# M. P. SHREEVASTAVA v. MRS. VEENA

- **Citation:** [1967] 1 S.C.R. 147
- **Court:** Supreme Court of India
- **Decided:** 1966-08-24
- **Case number:** Civil Appeal No. 609 of 1966
- **Bench:** K. N. Wanchoo, J.C. Shah, R. S. Bachawat
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/m-p-shreevastava-v-mrs-veena-3804
- **Pages:** 6

## Headnote

Code of Civil Procedure (Act 5 of 1908), s. 47 and 0. 21 r. 2Scope of-Decree for restitution of con;ugal rights,-No appllca#on for
execution by decree-holder-husband-Application by ;udgment.deblor-wife
fO!T recording satisfaction-When maintainable.
The appellant (husband of the respondent) obtained a decree for restitution of conjugal rights against his wife.
The wife made various attempts
to persuade the appellant to take her back into the marital home, but
was unsuccessful. She then applied t<> the Court which passed the decree
for an order that the decree be recorded as satisfied. There was, at that
time, no pending application by the appellant for execution of the decree
or for a d<lcree for divorce.
On the question, whether the application of the respondent was maintainable either 0. 21, r. 2 or under s. 47 of the Civil Procedure Code,
HELD : It was maintainable under s.· 47 but not under 0. 21 r. 2.
Under s. 47, which deals with 1he power of the Court executing
the decree all questions relating to execution, discharge or satisfaction
of a decree and arising between the parties to the suit in which the decree
is passed, shall be determined in the execution proceeding and not by a
separate suit. The expression "Court executing the decree" in the ~on
does not mean a "court which is seized of an application for execution
of a decree at the instance of the decree holder." A question relating to
execution discharge or satisfaction of a decree may be raised by the
decree-holder or by the judgment-debtor in the execution department and
the pendency of an application for execution by the decree-holder is not
a condition for the exercise of the Court's power.
An application made
by the judgment debtor in relation to execution, discharge or satisfaction
of a decree , in a suit to which he or the person of whom he is a represenitative was a party, is an applicatio nbefore the court executing the
decree; and must be tried in that court, [150 G-H; 151 B, CJ
Observation contra in Mst. Bhagwani v. Lakhi1n Ram and Anr. A.I.R.
1960 Punj. 437, disapproved.
Order 21, r. 2 deals with the procedure to be followed in a limited
class of cases relating to discharge or satisfaction of decrees where there
has been payment of money or adjustment or !Satisfaction of the decree
by consensual arrangement. It contemplates ·adjustment of the decree by
consent-express or implied--0f the parties. Where there is no such
consent the rule does not apply. In the instant case there was not evidence of any cousent on the pan of the appellant, who was never willing
to take back his wife. (149 F-H; 150 B-C]
CML APPELLATE JURISDICTION : Civil Appeal No. 609 of
1966.
147
14 8
SUPREME COURT REPORTS
[1967) IS.CR.
Appeal from the judgment and order dated March 8, 1965
of the Punjab High Court (Circuit Bench) at Delhi in L. P. A.
No. 96-D of 1964.
II. R. Goklzale, Rajini Mathur, 0. C. Mathur and J. B. Dadachanji, for the appellant.
Bisha11 Narain and Lily Thomas, for the respondcut.

## Text

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M. P. SHREEVASTAVA
v.
MRS. VEENA
August 24, 1966
(K. N. WANCHOO, J.C. SHAH AND R. S. BACHAWAT, JJ.]
Code of Civil Procedure (Act 5 of 1908), s. 47 and 0. 21 r. 2Scope of-Decree for restitution of con;ugal rights,-No appllca#on for
execution by decree-holder-husband-Application by ;udgment.deblor-wife
fO!T recording satisfaction-When maintainable.
The appellant (husband of the respondent) obtained a decree for restitution of conjugal rights against his wife.
The wife made various attempts
to persuade the appellant to take her back into the marital home, but
was unsuccessful. She then applied t<> the Court which passed the decree
for an order that the decree be recorded as satisfied. There was, at that
time, no pending application by the appellant for execution of the decree
or for a d<lcree for divorce.
On the question, whether the application of the respondent was maintainable either 0. 21, r. 2 or under s. 47 of the Civil Procedure Code,
HELD : It was maintainable under s.· 47 but not under 0. 21 r. 2.
