SITA RAM GOEL versus SUKHNANDI DAYAL & ANR.

SITA RAM GOEL

SUKHNANDI DAYAL & ANR.

September 20, 1971

[C. A. VAIDIALINGAM AND P. JAGANMOHAN REDDY, JJ.J

Code of Civil Procedure (Act 5 of 1908), ss.'47, 105(2), 0. ~1. rr. 1 and 2 (as in force in Allahabad), 0. 41, r. 23 and 0. 43, r. l(u)-Scope of-Application by judgment debtor under 0. 21, r. 2-Question of limitation decided and matter remanded regarding factunz of payments-Decision by both subordinate courts in favour of judgment debtor-Whether question as to pay1nents \Vere in accordance with 0. 21, r. 1, C.P. C. could be gone into by High Court in second appeal.

The respondent, who was the landlord under whom the appellant was tenant, obtained decree for eviction and damages against the appellant. The respondent filed an execution application on July 19, 1960. In answer to it the appellant filed objections by initiating proceedings under O. 21, r. 2(2) C.P.C. on September 3, 1960. In that application, the appellant alteged that there was compromise behvcen the parties cm July 25, 1957 that in pursuance of the compromise he made \•arious pay-ments and that the last of the payments was made on June 16, 1960, and prayed for recording an adjustment of the decree. The trial court, how-ever, held that as the compromise was entered into on July 25, 1957 the period of limitation for filing the app!ication would start from that .date, and since the application was filed· beyond 90 dayi; from that date, it was barred by lin1itation. The trial court dismissed the application on that sole ground, without investigating into the truth of the compromise or. the. payments. On appeal, the appellate court accepted the contention of the appellant that if he was able to establish that he had ma& the last pay-ment on June 16, 1960 the period of limitation o'f three months for filing an application under 0. 21, r. 2 would begin to run only from that date and that his application would be in time. The appellate court therefore set a'>ide the order o'f the trial court and remanded the proceedings for· investigation into facts, namely, whether the compromise and the payments· alleged to have been made by the appellant on the basis of the compro-mise and particularly the payment said to have been made on June 16, 1960, were true. After remand, the trial court accepted the plea of the appellant regarding the truth of the compromise as well as the payments said to have been made by him, including the payment of June 16, 1960, he1d that the application filed was within time, and ordered [1]full adjust-ment and satisfaction of the decree. On appeal, the findings of the trial court were confirmed and the appeal was dismissed. In. second appeal. the High Court acceoted the findirigs on the questions of compromise and payments but held that as the appellant had not claimed to have made the payments in compliance with 0. 21, r. 1, C.P.C., as amended and in forCe in Allahabad, it wns not open to the appellant to ask for recording adiust-ment of the decree, and dismissed the application of the appellant filed under 0. 21, r. 2. ,.

Allowing the appeal to this Court,

HELD . In view of the decision of the appellate court when remand-ing the matter, it was not open to the respondent to raise the objection either of limitation or that the payments had not beeo made as per 0. 21, r. 1, C.P.C. The parties and the courts had proceeded on the basis ihat

., the entire qu~stion n.~lutcd 'to controversy in' respect -or cx~cu~io:\, \l}s-' charge or ·satisfactioni of the <lccrcc. Under s. 47(2} ~C.P.C .•. J11e \..;'Ourt· has po\ver lo treat the Sard proceeding as suit. •Un,der b. 41~- r. 23, '3n appellate court has po\vcr to remand procccOing when .r s1fit has been disposed_ of on. prcli_n1ina~y Point! ~~n<l UJldCr o ..... 431 r_: 1 (u)., ~.!'.,(:. 3;0 appeal hes against an order rc1na1H.l1ng the case v..·hcrc an appeal \VOLl!d lie a11ainst ... thc decree of ,,the aPpcllatc court. The rCSPond"cnt sHoulU 'have filed an 3ppcal against the order. b'f .. the rcma11d, and the conscq•H::r,f:e -or his orriission to .file such :.in appeal' i,s that un<lcr ~- ) 0..5.(~), C.P .C., the·-decisio'n of the appellate court, \Vhilc rcn11.1n<liQg the n1au~r, regarding the date from which the period of limitation is tO con11111.:ncc, nan1cly June 16, 1960. if payment on that dafe~was established hy the appellant, v.·aS final and binding on the partic". The High-Court \\'hen <leuling with the 1natter should have given due effect to the \l·:ci~!:.1n -given in ~he order of rcmand-anJ should have held that the n:•p:r1d::~t \Vas precluded fron1 raising either the J>lca of lin1itatibri or that it \Vi.I<:> nOt open to the appcll:f'1t to rely upon the payn1e'lt"' ndt made in ;.{ccordanc~ \Vith 0. 21, r: I, {l.P.C., as current in force findings in Allahabad. recorded on The facts High in Coltrt~'had favoOr Ut1 the not appellant differed on nnd thefe': the con~ fore. interference \Vith the decision or the l\VO SUborcJinate COUflS \Va'i erroneous "in law. [843 F-G. 844. C-H; 845 A-El

