• Order 21 Rule 2 clarification after yesterday's post

I have posted a query yesterday under similar title. Received different answers from different Advocates. HOWEVER I am posting similar question being confused with different replies. 

One reply received that order 21 Rule 2 is applicable only to decree under payment which requires to be recorded under 21 /2 cpc, if such decree is settled out of Court. 

IT APPEARS THAT THIS REPLY IS POSTED WITHOUT CONSIDERING THE AMENDMENT IN ORDER 21 RULE 2 MADE IN 1976 THAT THE SAID PROVISION IS APPLICABLE TO ALL DECREES. I have the case laws of SC issued thereafter. 

Secondly LA is not Court as held by SC (I had referred in my yesterday's post) 

LA adalat is empowed to assist parties to reach to compromise or settlement as the case may be but this opportunity to be utilized if party desires so. Therefore it is not for LA to force parties to take assistance. Regarding assistance of LA does not mean the compromise is made before Court being it is not a Court. 

LA has power to issue Award and not order or decree. However the Award which is issued that is called or treated as a decree of Civil Court but does not fall under the definition of Decree as stated in CPC

There is a difference between settlement and compromise. Settlement is mostly related one sided I.e. nothing is exchanged in between parties. May be said settlement is one sided like what bankers do in there dues. While compromise in between the parties depends upon exchange by negotiations but something to added or reduced

If assumed compromise occurred in LA whether to be treated as compromise is occurred under Order 23 of cpc , if so the Court who refers the pending cases to LA then the question is why Court shall refer because Court itself is empowered to determine compromise under Order 23. The parties can file compromise memo sitting outside /negotiate/ ready the memo and file in Court . Why one needs LA. According to me LA is a room where matter can be close down permanently subject to fraud. 

The Process before issuing Award is treated "Out of Court" and once the Award is passed that Award to be treated as "Deemed Decree". 

Regarding Awards whether needs to be recorded at Execution Court, according to other replies "Yes , it gas to be recorded as the deemed decree is not a out come of adjudication before a competent Court. 

I have just posted for reference to my yesterday's post and replies posted by Hon'ble Advocates. THE intention behind today's post is "To avail knowledge on Law positions, which is necessary for those (like me) who has no knowledge. 

Any one can comment on my views and correct and put the correct legal position considering (1) amendment of 1976 (2) SC judgment (3) Order 21 Rule 2 (4)Order 23 (CPC 

Thanks to All who really helped in increasing legal knowledge and for correct advice.
Asked 1 year ago in Civil Law

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4 Answers

you have no knowledge? i dont think so

it appears you know more than the advocates and thats a good thing in a way

its good to be aware about the law...that will reduce the burden on the Courts if citizens know the law, so that for breach of that law, the Court will not have to spend its time to undo the wrong which is done without authority of the law

it is the parties choice before which forum they want to settle their disputes

such settlement [also interchangeably referred to as a compromise] can happen between the parties either before the court before which the parties' matter is pending or the settlement can also happen 'out of court', that is before the Lok Adalat

here during the pendency of the appeal the matter got referred to the lok adalat and there the parties settled their disputes without any efforts put by the lok adalat

so the settlement, even though it happened before the lok adalat [which is not a court], is still an 'out of court' settlement

out of court settlement means a settlement that happens between the parties without the intervention of the court 

in your case that is what precisely happened

the settlement happened 'out of court' before the Lok Adalat

so if 21/2 has any application as per you, then the DH was required to certify such 'adjustment of decree' and the executing court was required to 'record' the said adjustment 

if none of the above happened, i.e. certification by DH and recording by EC, then the rigors of Rule 3 of O.21 would get triggered and the said adjustment would not be recognised by the EC

21/2 is amended and now has within its fold all sorts of decrees and not merely money decrees. this is my prima facie view because the title below O.21 despite the 1976 amendment still stays 'payment under decrees'

Yusuf Rampurawala
Advocate, Mumbai
7742 Answers
79 Consultations

Order XXI, Rule 2 (1) provides that where money is paid or a decree is adjusted out of Court the creditor shall certify the payment. Rule 2 (2) that the judgment-debtor may do so: Rule 2 (3) that a payment or adjustment which has not been certified shall not be recognised by the, executing Court.

 

2) the Supreme Court observed that an Award passed by the Lok Adalat is not a compromise decree.Every award of a lok adalat, is deemed a civil court decree, and as such it is executable by a civil court

 

3) Lok Adalats have been given statutory status under the Legal Services Authorities Act, 1987. Under the said Act, the award (decision) made by the Lok Adalats is deemed to be a decree of a civil court and is final and binding on all parties and no appeal against such an award lies before any court of law.

 

4) 

Awards of lok adalat needs to be recorded at Execution Court, 

Ajay Sethi
Advocate, Mumbai
97455 Answers
7877 Consultations

The remedy available to a party to a consent decree to avoid such consent decree, is to approach the court which recorded the compromise and made a decree in terms of it, and establish that there was no compromise. In that event, the court which recorded the compromise will itself consider and decide the question as to whether there was a valid compromise or  not. This is so because a consent decree is nothing but contract between parties superimposed with the seal of  approval of the court. The validity of a consent decree depends wholly on the validity of the agreement or compromise on which it is made.

 

Finality of decisions is an underlying principle of all adjudicating forums. Thus, creation of further litigation should never be the basis of a compromise between the parties. Rule 3-A Order 23 CPC put a specific bar that no suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful. The scheme of Order 23 Rule 3 CPC is to avoid multiplicity of litigation and permit parties to amicably come to a settlement which is lawful, is in writing and a voluntary act on the part of the parties. The court can be instrumental in having an agreed compromise effected and finality attached to the same. The court should never be party to imposition of a compromise upon an unwilling party, still open to be questioned on an application under the
proviso to Order 23 Rule 3 CPC before the court.”

T Kalaiselvan
Advocate, Vellore
87652 Answers
2352 Consultations

Greetings of the Day,

I have read your issue but find that there are some facts which need to be clarified. You can approach on either nine two one two one two four five eight five or seven zero four two eight three three six eight six for personal approach.

We Hope that a personal consultation would be fruitful to the issue and it would be better for you to talk to someone directly.

Best Regards

SPS Law Chambers
New Delhi.

Shivam Bansal
Advocate, New Delhi
131 Answers

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