Under s. 47, which deals with 1he power of the Court executing
the decree all questions relating to execution, discharge or satisfaction
of a decree and arising between the parties to the suit in which the decree
is passed, shall be determined in the execution proceeding and not by a
separate suit. The expression "Court executing the decree" in the ~on
does not mean a "court which is seized of an application for execution
of a decree at the instance of the decree holder." A question relating to
execution discharge or satisfaction of a decree may be raised by the
decree-holder or by the judgment-debtor in the execution department and
the pendency of an application for execution by the decree-holder is not
a condition for the exercise of the Court's power.
An application made
by the judgment debtor in relation to execution, discharge or satisfaction
of a decree , in a suit to which he or the person of whom he is a represenitative was a party, is an applicatio nbefore the court executing the
decree; and must be tried in that court, [150 G-H; 151 B, CJ
Observation contra in Mst. Bhagwani v. Lakhi1n Ram and Anr. A.I.R.
1960 Punj. 437, disapproved.
Order 21, r. 2 deals with the procedure to be followed in a limited
class of cases relating to discharge or satisfaction of decrees where there
has been payment of money or adjustment or !Satisfaction of the decree
by consensual arrangement. It contemplates ·adjustment of the decree by
consent-express or implied--0f the parties. Where there is no such
consent the rule does not apply. In the instant case there was not evidence of any cousent on the pan of the appellant, who was never willing
to take back his wife. (149 F-H; 150 B-C]
CML APPELLATE JURISDICTION : Civil Appeal No. 609 of
1966.
147
14 8
SUPREME COURT REPORTS
[1967) IS.CR.
Appeal from the judgment and order dated March 8, 1965
of the Punjab High Court (Circuit Bench) at Delhi in L. P. A.
No. 96-D of 1964.
II. R. Goklzale, Rajini Mathur, 0. C. Mathur and J. B. Dadachanji, for the appellant.
Bisha11 Narain and Lily Thomas, for the respondcut.
The Judgment of the Court was delivered by
Shah, J. On July 25, 1958 the parties to this appeal were
married under the Special Marriages Act 43 of 1954.
There was
a child of the marriage. Alleging that on November 10. 1959,
his wife Vcena--who .,.,;ll hereinafter be called 'the respondent'-
had without reasonable cause deserted him and had failed to return
and live with him in spite of repeated requests, the husband, M.P.
Shrecvastava--hereinafter called 'the appellant'-filed a petition in
the Court of the District Judge, Delhi, for a decree for restitution of
conjugal rights. This petition was decreed ex parte on March 13,
1961. On May 21, 1961 the respondent returned to the residence
of the appellant and offered to live with him.
She also wrote
letters to the appellant requesting him to allow her to go to his
house and live with him as his wife, but the appellant refused to
receive the letters. Attempts made through certain friends of the
family to persuade the appellant to take the respondent back into
the marital home were also unsuccessful. The respondent then
applied to the District Court, Delhi, for'an order that the decree
be recorded as satisfied, since the appellant had failed and neglected to allow the respondent to resume conjugal relations even after
she went to his house and made a request to that effect. The
District Judge, Delhi, held that the decree for restitution of conjugal rights against the respondent stood satisfied, and ordered that
it be recorded that the decree was satisfied. In appeal to the High
Court of Punjab, Dua, J., confirmed the order passed by the District
Court. An appeal under the Letters Patent filed by the appellant
met with no success.
The husband-M. P. Shreevastava-has
then appealed to this Court with special leave.
Two contentions were raised by the appellant in support of
the appeal :
(I) The Court of the District Judge and the High
Court were in error in recording satisfaction of the decree,
because the acts done by the respondent do not in law constitute an attempt to resume conjugal relations; and
(2) that the application filed by the respondent was
not maintainable, because at the material date no application for execution of the decree filed by the appellant was
pending, and the District Court was on that account
not a court executing the decree.
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SHREEVASTAVA V. VEENA (Shah, J.)
149
The District Judge observed that the respondent had made
"a genuine effort . . . to come and live with the" husband, "but
he (the husband) has spurned that offer", that "there was no obstinacy or disinclination on the part of the" wife "to come back and
live with her husband", and that the wife "has all along been keen
to live with him and has made a number of attempts to prevail
upon him to take her back." Dua, J., observed that "the decree
for restitution of conjugal rights . . . can be obeyed and satisfied
if the wife goes and lives with the husband as a wife or reasonably
does all she can do in that direction. . . In case, however, the
judgment-debtor is willing to obey the decree but the .unjustified obstruction towards the performance of the decree comes from
the decree-holder, then, the judgment-debtor would be fully entitled
to approach the Court and pray that the decree be recorded as satisfied so that the decree-holder may not fraudulently and ma/a fide
utilise the decree for the purpose of securing a decree for divorce".
