K.Hydroos and Anr. Vs P.K.Hassan Ali

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IN THE HIGH COURT AT CALCUTTA

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CIVIL REVISIONAL JURISDICTION

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[CIRCUIT BENCH AT PORT BLAIR]

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PRESENT : HON’BLE JUSTICE SHAMPA SARKAR

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C0/54/2023

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K. HYDROOS AND ANOTHER … PETITIONERS

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VERSUS

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P.K. HASSAN ALI … RESPONDENT/OP For the Petitioners : Mr. Haradhan Banerjee (through virtual mode) Mr. K. Vijay Kumar For the Respondent/OP : Ms. Anjili Nag Hearing concluded on : 17.01.2024 Judgment on : 09.02.2024

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SHAMPA SARKAR, J.

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The application under Article 227 of the Constitution of India has been filed by one of the judgment debtors and one K. Hydroos, being aggrieved by and dissatisfied with the order dated July 27, 2023 and October 11, 2023 passed in Other Execution Case No.15 of 2021.

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No arguments were set forth on the order dated July 27, 2023. By the said order, the learned executing court rejected the prayer for stay of the execution proceeding. The learned court was of the view

¶13

CO/54/2023 [K.Hydroos and another vs P.K.Hassan Ali]

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2

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that, as the writ of execution of the decree had been issued by order dated July 24, 2023, directing the bailiff to hand over the possession to the decree holder upon complying with all formalities, execution could not be stayed at the eleventh hour.

¶16

By the order impugned dated October 11, 2023, the learned Judge rejected the application dated October 10, 2023. The said application was filed by the petitioners under Order 21 Rule 2 of the Code of Civil Procedure. The Court was of the view that the decree in the suit, could not be treated to have been adjusted. There was neither any certificate to that effect, nor any admission of such adjustment by the decree holder.

¶17

The decree holder in his written objection, denied the contention of the judgment debtor, that there had been adjustment of the decree, on the basis of the Memorandum of Understanding (in short “MoU”). Rather, the decree holder challenged the genuineness of MoU before the Court of law. There was no scope for adjustment of the decree on the basis of a document, the genuineness which was in question in another suit, pending before a competent civil court.

¶18

Mr. Haradhan Banerjee, learned advocate for the plaintiff/decree holder submitted that the execution of the MoU dated April 28, 2021, was an admitted position. The plaintiff had accepted that the said MoU had been executed. The only objection was that the execution was under coercion. As per the MoU, the decretal property

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CO/54/2023 [K.Hydroos and another vs P.K.Hassan Ali]

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3

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was to be retained by the petitioner no.1, for his own use and the for the use of his family. The petitioner no.2 as the daughter of the petitioner no.1, was in occupation of the decretal property. In terms of the MoU, she could continue in possession thereof. The decree of eviction was thus adjusted.

¶22

The writ of delivery of possession could not be executed by the bailiff, when the execution of the MoU was an admitted fact. Merely because the said MoU was under challenge before another court, the pendency of the second suit, would not be a ground to deny or resile from such admission. The admission and the contents of the MoU would clearly amount to adjustment of the eviction decree passed against the petitioner no.2 and her husband. The learned court ought to have proceeded on the provisions of law and held that the execution case could not proceed further, in view of the clauses of the MoU. The MoU was operative between the parties inter se and both were bound by the terms and conditions, thereof.

¶23

Mr. Banerjee further contended that the Court misread the objection of the decree holder and erroneously held that as the MoU was under challenge in a civil court, the same could not operate as an adjustment of decree. The MoU was executed on April 28, 2021, and the suit challenging the validity of the MoU, was filed after 2 years, as an afterthought i.e. on August 11, 2023, only to negate the effect of such MoU.

