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Report No. 27

Order XXI, rule 2 and limitation

The period of limitation for an application for certification of payment or adjustment is 30 days under the (New) Limitation Act, 1963, Article 125. Since the provision in the Civil Procedure Code regarding certification is now proposed to be made more stringent than at present (by requiring that the payment should be in the manner provided in Order XXI, rule 1 as proposed to be amended or that the adjustment should be proved by documentary evidence), it is considered that a longer period should be allowed. It is, accordingly, recommended that the period should be increased to 90 days1. The Fourteenth Report2 recommended that the period should be deleted, but it is not considered necessary to go so far.

1. Cf. (Old) Limitation Act, 1908, Article 174.

2. 14th Report, Vol. I.

Order XXI, rule 2 and pre-decree agreements

1. How far a court executing a decree is precluded from looking at agreements entered into before the decree, is a matter on which there is some uncertainty. The majority of the High Courts have taken the view that such an agreement cannot be pleaded in bar of execution. But the Bombay High Court has held in one case1, that the executing court can look into a pre-decree agreement to the effect that the prospective judgment-debtor will within 15 days, pay something less than the amount for which the decree was to be passed, and the decree-holder will give up the balance if such payment was made within 15 days. It was held, that, the court was bound by its previous decision2 on this point, though "it had not met with universal approval in other courts". The Bombay view thus seems to be a settled one3.

2. There is some doubt with reference to the position in Madras also. In an earlier decision4-5, it was held that the executing court could have regard to an agreement, which provided that execution shall not be issued for a certain time. But this was distinguished in later case6, holding that an executing court cannot inquire into a pre-decree agreement which had nothing to do with "execution". The allegation in this case was that before the preliminary decree, the mortgage-debt had been paid and the parties had allowed the decree to be passed simply for convenience. It was held, that the executing court could not take notice of such agreements.

3. The Andhra Pradesh High Court seems to have allowed an agreement to the effect that one of the parties could not execute a decree to be obtained against the other7-8. Other High Courts take the view that the executing court cannot look into pre-decree agreements9-10.

4. As the matter does not really pertain to rule 2 and as the ordinary rule is that an executing court cannot go behind the decree, no express provision is considered necessary.

1. Burjoriji v. Madhavlal, ILR 58 Born 610: AIR 1934 Born 370 (372) (Beaumont C.J., and Barlee J.).

2. Laldas v. Kishordas, (1896) ILR 22 Born 463 (FB).

3. The point was raised in Bilasram v. Durgadutt, AIR 1956 Born 526 (528), but not decided.

4. Chidambaram v. Krishna, ILR 40 Mad 243: AIR 1918 Mad 1174 (FB).

5. Generally agreements to give time, see Mulla, 1953, p. 750.

6. Gudimalla v. Taifa, AIR 1950 Mad 608.

7. Kuka Ramji v. Mamri Pragada, AIR 1957 AP 75.

8. See also Usman v. Mammooty, AIR 1961 Ker 179.

9. See Co-operative Bank v. Ram Sarup, AIR 1953 Punj 267; Krishna Trading Corpn. v. Ram Saran, AIR 1962 All 374; Hukam Chand v. Radhey Krishan, AIR 1915 Nag 128, following Chhoti Narain Singh v. Rameshwar Koer, (1902) 6 CWN 796; Robert Skinner v. R.M. Skinner, AIR 1937 Lah 537.

10. But injunction can be granted in a separate suit, Harendra v. Gopal, AIR 1935 Cal 177.

Code of Civil Procedure, 1908 Back

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