On a review of the evidence, the learned Judge agreed with the
Trial Court. The High.Court hearing the appeal under the Letters
Patent agreed with that view.
It was never argued on behalf of the appellant in the Court
of First Instance and the High Court that attempts proved to
have been made by the respondent to resume conjugal relations
could not in law amount to satisfaction of the decree, and we do
not think we would be justified at this stage in allowing that question to be raised for the first time in this Court.
But it was said that the respondent could not maintain an
application for recording adjustment of the decree under 0. 21 r.
2 C.P. Code, nor could she maintain an application for recording
satisfaction of the decree for restitution of conjugal rights so long
as the husband did not apply to execute the decree, or did not claim
a decree for divorce under s. 27 of the Special Marriages Act. Order
21 r. 2 prescribes the procedure for recording vayment 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 r. 2(1) of 0. 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: r. 2(2) of 0. 21.
I.n 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 wiUing to take
back the wife and resume conjugal relations. Order 21 r. 2 contemplates adjustment of the decree by consent-express or impliedof the parties: where there is no such consent, 0. 21 r. 2 does not
apply.
150
SUPREMl! COUllT REPORTS
[1967)'1 S.C.R.
But 0. 21 r. 2 prescribes a special procedure for recording
adjustment of a decree, or for recording payment of money paid
out of court under any decree.
However the plenary power conferred by s. 47 C.P. Code upon the Court executing the decree
to determine all queslions arising between the parlics to the suit
in which the decree was passed, and relating to the execution,
discharge or satisfaction of the decree, is not thereby affected.
Wherea• 0. 21 r. 2 deals with the procedure to be followed in a
limited class of cases relating to discharge or satisfaction of decrees, where there has been payment of money or adjustment or
satisfaction of the decree by consensual arrangement, s. 47 C.P.
Code deals with the power of the Court executing the decree.
Counsel for the appellant does not deny to the Court executing
the decree power to decide all questions relating to execution,
discharge or satisfaction of the decree arising between the parties
to the suit in which the decree was passed, but contends that since
the power to. record discharge or satisfaction of a decree is exercisable only by the Court executing the decree, no substantive petition lies at the instance of the person against whom a decree is
passed to record adjustment or satisfaction so long as the decrceholder has 'not applied for execution. Counsel says that the expression "Court executing the decree" means the "Court which ii;
executing the decree at the instance of the decree-holder", and in
support of his contention relies upon the different expressions used
in 0. 21 rr. 1 & 2 C.P. Code. He points out that under 0. 21 r.
I (I )(a) money payable under a decree may be paid into the Court
whose duty it is to execute the decree. Similarly an application
under cl. (I) or cl. (2) of r. 2 0. 21 for recording payment of money
under or adjustment of a decree has to be made to the Court whose
duty it is to execute the decree, whereas prohibition against recognition of an uncertified payment. or adjustment is imposed upon
the Court executing the decree by sub-rule (3).
There is no doubt
that the expr.cssion "Court whose duty it is to execute the decree"
means a Court which is under the law competent to, and when
requested. bound to, execule the decree which is in law enforceable, and where an application is made under 0. 21 r. l(l}(a) or
under 0. 21 r. 2(1) or (2) there need be no substantive application
for execution pending.
It also appears, from the terms of cl. (3)
of 0. 21 r. 2, that the prohibition is against the Court executing
the decree.
But there is no warrant for the argument that the
expression "Court executing the decree" as used in s. 47 C.P. Code
means a "Court which is seized of an application for execution
of a decree at the instance of the decree-holder". Section 47 enacl•
the salutary rule that all questions relating to execution, discharge
or satisfaction of the decree shall be determined not by a separate
suit, but in execution of the decree. The power so conferred may
not be limited by any strained or artificial
construction of
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SHREEVASTAVA V. VEENA (Shah, /.)
151
the
wc.~ds. "Court executing the decree".
