HONOURABLE SRI JUSTICE P.NAVEEN RAO
CIVIL REVISION PETITION NO.96 OF 2023
Date: 06.04.2023
Between:
M/s. Deccan Wine House & Amrit Bar & Restaurant,
Partnership firm, rep.by its Partners, premises bearing
No.4-8-23, 4-8-25 and 4-8-25/A, Putli Bowli,
Hyderabad and another.
.....Petitioners/
Petitioners/
JDr Nos.1 & 3
and
1. Sri Radhakrishna s/o. late Sri Permanand Das,
Aged about 62 years, occu: Business, r/o.16-11-741,
Opp. AB Colony, Moosarambagh, Hyderabad
2. Sri Prateek Waghray s/o. Sri P.Radhakrishna,
Aged about 33 years, occu: Business, r/o.16-11-741,
Opp. A.B.Colony, Hyderabad.
.....Respondent/
DHRs
3. Sri Surakanti Sudershan Reddy s/o. late Sri Yadi
Reddy, Aged about 66 years, occu: Business,
r/o. (Old Plot No.55), New Plot No.44, Road No.71,
Opp. Jubilee Public Schools, Jubilee Hills,
Hyderabad.
... Respondent/
JDr No.2
The Court made the following:
PNR,J
CRP No.96 of 2023
2
HONOURABLE SRI JUSTICE P.NAVEEN RAO
CIVIL REVISION PETITION NO.96 OF 2023
ORDER:
Heard learned counsel Sri R.A.Achuthanand for the petitioners and the learned senior counsel Sri Sunil B.Ganu for the respondents 1 and 2.
2. Parties are referred to as arrayed in the suit.
3. Briefly stated the facts of the case are as under: 3.1. Plaintiffs claim to be the absolute owners of premises bearing Nos.4-8-23, 4-8-25 and 4-8-25/A, Putli Bowli, Hyderabad, admeasuring 10620 square feet. In the year, 2011, the suit schedule property was leased out to the defendants for the purpose of running a Bar and Restaurant vide registered Lease Deed Document No.1585 of 2011 dated 02.07.2011. The lease was for a period of five years i.e., upto 30.06.2016. Initial monthly rent was fixed at 60,000/- per month, later enhanced from time to time and last rent paid was 85,000/- per month, excluding electricity charges, water charges, maintenance and other charges. According to the plaintiffs, after the lease period, though no further extension was granted, but tenancy continued on month to month basis.
PNR,J CRP No.96 of 2023 3 3.2. According to the plaintiffs, after expiry of lease period, in spite of notices issued to vacate the premises, defendants failed to vacate the premises and have not paid the rents from September, 2016. They have also not paid Municipal taxes for the year 2017-2018 and have not paid electricity charges. 3.3. It is the further case of plaintiffs that in those circumstances, lease was finally terminated by issuing Legal Notice dated 24.01.2017 calling upon the defendants to vacate the demised premises and handover the vacant peaceful possession to the plaintiffs on expiry of 15 days time from the date of receipt of the said notice. Though notices were received, but defendants have not vacated the premises. In the month of April, 2017, the rent from September 2016 to November 2016 was only paid and have not paid the rent from December, 2016 till the date of filing of O.S.No.693 of 2017 in the Court of IX Additional Chief Judge, City Civil Court, Hyderabad. 3.4. In the suit, plaintiffs prayed to pass decree directing the defendants to vacate and handover the vacant peaceful possession of the suit schedule property; direct the defendants to pay a sum of 1,00,000/- towards mesne profits from the date of the suit till realization; and direct the defendants to pay PNR,J CRP No.96 of 2023 4 sum of 6,80,000/- towards arrears of rent from December, 2016 to July, 2017.
3.5. During the pendency of the suit, the parties have come to an understanding to resolve the dispute and terms of Memorandum of Compromise were recorded. In the Memorandum of Compromise, dated 22.02.2019, parties have agreed that the defendants would vacate the premises on or before 30.09.2021 and, therefore, the decree be passed for eviction of the defendants directing the defendants to deliver vacant possession of the schedule property on or before 30.09.2021. If the defendants failed to vacate the premises on or before 30.09.2021, the plaintiffs would be entitled to evict the defendants by filing execution proceedings. It was further agreed that the rent for the period from 01.10.2018 to 30.09.2019 was fixed at 1,20,000/- and from 01.10.2019 to 30.09.2020, it was to be enhanced @ 15% and fixed at 1,38,000/- per month and from 01.10.2020 to 30.09.2021 the rent was to be enhanced @ 15% and fixed at 159,000/- per month. The rent was to be paid by Demand Draft or Cheque or RTGS in the name of the plaintiffs.
PNR,J CRP No.96 of 2023 5 3.6. The trial Court took note of the Memorandum of Compromise and passed the decree on 22.02.2019. Note appended to the decree shows that Memo of Compromise dated 22.02.2019 is appended to the decree as part and parcel of the decree.