C1v11. APPELLATE JURISDICTION: Civil Appeal ·~o. 1970 o.f 1969.

Appeal ,by special Mav~ from the judgment and order dated J an9ary .2 L. 1969. df th~ ;~.llahaba'd 'High·· Court in Ex: S~~oml Appeal N;o. 270 6f 196'.l.:

The appe!1ahl appeared in person. ; J,. i. } E. C: _1gra1v,ala, A. T, fo.;f. Sqr;ipath, and S. R, Agarwa!,.for llw respondent.

The Judgment of the Court was delivered by

Vai!lialfngam, ,. ;r~ ~· ·-The appellant in this appeal, by special leave, has argue\1.h!s case in person ·and attacks the judgment of the Allahai?ad High Court dated January 21, 1969 reversing' the decrees of the two Subordinate Courts.

' ' The facts leading upto this appeal may be briefly .stated·: The respond~nt, wlio is the landl9rg;· under whom the appellant is tenant, obtai:ied an exparte decree o~. Mar,~h 9, 1_?57 in suiLNo. 74 of J 9,:;6.m the Court .of the Add1t1onal Muns1f; Kanpur. The decree was not on!)(, for evictlqn, but also for payment' o(.rent or damages and mesne profits, as well as costs. ,

"' 1 ~, The appellant ·p!ead,ed th~t there was ,a ccnnpromi~~ entered into b"etween 'him .and, the tespondent in and ~,Y which 1he manner of ~xtinguishment of the decree was arriv_ed at. • That compro-mise, 'acc~rding to the appellant, was entered into .on July 25, 1957, 'Die terms o~.the co1np~0tT\ise have been ·incorporated in the judgment of the Additional District Judge dated March 21,

(1972) 1 S.C.R.

196~ in Misc .. ciyil Appezj No. 688 of 1960 and in other pro-ceedmgs, and 1t 1s unnecessary for us to refer to them. It .is .is enough to note that if the amounts agreed to be paid as per its terms were paid the decree for eviction would stand extinguished retrospectively.

ceedmgs, and 1t 1s unnecessary for us to refer to them. It .is .is enough to note that if the amounts agreed to be paid as per its terms were paid the decree for eviction would stand extinguished retrospectively. The plea of the appellant was that he has made the payments in accordance with the compromise and the last of such payments was on June 16, 1960. As noted earlier, according to him; the date of the compromise was July 25, 1957. It was his claim that when the last payment was made, the decree for eviction obtained against him on March 9, 1957 stood extinguished and that the landlord-respondent has no further right to execute the decree;

The landlord had filed an application on July 19, 1960 for executing the decree in Suit No. 74 of 1956. Prior to that, the appellant appears to have taken certain proceedings and asked for stay of execution till the disposal of some criminal case and also for adjustment of payments.

We are more particularly concerned with the application filed by the appellant on September 3, 1960, before the trial court. That application was under Order XXI Rule 2(2) C.P.C. In that application, the appellant, after refering to the compromise and the various payments, claimed to have been made by him under the compromise, prayed for recording an adjustment of the decree. This application was opposed by the respondent on three groum;ls : (a) There has been no compromise, (b) There has been no payment, and ( c) The application under Order XXI Rule 2 is barred by limitation, as it has been filed beyond 90 days from July 25, 1957.

