Vanimisetti Satyaveni vs Simhadri Satyanarayana
2023 Latest Caselaw 4051 AP

Citation : 2023 Latest Caselaw 4051 AP
Judgement Date : 5 September, 2023

Andhra Pradesh High Court - Amravati

Vanimisetti Satyaveni vs Simhadri Satyanarayana on 5 September, 2023

Bench: Cheekati Manavendranath Roy

 THE HON'BLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY

           CIVIL REVISION PETITION No.1728 OF 2023


ORDER:-


     Heard learned counsel for the petitioner and learned counsel

for the respondent.

2. The petitioner is the defendant in O.S.No.199 of 2015 on the

file of the learned Senior Civil Judge, Peddapuram. The said Suit

was filed against him by the respondent herein for specific

performance of contract on the basis of the agreement to sell,

dated 01.11.2015. The said Suit was decreed as prayed for.

Thereafter, the plaintiff filed E.P. No.02 of 2021 in the executing

Court seeking execution of the said Decree. The said E.P. was

allowed and registered sale deed was ordered to be executed.

Accordingly, draft sale deed was ordered to be produced. After the

draft sale deed was produced in the Court, the executing Court

straightaway ordered for execution of registered sale deed and

closed the E.P. on 06.02.2023.

3. The main grievance of the revision petitioner/JDR is that as

per Order XXI Rule 34(2) of CPC, the Court shall cause the draft of

the sale deed to be served on the judgment-debtor together with a

notice requiring his objections to be made within the time fixed by

the Court and the executing Court in utter violation of the said

mandate contemplated under Order XXI Rule 34(2) CPC without

ordering to serve copy of the draft sale deed on the JDR and

calling for his objections, has straightaway ordered for registration

of the sale deed.

4. This Court finds considerable force in the said contention of

the revision petitioner. Order XXI Rule 34(2) CPC reads thus:

"The Court shall there upon cause the draft to be served on the judgment-debtor together with a notice requiring his objections (if any) to be made within such time as the Court fixes in this behalf."

5. Therefore, the executing Court has to comply with the said

mandate and shall order to cause the draft sale deed to be served

on the JDR and call for his objections by fixing a time limit to that

effect. In utter violation of the said mandatory procedure

prescribed in the Code, the impugned order was passed.

Therefore, the impugned order is legally unsustainable and is

liable to be set aside.

6. The Apex Court also in the case of Rajbir v. Suraj Bhan

and another1 held at para Nos.10 and 13 as follows:

"10. The present is indeed a case where the decree in question provides for the execution of the document. The document is the document of sale as contemplated under the decree. Therefore, Order XXI Rule 34 is clearly attracted. It contemplates that if the judgment debtor neglects or refuses to

2022 LiveLaw (SC) 255

obey the decree, the decree-holder is to prepare a draft of the document. In this case, the draft of the document is the draft sale deed. The draft of the sale deed must further be in accordance with the terms of the decree. It is to be delivered to the court. Thereupon, it is not required that the decree holder must directly deliver it to the judgment debtor. The procedure, therefore, is that the decree holder must make it available to the Court. Under Order XXI Rule 34, it becomes the duty of the court to thereupon cause the draft to be served upon the judgment debtor. There must be a notice inviting objections and the court may fix a time within which objections are to be filed. The judgment debtor may or may not object. Order XXI Rule 34 sub-rule (3) contemplates a situation where the judgment debtor objects. This is to be contained in writing within the time provided. The court is duty bound to make an order approving or altering the draft as it thinks fit. This is of considerable importance having regard to what may follow subsequently on the strength of the decree. It is also important from the point of view of the role of the executing court which is to act in conformity with the decree.

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13. We must notice here that the objections on behalf of the appellant to the execution petition are not be confused with his objections to the proposed sale deed. That the appellant may have raised contentions to the effect that the decree itself is inexecutable and it was found meritless, would not absolve the court of its duty to proceed with the matter of considering the draft sale deed and the objections thereto under the provisions of Order XXI Rule 34. Subsequent to the impugned order dated 30.05.2019, without objections being invited and considered, the sale deed dated 11.06.2019 came to be executed which was registered. Therefore, we are of the view that this approach of the court in the matter of executing the decree in question clearly contravenes the salutary provisions of Order XXI Rule 34."

The aforesaid judgment squarely applies to the present facts

of the case.

7. Resultantly, the Civil Revision Petition is allowed

setting aside the order, dated 06.02.2023, closing the E.P.

The E.P. shall stand restored on to the file of the executing

Court. The Executing Court shall comply with the procedure

prescribed in Order XXI Rule 34(2) CPC and then pass appropriate

orders after ordering to serve copy of the draft sale deed on the

JDR and after calling for his objections, if any. The executing

Court shall pass appropriate orders according to law within six

months from the date of receipt of copy of this order. No costs.

As a sequel, miscellaneous applications, if any pending,