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CO/54/2023

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4

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[K.Hydroos and another vs P.K.Hassan Ali]

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Order 21 Rule 2 of the CPC prescribed a special procedure for recording adjustment of a decree. The provision dealt with the procedure to be followed in a limited class of cases relating to discharge or satisfaction of the decrees, i.e., when there was adjustment of, or satisfaction of the decree, by a consensual arrangement. Such consensual arrangement could either be expressed or implied, Mr. Banerjee contended that the execution of the MoU, would, go to show that the parties had agreed that the decretal property would fall in the share of the petitioner no.1. The petitioner no.2, could remain in possession as his daughter. It was further submitted that the MoU, which was in the nature of a deed of amicable partition of the property between the brothers, could be pressed into service, in the execution proceeding by one of the coowners of the decretal property, namely, the petitioner no.1. The executing court was bound to consider the said amicable partition/arrangement/settlement, as an adjustment of the decree passed in the suit.

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Mr. Haradhan Banerjee further submitted that there was no conflict between the provisions of Section 47 and Order 21 Rule 2 of the Code of Civil Procedure. While Section 47 dealt with the power of the executing court to determine the question relating to satisfaction, discharge and execution of the decree, Order 21 Rule 2 of the Code of Civil Procedure dealt with the procedure the Court should adopt while

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CO/54/2023 [K.Hydroos and another vs P.K.Hassan Ali]

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5

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disposing of an execution proceeding, upon recording settlement and/or adjustment of the decree out of court, on the basis of a consensual arrangement between the parties.

¶32

It was always open for the parties, namely, the decree holder and the judgment debtor to enter into a contract or compromise with regard to the rights and obligations arising from the decree. If such contract or compromise amounted to an adjustment of the decree, it had to be recorded by the Court under Order 21 Rule 2. An agreement, contract or compromise which had the effect of extinguishing the decree in whole or in part, on account of the decree being satisfied to that extent, would amount to adjustment of the decree within the meaning of the said rule. In the present case, the Court ought to have held that there was an adjustment on the basis of the MoU and accordingly disposed of the execution proceeding upon recording such adjustment. The Court was duty bound to find out whether the pleas of the judgment debtor and the contents of the MoU, on its face value, amounted to adjustment of decree, either wholly or in part. Thus, even if the application under Section 47 of the Code of Civil Procedure was pending before the learned Court, the Court was not barred from passing orders under Order 21 Rule 2 of the Code, thereby certifying, recognizing and holding that the MoU was an adjustment of the decree as a whole, in the facts of the present case.

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CO/54/2023 [K.Hydroos and another vs P.K.Hassan Ali]

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Learned Advocate further contended that the learned court proceeded with gross irregularity. The order was based on a faulty reading of the MoU and on a misconception of the provisions of Order 21 Rule 2. The order was passed on surmise and conjuncture. The Court was persuaded by an assumption that sometime in future, the challenge to the MoU in a separate suit, could succeed. Thus, the learned court decided to disregard such MoU to be a consensual arrangement between the parties, entered into by them, with the intention to give a go by to the eviction decree passed in the present suit.

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Mr. Haradhan Banerjee relied on the following decisions.:

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(a) Lakshmi Narayan vs. S.S.Pandian reported in (2000) 7 SCC 240

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(b) Padma Ben Banushali and another vs. Yogendra Rathore and others reported in 2006 (3) Supreme 675

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(c) Mihirlal vs. Panchkari Santra and others reported in AIR 1950 Cal 520.

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(d) Sultana Begum vs. Prem Chand Jain reported in (1997) 1 SCC 373.

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(e) Ghantesher Ghosh vs. Madan Mohan Ghosh & Ors. reported in AIR 1997 SC 471

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(f) M.P. Shreevastava vs. Mrs. Veena reported in AIR 1967 SC 1193.

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(g) Vinod Kumar Arora vs. Smt Surjit Kaur reported in 1987 (3) SCC 711.

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(h) Brahmdeo Chaudhary vs. Rishikesh Prasad Jaiswal & Anr. reported in AIR 1997 SC 856.