The expression
"Court executing the decree" ·has not been defined, and having
regard to the scheme of the Code it cannot have a limited meaning, as argued by counsel for the appellant. The principle of
the section is that all questions relating to execution, discharge
or satisfaction of a decree and arising between· the parties to the
suit in which the decree is passed, shall be determined in the execution proceeding, and not by a separate suit: it follows as a corollary
that a question relating to execution, discharge or satisfaction
of a decree may be raised by the decree-holder or by the judgmentdebtor in the execution department and that pendency of an application for execution by the decree-holder is not a condition of its
e11:ercise. An application made by the judgment-debtor . which
raises a question relating to execution, discharge or satisfaction
of a decree in a suit to which he, or the person of whom he is a
representative, was a party is an application before the Court
executing the decree, and must be tried in that Court.
'lbere is a catena of cases in which it has been held that s. 244
of the Code of 1882 and s. 47 of the Code of 1908 apply to disputes arising between the parties contemplated by those sections
in relation to a decree even after it has been executed. In Imdad
All v. Jagan Lal(') . a decree for possession was executed against the
heir of a defendant (who had died during the pendency of a snit)
without notice to him. The heir then applied to the Court which
had executed the decree for an order restoring him to possession.
At the date of application by the heir no application to enforce
the decree by the decree-holder was pending. The High Court
of Allahabad however held that the application was maintainable.
In Dhan Kunwar v. Mahtab Singh and others (2) an application
by the judgment-debtor to recover an amount found to be in excess
of the amount lawfully due, the decree having been amended since
the execution, was held maintainable under s. 244 of the Code of
1882.
In Collector of Jaunpur v. Bitlzal Das and Anr(3) it was held that
an application to recover from· a decree-holder the proceeds of a
sale in execution, such sale having been set aside, falls within s.
244 C.P. Code, 1882. It was observed by the Court that s. 244
"applies as well to a dispute arising between the parties after the
decree has been executed, as it does to a dispute arising between
them previous to execution."
In Gopal Rai v. Rambhajan Rili (') an application for refund
of the decretal amount paid into Court by the judgment-debtor,
after the decree had been satisfied by payment made by a.nother
(I) I.L.R. 17 All. 478.
(J) I.L.R. 2o4 All. 291.
(2) l.L.R. 2l All. 79.
l4) I.L.R. I Pat. 336.
152
SUPREME COURT REPORTS
[1967] I S.C.R.
judgment-debtor was held maintainable under s. 47 C.P. Code
against the decree-holder who had withdrawn the amount.
In B. V. Patankar & Others v. C. G. Sastry,(') this Court held
that an application by the judgment-debtor for an order for restoration of possession of property from which the judgment-debtor
was evicted without notice, in execution of a decree which had
become unenforceable, because of the Mysore House Rent and
Accommodation Control Order. 1948, was maintainable.
It is not necessary to multiply cases·--and they are manyin which applications by judgment-debtors raising questions relating to execution, discharge or satisfaction not falling within 0. 21
r. 2 were held maintainable, and absence of a proceeding by the
decree-holder to execute the decree was held not to be a bar to
the maintainability of the applications. Jn our view, the High
Court of Madras was right in its interpretation of s. 244 of the
Code of Civil Procedure, 1882, when they observed in Erusappa
Muda/iar v. Commercial and Ltmd Mor1gage Bank Ltd. (2)
:
.. We are unable to accede to the contention . .
that, with reference to the terms of section 244, the question raised by the petition could only be raised in answer
to a claim made .... on an application . . for execution. That
section
simply
provides that
questions
arising between
the parties to the suit and
relating
to the execution, discharge or satisfaction of the decree
shaJI be determined by order of the Court executing the
decree and not by separate suit.
We cannot construe
the words 'a Court executing a decree' as meaning,
. . that the section only covers cases of proceedings
initiated by the decree-holder and does not include applications (relating to the execution, discharge or satisfaction
of the decree) made by the judgment-debtor."
We are unable to hold that the dictum of the Punjab High Court
in Ms/_ Bhagll'ani v. l.akhim Ram and Another( 3) that "a' no execution proceedings (at the instance of the decree-holder) were pending,
the Court (which was called upon to determine whether there was
an adjustment of a decree by an executory contract) could noi
be reganled as one which was 'executing the decree-," is correct.
There is, in our judgment, no antithesis between s. 47 and 0. 21
r. 2: the former deals with the power of the Court and the latter
with the procedure to be followed in respect of a limited class of
cases relating to discharge or satisfaction of decrees.
The appeal fails and is dismissed with com.
V.P.S.
Appeal dismissed.
(I) [1961) I S.C.R. 591.
(2) I.LR. 23 Mad. 377, 380.
(3) A.1.R. 1960 Punjab 437, 438.
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