MADHYA PRADESH HIGH COURT

                 Rajeev Khandelwal

                 Vs.

                 Arun

                             Misc. Petn. No. 2642 of 1985
                 (N.D. Ojha, C.J. C.P. Sen and K.K. Adhikari, JJ.)

                 16.07.1987

                 JUDGMENT

N.D. Ojha, C.J.

1. The petitioner in his capacity as landlord of an accommodation of which the
respondent was the tenant obtained a decree for eviction of the respondent and for
arrears of rent under the provisions of the M.P. Accommodation Control Act, 1961.
When the decree was put in execution, the respondent filed an objection purporting to
be under Section 47, Civil Procedure Code, asserting that he had made payment of the
decretal amount out of Court to the decree-holder, that a compromise had been arrived
at between the parties that the judgment-debtor shall deliver vacant possession of the
accommodation to the decree-holder and that it will be again given to the judgment-
debtor on an enhanced rent of Rs. 500/- per month, the earlier rent being Rs. 275/- per
month. His case further was that he complied with the terms of the fresh agreement
and that since he was now in possession over the accommodation in pursuance of
fresh agreement of tenancy, the decree under execution had become in executable. The
case of the petitioner in reply to the said objection was that he never entered into any
agreement of fresh tenancy as alleged by the respondent, that no payment whatsoever
was made to him by the respondent as alleged by him and that even otherwise the
objection raised by the respondent was not maintainable in law inasmuch as the plea
set up by him was one about adjustment was not got recorded as certified by the
respondent as contemplated by sub-rule (2) of Rule 2 of Order 21, Civil Procedure
Code, the same could not be recognized by the Court executing the decree in view of
the provision contained in this behalf in sub-rule (3) of Rule 2 of Order 21 of the Civil
Procedure Code. This plea raised by the petitioner found favor with the Court
executing the decree and the objection raised by the respondent-tenant was rejected.
2. The respondent preferred a revision against the order of the Court executing the
decree which was allowed by the District Judge on 16th July, 1985. The District Judge
took the view that the objection filed by the respondent pertained to execution of the
decree as contemplated by Section 47, Civil Procedure Code, and notwithstanding the
provisions contained in Order 21, Rules 2 and 3, Civil Procedure Code, the same
deserved to be investigated. On this view, after setting aside the order of the Court
executing the decree, the District Judge remanded back the case to the said Court with
a direction to investigate into the agreement alleged by the respondent-tenant on
merits after giving the parties an opportunity to adduce evidence. It is this order dated
16th July, 1985 passed by the District Judge which is sought to be quashed in the
present writ petition.
3. When the writ petition came up for hearing it was pointed out that on the point in
issue whether such an objection as had been raised by the respondent in the Court
executing the decree could be entertained by the Court executing the decree in spite of
the bar created in this behalf by sub-rule (3) of the Rule 2 of Order 21, Civil Procedure
Code, there was a difference of opinion between two Division Benches of this Court,
namely, in Bahadur Singh Gupta v. Mohammad Ali, 1 and Bherulal v. Ramautar, 2 On
the view that there was an apparent conflict in the decision of the two Division
Benches, the matter has been referred to a Full Bench and it is thus that the present
writ petition has come up before us.