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CO/54/2023

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7

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[K.Hydroos and another vs P.K.Hassan Ali]

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(i) Bhanwar Lal vs. Satyanarain and Anr. reported in (1995) 1 SCC 6

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(j) State of West Bengal & Ors. vs Nripendra Nath Banerjee & Ors. reported in 1991 (2) CLJ 403.

¶50

Ms. Anjili Nag, learned advocate appearing on behalf of the opposite party submits that the MoU was not voluntarily entered into between the parties and the decree holder signed the same under threat and coercion. On such ground, a suit for cancellation of the said MoU was pending. Thus, the forced signing of the MoU, could not be termed as a consensual agreement between the judgment debtor and the decree holder. She next submitted that the MoU was between the decree holder and the petitioner no.1, who was not the judgment debtor. The petitioner no.2 and her husband were found to be in unauthorized occupation of the decretal property, as a trespasser. Such finding was based on the final decree passed in the partition suit between the petitioner no.1 and the decree holder. Thus, the learned court had passed the eviction decree upon consideration of such facts. Moreover, the MoU was entered into between the parties sometime in April, 28, 2021 and the application was filed on October 10, 2023 i.e., after more than 2 years from entering into the MoU. In any event, the said application under Oder 21 Rule 2 was barred by limitation in terms of Article 125 of the Limitation Act. The said application for recording the purported adjustment, ought to have been filed within thirty days from such alleged adjustment.

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CO/54/2023 [K.Hydroos and another vs P.K.Hassan Ali]

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8

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Ms. Nag submitted that the MoU did not have any legal value. In the event, the same had been considered as a family settlement or partition deed between the parties, the document should have been sufficiently stamped. The court could not take cognizance of such MoU. Moreover, the petitioner no.1 also did not fulfill his obligation, by withdrawing the proceedings pending before different courts. A mere affidavit entered into by the parties would have to be corroborated in evidence. It was not, per se, admissible in evidence.

¶54

The MoU contained several covenants. One such being that the first party i.e. the petitioner no.1, his daughter and granddaughter would not proceed against the second party and his son. The petitioner no.1 continued with the criminal proceedings without complying with clause (xii) of the said MoU. Numerous applications, in the execution proceedings have also been filed only to delay the execution. The conduct of the petitioner no.1, would not indicate that the MoU was honoured by him.

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Ms. Nag further submitted that in the absence of any certificate from the competent court or any admission by the decree holder, the learned executing court rightly rejected the application under Order 21 Rule 2. The learned advocate further submitted that the applications under Order 21 Rule 98 and Section 47 of the Code of Civil Procedure, are also pending adjudication. The application under Order 21 Rule 97 filed by the decree holder was allowed by the

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CO/54/2023 [K.Hydroos and another vs P.K.Hassan Ali]

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learned Trial Judge and the same was upheld by the Hon’ble High Court, upon contested hearing. Writ of delivery of possession had already been issued in favour of the decree holder.

¶59

Heard the learned advocates appearing for the respective parties. The issue to be decided is whether the order impugned suffers from perversity or material irregularity.

¶60

The opposite party instituted a Title suit No.59 of 2007 against the petitioner no.2 and her husband, Hyder Ali. The opposite party prayed for recovery of possession, mesne profits and other consequential reliefs. The petitioner no.1 was added as a party to the suit on the basis of an application for addition party under Order 1 Rule 10 of the Civil Procedure Code. The suit was decreed by the trial court.

¶61

By judgment and decree dated September 7, 2015, the learned Civil Judge Junior Division at Port Blair directed the eviction of defendants from the suit property. Being aggrieved, an appeal was filed by the petitioners along with Hyder Ali, who was the codefendant in the suit. The appeal was registered as Title Appeal No.3 of 2017. By judgment and decree dated December 31, 2018, the first Appellate Court, inter alia, modified the decree by directing the eviction of the petitioner no.2 and Hyder Ali, but excluded the petitioner no.1 on the ground that it was an admitted position that the petitioner no.1 was not in possession of the property.

