SITA RAM GOEL versus SUKHNANDI DAYAL & ANR.

Citation: [1972] 1 S.C.R. 836 · Decided: 20-09-1971 · Supreme Court of India · Bench: C.A. VAIDYIALINGAM · Disposal: Appeal(s) allowed

Cited by 1 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

836 
SITA RAM GOEL 
v. 
SUKHNANDI DAYAL & ANR. 
September 20, 1971 
[C. A. VAIDIALINGAM AND P. JAGANMOHAN REDDY, JJ.J 
Code of Civil Procedure (Act 5 of 1908), ss.'47, 105(2), 0. ~1. rr. 1 
and 2 (as in force in Allahabad), 0. 41, r. 23 and 0. 43, r. l(u)-Scope 
of-Application by judgment 
debtor under 
0. 21, r. 2-Question of 
limitation decided and matter remanded regarding factunz of payments-
Decision by both subordinate courts in favour 
of judgment debtor-
Whether question as to pay1nents \Vere in accordance with 0. 21, r. 1, 
C.P. C. could be gone into by High Court in second appeal. 
The respondent, who was the landlord under whom the appellant was a 
tenant, obtained a decree for eviction and damages against the appellant. 
The respondent 
filed 
an execution 
application on July 19, 1960. 
In 
answer to it the appellant filed objections by initiating proceedings under 
O. 21, r. 2(2) C.P.C. on September 3, 1960. 
In that application, 
the 
appellant alteged that there was a compromise behvcen the parties 
cm 
July 25, 1957 that in pursuance of the compromise he made \•arious pay-
ments and that the last of the payments was made on June 16, 1960, and 
prayed for recording an adjustment of the decree. The trial court, how-
ever, held that as the compromise was entered into on July 25, 1957 the 
period of limitation for filing the app!ication would start from that .date, 
and since the application was filed· beyond 90 dayi; from that date, it was 
barred by lin1itation. The trial court dismissed the application on that sole 
ground, without investigating into the truth of the compromise or. the. 
payments. 
On appeal, the appellate court accepted the contention of the 
appellant that if he was able to establish that he had ma& the last pay-
ment on June 16, 1960 the period of limitation o'f three months for filing 
an application under 0. 21, r. 2 would begin to run only from that date 
and that his application would be in time. 
The appellate court therefore 
set a'>ide the order o'f the trial court and remanded the proceedings for· 
investigation into facts, namely, whether the compromise and the payments· 
alleged to have been made by the appellant on the basis of the compro-
mise and particularly the payment said to have been made on June 
16, 
1960, were true. 
After remand, the trial court accepted the plea of the 
appellant regarding the truth of the compromise as well as the payments 
said to have been made by him, including the payment of June 16, 1960, 
he1d that the application filed was within time, and 
ordered 1full adjust-
ment and satisfaction of the decree. 
On appeal, the findings of the trial 
court were confirmed and the appeal was dismissed. 
In. 
second appeal. 
the High Court acceoted the findirigs on the questions of compromise and 
payments but held that as the appellant had not claimed to have made the 
payments in compliance with 0. 21, r. 1, C.P.C., as amended and in forCe 
in Allahabad, it wns not open to the appellant to ask for recording adiust-
ment of the decree, and dismissed the application of the appellant filed 
under 0. 21, r. 2. 
,. 
Allowing the appeal to this Court, 
A 
B 
c 
I) 
E 
F 
G 
HELD . In view of the decision of the appellate court when remand-
H 
ing the matter, it was not open to the respondent to raise the objection 
either of limitation or that the payments had not beeo made as per 0. 21, 
r. 1, C.P.C. The parties and the courts had proceeded on the basis ihat 
A 
B 
c 
D 
E 
F 
G 
H 
s. R. GOEL v. s. DAYAL ( Vaidialingam, J.) 
83·7 
., 
the entire qu~stion n.~lutcd 'to a controversy in' respect -or cx~cu~io:\, \l}s-' 
charge or ·satisfactioni of the <lccrcc. 
Under s. 47(2} ~C.P.C .•. J11e \..;'Ourt· 
has po\ver lo treat the Sard proceeding as a suit. •Un,der b. 41~- r. 23, '3n 
appellate court has po\vcr to remand a procccOing when .r s1fit has been 
disposed_ of on. a prcli_n1ina~y Point! ~~n<l UJldCr o ..... 431 r_: 1 (u)., ~.!'.,(:. 3;0 
appeal hes against an order rc1na1H.l1ng the case v..·hcrc an appeal \VOLl!d lie 
a11ainst ... thc decree of ,,the aPpcllatc court. 
The rCSPond"cnt sHoulU 'have 
filed an 3ppcal against the order. b'f .. the rcma11d, and the conscq•H::r,f:e -or 
his orriission to .file such :.in appeal' i,s that un<lcr ~- ) 0..5.(~), C.P .C., 
the·-
decisio'n of the appellate court, \Vhilc rcn11.1n<liQg the n1au~r, regarding the 
date from which the period of limitation is tO con11111.:ncc, nan1cly June 16, 
1960. if payment on that 

Excerpt shown. Read the full judgment & AI analysis in Lexace.