The contentions of the landlord-respo,ndent were accepted by the trial court, which by its order dated October 8, 1960, dis-missed the application filed by the appellant under Order XXI Rule 2, on the ground that the application having been filed be· yond 90 days from July 25, 1~57 was barred by limitation. It is the view of the learned Munsif that as the case of the appellant was that the compromise was entered into on July 25, 1957, the period of limitation for filing an application for recording adjust-ment of the decree will start from that date. The application liled by the appellant was dismissed o.n this sole ground without inves-tigation into the truth of the compromise and the payments.

The appellant carried the matter before the learned Additional District Judge, Kanpur in Misc: Civil Appeal No. 688 of 1960. Before the learned District Judge, the appellant raised the conten-tion that the view of the trial court that the period of limitation starts from July 25, 1957 is erroneous. He pleaded that as the decree obtained by the landlord will get extinguished only when

the last payment was made, namely, on June 16, 1960, the period of limitation of 90 days for filing the application for recording adf ustment of the decree will have to ~ computed from that date. As the application has been filed within 90 days from June 16, 1960, the executing court has acted erroneously and illegally in rejecting his application as being barred. The appellant had 6 also raised contentions on facts regarding the truth of the com-promise, as well as the payments claimed to have been made by him. These contentions of the appellant, as seen from the judgment, were very strenuously contested by the respondent who pleaded that the application filed under Order XXI Rule 2 was barred, as correctly held by the executing court on the basis that the limitation starts from July 25, 1957. The respondent pleaded that the appellant had sufficient opportunity to lead evidence both regarding the truth about the factum of compromise as well as regarding the payments claimed to have been made by him. As this opportunity was not availed of by the appellant, the landlord pleaded that the appeal should be dismissed.

The learned District Judge by his judgment and order dated March 27, 1961, after referring to the contentions of the parties, as well as the terms of the compromise pleaded by the appellant, considered the main question as to from what date the period of limitation is to be computed. The' learned Judge before whom case law was cited on both sides with regard to the starting point for limitation, ultimately accepted the contention of the appellant that if he is able to establish that he has made the last payment. on June 16, 1960, the period of limitation of three months for filing an application unde~ Order XXI Rule 2 would begin to run only from that date, and that in that case the application filed on September 3, 1960 will be in time. The learned Judge cate-gorically rejected the contention of the respondent-decree-holder supporting the view of the trial court that limitation has begun to run from July 25, 1957. In fact the trial court could not have held otherwise, in view of the decision of the Distriot Court in Misc. Civil Appeal No. 688 of 1960.

After holding that the limitation will start only from June 16, 1960, the learned Judge, however, adverted to questions regarding the truth about the compromise as well as the payments clairaed to have been made by the appellant. But the court was faced With this difficulty, namely, that parties had not adduced evidence before the trial court as the latter had dismissed the application of the appellant on the ground that it was barred by limitation. Therefore, the learned District Judge set aside the order of the trial court and remanded the proceedings for investigation into facts, namely, whether the compromise and the payments alleged

to have been made by the appellant on the basis of tl:.e' com-promise, particularly the payment stated to have been made on June 16, 1960 were true. He gave specific .direction that if the payment on June 16, 1960 is found in favour of the judgment-debtor the application filed by him is no.t barred by)imitation.

It is significant that the respondent-landlord never raised any objection to the maintainability of the appeal No. 688 of 1960. Nor did he raise the conte;ntion that no investigation into the truth of the compromise or payments pleaded ~ the judgment debtor was needed as the payments claimed to have been made have not been certified and made in accordance with Or<ler XXI Rule 1 C.P.C. as in force in Allahabad, nor on the ground that the application filed by the judgment debtor is barred by time. N'o appeal was filed by the decree-holder against the order of femand passed by the District Court.