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CO/54/2023

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10

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[K.Hydroos and another vs P.K.Hassan Ali]

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The judgment debtors did not succeed in the second appeal and by judgment and decree dated December 23, 2019, the second appeal was dismissed by the High Court. The opposite party put the decree into execution. On the execution case being registered, the opposite party filed an application under Order 21 Rule 97 of the Civil Procedure Code, inter alia, praying for police assistance and for handing over possession. The application was contested by the petitioner no.2 and her husband. By an order dated February 10, 2023, the learned Judge allowed the said application. The learned Trial Judge, upon holding that the petitioners therein could not establish or show any right to continue in the said property, had allowed the application under Order 21 Rule 97 read with section 151 of the Code of Civil Procedure.

¶66

The order dated February 10, 2023 was challenged by the judgment debtors and also by the petitioner no.1, by filing CO/34/2023. A Coordinate Bench was of the view that the executing court could not go beyond the decree. The decree of eviction against the petitioner no.2 and Hyder Ali was confirmed upto the High Court.

¶67

The petitioner no.1 was not in possession of the property and could not resist execution as he was no longer a co-sharer in the property when the partition suit between the brothers had been decreed and partition by metes and bounds had been effected. The suit property had been allotted in favour of the opposite party.

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CO/54/2023 [K.Hydroos and another vs P.K.Hassan Ali]

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11

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It was held that the petitioner no.1 in the civil revision, namely, Hydroos, could not establish any right to continue in the possession of the property in question. In so far as the petitioner no.2 and Hyder Ali were concerned, it was held that the said parties were bound by the decree. The executing court had the power to enforce the decree and while doing so, on the basis of the enquiry conducted by him, had rightly allowed the application under Order 21 Rule 97 of the Code of Civil Procedure. The High Court observed that there was no irregularity on the part of the learned Judge in allowing the application under Order 21 Rule 97 of the Code. The petitioners were also not able to identify any procedural irregularity, far less, any jurisdictional error on the part of the learned Judge in allowing the application under Order 21 Rule97 of the Code. Accordingly, the revisional application under Article 227 of Code of Civil Procedure was rejected. The relevant portion of the order is quoted below:-

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“ 15. It must be borne in mind that an executing Court is not permitted to travel behind the decree. Admittedly, the decree passed by learned Civil Judge, Junior Division which merged with the decree passed by the First Appellate Court took note of the partition decree. Thus, on the basis of the finding returned by the First Appellate Court that the petitioner no. 1 was not in possession of the suit property that the decree passed by the trial Court was modified. Once, the partition suit was decreed and the property was partitioned by metes and bound, the petitioner no. 1 could no longer claim to be a cosharer in the suit property. Since, the petitioner no. 1 could no longer be considered to be a co-sharer and since, the suit property had been allotted to the opposite party, the aforesaid defense that he cannot be evicted from a joint property, can no longer be available to the petitioner no.1 as the property had been partitioned.

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CO/54/2023

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12

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[K.Hydroos and another vs P.K.Hassan Ali]

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16. It is also not the case of the petitioner no.1 that the petitioner no.1 or the petitioners were attempting to resist the execution of the decree on the basis of any independent right or interest not decided in the suit. On the contrary, it would appear from the order impugned that the learned executing Court upon arriving at a finding that the petitioners had not been able to establish or show any right to continue in the suit property, had allowed the application under order 21 rule 97 read with section 151 of the Code of Civil Procedure.

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17. The petitioners have, however, invoked the plenary powers of this Court to question the order passed by the executing Court, inter alia, on the ground that it had failed to exercise jurisdiction and or adjudicate upon the rights of the petitioners, especially the petitioner no.1. In the peculiar facts as noted herein above and on being invited by the petitioners this Court has examined the matter in detail.