4. Before dealing with the respective submissions made by learned counsel for the
parties, we find it necessary to point out the facts in brief and the ratio decidendi of the
two decisions referred to above. The decision in the case of Bahadur Singh Gupta
(supra) was given in a Letters Patent Appeal. The appellant got a decree for ejectment
and damages against the respondent and the said decree was put in execution by
presenting an application in this behalf. The respondent took an objection to the
execution of the decree but the appellant in the absence of the respondent got the
execution dismissed on the ground that he did not want to prosecute it. Subsequently
the appellant made a second application for execution of the decree. The respondent
filed an objection purporting to be one under Section 47, Civil Procedure Code,
contending, inter alia, that there had been a settlement between the parties under
which the appellant had given up his right of ejectment and had made the respondent
his tenant on a fresh contract of tenancy on an enhanced monthly rent and the
respondent had paid certain amount towards the compromise. On this ground the
respondent asserted that the execution application deserved to be dismissed. To this
objection, among others, the reply of the appellant was that the objection taken by the
respondent amounted to an adjustment of the decree but since it was not certified
within time, it was barred under Order 21, Rule 2, Civil Procedure Code. This plea of
the appellant was accepted by the Court executing the decree and that order was
maintained in appeal by the Additional District Judge. In second appeal, however, a
learned single Judge of this Court took the view that since there was no delivery of
possession by the appellant to the respondent and a fresh contract of tenancy had been
created, there had been no adjustment of the decree and the question as to whether the
agreement between the parties had rendered the decree unenforceable could be
inquired into under Section 47, Civil Procedure Code and Order 21, Rule 2 thereof
had no application. On this view, the learned single Judge remitted the case to the
executing Court for investigating the agreement alleged by the respondent on merits.
Against this judgment of the learned single Judge a Letters Patent Appeal was filed
and it was held that in view of the words "under a decree of and kind" in sub-rule (1)
of Rule 2 of Order 21, Civil Procedure Code the said rule applied to every kind of
decree and the agreement set up by the respondent amounted to adjustment of decree
and fell within the ambit of Order 21, Rule 2, Civil Procedure Code, and if the
adjustment has not been certified under the said rule, the executing Court could not
take cognizance of it. The order of the learned single Judge was accordingly set aside
and that of the first appellate Court restored.

5. In the case of Bherulal (supra) the petitioner had obtained a decree for ejectment
against the non-applicant for ejectment and arrears of rent. On the said decree being
put in execution, the non-applicant raised certain objections by saying that the decree-
holder had obtained possession of the decretal premises and after having obtained
possession thereof, the decree-holder entered into a fresh agreement with the non-
applicant and let out the premises to him on enhanced monthly rent. On its basis it was
contended that the decree had been satisfied and a fresh contract of tenancy had been
entered into and the non-applicant judgment-debtor being in possession under the new
contract, the decree for eviction could not be executed against him. This objection was
rejected by the executing Court on the ground that it pertained to adjustment of the
decree and the adjustment not having been certified under Order 21, Rule 2, Civil
Procedure Code, within the prescribed period of limitation, it could not be considered.
The order of the executing Court, however, was set aside on appeal by the Additional
District Judge, a revision was preferred before this Court by the landlord and it was
contended that as the objection of the judgment-debtor fell within the ambit of Rule 2
of Order 21, Civil Procedure Code, and as admittedly they had not been certified in
accordance with the procedure prescribed in the said rule within the period of
limitation, no enquiry could be conducted. The revision came up before a learned
single Judge and was referred by him to a larger Bench and in view of the reference it
was decided by a Division Bench. The Division Bench took the view that the
objection raised by the judgment- debtor was in two parts : (i) that the decree had been
satisfied as the possession had been restored to the decree-holder of the premises, and
(ii) that the non-applicant had been put into the premises under a fresh agreement on
enhanced rent, and held that the first part of the objection about 'satisfaction' and
handing over of possession to the decree-holder may be affected by the provisions of
sub-rule (3) of Rule 2 of Order 21 but the second part clearly referred to an agreement
apart from the decree which came in the way of the execution of the decree and thus
pertained to "execution of the decree" as contemplated by Section 47, Civil Procedure
Code and has to be enquired into. In taking this view it was pointed out :

       "It is therefore clear that under Section 47 of the Civil Procedure Code the
       executing Court is conferred with powers to determine objections with regard to
       three things : (i) execution, (ii) satisfaction, and (iii) discharge. So far as
       'satisfaction' is concerned, a specific procedure has been provided under Order
       21, Rule 2 and if that is not followed, sub-rule (3) of Rule 2 provides that the
       question cannot be gone into by the executing Court. But there could be no
       difficulty when the objection pertains to the 'execution' of the decree and as
       discussed earlier the objection No. 2 raised by the non-applicant judgment-
       debtor clearly pertains to the execution of the decree".