After remand, both the parties adduced evidence with regard to these. questions of fact before the trial court. Even before the trial court the decree-holder did not contest its jurisdiction to investigate into facts. In fact, he could not have raised any such contention, as the Munsif was bound by the remand order. By j11dgment and order dated September 28, 1961, the learned Munsif accepted the plea of the appellant both regarding the truth of the compromise as well as the payments stated to have been made by him. In particular, though there was serious controversy be.tween the parties regarding the payment stated to have been made by the appellant on June 16, 1960, the learned Munsif, on the evidence, accepted the appellant's case and held in his favour on this point. In view of this finding regarding payment on June 16, 1960, in favour of the judgment-debtor, the period of limita-tion was computed by the Munsif from that date, as directed by the· remand order of the District Judge, and held that the applica-tion filed by the judgmefit debtor was within time. In this view, the learned Munsif ordered full adjustment and satisfaction of the decree as well as cost and further held that the decree got extin-guished as pleaded by the judgment debtor.

The respondent filed an appeal before the Ist1 [Additional Civil ]Judge challenging the judgment and order of the !rial court dated September 28, 1961. The learned Civil Judge by his judgment dated October 20, 1962, confirmed the findings of the trial court and dismissed the respondent's appeal.

The respondent-decree-holder filed Second Appeal No. 270 of 1963 before the High Court. The learned Judge has not adverted to the proceedings referred to above leading up to the order of remand and the directions given in Misc. Civil Appeal

No. 688 of 1960. On the other hand, the learned Judge has proceeded on the basis as if the decision in this case was rendered for the first time by the Munsif on September 28,, 196 l mltl ?) the Civil Jm4ie on October 20, 1962. In vie:-V of tlus, tne learned Judge merely noted that the two subordmate courts have concurrently accepted the case of the appellant, b~ih on the question of compromise, as well as the payments claimed to have been made by him. The learned Judge has also not~d that the daim of the judgment debtor that he paid Rs. 235/- on June 16, 1960 has been concurrently accepted by both the couns.After noting the above findings recorded concurrently by bo.th the courts, the High Court does not express any disagreement wl!h those findings. But on the basis of those findings, the High Court considered the question whether, in the nature of the compromise pleaded by the appellant and found in his favour by the two courts, an application under Order 21 Rule 2 C.P.C. was main-fainable. In this connection the High Court referred to the pro-visions of Order 21 Rule 1 C.P.C. as amended and in force in Allahabad. After quoting that rule, the High Court is of the view that as the appellant has not claimed to have made pay-ments in compliance with those provisions, it was not open to him to ask for recording adjustment of the decree. According to the High Court, his remedy, if any, is only by way of separate suit for damages against the decree-holder. It is the forther view of the High Court that this aspect has not been considered at all by the two courts and as such they committed an error in investi-gating the question regarding the truth or otherwise of the com-promise or payments claimed to have been made in pursuance of the said compromise, particularly the payments made on June 16. 1960. The High Court then refers to the stand taken by the decree-holder that even on the basis of the compromise, the period of limitation for filing an application for recording adjust-ment of the decree commences from July 25, 1957 as also the plea of the appellant that limitation commences from June· 16, I 960, when the last payment was made. The High Court ex-pressed the view that the agreement uleaded could amount to an adjustment of the decree only if the said agreement was in writing and had been filed within the period allowed by the law of Limitation. The High Court has not pursued the matter further and express-ed an opinion as to what is the date from which the period Clf limitation is to be computed. In the end the High Court expressed the view that the whole approach made by the two subordinate courts is erroneous. Obvi9usly, thls criticism must refer to the circumstances noted by the High Court that the payments under the compromise have not been claimed to have been made in the manner provided in Order 21 Rule 1 C.P .C. as in force in· Allahabad. On this reasoning the High Court reversed 2~Ll19SupCT/72

the decrees of both the subordinate courts and dismissed the appli-cation of the appellant filed under Order 21 Rule 2 C.P.C. It will be noted that even before the High Court the respondent had not "taken any objection that the appeal filed by.the judgment debtor namely. Misc. Civil Appeal No. 688 of 1960 was not maintainable and that the findin_gs recorded therein against him are not binding on him.

