# Shyam Lal Defendant/Revisionist v. Smt. Shanti Devi Plaintiff/

- **Citation:** (2008) 2 ILRA 467
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-03-14
- **Bench:** Krishna Murari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shyam-lal-defendant-revisionist-v-smt-shanti-devi-plaintiff-41110
- **Pages:** 4

## Headnote

Code of Civil Procedure-Section 21 (2)-
Compromise
deed-after
finality
of
litigation-even
before
the
execution
Court-such compromise not produced-No
applicability of limitation Act-delay can
not be condoned.

Held: Para 12

In view of the aforesaid pronouncement
of the Hon'ble Apex Court, in the case in
hand, the alleged compromise having not
been presented within time before the
executing court for recording adjustment
of the decree and the delay being not
liable to be condoned in as much as
Section 5 of the Limitation Act is not
applicable being expressly excluded, the
alleged
compromise
will
not
effect
executability of the decree in favour of
the
landlord-respondent
and
the
execution is not liable to be struck
off/dismissed on the basis of the said
compromise.
Case law discussed:
1981 AWC 727, (2000) 7 SCC-240, (2006) 12
SCC-138

## Text

2 All] Shyam Lal V. Smt. Shanti Devi
467
remembered that if there is no material,
the individual petitioner has every right to
challenge
the
notice
in
the
writ
jurisdiction of the Court and there is no
bar to that extent. But if there is some
material, then the notice can not be held
to be defective but will be tested on the
basis of the factual analysis by the
appropriate Magistrate."

15. Hence, in view of the
discussions made above, the impugned
notice cannot sustain and the same is
hereby quashed. The writ petition is,
accordingly,
allowed.
However,
the
respondents will be at liberty to issue a
fresh notice, if they have got sufficient
material against the petitioner and in that
case the proceedings may be started again
in accordance with law in the light of the
observations made in the body of the
judgment after referring to that material in
the fresh notice.
Petition allowed.
---------
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.03.2008

BEFORE
THE HON'BLE KRISHNA MURARI, J.

Civil Revision No. 98 of 200S

Shyam Lal
...Defendant/Revisionist
Versus
Smt. Shanti Devi ...Plaintiff/Opposite Party

Counsel for the Revisionist:
Sri Divakar Rai Sharma

Counsel for the Opposite Party:
Sri Atul Dayal

Code of Civil Procedure-Section 21 (2)-
Compromise
deed-after
finality
of
litigation-even
before
the
execution
Court-such compromise not produced-No
applicability of limitation Act-delay can
not be condoned.

Held: Para 12

In view of the aforesaid pronouncement
of the Hon'ble Apex Court, in the case in
hand, the alleged compromise having not
been presented within time before the
executing court for recording adjustment
of the decree and the delay being not
liable to be condoned in as much as
Section 5 of the Limitation Act is not
applicable being expressly excluded, the
alleged
compromise
will
not
effect
executability of the decree in favour of
the
landlord-respondent
and
the
execution is not liable to be struck
off/dismissed on the basis of the said
compromise.
Case law discussed:
1981 AWC 727, (2000) 7 SCC-240, (2006) 12
SCC-138

(Delivered by Hon'ble Krshna Murari, J.)

1. Heard Sri Divakar Rai Sharma,
learned counsel for the applicant and Sri
Atul Dayal appearing for opposite party.

2. The short question which arises
for determination in this case is whether
provisions of Section 5 of Limitation Act
are applicable and delay can be condoned
in
making
application
to
record
adjustment or satisfaction of decree under
Section 21(2) of the Code of Civil
Procedure, 1908 (for short the 'Code').

3. Facts, giving rise to the dispute,
are as under.

Suit filed by the plaintiff-respondent
before the Judge, Small Causes Court for
arrears of rent and ejectment was decreed
vide exparte judgment and order dated
30.3.1990. Application flied by the
tenant-application under Order IX Rule
468 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
13 of the Code was also dismissed on
24.4.1991. The said order was put to
challenge by the tenant-applicant by filing
Civil Revision No. 381 of 1991 before
this Court which was dismissed on
10.4.2007. However, this Court allowed
six months time to the tenant-applicant to
vacate the premises subject to his giving
undertaking before the court below to
hand over vacant possession of the
premises in dispute and deposit of the
entire decretal amount as well as damages
fur use and occupation.