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18. It is noticed that the executing Court has duly determined and has adjudicated the rights of the petitioners and has concluded that the petitioner no. 1 could not establish any right to continue in possession of the suit property. Insofar as the petitioner no. 2 is concerned the petitioner no. 2 is the judgement debtor and also a party to the suit and as such is bound by the said decree. It is well within the powers of the executing Court to enforce execution of the decree and in doing so on the basis of the enquiry conducted by him, had allowed the application under order 21 rule 97 read with section 151 of the Code of Civil Procedure.

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19. Having regard to the aforesaid, in my view, there is no irregularity on be part of the learned Judge in allowing the application under Order 21 Rule 97 of the Code of Civil Procedure. The petitioners have also not been able to identify any procedural irregularity far less any jurisdictional error committed by learned Judge, in passing the order impugned. The learned judge after due enquiry had allowed the aforesaid application. As such no interference under Article 227 is called for. The aforesaid application is accordingly dismissed.”

¶79

It is an admitted position that the suit for recovery of possession, mesne profits and consequential reliefs stood decreed by the trial court. The suit was originally filed against the petitioner no.2 and her husband. The petitioner no.1 added himself in the suit as party. The suit was decreed against all and the decree was modified

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CO/54/2023 [K.Hydroos and another vs P.K.Hassan Ali]

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13

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by the first appellate court, to be applicable against the petitioner no.2 and her husband and not the petitioner no.1. Such decree was upheld in the second appeal. The opposite party’s prayer for execution of the decree with police help, was allowed upto the High Court and the High Court observed that the petitioner no.1 did not have any right to remain in the premises as he was not a co-sharer in respect of the property in question.

¶83

A similar plea was raised by the petitioner no .1 in CO/47/2023 that a decree for eviction could not be passed against a co-sharer. The revisional application arose out of an order of rejection of a prayer for stay of the execution by the petitioner no.1. The High Court observed that during the pendency of the eviction suit, the partition suit between the co-sharers was decreed in final form. In the deposition recorded in the eviction suit and also before the appellate court, the petitioner no.1 admitted that he was not in physical possession of the decretal property. Thus, the contention of the joint possession of the petitioners in respect of the decretal property was not accepted by the High Court and the High Court dismissed the civil revisional application holding, inter alia, that question of staying the execution proceeding could not arise at the instance of the petitioner no.1.

¶84

The High Court categorically observed that the first appellate court had recorded that the petitioner no.1 was not in actual and

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CO/54/2023 [K.Hydroos and another vs P.K.Hassan Ali]

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physical possession of the decretal property. It was further observed that the petitioner no.1 could not take a round about way and contend before the executing court that he was in possession of the decretal premises along with the petitioner no.2, who had suffered the decree for eviction. The petitioner no.2 was a family member of the cosharers. His Lordship observed that the application for police help had already been allowed and the decree holder was unable to take possession of the property because of the obstacles and hurdles being created at the stage of execution. Thus, the question of granting stay of the execution would not arise. The relevant portion of the order is quoted below:-

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“The First Appellate Court categorically observed on the basis of the submissions made by the petitioner no.1, not only in the cross-examination but at the time of hearing that he is not in physical possession of the decretal property and taking such stand to be sacrosanct, the Appellate Court observed that the decree for eviction cannot be passed against the petitioner no.1 as he is not in physical and actual possession of the decretal premises.

¶89

The second appeal at the behest of the petitioner no. 2 before the High Court could not yield any fruitful result. The High Court dismissed the second appeal at the stage of admission meaning thereby the judgment and decree as modified by the First Appellate Court stood affirmed.

¶90

It is inconceivable and improbable that the petitioner no.1 would approbate and reprobate at the different stages of the proceedings, nor the new case can be permitted to be made out at the bar. The petitioner no.1, in the cross-examination, admitted that he is not in physical possession of the decretal property and stood firm on the said stand even before the Appellate Court.

