P L D 1994 Azad J&K 8 (PLP)

‑‑‑‑ However, it is certain that it does not visualise a compromise during the pendency of the review petition: ‑‑‑ ‑‑‑‑In view of the above, I hold that when an appeal/suit is finally disposed of by the Supreme Court, a compromise during the pendency of the review petition cannot be entertained for resolution of the points involved in the suit or appeal.‑‑‑‑ ‑‑‑‑‑ For the view which I have taken in the matter, this review petition stands dismissed. However, the question involved may be taken during the execution proceedings."

7. Besides, it is an accepted rule of law that information of adjustment or satisfaction of the decree, out of Court, is to be furnished to the executing Court which has to recognise the certification made by the decree‑holders. This view fords support from Sarjit's case (AIR (38) 1951 Himachal Pradesh 60) wherein it was observed:‑‑ "Order 23 applies neither to execution proceedings nor to a revision. Hence the High Court in revision is precluded from determining the terms of an alleged compromise in execution, ordering the compromise to be recorded and passing a decree in accordance therewith. The proper forum for the determination of this question is the executing Court." An identical view was held in Humayun Properties' case AIR 1963 Calcutta 473, wherein it was held:‑‑ "Held that though the decree‑holder did not deny payments, it could not be said that the decree‑holder had given information to the Court in compliance with Order 21, Rule 2(1) that is to say, that he had duly certified such payments to the Court, and the Court could take notice of the same. Thus the decree‑holder had a right to execute the decree for possession." In Dr. Major Abdul Ahad Khan's case PLD 1989 Karachi 102, it was observed‑‑ "Where a decree is adjusted out of the Court to the satisfaction of the decree‑holder, he should certify such adjustment to Executing Court who would record the same accordingly‑‑‑Judgment‑debtor could also inform the Court of such adjustment whereupon notice would be issued to decree‑holder as to why such adjustment should not' be recorded as certified‑‑‑Judgment‑debtor has to apply within a period of ninety days for enabling the Executing Court for issuance of such notice to decree‑holder‑‑‑Any such application made beyond time would not be taken into consideration by Executing Court:' In Muhammad Ishak Ali's case PLD 1964 Dacca 637, it was held:‑‑ "Payment of sum towards decretal amount out of Court evidenced by receipt‑‑Question of adjustment of such sum not pressed before executing Court within 90 days of date of receipt‑‑‑Payment cannot be accepted as certified." In Mokachhed Molla's case PLD 1956 Dacca 96, it was observed:‑‑ "The executing Court is not bound to recognise an adjustment of the decree unless it is certified within the limited time, and can execute the decree in spite of such satisfaction if it has not been certified. Such a sale cannot be attached under section 47, C.P.C." In Mehbunissa's case AIR 1925 Bombay 309 it was held:‑‑ "The Court executing a decree is barred in limine from considering any allegation that a payment not certified, has been made:" In Murari Lal's case AIR 1934 Allahabad 209 it was observed:‑‑ "Having regard to the provisions of Rule 2, Order 21 and Art.174, it is not open to a judgment‑debtor to prove adjustment or satisfaction, if he did not take steps to have the same certified within a period of 90 days from the date on which the alleged payment or adjustment was made. This rule would apply whether the payment pleaded is sought to be proved against the decree‑holder or his assignee:"

8. It was contended that the limitation to certify the adjustment or satisfaction of the decree, out of the Court, is 90 days from the date of such adjustment or satisfaction. Reference was made to Article 174 of the Limitation Act. Under Article 174, the period for issue of notice to decree-?holder, to certify the payment or adjustment of decree out of the Court, is 90 days from the time when the payment or adjustment was made. In the present case, Muhammad Siddique admitted the adjustment of decree by relinquishment of his share on March 26, 1983. Muhammad Latif made statement in a like manner on April 9, 1985. The application for execution was moved on May 19, 1986, i.e. more than one year after the alleged adjustment or satisfaction of the share of the aforesaid decree‑holders. In such situation, even if it is accepted that the executing Court acquired the knowledge of adjustment on the day when the application was made, as on the same day, a counter‑application, in the shape of objections, was moved by the judgment?debtors, whereby the adjustment of part of the decree was disclosed, even in that case, it has to be accepted that the fact of part adjustment of decree was brought to the notice of the executing Court after more than one year of its adjustment. Even on that day, the decree‑holders failed to certify such adjustment. An omission to certify the adjustment within statutory period, renders the question of adjustment invalid in the eye of law. It is in complete departure to the mandatory provisions of Rule 2 of Order 21, C.P.C.

