Bombay High Court
Sanjay Makhanlal Gupta vs Late Anant Bhiva Madhavi Since ... on 14 September, 2023
Bench: Amit Borkar
2023:BHC-AS:27187
912-wp7978-2023.F.doc
VRJ
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.7978 OF 2023
Sanjay Makhanlal Gupta ... Petitioner
V/s.
Anant Bhiva Madhavi
Since Deceased Through His Legal Heirs ... Respondents
Mr. Amanchi Arjun for the petitioner.
Mr. Sandesh D. Patil with Ms. Anusha Amin for
respondent Nos.1 and 2.
CORAM : AMIT BORKAR, J.
DATED : SEPTEMBER 14, 2023
P.C.:
1. By this writ petition under Article 227 of the Constitution of
India, the petitioner (decree holder) is challenging an order passed
by the executing Court rejecting the application for delivery of
possession on the ground that the operative part of the decree does
not contain a direction to deliver the possession.
2. It appears that the petitioner is the original plaintiff who
filed suit for possession, declaration and injunction. Prayer clause
12(a) of the plaint reads as under:
"12(a). The defendant be ordered and decreed to handover
the quit, vacant and peaceful possession of the suit land to
the plaintiff."
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3. The Trial Court, after considering pleadings, framed issues.
Issue No.4 reads as under:
"4. Whether the plaintiffs are entitled for the quiet and
peaceful possession of the suit properties?".
4. While discussing issue No.4, the Court arrived at the
following findings:
"The plaintiffs succeeded to prove their claim in respect of
the dispossession as well as the declaration that the two sale
deeds dtd.8/9/95 are null and void and not binding on
them, and therefore, the plaintiffs are certainly entitled for
the vacant and peaceful possession of the suit properties
from the defendant No.3......."
5. While answering issue No.5, the Court held that till handing
over possession to the plaintiff, injunction deserves to be granted.
6. The operative part of the judgment and decree reads as
under:
"1] The suit is decreed with costs.
2] It is hereby declared and ordered that the two sale
deeds dtd.8/9/95 executed by defendant nos.1 and 2 in
favour of defendant no.3 in respect of the suit properties
more particularly described in Para-1 the plaint registered at
Sr. No.3621/95 and 3622/95 in the office of Sub-Registrar,
Bhiwandi as null and void and not binding upon the
plaintiffs.
3] The defendants are hereby restrain by way of
permanent injunction from creating third party interest and
to deal and dispose of the suit properties to any third person
and also further restrain from transferring the possession of
the suit properties to any third person either personally or
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through any other person acting or purporting to act on his
behalf.
4] Decree be drawn up accordingly."
7. Based on aforesaid judgment and decree, the decree holder
filed an application for delivery of possession. The executing
Court, by order dated 21st February 2023, held that the operative
part of the judgment is silent about handing over possession of suit
property by the defendant to the plaintiff. Therefore, there is no
question of issuance of possession warrant by executing Court as
issuance of such warrant would amount to travelling beyond the
decree.
8. Learned advocate for the petitioner submitted that
considering pleadings, issues and discussion in the judgment, the
executing Court ought to have construed the decree in the light of
pleadings, prayers, issues and discussion in the judgment. In the
judgment, the Trial Court holds the plaintiff entitled to delivery of
possession; however, inadvertently, in the operative part, a specific
direction to deliver possession is not incorporated. He submitted
that the decree needs to be construed in the light of observations
made in the judgment in the context of the pleadings of the
parties. In support of his submission, he relied on the following
judgments:
a) Bhavan Vaja And Ors. vs. Solanki Januji Khodaji
Mansang And Anr. reported in AIR 1972 SC 1371.
b) Pratibha Singh And Another vs. Shanti Devi Prasad
And Another reported in AIR 2003 SC 643.
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9. Per contra, learned advocate for the judgment debtor-
respondents submitted that the decree is not ambiguous. The
Court, in its operative part, omitted relief of possession. The
executing Court, therefore, cannot travel beyond the operative part
of the decree. Grant of possession in this matter would amount to
modifying the decree. In support of his contention, he relied on the
judgment of the Apex Court in the case of Sanwarlal Agrawal
And Others vs. Ashok Kumar Kothari And Others reported
in (2023) 7 SCC 307.