3.7. Alleging that defendants have not vacated the suit premises by 30.09.2021, plaintiffs filed E.P.No.865 of 2021. In the said E.P., defendants 1 and 3 filed E.A.No.143 of 2021 praying to stay all execution proceedings, pending disposal of Application filed under Section 47 of Code of Civil Procedure, 1908 (CPC). On due consideration of the respective submissions, trial Court by Order dated 25.03.2022 dismissed the E.A.No.143 of 2021. Challenging the Order in E.A.No.143 of 2021, defendants 1 and 3 filed Civil Revision Petition No.1044 of 2022. This Court by Order dated 21.10.2022 set aside the order in E.A.No.143 of 2021 and remanded the matter to the trial Court for fresh consideration. On remand, the Court below heard E.A.No.144 of 2021 afresh and by Orders dated 26.12.2022, dismissed the E.A.No.144 of 2021. Challenging the same, this Revision is filed.
PNR,J CRP No.96 of 2023 6
4. Learned counsel for defendants 1 and 3 made the following submissions:
4.1. The terms of compromise clearly disclose that fresh lease has come into operation and in terms of fresh lease, the defendants are entitled to continue in the leased premises and, therefore, question of evicting the defendants does not arise. In support of his contention, learned counsel placed reliance on the decision of the Hon'ble Supreme Court in Sudhir Kumar and others vs. Baldev Krishna Thepar and others1. 4.2. Learned counsel further contended that terms of compromise are not incorporated in the decree and thus decree passed by the trial Court is not a decree in the eye of law. The trial Court has not recorded the decree as required by law. Therefore, it is not enforceable and Execution Petition is not maintainable.
4.3. He would further contend that the trial Court has not objectively decided the respective submissions, as directed by the Hon'ble High Court. By referring to various paragraphs of the Order dated 25.03.2022, and the Order impugned herein. He would contend that the trial Court bodily lifted entire Order 1 (1969) 3 SCC 611 PNR,J CRP No.96 of 2023 7 earlier passed. There was no application of mind and mechanically disposed of the E.A.
4.4. He would contend that the defendants have been paying the rents regularly. In support of the said contention, he has drawn the attention of the Court to the documents filed from page nos.130 to 179. These documents are letters written by the defendants enclosing POs and Demand Drafts issued from time to time.
4.5. Learned counsel placed reliance on the following decisions:
i) Sudhir Kumar and others vs. Baldev Krishna Thapar and others (supra);
ii) Lakshmi Ram Bhuyan vs. Hari Prasad Bhuyan and 2 others ;
iii) Smt. Rama Singh and others vs. V Addl. District Judge and others3;
iv) Judgment of Hon'ble Supreme Court in Civil Appeal
No.5305 of 202 dated 16.08.2022; and
v) Sir Sobha Singh and Sons Private Limited vs. Shashi
Mohan Kapur (deceased) through Legal
4
Representative .
5. Per contra, learned senior counsel for the plaintiffs submitted that terms of compromise decree are very clear. First 2 (2003 ) 1 SCC 197 3 1990 SCC Online All 1055 4 (2020) 20 sCC 798 PNR,J CRP No.96 of 2023 8 paragraph of the Memo of Compromise clearly mandates the tenants to vacate the premises on or before 30.09.2021. In paragraph-2, records the rent payable for the previous years and would end on 30.09.2021. No new lease was entered. There was no question of creating fresh tenancy.
5.1. In view of the compromise entered into by the parties, the trial Court recorded the compromise and disposed of the suit. In the decree, trial Court noted that decree is passed in terms of the memorandum of compromise and in the note appended to the decree, it is clearly mentioned that memorandum of compromise dated 22.02.2019 is appended to the decree as part and parcel of the decree. Therefore, terms of compromise are to be treated as part and parcel of the decree. He would therefore submit that there was no illegality in drafting the decree and the decree is enforceable. He would further submit that after 30.09.2021, the amounts paid by the defendants are received under protest.
5.2. With reference to the contention that the order is verbatim the same, learned senior counsel pointed out that having regard to the pleadings and contentions urged, no illegality committed by trial Court in adopting the pleadings and contentions PNR,J CRP No.96 of 2023 9 recorded in the earlier order in E.A. It is not true to contend that there was no application of mind by the trial Court in deciding the E.A. The trial Court noted that after the earlier decision, the defendants filed CRP No.1044 of 2022 and in the CRP, this Court remanded the matter to the trial Court. Thereafter, on due appreciation of the submissions, the trial Court held that Execution Court has not acted beyond the decree and also further observed that trial Court was not convinced of the reasons assigned in the petition and the scope of applicability of Section 47 of CPC. It is thus clear that there was application of mind in considering the issue and thereon decision was made.
5.3. Learned senior counsel placed reliance on decisions of the Hon'ble Supreme Court in Mohammade Yusuf and others vs. 5 Rajkumar and others and Brakewel Automotive Components 6 (India) Private Limited vs. P.R.Selvam Alagappan in support of his contention that compromise decree does not require registration.
6. In reply, learned counsel for defendants contended that there was no issue framed on registration of the compromise. 5
(2020) 10 SCC 264 6 (2017) 5 SCC 371 PNR,J CRP No.96 of 2023 10 He would submit that rent cannot be enhanced unless fresh lease was made. Since enhanced rent has been mentioned in the compromise memo, it is deemed that fresh lease was entered into. He reiterates that decree was not properly drawn and, therefore, is inexecutable. He would further submit that under Section 47 of CPC, plaintiffs cannot lead evidence. As the Order under challenge is nothing but cut and paste of the earlier order, sustaining the same would amount to travesty of justice.