4. It is alleged by the applicant that
after the order was passed by this Court,
the
respondent-landlord
entered
into
compromise with him and he was allowed
to continue as tenant in the shop in
question on enhanced rent of Rs.925/- per
month. It appears that the decree was put
into execution by the respondent-landlord.
An application dated 2.1.2008 was filed
by the tenant-applicant to recall 'Dakhal
Parvana' and objection dated 5.1.2008
was also filed on the ground that the
matter has been compromised between
the parties on 27.10.2007 under which he
has been allowed to continue as tenant on
enhanced rent of Rs.925/- per month and
as such the execution proceedings are not
maintainable and liable to be dismissed. It
was also pleaded that pendency of the
execution
proceedings
came
to
his
knowledge only on 12.12.2007. On
22.2.2008
applicant
filed
another
application to transfer the execution
proceedings from the court of Additional
District
Judge
(Court
No.6),
Muzaffarnagar to the court of Civil Judge
(Kairana), Muzaffarnagar on the ground
that pecuniary jurisdiction of the Civil
Judge has been enhanced and thus
execution proceedings are liable to be
transferred. Application was dismissed by
the executing court on 22.2.2008 which
was challenged in revision before this
Court which was also dismissed on
4.3.2008. Respondent-landlord filed his
reply to the objection denying the
compromise. Another application dated
30.1.2008 was made by the tenantapplicant seeking amendment in the
application 72/Ga flied on 2.1.2008. The
facts sought to be added by means of the
amendment
was
that
decreeholder/landlord had undertaken that he
will get his execution not pressed and will
not evict the tenant from the shop in,
question and also that he is 85 years old
and not aware of the legal procedure and
the compromise be recorded by the
executing court and the delay In filing the
same be condoned. Court below vide
impugned
order
dated
28.2.2008
dismissed the amendment application on
the ground that since the amendment for
recording compromise was moved beyond
the prescribed period of limitation and the
provisions of Section 5 of the Limitation
Act was not applicable as such delay was
not liable to be condoned.

5. It has been urged by the learned
counsel for the applicant that court below
has wrongly held that amendment is
barred by limitation and completely fatted
to appreciate that even a time barred
amendment can be allowed. It has further
been urged that since the objection was
flied under Section 47 of the Code to
dismiss the execution on the basis of
compromise hence the provisions of
Order XXI Rule 2 of the Code does not
come in way and the same could not have
been dismissed as barred by limitation.
Next submission is that since the decree
has been satisfied in view of the
compromise dated 27.10.2007 execution
2 All] Shyam Lal V. Smt. Shanti Devi
469
cannot proceed and is liable to be
dismissed.

6. In reply, it has been submitted
that apart from the fact that compromise
was denied by the landlord-respondent
being forged and fabricated since the
amendment
was
sought
to
record
satisfaction of the decree on the basis of
compromise beyond the prescribed period
of limitation, the same has rightly been
rejected as provisions of Section 5 of
Limitation Act are not at all attracted and
delay cannot be condoned.

