LexM. P. SHREEVASTAVA versus MRS. VEENA
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A B c D E F G H 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. 2- Scope 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 resti- tution 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 main- tainable 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 repre- senitative 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 evi- dence 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. Dada- chanji, 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 neglect- ed to allow the respondent to resume conjugal relations even after she went to
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