7. According to plaintiffs, after expiry of lease period in spite of notice to vacate the premises, defendants have not vacated, have not paid rent, have not paid electricity and water charges. In those circumstances, plaintiffs terminated the lease by issuing legal notice dated 24.01.2017. It is not in dispute that the lease was for a period of five years commencing from 01.07.2011 and ending on 30.06.2016. Lease was not extended after 30.06.2016 and on the contrary, notice of termination of lease was issued by plaintiffs and contending that in spite of notice tenant was not vacating the premises, instituted the instant suit.
PNR,J CRP No.96 of 2023 11
8. During the pendency of the suit, parties have negotiated for settlement of dispute and entered into Memorandum of Compromise. Paragraphs 1 and 2 of the Memorandum reads as under:
"1. It is agreed between the parties that the defendant will vacate the premises on or before 30th September, 2021. There shall therefore be passed a decree of eviction of defendants directing defendants to deliver vacant possession of the schedule property on or before 30.09.2021. If the defendants fails to vacate the premises on or before 30th September, 2021, the plaintiffs shall be entitled to evict the defendants by filing execution proceedings.
2. It is agreed between the parties that the rent for the period from 01.10.2018 to 30.09.2019 is fixed at 1,20,000.00 and from 01.10.2019 to 30.09.2020 the rent is enhanced at the rate of 15% and fixed at 1,38,000.00 and from 01.10.2020 to 30.09.2021 the rent is enhanced at the rate of 15% and fixed at rate 1,59,000.00. The rent shall be payable by Demand Draft or Cheque or by RTGS only in the name of plaintiffs."
9. The terms of settlement have to be seen in the above factual background. According to paragraph-1, defendants agreed to vacate the premises on or before 30.09.2021. Parties have agreed to pass decree of eviction of defendants with direction to defendants to deliver vacant possession of schedule property. Parties have also agreed to the quantum of rent payable from 01.10.2018 till 30.09.2021. The terms of compromise memo make it very clear that the defendants have to vacate premises on or before 30.09.2021. Therefore, what was agreed was on vacating the premises by a particular date and payment of rent till that date only. Taking note of the terms PNR,J CRP No.96 of 2023 12 of compromise the suit was disposed of. The terms of compromise do not amount to entering into new lease as is sought to be contended vehemently by the learned counsel for defendants.
10. In Sudhir Kumar (supra), Hon'ble Supreme Court considered the scope of terms of compromise decree on renewal of lease. Hon'ble Supreme Court held, "5. The question whether under the terms of the compromise the parties entered into a fresh lease or the decree-holders merely granted an extension of time for delivery of possession of the premises demised essentially depends on the intention of the parties who entered into the compromise as could be gathered from the compromise petition as well as the compromise decree. It is necessary to note that in the compromise petition, it is specifically stated that the parties had agreed "that the defendants shall remain as lessees of Uttam Talkies, Residency Road, Jammu, on terms and conditions on which they previously held the said premises machinery furniture fittings, etc. up to 31-12-1962 and pay to the plaintiff rent at Rs 3000 per month from 1st January, 1959 in the following proportion...." It is further stated therein that "the rest of the terms and conditions will be as contained in the agreement a deed, dated 17th Assuj 2011 registered on 18th Assuj, 2011". But the last clause in the compromise petition reads: "it is therefore prayed that a decree may kindly be passed directing ejectment on 1st January, 1963 on terms and conditions contained herein". The compromise decree refers to the defendants as "lessees" and the compensation payable by them as "rent". At the same time clause (2) of the decree says that the defendants shall be liable to ejectment and shall vacate the premises on 1st January, 1963 on the terms and conditions as stated above. The compromise and the compromise decree speak, so to say, in two voices: If we had been merely left with the specific terms incorporated in the compromise petition and the compromise decree without bringing in by reference the terms of the original lease as to matters not specifically covered in the compromise petition and the compromise decree, there would have been some difficulty in spelling out the real intention of the parties. But by incorporating the terms of the old lease, to the extent not covered by the new PNR,J CRP No.96 of 2023 13 terms, the parties had agreed to incorporate into the new agreement the term relating to renewal found in the original lease. On an analysis of the terms of the compromise, it is seen that the lessors had granted a fresh lease of the cinema talkies demised; a monthly rental was fixed in respect of the same and the lessees were given an option to renew the lease at the end of the term fixed though that right is subject to certain conditions. Under these circumstances, the direction in the decree to vacate the suit premises at the end of the term fixed in the compromise in accordance with the terms of the compromise would amount to an ineffective direction. Such a direction cannot be considered as an ejectment decree. It is at best a declaration of the right of the lessors to eject the lessees at the end of the lease period if the lessees fail to get a renewal.
