PADMA BEN BANUSHALI AND ANR. versus YOGENDRA RATHORE AND ORS.

Citation: [2006] SUPP. 1 S.C.R. 250 · Decided: 25-04-2006 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Appeal(s) allowed

Judgment (excerpt)

A 
B 
PADMA BEN BANUSHALI AND ANR. 
v. 
YOGENDRA RA THO RE AND ORS. 
APRIL 25. 2006 
[ARIJIT PASAYAT ANDTARUN CHATTERJEE, JJ.] 
Code of Civil Procedure, 1908--Section 47 and Order XX! Rule 2--
Execution of decree--Decree-holder entered into an agreement of acfjustment 
C with oppostive party--Decree-holder filed application for execution of decree 
before executing Court when the agreement fell through-Opposite party 
contended that the decree has become in-executable in pursuance of the 
agreement--Executing Court allowed the application on the ground that the 
adjustment was not certified by it under the Code-High Court in Revision 
held in favour of opposite party by holding that there was conscious waiver 
D b_v the decree-holder under the agreement--Correctness of-Held, the 
provisions within a statute must be harmoniously construed-- Adjustment out 
of Court will not be recognised unless it is certified by executing court-On 
facts, the adjustment was nut certified by executing Court and there was no 
conscious waiver by the decree-hulder--Hence, the decree is executable. 
E 
Appellants filed a suit for eviction before trial court against 
respondents which was decreed in favour of the appellants. The respondents 
filed an appeal before Appellate Court. When the appeal was pending, the 
parties entered into an agreement and hence filed an application to withdraw 
the appeal under Order XXII Rule I CPC before the Appellate Court, which 
F dismissed the appeal as withdrawn accordingly. Subsequently, the appellants 
filed an application to execute the decree before Executing Court. The 
application was resisted by the respondents on the ground that the decree 
has become inexecutable since the appellants have given up their rights to 
execute the decree in pursuance of the agreement; that since the appellants 
were not ready and willing to perform their part of the agreement, suit for 
G specific performance had been instituted against the appellants, which is 
pending. The Executi!1g Court allowed the application of the appellants holding 
that the adjustment purported to have been made under the agreement by the 
respondents cannot be considered since the adjustment was not certified by 
the Executing Court. The respondents filed a Revision before High Court 
H 
250 
PAD MA BEN BANUSHALI v. YOGENDRA RA THO RE 
251 
. 
under section 115 CPC. The High Court allowed the Revision holding that A 
there was no adjustment between the parties; and that there was a conscious 
waiver by the appellants not be execute the decree under the agreement. 
In appeal to this Court, the appellants contended that the applicaticfn for 
withdrawal of the appeal under Order XXIII Rule 1 CPC on the basis of the 
B 
agreement entered into with the respondents would not make the decree in 
their favour in-executable; that the adjustment made with the respondents 
under the agreement was not certified by the Executing Court as required 
under Order XXI Rule 2 CPC; that Section 47 CPC would prevail over Order 
XXI Rule 2; that there was no conscious waiver by them to execute the decree 
-
under the agreement; and that the suit for specific performance filed by the c 
respondents before the trial court itself shows that the conditional acceptance 
not to execute the decree was not fulfilled by the respondents. 
The respondents contended that the agreement between the parties was 
withdrawal of appeal by them and non-execution of the decree by the appellants; 
that there was no adjustment under the agreement as claimed by the appellants; D 
and that there was conscious waiver by the appellant to execute the decree. 
Allowing the appeal, the Court 
HELD: I. The rule of interpretation requires that while interpreting 
two inconsistent or obviously repugnant provisions of an Act, Courts should E 
make an effort to so interpret the provisions as to harmoise them so that the 
purpose of the Act may be given effect to and both the provisions may be allowed 
to operate without rendering either of them otiose. The statute has to be read 
as a whole to find out the real jntention of the legislature. This rule of 
construction which is also spoken of as 'ex visceribus actus' helps in avoiding F 
any inconsistency either within a section or between two different sections 
or provisions of a same statute. [256-E-F; 257-8-C] 
Pentiah v. Muddala Veeramallappa, AIR (1961) SC 1107; Gammon 
India Ltd. v. Union of India, (1974) 1 SCC 596; Mysore SRTC v. Mirja 

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