9911796707
TMI Blog1966 (8) TMI 83X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at 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 mala 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 agre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any consent on the part of the appellant who was never willing to take back the wife and resume conjugal relations. Order 21 r. 2 contemplates adjustment of the decree by consent - express or implied - of the parties : where there is no such consent, O. 21 r. 2 does not apply. 6. But O. 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 questions arising between the parties to the suit in which the decree was passed, and relating to the execution, discharge or satisfaction of the decree, is not thereby affected. Whereas O. 21 r. 2 deals ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n uncertified payment or adjustment is imposed upon the Court executing the decree by sub-rule (3). There is no doubt that the expression Court whose duty it is to execute the decree means a Court which is under the law competent to, and when requested bound to, execute the decree which is in law enforceable, and where an application is made under O. 21 r. 1(1)(a) or under O. 21 r. 2(1) or (2) there need be no substantive application for execution pending. It also appears, from the terms of clause(3) of O. 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 applicati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 Ali v. Jagan Lal I.L.R. 17 All. 478 a decree for possession was executed against the heir of a defendant (Who had died during the pendency of a suit) 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. 9. In Dhan Kunwar v. Mahtab Singh and others I.L.R. 22 All. 79 an applicati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xecution, discharge or satisfaction not falling within O. 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. In 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 Mudaliar v. Commercial and Land Mortgage Bank Ltd. I.L.R. 23 Mad. 377 : 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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