It was accordingly held that in the facts and circumstances of the case the judgment-
debtor could resist the execution of the decree without any application being made by
him under Order 21, Rule 2, Civil Procedure Code, and adjustment and/or satisfaction
having been recorded by the Court which passed the decree.

6. It was urged by learned counsel for the petitioner that the decision of this Court in
the case of Bahadur Singh (1977 Jab LJ 609) (supra) lays down correct law. It was
pointed out that this decision unfortunately does not seem to have been brought to the
notice of the learned Judges who decided the subsequent case of Bherulal (supra). On
the other hand, reliance in that case was placed on that very decision of the learned
single Judge reported in 1977 Jab LJ 29 which was reversed in the Letters Patent
Appeal in the case of Bahadur Singh (supra). For the respondent, on the other hand, it
was urged by his learned counsel that Bherulal's case (supra) really lays down the
correct legal position inasmuch as an objection of the nature such as was raised in that
case and in the instant case pertains to the execution of the decree within the meaning
of Section 47, Civil Procedure Code, and since the word 'adjustment' used in Order 21,
Rule 2, Civil Procedure Code, has not been used in Section 47 Civil Procedure Code
the provision contained in Order 21, Rule 3, cannot in any way curtail the jurisdiction
of the executing Court to investigate an objection pertaining to the 'execution' of the
decree.

7. Having heard learned counsel for the parties at some length, we are of opinion that
the decision of the Division Bench of this Court in the case of Bahadur Singh (supra)
lays down the correct legal proposition in regard to the scope of Order 21, Rule 2 of
the Civil Procedure Code. The question which really arises for consideration is about
the scope and purport of the term 'adjustment' used in Order 21, Rule 2, Civil
Procedure Code. In this connection it would be pertinent to notice that Section 47,
Civil Procedure Code does not use the word 'adjustment' but uses the words relating to
the execution, discharge or satisfaction of the decree. If the purpose of enacting Order
21, Rule 2, Civil Procedure Code was to confine its applicability to 'satisfaction' of the
decree alone as seems to be the view taken in Bhurelal's case (supra) there was no
difficulty in using the word 'satisfied' in Order 21 Rule 2, Civil Procedure Code The
Legislature, however, purposely made a departure in this behalf and in place of using
the word 'satisfied' used the word 'adjust'. Not only that, it also prefixed the word
'adjusted' with another word of significance, namely 'otherwise'. The purpose of Order
21, Rule 2 of the Civil Procedure Code obviously, therefore, was that an agreement
which had the effect of adjusting the decree in any manner had to be got recorded as
certified and on failure to do so, the executing Court was prohibited by Order 21, Rule
3 Civil Procedure Code to recognize any agreement which had the effect of
adjustment of a decree in the manner stated above. The word 'adjust' or 'adjustment'
had not been defined in the Civil Procedure Code. One of the meanings attributed to
the word 'adjust' in the Oxford Dictionary is "a refashioning."

8. In regard to the scope of agreements to compromise a claim to execute a decree, a
Division Bench of this Court in Meghraj v. Kesarimal 3 held as follows :
       "Agreements to compromise a claim to execute a decree may be divided into
       three classes. In the first class of agreement, the decree-holder agrees to give up
       all his rights under the decree on the judgment-debtor's doing something or
       other, and there is no adjustment until the judgment-debtor has done whatever
       he promised. The second class of agreement is where the decree- holder agrees
       to give up all his rights under the decree in return for a promise by the
       judgment-debtor to do something or the other; on the recording of such an
       adjustment the decree becomes fully satisfied and the decree-holder can enforce
       the fulfillment of the judgment-debtor's promise only by a separate suit. It has in
       some cases been doubted whether such an agreement termed an executory
       agreement," could amount to an adjustment of the decree, but it is now well
       settled that it can; see for example, 56 Mad 198, 22 Lah 383 and AIR 1935
       Bombay 308, where the point has been discussed at length, and also 14 Luck
       192. The third class of agreement is one in which the parties agreed that the
       decree shall be modified in some way or other and that the decree-holder shall
       be entitled to execute the decree as modified but not the original decree. The
       question of the class in which the compromise falls is a question of fact."

