies that the payment was made after the decree was passed and not before the decree. if any payment is made before the passing of the decree, adjustment has to be given by the court which passes the decree and not by the executing court. the court having not agreed with the defendant/judgment debtors about their having made payment of any part of the suit amount before the filing of the suit passed a decree inspire of such a plea have been taken in the application for leave to defend the suit, in my opinion, the judgment debtors cannot re-agitate the same question in the execution petition. in case the arguments of the learned counsel for the judgment debtors are accepted there will be no need to file any application for leave to defend the suit under the provisions of order 37 or to fulfill any condition that may be imposed by the court while granting leave as the defendant can take the same plea again in execution proceedings by filing objections. this can never be the intention of the legislature. the executing court cannot go behind the decree to give adjustment of the amount alleged to have been paid before the filing of the suit. it is only in case the payment of the decretal amount is made in the manner stated in rules 1 and 2 of order 21 that the court executing the decree may certify such payment or adjustment. payment allegedly made before the filing of the suit cannot be certified and the only remedy available to the aggrieved party is to challenge the decree itself.8. in sultana begum v. prem chand jain (supra) the facts were that a compromise decree providing that the respondent would vacate the premises and hand over possession to the appellant or her attorney by a certain date was passed against the respondent. the premises were not vacated and possession was not handed over to the appellant in terms of the compromise decree. the appellant filed execution which was resisted by the respondent by filing objections under section 47 of the code wherein it was pleaded that possession of the premises was handed over to the attorney in terms of the decree passed against the respondent and the attorney allowed the respondent to remain in possession of the premises as a licensee on payment of license fee. the supreme court on these facts held that the plea relating to delivery of possession in pursuance of the compromise decree, if accepted, would amount to an adjustment of a decree which shall consequently be treated to have been partially satisfied to the extent of eviction of the respondent as a tenant from the disputed property. it was, thereforee, the view of the supreme court that this had to be recorded and certified under order 21 rule 2. since that was not done, the provisions of order 21 rule 2 (3) prohibiting the executing court from giving effect to the said plea were applicable. it was no doubt open to the parties to adjust or compromise their rights under the decree, but if it amounts to adjustment of decree, it must be reported to the court whose duty it is to execute the decree so that the court may record or certify the same. if it is not done, the court before whom the execution proceedings are initiated will proceed to execute the decree. it is not every time that the decree-holder and judgment debtor enter into a compromise after the decree. the judgment debtor may even set up a false case of compromise and creation of fresh tenancy after the decree. it is in order to prevent such judgment debtors that order 21 rule 2 has been enacted so that if such compromise or creation of fresh tenancy has not been recorded, the judgment debtor be not encouraged to initiate another round of litigation under section 47 cpc.9. the supreme court, thereforee, did not agree with the judgment debtor that the possession had been delivered to the decree holder and that a fresh license has been created in his favor by attorney of the landlord. it was held that since decree for eviction was passed against the respondent in his capacity as tenant of the premises in question, he could have, if at all, avoided the decree only by getting fresh lease of that premises and not a license which could not have the effect of avoiding the decree or superseding or substituting the decree. this judgment does not in any way assist the petitioner. rather it supports the case of the respondent.10. from a perusal of the judgment, it is clear that till such time an adjustment is registered or certified in terms of the provisions of rule 21 rule 2, the judgment debtor could not take a plea that the decree stands satisfied by filing objections under section 47 of the code.11. in lakshmi chand v. state of andhra pradesh (supra) the facts were that the appellant/contractor had entered into two agreements with the state to carry out certain road repairing works. clause 68 of the agreement provided that final payment had to be made to the contractor after taking into account the amount received by him earlier. another clause of the contract permitted the government to take or deduct money due under the contract from an amount due to the contractor under any other contract. while the work was in progress the contractor made certain claims in respect of the loss suffered and the matter was refereed to the arbitrator. the arbitrator held the contractor to be entitled to a particular amount. when the decree passed after modification of the award was sought to be executed it was claimed by the government that the decree can be set off against the amount due to the state under final bill. in the circumstances of that case the court permitted the plea of set off to be taken by the state. this judgment will also not be applicable to the facts of the case in as much as in that case an amount due to the judgment debtor under the final bill was sought to be adjusted against the decree. it was not the case of the judgment debtor that certain amount paid before the filing of the suit was to be adjusted against the decree. this judgment will also not be of any assistance to the petitioners.12. for the foregoing reasons, i am of the opinion that the pleas which are now sought to be taken by the petitioners, are clearly false and dishonest and have been taken with a view to delay the execution of the decree passed against them. in my view, the objections filed by the petitioners were wholly misconceived and were abuse of the process of the court and the petitioners cannot be encouraged to initiate another round of litigation. there are no merits in the present petition and the same is accordingly dismissed with costs assessed at rs. 5,000/-.