¶91

The petitioner no.1 cannot take rebound and contend before the Executing Court that he is in possession of the decretal premises along with the petitioner no.2, who has suffered the decree for eviction.

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CO/54/2023 [K.Hydroos and another vs P.K.Hassan Ali]

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It further appears that the application for police help has already been allowed but the decree holder is unable to take possession thereof because of the obstacles and/or hurdles being created at the execution stage. I do not find any merit in the instant revisional application. The same is hereby dismissed. No order as to costs.”

¶95

Undoubtedly, in the orders dated July 26, 2023 passed in CO 34 of 2023 and dated September 20, 2023 passed in CO 47 of 2023, the High Court had clearly observed that the petitioner no.1 was neither in physical nor actual possession of the property in question, nor was he a co-sharer in the property in question. He could not resist the execution of the decree, with the help of the police or pray for stay of the execution. There were no pleadings before the High Court with regard to MoU, which was entered upon on April 28, 2021, much before the orders were passed in the civil revisions.

¶96

Again, the said petitioner no.1 approached the learned executing court for orders under Order 21 Rule 2 to record adjustment of the decree belatedly i.e. after more than two years from the alleged execution of the MoU. Moreso, when the High Court and first appellate court had held in several proceedings that the petitioner no.1 was neither in physical and actual possession of the property in question. The decree was not to be executed against him. The MoU entered into between the petitioner no.1 and the decree holder would not have any significance as the petitioner no.1 was not a party to the proceedings. The MoU does not specifically mention about the decree.

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CO/54/2023 [K.Hydroos and another vs P.K.Hassan Ali]

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Moreover, as the decree holder had not admitted such adjustment and had challenged the legality and validity of the said MoU in another suit, there cannot be any consensual agreement. Order 21 Rule 2 states as follows:-

¶100

“ (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 decreeholder fails to show cause why the payment or adjustment should not be recorded as certified, the Court record the same accordingly.”

¶101

Only when an adjustment is admitted and certified by court, can the adjustment be recorded and necessary orders can be passed. In this case, there was no certificate and the judgment debtor did not apply for a certificate before the appropriate court, within the period of limitation.

¶102

The learned court rightly observed that as per sub rule 3 of Order 21, when adjustment was neither certified nor recorded, it would not be recognized by the court executing the decree. According to sub-rule 2A, adjustment should not be recorded at the instance of the judgment debtor, unless the adjustment was proved by documentary evidence or the adjustment was admitted by or on behalf of the decree holder in his reply to the notice.

¶103

CO/54/2023 [K.Hydroos and another vs P.K.Hassan Ali]

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17

¶105

Evidently, the MoU was not acted upon in this case. Reliance was not placed on the said MoU before the revisional courts in CO 34 of 2023 and CO 47 of 2023. This clearly shows that the petitioner also did not consider the same as an adjustment. They have already suffered an order of execution of the decree through police help and rejection of their prayer for stay of the suit. The application was filed clearly as an afterthought to mislead the court and stall the execution. The MoU has been denied by the decree holder and challenged before the civil court. The application was also barred by limitation.

¶106

In the decision of Bhoj Raj Garg vs. Goyal Education and Welfare Society & ors. decided in Special Leave Appeal No.19654

¶107

of 2022 , the Hon’ble Apex Court held as follow:-

¶108

“The complaint of the petitioner is that the Execution Court is not abiding by the directions issued by this Court in the decision in Rahul S. Shah Vs. Jinendra Kumar Gandhi & Ors., reported in (2021) 6 SCC 418. In the said decision, this Court held as follows:-

¶109

‘ 42. All Courts dealing with suits and execution proceedings shall mandatorily follow the below mentioned directions:- 2. The Executing Court must dispose of the Execution Proceedings within six months from the date of filing, which may be extended only by recording reasons in writing for such delay.’

