Bombay High Court
Rajesh S/O. Shivaji Sharma, ... vs Dr. Shyamsunder S/O Ratanlal ... on 14 March, 2017
Bench: Z.A. Haq
1 wp990.16
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO.990 OF 2016
Rajesh s/o Shivji Sharma,
Aged about 37 years, Occ. - Business,
R/o Chandak Layout, Ghat Road,
Nagpur. .... PETITIONER
VERSUS
1) Dr. Shyamsunder s/o Ratanlal Sharma,
Aged about 58 years, Occ. - Business,
2) M/s. Sheshachand Enterprises,
through its Partner Smt. Shakuntala
w/o Dr. Shyamsunder Sharma,
Both respondents R/o 501, Nirman
Enclave, 86-A, Gajanan Nagar, Wardha
Road, Nagpur.
3) Court of 2nd Joint Civil Judge, (Deleted)
Jr. Division, Nagpur. .... RESPONDENTS
______________________________________________________________
Shri R.M. Sharma, Advocate for the petitioner,
Shri V.V. Bhangde, Advocate for the respondent Nos.1 and 2.
______________________________________________________________
CORAM : Z.A. HAQ, J.
DATED : 14
MARCH, 2017.
th
ORAL JUDGMENT :
Heard Shri R.M. Sharma, Advocate for the petitioner and
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Shri V.V. Bhangde, Advocate for the respondent Nos.1 and 2.
On oral request, the petitioner is permitted to delete the
respondent No.3.
2. Rule. Rule made returnable forthwith.
3. The decree-holder takes exception to the order passed by
the executing Court dismissing the execution proceedings observing
that the identification of the property in the execution proceedings
cannot be ascertained because of non-compliance of Rule 9 of Order
XX of the Code of Civil Procedure.
4. The petitioner had filed civil suit praying for decree for
specific performance of contract or in alternative for return of
consideration alongwith interest, notice charges and for other reliefs.
The civil suit is decreed by the judgment given on 04-12-2002. The
judgment and decree passed in Regular Civil Suit No.2946/2001
(earlier registered as Special Civil Suit No.1178/1998) attained finality
having not been challenged in appeal. The plaintiff/decree-holder
filed Regular Darkhast No.81/2013 to execute the decree. In these
proceedings the respondents/judgment-debtors filed submissions vide
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Exhibit No.21 contending that the description of the suit property as
given in the plaint is not correct and plot No.98 is not there on the
eastern side of the suit plot as stated in the plaint. The judgment-
debtors pleaded that they are not in possession of Plot No.58 in respect
of which the plaintiff claimed decree. The judgment-debtor raised
various other objections.
The objection regarding identification of the property in
respect of which execution is filed is upheld by the executing Court and
the execution proceedings are dismissed by the impugned order.
5. The learned Advocate for the respondents/judgment-
debtors has submitted that Order XX Rule 9 of the Code of Civil
Procedure mandates that the decree shall contain the description of the
immovable property sufficient to identify such property and the
immovable property, can be identified by boundaries or by numbers in
a record of settlement or survey and that decree should specify such
boundaries or numbers and in the present case, the decree which is
sought to be executed neither shows the boundaries of the immovable
property in question nor number as per record of settlement or survey
and therefore, the decree in question cannot be executed. To support
the submission, the learned Advocate has relied on the judgment given
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by the Hon'ble Supreme Court in the case of Lakshmi Ram Bhuyan vs.
Hari Prasad Bhuyan and others reported in (2003) 1 SCC 197. It is
submitted that the executing Court has not non-suited the decree-
holder and has rightly left it open for the decree-holder to seek
amendment to the decree so that it is in consonance with the
provisions of Order XX Rule 9 of the Code of Civil Procedure and then
file execution proceedings. It is argued that the impugned order is
proper and it cannot be said that there is any error of jurisdiction.
6. The learned Advocate for the petitioner/decree-holder has
submitted that the decree is in respect of suit plot and the suit plot is
clearly described in paragraph No.3 of the plaint giving the boundaries
on all the four sides and therefore, it cannot be said that there is any
ambiguity and difficulty in identifying the property in respect of which
the decree is to be executed. Relying on the judgment given by the
Hon'ble Supreme Court in the case of Bhavan Vaja and others vs.
Solanki Hanuji Khodaji Mansang and another reported in (1973)2
SCC 40, it is submitted that it is the duty of the executing Court, to
take into consideration the pleadings and the proceedings leading up
to the decree and as submitted earlier, the suit property is properly
described and is identifiable and therefore, the executing Court was
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duty bound to proceed with the execution.