xxx
7. Mr Tarkunde next contended that the renewal clause referred to earlier is a meaningless term as the lessees are entitled to a renewal only if the lessors consented. He urged that there can be a renewal only if both the lessors and the lessees agreed; but in that event there is no need to have a term providing for renewal. We are unable to read the renewal clause as Mr Tarkunde wants us to do. No term in a contract should be considered as superfluous if it can be given some reasonable meaning. The clause in question definitely says that lessees are entitled for a renewal. The right of the lessors to give consent must be read in the context of the lessees' entitlement to get a renewal of the lease. If so read, it is clear that the lessors can withhold their consent either because of the lessees' failure to observe one or other of the material terms of the lease or on some other reasonable ground. The lessors cannot withhold their consent capriciously or unreasonably. A covenant against assigning and letting, charging or parting with possession of the demised property or any part thereof without licence or consent of the landlord is deemed to be subject to a proviso to the effect that such licence or consent is not to be unreasonably withheld. That is the position both under the English Law as well as under the Indian Law. About that there is no dispute. If in the matter of introducing a stranger to the demised property, the law insists that the lessors should not unreasonably withhold his consent, it follows as a matter of reason and logic that the lessor cannot unreasonably withhold his consent, when the lessee exercises his option to renew the lease on the strength of one of the terms in the lease deed." (emphasis supplied)
11. From the facts in Sudhir Kumar (supra), it is noticed that in the compromise petition, it is specifically stated that the parties agreed that the defendants shall remain as lessees on PNR,J CRP No.96 of 2023 14 terms and conditions on which they previously held the said premises. Further, it is also stated that the rest of the terms and conditions would be as contained in the old lease deed. Taking note of such terms in the compromise petition, Hon'ble Supreme Court observed that 'by incorporating the terms of the old lease, to the extent not covered by the new terms, the parties agreed to incorporate into the new agreement the term relating to renewal found in the original. On an analysis of the terms of the compromise, it is seen that the lessors had granted a fresh lease of the cinema talkies demised'. The Hon'ble Supreme Court further observed that, 'The clause in question definitely says that lessees are entitled for a renewal'.
12. As against said terms of compromise, in Sudhir Kumar (supra), the Memo of Compromise does not even refer to, leave alone incorporating, terms of old lease agreement. The Memo of compromise stands on its own and is pure and simple compromise formula worked out by the parties to resolve the dispute on the intervention of elders. In Sudhir Kumar (supra), Hon'ble Supreme Court further observed that, 'If we had been merely left with the specific terms incorporated in the compromise petition and the compromise decree without brining in by reference the terms of the original lease as to matters not PNR,J CRP No.96 of 2023 15 specifically covered in the compromise petition and the compromise decree, there would have been some difficulty in spelling out the real intention of the parties'. As observed by the Hon'ble Supreme Court, whether the parties entered into a fresh lease or the decree-holder merely granted an extension of time for delivery of possession of the premises essentially depends on the intention of the parties who entered into the compromise. In the case on hand, from the terms of compromise, it is apparent that the decree-holder merely granted extension of time for delivery of possession and lessee agreed for those terms. Therefore, lessee is not entitled to ask for renewal of lease. The claim of petitioner is contrary to the terms of compromise. Having entered into terms of compromise and allowed the decree to be passed accordingly, the lessee cannot turn round and refuse to vacate the premises on lame excuses.
13. It is vehemently contended that the terms of compromise are not incorporated in the decree and thus, decree passed by the trial Court is not a decree in the eye of law.
14. Lakshmi Ram Bhuyan (supra) is a case pertaining to title suit with respect to several schedules of properties and several reliefs were sought regarding the same. The trial Court drew up PNR,J CRP No.96 of 2023 16 on a decree, which only mentioned the costs as stipulated by the High Court, whereas the original reliefs claimed by plaintiffs were not mentioned or decreed. When the plaintiffs sought execution of the reliefs as set in the plaint, the Civil Judge passed two orders saying that the decree drawn upon by the trial Court does not formally deliver khas possession, it only speaks of the costs drawn by the trial Court and does not contain the relief sought by the plaintiffs. Hence, the Civil Judge ordered for a complete decree to be drawn as per the instructions of the High Court. A revision filed against the said order was dismissed. Following which, respondents filed an S.L.P. The Supreme Court held that as per Order XX Rule 6 of CPC, every decree must be in agreement with the judgment and must clearly indicate reliefs sought by the parties. The relevant paras are extracted below:
"10. Certain provisions of the Code of Civil Procedure, 1908 may be noticed. Order VII Rule 1 CPC requires the plaintiff to give sufficient particulars of the relief, which the plaintiff claims. Order XX requires a judgment to contain all the issues and findings or decision thereon with the reasons therefor. The judgment has to state the relief allowed to a party. The preparation of decree follows the judgment. The decree shall agree with the judgment. The decree shall contain, inter alia, particulars of the claim and shall specify clearly the relief granted or other determination of the suit. The decree shall also state the amount of costs incurred in the suit and by whom or out of what property and in what proportions such costs are to be paid. Rules 9 to 19 of Order XX are illustrative of contents of decrees in certain specified categories of suits. The very obligation cast by the Code that the decree shall agree with the judgment spells out an obligation on the part of the author of the judgment to clearly indicate the relief or PNR,J CRP No.96 of 2023 17 reliefs to which a party, in his opinion, has been found entitled to enable decree being framed in such a manner that it agrees with the judgment and specifies clearly the relief granted or other determination of the suit. The operative part of the judgment should be so clear and precise that in the event of an objection being laid, it should not be difficult to find out by a bare reading of the judgment and decree whether the latter agrees with the former and is in conformity therewith. A self-contained decree drawn up in conformity with the judgment would exclude objections and complexities arising at the stage of execution.