The appellant urged before us that the High Court was not justified in interfering with the concurrent findings on facts and that it committed an error in going behind the findings recorded in the Misc. Civil Appeal No. 688 of 1960. He further urged that the question as to from what date the period of limitation is to be computed has already been adjudicated upon in the said appeal. and that the decree-holder should not have been permitted to raise over again the point concluded by the remand order. The appellant also urged that the view of the High Court that the payments have not been made by him in accordance with Order 21 Rule l C.P.C. is not correct.

Mr. E. C. A;garwala, learned Counsel for the respondent decree-holder has drawn our attention to Order 21 Rule 1 C.P.C. as in force in Allahabad. He contended that even according to the appellant the paymen'ts have not been made in accorda;nce with the said rule. Therefore, he urged that the High Court was perfectly justified in holding that the payments which have not been made in accordance with the said rule, cannot be taken inl0 account for recording adjustment of the decree.

In the view that we take that because of the decision in Misc. Civil Appeal No. 688 of 1960 it is not open to the respondent to raise the objection either of limitation or that the payments have not been made as per the said rule, we express no opinion whether the payments made directly to •the decree-holder under the specific terms of an agreement or compromise cannot be pleaded in an aQPlication filed for recording satisfaction or adjustment and whether under those circumstances such payment should also be made in the manner provided in the said rule.

One aspect which strikes us and which will conclude the case ugainst the respondent is the findi,ng recorded by the learned District Judge on March 27, 196! in Misc. Civil Appeal No. 688 of 1960. We have already referred to the nature of the findings recorded therein. The executing court had dismissed the applica-tion filed by the appellant on the ground that it is barred by limita-tion as it has been filed beyond· 90 day• from July 25, 19-57. Before the District Judge parties were at issue on this aspect. While according to the appellant, limitation starts only from

Ju'ne 16, 1960, .the respondents plea was that limitation com-nrences ·from July 25, 1957. Various decisions were· cited ·by both the parties before the· District Coµrt. After considei:ation of those decisions, the Districl Court s'pecific.ally held that if the :tppellant is able to establish the compromise as well as the fur-ther fact that he paid the last instalmf?llt ·on _June 16-, ·1960, his application is not barred', by limitation n's it has peen filed within 90 days, pamcly on -Seµ'.tember' 3, 1960. Though the .respondent pleaded that t.he appellant had '"-'1 opportunity to let in evidence regarding the truth of t11e compromise as well as the payments claimed to hav~ been- macie lfy him, t11e District Court rnok the view tliat the learned Munsii·;had no occasion to consider these aspects as )1c dismissed the application filed by the appdlant on tile sole ground of limitatiop'. After ,spccificai1y_ [1]recording 1l1e date from which period of limitation' is ;to be computed, the learned District J ua'~inemanded lhe proceedings to the lJfal cQHrf for investig;\tion in1o the trutif' bf the compron1ise as well. as .the payments claimed to have been made by the appellant. The Dl\iitict MGhsif, after rerhand has elaborately gone into the matter"!;. I arn;l ·specifically found' on. fact 'in favouf of the d~llant. both r~garding the truth o.f the co111promisd and the ,Ptlyment;. He :llso held that ·the last 'Payment has· been made on lune 16, 1960. and.''t_herefore .. in view of the ;direqions containeil in the 1'.emand order, the 'application filed by the appeJlant was within time. , ( . ' . ..., ~ r .•:,,.. It is a·ganist this order .of. the .District.Munsif.tthat the respon· ·ctent filed an appeal before the District Court and further Second: A.ppealeefore the High Court!" , We have already stated. that the ~espondent. h_ad'. filed on July l 9, l 960. an application· for execut-ing. !P.e ex1farte decree,, It is in answet' to that execution petition that the appellant' filed objection~ by. il1itiating proceedings under Order ·2 ! Rule<2(2) CP.C:•Oll. 5eptember ). 1960. Ther~fore. ·the. parties ahcl '.the Courts ha,cf pro'ceeded on the basis that the entir~ question related to controversy in respect of execution. disc)large or' ;ati~fa9tion of th~ deq~e.' 't.Jnder s. "47.(2) c'.P.c. the ~ouh bas jiower to treai the said proceeding as suit. That explains• why the respondenr did not' raise any objection before •• the District €ourt that Misc. Ciiril Appeal No.: 688 of 1960 filed ' by the appellant was· not maintainable. We have already pointed out that 'before the ·District •Court the respondent did not also raise any o)>jection that •nm investigation Tegarding the trnth of'the compromise and .the .payhic!]t i~ necessary as the amount. even according to the appellant. has been .!)aid contrary to Order .2 I Rull!, 1 C.f,!=. a~ in force in fllah~bacj.

ln view of t)1e circumstances pJlnt~d 'out above, opinion, t~e decisio.n of the" . .(\dditic)nfll District !udge

above, BJ our !udge in Misc.