In our opinion, the agreement of a nature such as is said to have been entered into in
the instant case will fall in second class of agreements referred to above. Apparently it
was an agreement where, according to the judgment-debtor the decree-holder had
agreed virtually to give up his right of evicting the judgment-debtor under the decree
in return for a promise by the judgment- debtor to enhance the monthly rent. What has
been laid down in the case of Meghraj (supra), therefore, apparently is that if an
agreement falls within the second category, it will be tantamount to an adjustment of
the decree and "on the recording of such an adjustment the decree becomes fully
satisfied. "Since Order 21, Rule 2, Civil Procedure Code, uses the words" in whole or
in part "after the words" "Otherwise adjusted," even a partial adjustment of the decree
is clearly permissible under this rule. Consequently, where a decree has been adjusted
in whole or in part, it has to be got recorded as satisfied under Order 21, Rule 2, of the
Civil Procedure Code.

9. The distinction pointed out in the case of Bherulal (supra) that such decrees are in
two parts, namely, the first part being that the decree has been satisfied as the
possession was restored to the decree- holder of the premises, and the second part
being that the judgment-debtor has been put into the premises under a fresh agreement
of enhanced rent, is in our opinion more artificial than real. It is not the case of the
judgment- debtor that agreement was reached at two stages, the first stage being that
the judgment-debtor shall deliver vacant possession to the decree-holder outside Court
even without the decree being actually executed through the process of Court with the
result that the decree for eviction stood satisfied and that after vacant possession over
the accommodation (for in a decree for eviction against a tenant actual physical
possession has to be delivered to the decree-holder and not formal or notional delivery
of possession) had so been delivered to the decree-holder, the parties entered into a
second agreement whereby a fresh lease was created on enhanced rent. The
agreement, on the other hand, set up by the judgment debtor is a composite one. What
he asserts is that at one and the same point of time even before actual possession over
the accommodation had been delivered by him to the decree- holder in pursuance of
the decree, the parties entered into an agreement that the judgment-debtor would
deliver possession to the decree-holder outside Court and would be allowed to
continue as tenant on an enhanced rent thereafter. The offer of the judgment-debtor to
deliver possession is never intended to be fulfilled. The judgment-debtor while
making such an offer knows that in reality actual possession is not to be delivered
even for a second and that he is to continue in possession in the same manner
throughout notwithstanding the alleged agreement to deliver possession. In other
words, his possession under the agreement is meant for all intents and purposes to be
continuing without a break, of course on payment of higher rent. In such a case, it
would be obviously preposterous for the judgment-debtor to assert that merely because
there was an offer to deliver possession to the decree- holder outside Court, the decree
would be deemed to have been satisfied simply because of such an offer even though
actually at no stage was vacant possession delivered to the decree-holder. How can a
decree for eviction of a tenant be deemed to be satisfied when no actual (and not
merely formal) possession has been delivered cannot really be comprehended. In law,
the effect of such an agreement as pleaded by the judgment-debtor obviously,
therefore, is that there are no two stages where first the decree is satisfied and
thereafter a fresh agreement of lease on higher rent is entered into. In the very nature
of things the effect of such an agreement is that the parties refashion the decree for
eviction in such a manner that it stands modified for all intents and purposes whereby
the decree-holder in reality agrees not to evict the judgment-debtor even for a moment
but to permit him to continue as a tenant on payment of higher rent. In such matters, it
is really the substance which is to be seen and not the form. That being so, the case
squarely falls within the second category of agreements as pointed out in the case of
Meghraj (supra) namely, where the decree-holder agrees to give up all his rights under
the decree in return for a promise by the judgment-debtor to do something or the other.
This clearly amounts to an adjustment of a decree and has to be got recorded as
satisfied under Order 21, Rule 2, Civil Procedure Code.