11. The obligation is cast not only on the trial court but also on the appellate court. In the event of the suit having been decreed by the trial court if the appellate court interferes with the judgment of the trial court, the judgment of the appellate court should precisely and specifically set out the reliefs granted and the modifications, if any, made in the original decree explicitly and with particularity and precision. Order XLI Rule 31 CPC casts an obligation on the author of the appellate judgment to state the points for determination, the decision thereon, the reasons for the decision and when the decree appealed from is reversed or varied, the relief to which the appellant is entitled. If the suit was dismissed by the trial court and in appeal the decree of dismissal is reversed, the operative part of the judgment should be so precise and clear as it would have been if the suit was decreed by the trial court to enable a self-contained decree being drawn up in conformity therewith. The plaintiff, being dominus litus, enjoys a free hand in couching the relief clause in the manner he pleases and cases are not wanting where the plaintiff makes full use of the liberty given to him. It is for the court, decreeing the suit, to examine the reliefs and then construct the operative part of the judgment in such manner as to bring the reliefs granted in conformity with the findings arrived at on different issues and also the admitted facts. The trial court merely observing in the operative part of the judgment that the suit is decreed or an appellate court disposing of an appeal against dismissal of suit observing the appeal is allowed, and then staying short at that, without specifying the reliefs to which the successful party has been found entitled tantamounts to a failure on the part of the author of the judgment to discharge obligation cast on the Judge by the provisions of the Code of Civil Procedure."
15. In Sir Sobha Singh & Sons (supra), the appellant (plaintiff/ decree holder) let out the suit property to the father of the respondent (defendant/judgment debtor). In 2004 appellant PNR,J CRP No.96 of 2023 18 determined the tenancy by serving quit notice to the father of the respondent. The appellant served another quit notice in 2009 to the respondent to vacate the suit house. The respondent failed to vacate. The appellant filed a civil suit for eviction and mesne profits. The respondent did not contest the suit, instead entered into compromise where it was agreed that the vacant possession would be handed over to the appellants on or before 31.05.2016, pay monthly costs till then and not create any third party rights. A compromise decree was recorded reflecting the same. On 27.05.2016, the respondent filed an application under Section 148 r/w Section 151 of the C.P.C. for extension of the date of handing over possession, and the trial Court allowed the same for a period of two months. Another application was sought to extend the time, which was dismissed by the trial Court.
15.1. Since the respondent did not vacate the house, the appellant initiated Execution Proceedings, for the execution of the consent/compromise decree entered between the parties. The executing court issued a warrant for possession of the suit property. The Respondents filed four applications under Order 47 read with Sections 114 and 151, Order 21 Rules 11(2) and 26 of the Code seeking review of the order challenging the PNR,J CRP No.96 of 2023 19 executability of compromise decree. Briefly the grounds were, concealment of material facts when the parties had entered into a compromise agreement; that the no decree was drawn by the trial court after passing of the consent order; and the suit under which the consent order was passed was not maintainable in lie of Section 50 of the Delhi Rent Control Act. The Trial court dismissed the aforesaid applications.
15.2. Aggrieved, the respondent filed Appeal and the High Court allowed the appeal on the ground that since a formal decree was not drawn up by the trial court, the same is not maintainable, and set aside the execution petition. The High Court directed the appellants to apply to the trial Court for drawing up of a decree under Section 152. The appellants filed appeal by special leave to Hon'ble Supreme Court. The point for consideration before the Hon'ble Supreme Court was whether, High Court was right in setting aside the execution proceedings, as there was no formal decree drawn up on the consent order. The Supreme Court held that the High Court was right in directing the Court for drawing up a formal decree, but the High Court was wrong to direct to file under Section 152, instead to file an application under Section 151 read with Order 20 Rule 6-A of the Code.
PNR,J CRP No.96 of 2023 20 15.3. The relevant paragraphs of the judgment read as under:
"24. Order 20 Rule 6 of the Code deals with contents of decree and provides that the decree shall agree with the judgment, it shall contain the number of the suit, the names and descriptions of the parties, their registered addresses and particulars of claim, relief granted or any other determination made in the suit, amount of costs incurred in the suit, and by whom or out of what property and in what proportions, the cost to be paid. Rule 6-A deals with the preparation of decree. It says that every endeavour shall be made to ensure that the decree is drawn up as expeditiously as possible and, in any case, within fifteen days from the date on which the judgment is pronounced. Order 20 Rule 6-A(2) of the Code says that an appeal may be preferred against the decree without filing a copy of the decree and in such a case the copy made available to the party by the Court shall for the purposes of Order 41 Rule 1 be treated as the decree but as soon as the decree is drawn, the judgment shall cease to have the effect of a decree for the purposes of execution or for any other purpose.
xxxx
34. In the light of the clear language of Order 23 Rule 3 of the Code, it is not possible to accept the submission of the learned Senior Counsel for the appellant that the order dated 1-6-2012 itself amounts to a decree and, therefore, it is not necessary for the court to pass a decree. Had this been the intention, the legislature would not have used the expression "and shall pass a decree in accordance therewith" in Order 23 Rule 3 of the Code.
xxxx
45. In the case at hand, we find that the court, which disposed of the suit, did not draw the decree but only passed the order. In such a situation, the decree-holder was required to file an application under Section 151 read with Order 20 Rule 6-A of the Code to the court for drawing a decree in accordance with the order dated 1-6-2012. Indeed, we find in the concluding paragraph of the order dated 1-6-2018 that the court has already directed to ensure compliance with the formalities. It would have been, therefore, proper in such circumstances for the court to simultaneously draw a decree the same day itself or in any event within 15 days as provided in Order 20 Rule 6-A."
