International Security And ... vs Municipal Corporation Of Delhi ...
2002 Latest Caselaw 174 Del

JUDGMENT

J.D. Kapoor, J.

1. These are the objections filed through EA 472/2001 against the instant execution petition filed pursuant to the award dated 17.1.2001.

2. At the very outset, maintainability of the instant petition has been challenged on the ground that it does not carry verification as per requirement of law which according to Dr. K.S. Sidhu, learned senior counsel for Judgment Debtor is mandatory in terms of Order 21 Rule 11(2) CPC. It reads like this:-

"(2). Save as otherwise provided by Sub-rule (1), every application for the execution of a decree shall be in writing, signed and verified by the applicant or by some other person proved to the satisfaction of the Court to the acquainted with the facts of the case and shall contain in a tabular form the following particulars, namely:-

(a). the number of the suit;

(b). the name of the parties;

(c). the date of the decree;

(d). whether any appeal has been preferred from the decree.

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Dr. Sidhu has also relied upon provisions of Order VI Rule 15 pertaining to the verification of pleadings on the premise that the execution petition comes within the definition and ambit of pleadings. The same reads as under:-

15.(1). Save as otherwise provided by any law for the time being in force, every pleading shall be verified at the foot by the party or by one of the parties pleading or by some other person proved to the satisfaction of the court to the acquainted with the facts of the case.

(2). The person verifying shall specify, by reference to the numbered paragraphs of the pleading, what he verifies of his own knowledge and what he verifies upon information received and believed to be true.

(3). The verification shall be signed by the person making it and shall state the date on which and the place at which it was signed.

4. Admittedly, the main execution application does not carry the verification part at its foot though it is accompanied with an affidavit carrying 'verification' at its foot which is to the following effect:-

". That the accompanying Application has been drafted by our counsel under my instruction, read over to me and understood by me and the contents of the same are true and correct to my knowledge as derived from the records and may be treated as part and parcel of this affidavit and are not being repeated herein for the sake of brevity."

5. The main thrust of the contention of Dr. Sidhu is that the provisions of Order 21 Rule 11(2) are mandatory in nature and not directory and if the execution application does not carry the verification at its foot, the said application suffers from an inexcusable illegality and cannot be acted upon though it may not be dismissed at the very outset for this reason alone but the applicant in the interest of justice may be given an opportunity to cure the illegality by way of amending the application.

6. Apart from aforesaid two rules, other significant rules resorted by Dr. Sidhu are Rules 17(1) (1A), (2) (3) & (4) which are as follows:-

"17(1). On receiving an application for the execution of a decree as provided by rule 11, Sub-rule (2), the Court shall ascertain whether such of the requirements of rules 11 to 14 as may be applicable to the case have been complied with; and if they have not been complied with, the defect to be remedied then and there or within a time to be fixed by it.

(1(A). If the defect is not so remedied, the Court shall reject the application:

Provided that where, in the opinion of the Court, there is some inaccuracy as to the amount referred to in Clauses (g) and (h) of Sub-rule (2) of the Rule 11, the Court, shall, instead of rejecting the application, decide provisionally (without prejudice to the right of the parties to have the amount finally decided in the course of the proceedings) the amount and make an order for the execution of the decree for the amount so provisionally decided.)

(2). Where an application is amended under the provisions of Sub-rule (1), it shall be deemed to have been application in accordance with law and presented on the date when it was first presented.

(3). Every amendment made under this rule shall be signed or initialled by the Judge.

(4). When the application is admitted, the Court shall enter in the proper register a note of the application and the date on which it was made, and shall, subject to the provisions hereinafter contained, order execution of the decree according to the nature of the application:

Provided that, in the case of a decree for the payment of money, the value of the property attached shall, as nearly as may be, correspond with the amount due under the decree."

7. As is apparent from Sub-rule (1) & (1A), an opportunity has to be granted to the applicant for rectifying the defect before the application is rejected on this ground alone.

8. A view was taken in Farukh v. Distt Judge that mere insertion of Sub-rule (1A) in Rule 17 does not make Rule 11 mandatory. It rather makes this rule directory in nature, firstly for the reason that where no such opportunity is given to the applicant for rectifying the defect, Sub-rule (1A) does not come into play and secondly that there is no provision that even after the said amendment, which may be to the effect that an application which is not in conformity with Rule 11 shall be rejected. Dr. Sidhu fairly concedes that even if the provisions of Sub-rule (1) are deemed to be directory in nature, the application shall be rejected if the said defect of absence of verification is not rectified in spite of opportunity given to the applicant. However, according to Mr. Ashok Mahajan, learned counsel for the Decree Holder accompaniment of the affidavit amounts to verification of the application as contemplated under Sub-rule (2) of Rule 11 CPC.

9. I am afraid this contention is difficult to accept. The concept of verification of the pleadings and for that purpose any application including application for execution for which verification is necessary either by way of mandatory or directory provision is not an idle formality. Pleadings or for that purpose, the applications of the kind one in question have to carry verification independently and by no stretch of imagination affidavit accompanied with pleadings or such applications does not fulfilll the requirement of 'verification' as contemplated in the aforesaid relevant provisions. If this contention of learned counsel is accepted then every pleading would be deemed as regular and legal in the absence of verification at its foot if it is accompanied by affidavit that may contain 'verification' at its foot. Verification is itself an essential and independent requirement of the affidavit.

10. Verification of the affidavit is a general verification as in the affidavit each and every part of the application or pleadings is neither reproduced nor is it formulated in the manner as the pleadings are done. For instance Sub-rule (2) of Rule 11 specifically provides that application for execution shall contain in tabular form large number of particulars including number of the suit, date of decree and whether appeal has been preferred from the decree or not and so on and so forth, whereas in affidavit no such particulars are necessary to be incorporated and therefore verification appended at the foot of affidavit is not a verification either of pleading or an application for execution.

11. In view of the foregoing reasons, I find that the application for execution is not in order on account of absence of 'verification' at its foot and this defect needs to be rectified by the applicant. Appellant/Decree Holder is hereby given an opportunity to rectify the said defect within one week.

12. Dr. Sidhu has also assailed the executability of the decree on the ground that decree itself is nullity and void and therefore not executable. The said objection shall be dealt with and considered after the defect in the execution application is rectified. However, it is made clear that all objections or pleas as to the decree being nullity shall be filed within one week if these do not form part of the original objections so as to decide the matter expeditiously and once for all.