10. I have heard learned advocate for the parties and perused
the record. Before dealing with contentions raised, it is necessary
to understand the parameters of powers to execute the Court while
construing the decree. In the case of Pratibha Singh (supra), the
Apex Court was concerned with defective misdescription of suit
property and objection to that effect was raised before the
executing Court. The Apex Court observed that the successful
plaintiff should not be deprived of the fruits of the decree, and a
resort can be had to section 152 or section 47 of the CPC,
depending upon the facts and circumstances of each case. It is
observed that the decree of a competent Court should not, as far as
practicable, be allowed to be defeated on account of an accidental
slip or omission.
11. At this stage, it is necessary to consider the judgment in the
case of Rajinder Kumar vs. Kuldeep Singh And Others
reported in (2014) 15 SCC 529. The Apex Court in paragraph 21
observed as under:
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"21. If the suit for specific performance is not decreed as
prayed for, then alone the question of any reference to the
alternative relief would arise. Therefore, there is no question
of any ambiguity. As held by this Court in Topanmal
Chhotanmal v. Kundomal Gangaram [AIR 1960 SC
388] and consistently followed thereafter, even if there is any
ambiguity, it is for the executing court to construe the decree
if necessary after referring to the judgment. If sufficient
guidance is not available even from the judgment, the court
is even free to refer to the pleadings so as to construe the
true import of the decree. No doubt, the court cannot go
behind the decree or beyond the decree. But while executing
adecree for specific performance, the court, in case of any
ambiguity, has necessarily to construe the decree so as to
give effect to the intention of the parties. Thus, there is no
question of any alternate relief regarding the damages, etc.
in the present case since the suit for the specific performance
for the conveyance of the property has been decreed."
12. It appears that the Apex Court held that in case of any
ambiguity, the executing Court must construe the decree if
necessary after referring to the judgment. If sufficient guidance is
not available even from the judgment, the Court is free to refer to
the pleadings to construe the true import of the decree. It is
observed that no doubt the Court cannot go behind the decree or
beyond the decree, but while executing the decree for specific
performance, the Court, in case of any ambiguity, has necessarily
to construe the decree to give effect to the intention of the parties.
13. Applying the principles delineated by the Apex Court to the
facts of the case, it appears that the Trial Court, while passing the
decree, framed a specific issue as to whether plaintiffs are entitled
to quiet and peaceful possession of the suit property, which was
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answered in the affirmative. In the body of judgment in paragraph
3, while discussing issue No.4, the Trial Court recorded a
categorical finding that the plaintiffs are certainly entitled to
vacant and peaceful possession of the suit properties from
defendant No.3. While passing the order of injunction also the
Trial Court held that such injunction is necessary till handing over
the possession to the plaintiffs. In the operative part clause 1, the
Trial Court decreed suit with costs. The prayer clause 12(a) of the
plaint seeks to hand over vacant and peaceful possession of the
suit land to the plaintiff. There is no indication either in the
judgment or in the operative part that the suit was partly decreed
or relief of possession was denied by the Trial Court. Once the
Court is satisfied that the Trial Court, while passing the decree,
considered relief on merits holding a party entitled to such relief,
such decree needs to be construed in favour of the party in whose
favour the Trial Court records such categorical findings.
14. As held by the Apex Court in the case of Pratibha Singh
(supra), such an exercise of construing decree can be done under
section 47 of the CPC. Moreover, as held in the case of Rajinder
Kumar (supra), a resort could be had to the judgment and
pleadings to construe the decree in favour of the party.
15. On overall consideration of prayers, issues, and discussion
while answering the issue, in my opinion, the decree needs to be
interpreted to mean decree for possession. Therefore, in my
opinion, the decree holder is entitled to the fruits of the decree as
held by the Apex Court in the case of Pratibha Singh (supra).
Hence, the following order:
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a) The impugned order dated 21st February 2023 passed
by the Civil Judge, Junior Division, Bhiwandi in Regular
Darkhast No.9 of 2021 below Exhibit-19 is quashed and set
aside;
b) The application below Exhibit-19 in Regular Darkhast
No.9 of 2021 is allowed.
16. However, learned advocate for the respondents, at this stage,
submitted that the decree passed against them is ex-parte decreed.
The delay application against the petitioner challenging the decree
has been rejected, against which the respondents have preferred a
second appeal before this Court. Therefore, they deserve
protection till the appropriate orders are passed by this Court.
17. In that view of the matter, the effect of the present judgment
and order is stayed for a period of four weeks from today.
18. The writ petition stands disposed of. No costs.
(AMIT BORKAR, J.)