7. After examining the documents placed on the record of
the petition, I find that the suit property (immovable property) in
respect of which decree came to be passed is clearly described and is
identifiable. The description of the suit plot is in paragraph No.3 of
the plaint as follows :
"3. That, on making the payment of Rs.36,000/- (Rupees
Thirty Six Thousand Only), the defendants have executed an
Agreement of Sale in favour of plaintiff sometime on
26-04-1997. The said Agreement of Sale dated 26-04-1997
is in respect of Plot No.58 admeasuring 1500 sq.ft. in the
layout of Mangalmurti Co-operative Housing Society in
Khasra Nos.24, 25, 28, 29 of Mouza Bharatwada, Patwari
Halka No.17 situate in Ramanuj Nagar, Tahsil and District
Nagpur, within the limits of Nagpur Improvement Trust and
Nagpur Municipal Corporation which is the suit property and
is bounded by -
On the North - Plot No.59,
On the South - Plot No.57,
On the East - Plot No.98,
On the West - Road."
The relevant portion of operative order of the judgment
passed in Regular Civil Suit No.2946/2001 is as follows :
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"The suit is decreed.
The defendants are directed that, after starting
registration of sale deed, do execute the sale -deed of suit plot
in favour of plaintiff within two months and also to deliver
possession of same after execution of sale deed.
The plaintiff do bear requisite registration charges.
The parties to bear their own costs.
A decree be drawn accordingly.
Dictated and pronounced in open Court."
As per the judgment given on 04-12-2002, the decree is
drawn on 01-01-2003 as follows :
"The suit is decreed.
The defendants are directed that, after starting
registration of sale deed, do execute the sale -deed of suit plot
in favour of plaintiff within two months and also to deliver
possession of same after execution of sale deed.
The plaintiff do bear requisite registration charges.
The parties to bear their own costs."
8. The above facts show that the decree is in respect of the
suit plot which is clearly described, with boundaries, in paragraph No.3
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of the plaint. I find that there is sufficient compliance of the provisions
of Rule 9 of Order XX of the Code of Civil Procedure as the description
of the suit plot is sufficient to identify it and the boundaries are also
mentioned. In the judgment given by the Three Hon'ble Judges of the
Supreme Court in the case of Bhavan Vaja and others vs. Solanki
Hanuji Khodaji Mansang and another, in paragraph No.20 it is laid
down as follows :
"20. It is true that an executing court cannot go behind the
decree under execution. But that does not mean that it has
no duty to find out the true effect of that decree. For
construing a decree it can and in appropriate cases, it ought
to take into consideration the pleadings as well as the
proceedings leading up to the decree. In order to find out the
meaning of the words employed in a decree the Court, often
has to ascertain the circumstances under which those words
came to be used. That is the plain duty of the execution Court
and if that Court fails to discharge that duty it has plainly
failed to exercise the jurisdiction vested in it. Evidently the
execution court in this case thought that its jurisdiction began
and ended with merely looking at the decree as it was finally
drafted. .............................."
Considering the facts of the present case and the
proposition laid down in the above judgment, it is clear that the
executing Court has committed an error by not exercising its
jurisdiction properly and not abiding by the mandate of law. It is the
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duty of the executing Court to execute the decree and for this the
endeavour of the executing Court should be to assist the decree-holder
and not to non-suit him on frivolous objections.
9. Apart from the above, one more aspect which requires
consideration in the present case is that the decree-holder had earlier
filed Regular Darkhast No.546/2003 in which after repelling the
objections raised by the judgment-debtors the executing Court got
executed the sale-deed in respect of the property in question on
21-03-2005 through Nazir of the Court. Regular Darkhast
No.546/2003 was dismissed in default after the sale-deed was got
registered. The decree-holder filed Regular Darkhast No.81/2013
seeking possession of the property in question. After the sale-deed
came to be executed through Court, it cannot be said that the property
cannot be identified and the executing Court while considering the
prayer of the decree-holder in Regular Darkhast No.81/2013 could not
have considered the objection raised on behalf of the judgment-debtors
that the property in respect of which execution is filed cannot be
identified. Surprisingly the executing Court has overlooked the
proceedings of Regular Darkhast No.546/2003 and has passed the
impugned order overstepping its jurisdiction and contrary to the legal
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position.
10. In view of the above, the following order is passed :
(i) The impugned order is set aside.
(ii) Regular Darkhast No.81/2013 is restored.
(iii) The petitioner/decree-holder and the respondents/
judgment-debtors shall appear before the executing Court
on 10-04-2017. The executing Court shall proceed with
the execution proceedings according to law and dispose
the proceedings till 05-05-2017.
Rule made absolute in the above terms with costs quantified at
Rs.40,000/- to be paid by the respondents to the petitioner.
JUDGE
adgokar