7. I have considered tile arguments
advanced by the learned counsel for the
parties and perused the record.

8. A complete sequence of fact
narrated above goes to show that tenantapplicant has been delaying disposal of
the execution proceedings on one pretext
or the other. Inspite of liberty given by
this Court to retain possession for a period
of
six
months
subject
to
certain
conditions,
he
neither
vacated
the
premises nor complied with condition. It
was only when 'Parvana Dakhal' was
issued, he came with objection before the
executing court that matter has been
compromised and he has been allowed to
retain on enhanced rent. Subsequently, he
moved an amendment seeking to record
satisfaction of the decree in view of the
compromise. Admittedly, the alleged
compromise is dated 27.10.2007. For the
first time objection in the execution case
on the basis of the said compromise was
filed on 5.1.2008. Further, admittedly the
amendment to record satisfaction of the
decree on the basis of the compromise
was made before the executing court vide
application dated 30.1.2008. Article 125
to the Schedule of Indian Limitation Act,
1963 provides that an application to
record an adjustment or satisfaction of a
decree is to be made without 30 days of
the date when the payment or adjustment
is made. Without entering into the
question of legality or validity of the
alleged compromise even if for the sake
of argument it is taken to be lawful
compromise it is clear that executing
court was not moved to record satisfaction
of the decree within the prescribed period
of 30 days and admittedly, the application
was made much after the prescribed
period of limitation. Section 5 of the
Limitation
Act
is
excluded
in
its
application to the proceedings under
Order XXI of the Code. The said section
reads as under:

"Extension of prescribed period in
certain cases.- Any appeal or any
application, other than an application
under any of the provisions of Order XXI
of the Code of Civil Procedure, 1908,
may be admitted after the prescribed
period, if the appellant or the applicant
satisfies the Court that he had sufficient
cause for not preferring the appeal or
making the application within such
period."

9. In view of the aforesaid
provisions, it is clear that provisions of
Section 5 of Limitation Act would not be
attracted in the case of an application
under Order XXI Rule 2 of the Code
made beyond the prescribed period of
limitation.

10. The aforesaid view taken by me
finds support from the judgment of
learned single Judge of this Court in the
case of Devi Prasad Chaubey Vs. Pati
Ram -1981 AWC 727 wherein the delay
of one day in moving the application
470 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
under Order XXI Rule 2 of the Code was
held not liable to be condoned.

11. It is well settled by the
pronouncement of the Hon'ble Apex
Court in the case of Lakshmi Narayan
Vs. S.S. Pandian (2000) 7 SCC-240 as
well as Padma Ben Banushali and
another Vs. Yogendra Rathore and
others, (2006) 12 SCC-138 that unless the
agreement/adjustment
is
recorded
as
required under Order XXI Rule 2 of the
Code it cannot be recognized by the
executing court and the executability of
the decree would not be effected.

12. In view of the aforesaid
pronouncement of the Hon'ble Apex
Court, in the case in hand, the alleged
compromise having not been presented
within time before the executing court for
recording adjustment of the decree and
the delay being not liable to be condoned
in as much as Section 5 of the Limitation
Act is not applicable being expressly
excluded, the alleged compromise will not
effect executability of the decree in favour
of
the
landlord-respondent
and
the
execution is not liable to be struck
off/dismissed on the basis of the said
compromise.

13. In view of the aforesaid facts
and discussions, no illegality has been
committed by the court below in rejecting
the application filed by the tenantapplicant. Revision accordingly falls and
stands dismissed in limine.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.03.2008

BEFORE
THE HON'BLE PRAKASH KRISHNA, J.

Civil Misc. Writ Petition No.2307 of 1999

Vijay Kumar and another ...Petitioners
Versus
Commissioner & another...Respondents

Counsel for the Petitioners:
Sri Siddhartha

Counsel for the Respondents:
S.C.

Indian
Stamps
Act,
Section
49-ADeficiancy of stamp duty-based upon
report of sub Registrar without any
basis-such report can be basis for
proceeding but can not be basis for
penality-imposition of additional dutyheld-illegal-half of the amount deposited
in compliance of court order-be refunded
with 10% interest.

Held: Para 16

The sole basis of the impugned orders
holding that proper stamp duty has not
been paid by the petitioners is the report
of the Sub Registrar, reporting the
matter to the ADM(F&R) that proper
stamp duty has not been paid. Except
the said report, there is no material on
record to show that the petitioners by
arrangement deliberately under valued
the property while setting forth the
market value in the instrument.

(Delivered by Hon'ble Prakash Krishna, J.)

1. By means of a registered sale
deed registered on 21.3.1992 in the office
of Sub Registrar, Tehsil Kairana, District
Muzaffarnagar, the petitioner purchased a
double-storey shop measuring 58 square