10. It may be pointed out at this stage that it is a salutary rule of interpretation that two
statutory provisions should not be so construed as to render one of them otiose. It is
again a salutary rule of interpretation that statutory provision should not be so
construed as to encourage frivolous litigation. Consequently, Section 47, Civil
Procedure Code does not deserve to be so construed as to render Order 21, Rules 2
and 3 otiose. Likewise, Section 47 should also not be so construed as to encourage
frivolous litigation by providing a judgment-debtor who having lost in the suit is trying
to avoid the execution of the decree as far as possible with a second innings to delay
the execution proceedings and to enjoy the boon of delay at the cost of the decree-
holder. Such an attempt on the part of the judgment-debtor would, there can be no
manner of doubt, amount to an abuse of the process of Court and interpreting Section
47, Civil Procedure Code in a manner which assists the judgment-debtor in his design
would be against all canons of rules of interpretation. In our opinion, Rules 2 and 3 of
Order 21 of the Civil Procedure Code were really intended to curb this tendency. The
purpose of Rules 2 and 3 of Order 21 obviously is that whenever such an agreement as
the one pleaded in the instant case is set up by the judgment- debtor which has the
effect of adjustment of the decree either in whole or in part the same has to be got
recorded as certified. The advantage of the requirement of such an agreement being
placed before the executing Court for purposes of recording would be that in the very
proceedings for recording the adjustment the question as to whether any such
agreement was really arrived at or not would be decided. If it is decided in favor of the
judgment-debtor and the adjustment is recorded, he would become entitled to the
benefits of the adjustment. On the other hand, if it is found that no such agreement as
set up by him was ever entered into, recording or certification of the claimed
adjustment of the decree would be refused and the decree-holder would be saved from
being compelled to face a second innings on the execution side.

11. At this place we shall like to refer to certain decided cases which support the view
which we take. In B. Banerjee v. Anita Pan, 4 it was held :

       "We are satisfied that as far as possible Courts must avoid multiplicity of
       litigation. Any interpretation of a statute which will obviate purposeless
       proliferation of litigation, without whittling down the effectiveness of the
       protection for the parties sought to be helped by the legislation, should be
       preferred to any literal, pendantic, legalistic or technically correct alternative."

In M.P. V. Sundararamier and Co. v. The State of Andhra Pradesh, 5 it was held that it
is a rule of construction well established that the several Sections forming part of a
statute should be read, unless there are compelling reasons contra, as constituting a
single scheme and construed in such manner as would give effect to all of them.

12. We may also point out that it is true, as has been held in the case of Bherulal
(supra), that if an objection pertains to the 'execution' of the decree, it has to be
investigated under Section 47 Civil Procedure Code. This provision, however, is
clearly subject to the specific provision contained in this behalf in Rules 2 and 3 of
Order 21 of the Civil Procedure Code. The clear intendment of these two rules is that
notwithstanding the general power of making investigation in an objection pertaining
to the execution of the decree contained in Section 47 Civil Procedure Code the said
power shall not be exercised if it would have the effect of recognizing an adjustment
which has not been recorded as contemplaced by Rules 2 and 3 of Order 21 of the
Civil Procedure Code. So to speak, the provision contained in this behalf in Section 47
Civil Procedure Code is general whereas the constraint or restriction placed on the
power exercisable under Section 47 by Rules 2 and 3 of Order 21 is special. In all
cases, therefore, which fall within the purview of Rules 2 and 3 of Order 21 which
contain special provision these Rules shall prevail over the general power exercisable
by the executing Court in matters pertaining to execution of decree under Section 47
Civil Procedure Code in view of the well known maxim "generalia specialibus non
derogant." In J.K. Cotton Spinning and Weaving Mills Co. Ltd. v. State of Uttar
Pradesh, 6 it was held that in cases of conflict between a specific provision and a
general provision the specific provision prevails over the general provision and the
general provision applies only to such cases which are not covered by the special
provision. If, on the basis of the distinction pointed out in the case of Bherulal (supra)
which in our opinion is more artificial than real as already indicated above,
investigation of objections which is prohibited by Rule 3 of Order 21 is permitted
under Section 47, Civil Procedure Code on the ground that the power of an executing
Court under the said Section to investigate objections pertaining to execution is very
wide, it would not only result in multiplying and encouraging frivolous litigation and
rendering the provisions of Rules 2 and 3 of Order 21 of the Civil Procedure Code
otiose for all intents and purposes in many cases, it will introduce uncertainty, fiction
and confusion into the working of the system. In Collector of Customs v.
Digvijaysighji Spinning and Weaving Mills Ltd., 7 it was held that it is a well settled
principle of construction that where alternative constructions are equally open, that
alternative is to be chosen which will be consistent with the smooth working of the
system which the statute purports to be regulating, and that alternative is to be rejected
which will introduce uncertainty, fiction or confusion into the working of the system.