PNR,J CRP No.96 of 2023 21
16. In Lakshmi Ram Bhuyan (supra), the trial Court only drew up decree mentioning costs only and original reliefs claimed by plaintiffs were not mentioned or decreed. Therefore, the Hon'ble Supreme Court observed that, 'the trial Court merely observing the operative part of the judgment that the suit is decreed on an Appellate Court disposing of an appeal against dismissal of suit observing the appeal is allowed, and then staying short at that, without specifying the reliefs to which the successful party has been found entitled tantamounts to failure on the part of the author of the judgment to discharge obligation cast on the Judge by the provisions of the Code of Civil Procedure'.
17. In the decree, the trial Court extracted the prayers sought by the plaintiff. After extracting the prayer, valuation, cause of action, date of presentation of plaint etc., the decree reads as under:
"1) The suit filed by the plaintiffs against the defendants be and the same is hereby decreed in terms of memorandum of compromise."
18. Reading of the decree makes it clear that the decree is passed in terms of the Memorandum of Compromise. Note appended to the decree reads, 'that the Memorandum of PNR,J CRP No.96 of 2023 22 Compromise dated 22.02.2019 appended to the decree as part and parcel of the decree'. Thus, there is no ambiguity in drafting the decree. The decree makes it clear that it is passed as per the terms of Memorandum of Compromise. The terms of Memorandum of Compromise are clear on how compromise was worked out.
19. From the objection raised before the trial Court against execution of the decree and the grounds urged herein, it is apparent that the petitioners are hell-bent on blocking the execution of decree made pursuant to the Memorandum of Compromise.
20. In M.P.Shreevastava v. Veena7, Hon'ble Supreme Court considered scope of Order XXI Rule 2 and Section 47of CPC. It is held, "6. But Order 21 Rule 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 Section 47 CPC 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 execution, discharge or satisfaction of the decree, is not thereby affected. Whereas Order 21 Rule 2 deals with the procedure to be followed in a limited class of cases relating to discharge or satisfaction of decrees, where there has been payment of money or adjustment or satisfaction of the decree by consensual arrangement, Section 47 CPC deals with the power of the court executing the decree. 7 (1967) 1 SCR 147 PNR,J CRP No.96 of 2023 23
7. Counsel for the appellant does not deny to the court executing the decree power to decide all questions relating to execution, discharge or satisfaction of the decree arising between the parties to the suit in which the decree was passed, but contends that since the power to record discharge or satisfaction of a decree is exercisable only by the court executing the decree, no substantive petition lies at the instance of the person against whom a decree is passed to record adjustment or satisfaction so long as the decree-holder has not applied for execution. Counsel says that the expression "Court executing the decree" means the "Court which is executing the decree at the instance of the decree- holder" and in support of his contention relies upon the different expressions used in Order 21 Rules 1 and 2 CPC. He points out that under Order 21 Rule 1(1)(a) money payable under a decree may be paid into the court whose duty it is to execute the decree. Similarly an application under clause (1) or clause (2) of Rule 2 Order 21 for recording payment of money under or adjustment of a decree has to be made to the court whose duty it is to execute the decree, whereas prohibition against recognition of an 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 Order 21 Rule 1(1)(a) or under Order 21 Rule 2(1) or (2) there need be substantive application for execution pending. It also appears, from the terms of clause (3) of Order 21 Rule 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 Section 47 CPC means a "Court which is seized of an application for execution of a decree at the instance of the decree-holder". Section 47 enacts the salutary rule that all questions relating to execution, discharge or satisfaction of the decree shall be determined not by a separate suit, but in execution of the decree. The power so conferred may not be limited by any strained or artificial construction of the words "Court executing the decree". The expression "Court executing the decree" has not been defined, and having regard to the scheme of the Code it cannot have a limited meaning, as argued by counsel for the appellant. The principle of the section is that all questions relating to execution, discharge or satisfaction of a decree and arising between the parties to the suit in which the decree is passed, shall be determined in the execution proceeding, and not by a separate suit : it follows as a corollary that a question relating to execution, discharge or satisfaction of a decree may be raised by the decree-holder or by the judgment-debtor in the execution department and that pendency of an application for execution by the decree-holder is not a condition of its exercise. An application made by the judgment-debtor which PNR,J CRP No.96 of 2023 24 raises a question relating to execution, discharge or satisfaction of a decree in a suit to which he, or the person of whom he is a representative, was a party is an application before the court executing the decree, and must be tried in that court.