¶110

This means that it becomes the duty of the Execution Court to dispose of the execution proceedings at the earliest and since this Court has directed that the Execution Court must dispose of the execution proceedings within six months from the date of filing, which can be extended only by recording reasons in writing for such delay, this direction is meant to be observed. This would mean that every effort should be made to dispose of the execution petition within the said time limit and the Execution Court should have reasons for not being able to dispose of the execution petition. The

¶111

CO/54/2023 [K.Hydroos and another vs P.K.Hassan Ali]

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Execution Court is duty bound to record reasons in writing when it is unable to dispose of the matter.”

¶114

In Rahul S. Saha (supra) , it had been categorically held that execution case should be completed expeditiously. The Hon’ble Apex Court noted the sorry state of affairs and how the provisions of law were being misused to delay execution proceedings.

¶115

The decisions cited by the Banerjee are now considered. In the decision of Lakshmi Narayan (supra)¹ , it was held that after the rights of the parties crystallized on passing of a decree by a competent court of law, they were not precluded from settling their disputes outside the court. But to have the compromise recognized by a court, it had to be recorded under Order 21 Rule 2 of the Code of Civil Procedure and consequences of not having it so recorded has been stated in Sub-Rule 3. The judgment does not help the petitioners. In this case the provisions of Rule 3 would be applicable. The provision is quoted below:-

¶116

“(3) A payment or adjustment, which has not been certified or recorded as aforesaid, shall not be recognized by any Court executing the decree.”

¶117

In Sultana Begum vs Prem Chand Jain (supra)² the Hon’ble

¶118

Apex Court held as follows:-

¶119

“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 21. An

¶120

1 (2000) 7 SCC 240

¶121

2 (1997) 1 SCC 373

¶122

CO/54/2023

¶123

19

¶124

[K.Hydroos and another vs P.K.Hassan Ali]

¶125

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 this 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 21 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.”

¶126

In the case in hand, the plea taken in its face value did not amount to an adjustment of the decree between the parties. The said decision was also followed in Badamo Devi vs. Sagar Sharma (supra)³ , thus, repetition is avoided.

¶127

In M.P.Shreevatava (supra)⁴ , the Hon’ble Apex Court held that adjustment contemplated mutual agreement and in the case before the Hon’ble Apex Court, there was no evidence of any consent on the part of the appellant. Thus, without a clear and unequivocal consent of the decree holder and/or admission on the part of the decree holder, adjustment could not be recorded by the learned executing court. In this case, there is no certificate. Steps were also not taken within the statutory period of limitation for recording of such adjustment.

¶128

3 (1999) 6 SCC 30 .

¶129

4 AIR 1967 SC 1193

¶130

CO/54/2023

¶131

20

¶132

[K.Hydroos and another vs P.K.Hassan Ali]

¶133

39. In Padma Ben Banushalli and another (supra)⁵ , it was held

¶134

that an uncertified payment or adjustment under a decree which was not recorded by the court under Order 21 Rule 2 of the Code of Civil Procedure, could not be recognized by the executing court.

¶135

40. Nripendra Nath(supra) and Bhanwar Lal (supra) do not

¶136

have any application in the facts of this case. The application for adjustment which was filed by the petitioner was barred by law. The delay could not be condoned either by the oral prayer or by filing an application for condonation of delay. The law is otherwise with regard to application under Order XXI of the Code of Civil Procedure.

¶137

Under such circumstances, in this case, without any certificate in terms of Order 21 Rule 2, and without any admission by the decree-holder, the application for an order of adjustment of the decree in terms of the MoU dated April 28, 2021, filed after two years from alleged execution of the MoU, was rightly rejected by the Court. The said application was misconceived and filed only to delay the execution.

¶138

Accordingly, the revisional application is dismissed.

¶139

Parties are directed to act on the server copy of this order.

¶140

(SHAMPA SARKAR, J.)

¶141

5 2006(3) Supreme 675

K.Hydroos and Anr. v. P.K.Hassan Ali

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