13. The question in regard to the distinction pointed out in the case of Bherulal (supra)
can be looked into from another angle. When it is suggested that there are two parts of
such an agreement as in the instant case (i) that the decree has been satisfied as the
possession was restored to the decree-holder of the premises, and (ii) that the
judgment-debtor has been put into the premises under a fresh agreement on enhanced
rent, it in substance envisages two stages one succeeding the other. The first stage is
of restoring possession to the decree-holder of the premises and the second of the
judgment-debtor being put into the premises under a fresh agreement. When a person
is actually never dispossessed as required by law from a premises there can be no
question of putting back such person into the premises or it is only one who is not
already in possession that can be put into possession of a premises. Where is the
question or occasion of putting a person into possession of a premises when he is
already in possession thereof. This being so, the stage of putting the judgment- debtor
into possession of a premises under a fresh agreement would obviously be subsequent
to the stage of possession over the premises having been first restored by him to the
decree-holder. As a necessary corollary, therefore, before a judgment-debtor can be
allowed to prove under Section 47, Civil Procedure Code that he had been put into
possession under a fresh agreement he will have to first establish that he had delivered
possession to the decree-holder and thus the decree stood already satisfied prior to his
being put into possession of the premises under a fresh agreement. In other words,
proving of the first stage, namely, that the decree has been satisfied would be a
condition precedent for proving the second stage of being put into possession in
pursuance of a fresh agreement because it is only the proof of the satisfaction of the
decree which can render it in executable. Now comes the fallacy. Even according to
the decision in the case of Bherulal (supra) satisfaction of the decree has got to be
recorded under Order 21, Rule 2. This being so it is indisputable that if it is not so
recorded, Rule 3 of Order 21 would be barred from recognizing such satisfaction of
the decree. When evidence about satisfaction of the decree which is the first stage of
the agreement cannot be led by the judgment- debtor in the Court executing the decree
because of the bar created by Order 21, Rule 3 and proof of satisfaction of the decree
in the sense of possession over the premises having been restored to the decree-holder
is a condition precedent for the proof of the second stage of the agreement, namely, of
the judgment-debtor being put into possession under a fresh agreement, can the Court
executing the decree permit the judgment-debtor to prove the second stage is a
question which has not been considered in the case of Bherulal (supra). In our opinion,
the answer of this question can obviously be only in the negative.

14. Now we shall refer to the cases relied on by learned counsel for the respondent.
These cases are Nirmalchand v. Parmeshwari Devi, 8 Bhagwati v. Shambhu Nath, 9
M.P. Shreevastava v. Veena, 10 and Chitra Talkies v. Durga Dass, 11 Reliance on these
very cases was placed before the Division Bench of this Court which decided the case
of Bahadur Singh (1977 Jab LJ 609) (supra) and they were distinguished. With
greatest respect to the learned Judges who decided Bahadur Singh's case (supra) we
agree with the distinction pointed out therein. In addition to that, we may point out that
in so far as the decision in the case of Chitra Talkies (supra) is concerned on which
considerable emphasis was placed by learned counsel for the respondent, the learned
Judge who decided that case seems to be of the view that the adjustment contemplated
under Rule 2 of Order 21 Civil Procedure Code is the satisfaction of the decree wholly
or in part. As seen above, Rule 2 of Order 21 places emphasis not on the decree being
satisfied but on the same being adjusted. In our opinion, the term 'adjusted' is
obviously wider than the term 'satisfied'. There may be an agreement which merely
satisfies the decree and nothing more, whereas there may be another agreement which
apart from satisfying the decree as it stands does something in addition to it, in the
sense that it refashions the decree. Such an agreement would amount to an adjustment
falling under the second a category of agreements referred to the case of Meghraj
(supra). Indeed, certain observations of the SC in Moti Lal v. Md. Hasan Khan, 12 even
though made in a slightly different context would, in our opinion, be helpful. That was
a case where there was a compromise postponing execution on the judgment-debtor
agreeing to pay higher rate of interest than the decretal one, such a compromise was
found to be enforceable in execution proceedings and it was held :