8. There is a catena of cases in which it has been held that Section 244 of the Code of 1882 and Section 47 of the Code of 1908 apply to disputes arising between the parties contemplated by those sections in relation to a decree were after it has been executed. ..... xxxx
13. It is not necessary to multiply cases -- and they are many
-- in which applications by judgment-debtors raising questions relating to execution, discharge or satisfaction not falling within Order 21 Rule 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. ...."
21. In Mohd.Yusuf (supra), the father of the appellants had filed suit for declaration of title and injunction in respect of suit schedule property on the basis of adverse possession of the father who was the plaintiff in the main suit. The survey of the land reflected the names of the defendants. A compromise decree was passed in the suit declaring the father as the owner of the scheduled area and the remaining land would belong to the defendants. In a later suit with respect to the above land, the question arose whether the above compromise decree was valid because it was not registered. The High Court held that it had to be compulsorily registered. The Appellants approached the supreme court where it was held, PNR,J CRP No.96 of 2023 25 "7. A compromise decree passed by a court would ordinarily be covered by Section 17(1)(b) but sub-section (2) of Section 17 provides for an exception for any decree or order of a court except a decree or order expressed to be made on a compromise and comprising immovable property other than that which is the subject-matter of the suit or proceeding. Thus, by virtue of sub-section (2)(vi) of Section 17 any decree or order of a court does not require registration. In sub-clause
(vi) of sub-section (2), one category is excepted from sub- clause (vi) i.e. a decree or order expressed to be made on a compromise and comprising immovable property other than that which is the subject-matter of the suit or proceeding. Thus, by conjointly reading Section 17(1)(b) and Section 17(2)(vi), it is clear that a compromise decree comprising immovable property other than which is the subject-matter of the suit or proceeding requires registration, although any decree or order of a court is exempted from registration by virtue of Section 17(2)(vi). A copy of the decree passed in Suit No. 250-A of 1984 has been brought on record as Annexure P-2, which indicates that decree dated 4-10-1985 was passed by the Court for the property, which was subject- matter of the suit. Thus, the exclusionary clause in Section 17(2)(vi) is not applicable and the compromise decree dated 4-10-1985 was not required to be registered on plain reading of Section 17(2)(vi). The High Court referred to the judgment of this Court in Bhoop Singh v. Ram Singh [Bhoop Singh v. Ram Singh, (1995) 5 SCC 709] , in which case, the provision of Section 17(2)(vi) of the Registration Act came for consideration. This Court in the above case while considering clause (vi) laid down the following in paras 16, 17 and 18: (SCC pp. 715-16) "16. We have to view the reach of clause (vi), which is an exception to sub-section (1), bearing all the aforesaid in mind. We would think that the exception engrafted is meant to cover that decree or order of a court, including a decree or order expressed to be made on a compromise, which declares the pre-existing right and does not by itself create new right, title or interest in praesenti in immovable property of the value of Rs 100 or upwards. Any other view would find the mischief of avoidance of registration, which requires payment of stamp duty, embedded in the decree or order.
17. It would, therefore, be the duty of the court to examine in each case whether the parties have pre-existing right to the immovable property, or whether under the order or decree of the court one party having right, title or interest therein agreed or suffered to extinguish the same and created right, title or interest in praesenti in immovable property of the value of Rs 100 or upwards in favour of other party for the first time, either by compromise or pretended consent. If latter be the position, the document is compulsorily registrable.
PNR,J CRP No.96 of 2023 26
18. The legal position qua clause (vi) can, on the basis of the aforesaid discussion, be summarised as below:
(1) Compromise decree if bona fide, in the sense that the compromise is not a device to obviate payment of stamp duty and frustrate the law relating to registration, would not require registration. In a converse situation, it would require registration.
(2) If the compromise decree were to create for the first time right, title or interest in immovable property of the value of Rs 100 or upwards in favour of any party to the suit the decree or order would require registration.
(3) If the decree were not to attract any of the clauses of sub-section (1) of Section 17, as was the position in the aforesaid Privy Council [Ed.: The reference is to Hemanta Kumari Debi v. Midnapur Zamindari Co. Ltd., 1919 SCC OnLine PC 41 : (1918-19) 46 IA 240] and this Court's cases [Ed.: The reference is to Mangan Lal Deoshi v. Mohd. Moinul Haque, 1950 SCC 760 : AIR 1951 SC 11; Bishundeo Narain v. Seogeni Rai, 1951 SCC 447 : AIR 1951 SC 280 and Shankar Sitaram Sontakke v. Balkrishna Sitaram Sontakke, AIR 1954 SC 352] , it is apparent that the decree would not require registration. (4) If the decree were not to embody the terms of compromise, as was the position in Lahore case [Fazal Rasul Khan v. Mohd-ul-Nisa, 1943 SCC OnLine Lah 128 : AIR 1944 Lah 394] , benefit from the terms of compromise cannot be derived, even if a suit were to be disposed of because of the compromise in question.
(5) If the property dealt with by the decree be not the "subject-matter of the suit or proceeding", clause (vi) of sub-section (2) would not operate, because of the amendment of this clause by Act 21 of 1929, which has its origin in the aforesaid decision of the Privy Council, according to which the original clause would have been attracted, even if it were to encompass property not litigated."