9. A very novel situation emerged in the case under consideration as three out of four decree‑holders relinquished their right in the decree and admitted the adjustment or satisfaction of the decree accordingly. The interest of Abdul Ghani, present appellant alone survived, as such he moved for execution of decree as a whole. In such situation, it is enjoined upon the Court to do justice evenly. As a safeguard, of the interest of justice, decree to the extent of share of Abdul Ghani needs to be satisfied. Both the parties are in agreement that the shares of the decree‑holders in the suit property are not settled, as such, the decree cannot be executed or adjusted in piecemeal. In Valchand Gulabchand Shah's case AIR 1953 Bombay 137, an identical proposition was raised before the Court. Mr. Justice Rajadhyaksha who spoke for the Court, observed that if the shares of the decree‑holders were apparent on the face of the decree either expressly or by necessary implication, it was not, strictly speaking, a joint decree. In such case, each decree‑holder could satisfy the execution in respect of his own share. But where the shares of the respective share‑holders were not apparent on the face of the decree, either expressly or by necessary implication, the decree sought to be executed was a joint decree. The judgment‑debtors must render satisfaction to the whole body of the decree‑holders. Thus, payment of one of several joint decree‑holders could not be recognized as payment of all unless he was authorized to receive such payment on behalf of all. The satisfaction could not amount to a `pro tanto' satisfaction, even to the extent of the share of the decree‑holder who received the payment. In view of the learned Judge, the remaining decree‑holders were entitled to execute the whole decree, though it may result in doubt payments made by the judgment‑debtors. It was also observed that it was not the duty of the executing Court to ascertain the respective shares of the decree‑holders in a joint decree. Such an action was foreign to the nature of the execution proceedings.

10. In the present case, the appellant instituted the suit and acquired decree for possession of the suit property. He was pursuing the proceedings by this time. He is one of the decree‑holders. The decree has not been satisfied or adjusted to his extent. Therefore, the natural course of events leads to the conclusion that the decree may be executed as a whole. The judgment‑debtors who have entered into the shoes of rest of the decree‑holders, shall stand in their footings and share the decree alongwith the appellant. On execution of the decree, as a whole, the judgment‑debtors shall be free to support their shares by seeking regular partition in due course of law. This would serve the ends of justice.

11. Here, it may be relevant to point out that the provisions of Rule 2, Order 21, C.P.C. refer to payment out of the Court, to the decree‑holders. It postulates the scheme of adjustment or satisfaction of decree in whole or in part, out of the Court. The term "decree" in Rule 2, refers to all kinds of decrees and not only to money decrees. Therefore, the term "decree of any kind" used in the Rule, is to be construed in comprehensive manner so as to include all decrees, not expressly provided anywhere else in the Code. This provision, therefore, applies to the decree under consideration, relating to immovable property. This view finds support from Shadi's case AIR 1936 Lahore 842, wherein it was observed:‑‑ "The words "the decree" in Order 21, Rule 2, surely mean a decree of any kind and would include a decree for possession of a house. No adjustment of such decree can be recognised by the Court unless it is certified and no application for certification can be made except within 90 days."

12. In Mantrial's case AIR 1943 Nagpur 339, it was held:‑‑ "the words "the decree" in Rule 2(1) mean a decree of any kind and should not be read as meaning a decree of any kind under which money is payable."

13. In view of the aforesaid reasons, the appellant is competent to apply for execution of decree as a whole, as postulated under Rule 15, Order 21, C.P.C. The executing Court is enjoined to carry on the execution proceedings in accordance with law, in the light of the aforesaid observations. The appeal is, therefore, accepted. The impugned order is set aside and the case is remanded to the learned Sub‑Judge, Dadyal, the executing Court, for disposal of the execution proceedings. No order as to costs. AA./18/H.CA. ??????????? Case remanded.