       "It is open to the parties to enter into a compromise with reference to their rights
       and obligations under a decree. There is nothing in the Civil Procedure Code
       which prevents the parties from entering into such a compromise. If the
       compromise amounts to an adjustment of the decree, it must be recorded under
       Order 21, Rule 2 and if not so recorded, it cannot be recognized by any Court
       executing the decree."

In that case, as pointed out by the Supreme Court, the compromise which was dated
May 29, 1954 had been recorded under Order 21, Rule 2, Civil Procedure Code,
within the prescribed period of limitation.
15. We would like to add one word about the decision of the SC in the case of M.P.
Shreevastava (supra) also. This case has been relied on even in the case of Bherulal
(supra). What is of significance to be noticed in this case is that it was not a case
where notwithstanding the fact that there was an adjustment as contemplated by Order
21, Rule 2, Civil Procedure Code, it was held that the agreement amounting to such
adjustment could be made the basis of an objection under Section 47, Civil Procedure
Code even without getting the adjustment recorded as certified under Order 21, Rule
2. On the other hand, it was a case where there was no such adjustment at all. It was
pointed out in that case :

       "O.21, Rule 2 prescribes the procedure for recording payment of money under
       any decree or for adjustment of any decree to the satisfaction of the decree-
       holder. If any money payable under a decree of any kind is paid out of Court, or
       the decree is otherwise adjusted in whole or in part to the satisfaction of the
       decree-holder, the decree-holder is enjoined by Rule 2(1) of Order 21 to certify
       such payment or adjustment to the Court; the judgment-debtor may also inform
       the Court of such payment or adjustment, and it may be recorded after enquiry;
       Rule 2(2) of Order 21. In the present case, however, there is no adjustment.
       Adjustment contemplates mutual agreement, and in the present case, there is no
       evidence of any consent on the part of the appellant who was never willing to
       take back the wife and resume conjugal relations. Order 21, Rule 2
       contemplates adjustment of the decree by consent-express or implied-of the
       parties; where there is no such consent, Order 21, Rule 2 does not apply."

16. In view of the foregoing discussion, we are of the opinion that the agreement set
up by the respondent in the instant case came within the purview of the term
'adjustment' and since the said agreement had not been got recorded as certified by the
respondent under Order 21, Rule 2, Civil Procedure Code, his objection could not be
recognized by the Court executing the decree in view of Rule 3 of Order 21 of the
Civil Procedure Code. The view taken by the Court executing the decree and
dismissing the objection filed by the respondent was correct and the District Judge
committed a manifest error of law in the revision filed against the order of the
executing Court in taking a contrary view.

17. In the result, this writ petition succeeds and is allowed with costs and the
impugned order of the District Judge, dated 16th July 1985, a copy whereof has been
filed as Annexure-B to the writ petition, is quashed. The outstanding amount of
security be refunded to the petitioner.

Petition allowed.

Cases Referred.

1. 1977 Jab LT 609
2. 1981 MPLJ 333
3. AIR 1948 Nag 35
4. AIR 1975 SC 1146
5. AIR 1958 SC 468
6. AIR 1961 SC 1170
7. AIR 1961 SC 1549
8. 1958 Jab LJ 427
9. AIR 1960 All 562
10. AIR 1967 SC 1193
11. AIR 1973 All 40
12. AIR 1968 SC 1087