22. In Brakewel Automotive Components (India) Pvt. Ltd., (supra), the respondent Companies had entered into a business deal with appellant to supply auto components and parts. The respondents failed to pay the fees, and a suit was filed by the appellants for recovery of money of 20,94,953/- with an interest at the rate of 24% p.a. The trial Court decreed the suit in favor of the appellants directing the respondents to pay 18 crores with interest @ 18% p.a. The appellants filed E.P., to execute the same. The respondent objected to execution. The respondents claimed that there was mis-joinder and non-
PNR,J CRP No.96 of 2023 27 joinder of parties to the present suit. The respondents sought to bring in new documentary and oral evidence to prove the same. The execution court held that before executing the money decree, the question has to be decided under section 47 proceedings. The High Court affirmed this view. The appellant filed appeal with respect to the maintainability at this stage of the proceedings. The Hon'ble Supreme Court held, "20. It is no longer res integra that an executing court can neither travel behind the decree nor sit in appeal over the same or pass any order jeopardising the rights of the parties thereunder. It is only in the limited cases where the decree is by a court lacking inherent jurisdiction or is a nullity that the same is rendered non est and is thus unexecutable. An erroneous decree cannot be equalled with one which is a nullity. There are no intervening developments as well to render the decree unexecutable.
21. As it is, Section 47 of the Code mandates determination by an executing court, questions arising between the parties or their representatives relating to the execution, discharge or satisfaction of the decree and does not contemplate any adjudication beyond the same. A decree of court of law being sacrosanct in nature, the execution thereof ought not to be thwarted on mere asking and on untenable and purported grounds having no bearing on the validity or the executability thereof.
22. Judicial precedents to the effect that the purview of scrutiny under Section 47 of the Code qua a decree is limited to objections to its executability on the ground of jurisdictional infirmity or voidness are plethoric. This Court, amongst others in Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman in essence enunciated that only a decree which is a nullity can be the subject-matter of objection under Section 47 of the Code and not one which is erroneous either in law or on facts. The following extract from this decision seems apt: (SCC pp. 672-73, paras 6-7) "6. A court executing a decree cannot go behind the decree: between the parties or their representatives it must take the decree according to its tenor, and cannot entertain any objection that the decree was incorrect in law or on facts. Until it is set aside by an appropriate proceeding in appeal or revision, a decree even if it be erroneous is still binding between the parties.
PNR,J CRP No.96 of 2023 28
7. When a decree which is a nullity, for instance, where it is passed without bringing the legal representative on the record of a person who was dead at the date of the decree, or against a ruling prince without a certificate, is sought to be executed an objection in that behalf may be raised in a proceeding for execution. Again, when the decree is made by a court which has no inherent jurisdiction to make it, objection as to its validity may be raised in an execution proceeding if the objection appears on the face of the record: where the objection as to the jurisdiction of the court to pass the decree does not appear on the face of the record and requires examination of the questions raised and decided at the trial or which could have been but have not been raised, the executing court will have no jurisdiction to entertain an objection as to the validity of the decree even on the ground of absence of jurisdiction."
23. The decree which is sought to be executed is not a nullity. It is neither incorrect in law or on facts. The scrutiny on objections to enforceability of a decree under Section 47 of CPC is limited to jurisdictional infirmity or void ness. As consistently held, a Court executing the decree cannot go beyond the decree until it is set aside in Appeal. It must take the decree as it is. A decree, even if it is erroneous, is still binding between the parties. In the terms in which the decree was drafted it cannot be said that it is in-executable.
24. It is next contended that there is no objective consideration of the submissions on remand from High Court and the trial Court bodily lifted earlier order.
25. On a first blush, there appears merit in the submission of learned counsel for revision petitioner. However, on a close PNR,J CRP No.96 of 2023 29 scrutiny, what is contended is not true. No doubt some facts from pleadings are matching when compared to facts recorded in the earlier order. But, merely because there is reflection of facts as noted in the earlier order, it cannot be inferred that learned trial Judge bodily lifted the earlier order.
26. This is clear from the opening sentence in paragraph-1 of the order under challenge. In paragraphs-2 and 3, he has noted additional averments of respective parties. In the order dated 25.03.2022 in I.A.No.143 of 2021, paragraph-8 starts with sentence "On the backdrop of this legal scenario" whereas in paragraph-8 of the order under challenge, Section 47 is extracted. In paragraph-11, the learned Judge proceeds to discuss the decisions cited and records his findings. Therefore, it cannot be said that there was no consideration at all.
27. I see no merit on the objections raised by the petitioners on excutability of the decree. For all the aforesaid reasons, the Civil Revision Petition fails. It is accordingly dismissed. At this stage, learned counsel for petitioners seeks two weeks time for vacating the premises. In view of the said request, two weeks time is granted for the petitioners to vacate the premises. Pending miscellaneous applications, if any, shall stand closed.
PNR,J CRP No.96 of 2023 30 ___________________________ JUSTICE P.NAVEEN RAO Date: 06.04.2023 Kkm HONOURABLE SRI JUSTICE P.NAVEEN RAO CIVIL REVISION PETITION NO.96 OF 2023 PNR,J CRP No.96 of 2023 31 Date: 06.04.2023 kkm