Civil Appeal ,No. 688 of 1960 precludes the respondent from reagitating the point ·covered by that decision.

Mr. Agarwala pointed out that Misc. Civil Appeal No. 688

of 1960 'Was not maintainable: We are not impressed with this contention because apart from the fact that no such objection was raised before the District Court, which was dealing with the said appeal, the respondent himself has filed the appeal and the Second Appeal against the order passed by the District Munsif after .remand. It was against the original order of the District Munsif that the appeal was filed by the appellant before the Dis-trict Court.

Even otherwise, as we have already pointed out, the proceed-ings have been treated as one under s. 47 C.P.C. in which the Misc. CiviI Appeal No. 688 of 1960 was perfectly competent. Under Order 41 Rule 23, an appellant court has got power to n;mand the proceedings when suit has been disposed of on preliminary point. We have already pointed out that the District Munsif dismissed the application filed by the appellant on the preliminary ground that it is barred by limitation. We have al-ready further pointed out that it mus: be considered to be proceeding under s. 4 7 as it was really iJ! opposition to the execu-tion proceedings filed by the respondent: The appellate court, under those circumstances, when it disagreed with the trial court on the question of limitation was perfectly competent io remand the proceelfings. Under Order· 43 Rule 1 CL(u) C.P.C. an appeal lies against an order reman3ing case whete an appeal would lie from the decree of the appellate court. From the fact that the respondent has filed Second Appeal, which is the subject of attack before us against the decision in an appeal of tl]e District Court in the same proceedings, it is clear that the respondent should have filed an appeal against the order of remand.

The consequence of an omission to file an appeal against the order of remand. under such circumstances, is indicated ins. 105. sub-s. (2) C.P.C. which is as follows :

"Sec. 105 (2) Notwithstanding anything contained

in sub-section ( 1), where any party aggrieved by an order of remand made after the commencement of this Code from which an appeal lies does not appeal there-from, he shall thereafter be precluded from disputin!? its correctness."

We have already pointed out that the respondent had right of appeal against the judgment and order passed in Misc. Civil Appeal No. 688 .Of 1960. The respondent admittedly did not file an appeal against the said order of remand. If so, it follows

that the decision in Misc. Civil Appeal No. 688 of 1960 regard-mg the date from which the period of limitation is to commence, namdy, June 16, 1960, if payment on that date is established by the appellant binds both the parties, as that decision has become final. It is on the basis of that decision that the tri~l court went into the facts and held in favo~·r of the appellant. Those findings have been confirmed by the District Court on October 20, 1962. It was against the fresh decision given by the District Mnnsif on September 28, 1961 and confirmed by the District Court on December 20, 1962 that the present Second Appeal was filed before the High Conrt by the respondent. The High Court when dealing with the matter should have given due effect to the decision given in the order of remand in Misc. Civil Appeal No. 68 8 of 1960 and should have held that the respondent is precluded from raising either the plea of limitation or that it was not open to the appe.llant It' rely upon the payments not made in accordance with Order 21 Rule 1 C.P.C. as in force iQ Allahabad. The High Court has committed very serious error in law in not adverting !o the remand order as well as to th~ ';arious other circumstances mentioned by us earlier.We have already pointed out that the High Court has not differed from the concurrent findings recorded on facts in favour •)f the appellant. The interference by the High Court with the decision of the two subordinate courts is erroneous in Jaw. In the result, the decree and judgment of the High Court dated Tanuary 21. 1969 in Second Appeal N:o. 270 of 1963 are set aside and this appeal is allowed. There will be no order as to costs.

Appeal al/ow~d.