Smt. Kamlesh Gupta & Anr. vs Shri Budhu (Since Deceased Thr His ...
2015 Latest Caselaw 8924 Del

Citation : 2015 Latest Caselaw 8924 Del
Judgement Date : 1 December, 2015

Delhi High Court

Smt. Kamlesh Gupta & Anr. vs Shri Budhu (Since Deceased Thr His ... on 1 December, 2015

*                 HIGH COURT OF DELHI AT NEW DELHI

+            C.R.P. 197/2013 & CM APPL.18137/2013

                                           Decided on: 1st December, 2015

SMT. KAMLESH GUPTA & ANR.               ...... Petitioners
             Through: Mr. Pankaj Seth, Advocate with
                      Mr. Shoumik Mazumdar, Advocate

                       Versus

SHRI BUDHU (SINCE DECEASED THR HIS LRS.) & ANR.
                                            ...... Respondents
              Through: Mr. Ramesh Kumar, Advocate with
                       Ms. Anjali Chopra, Advocate
CORAM:
HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J. (ORAL)

CM APPL.18139/2013 (delay)

There is a delay of 153 days in filing the revision petition. Delay

of 153 days is condoned as sufficient cause is shown.

Application stands disposed of.

C.R.P. 197/2013 & CM APPL.18137/2013 (stay)

1. This is a revision petition filed by the petitioners against the order

dated 01.03.2013 passed by the learned Additional District Judge-

09, Central, Tis Hazari, Delhi.

2. I have heard the learned counsel for the petitioners and have also

gone through the record.

3. Before dealing with the legality of the impugned order it may be

pertinent to reproduce the said order which is very short one:-

"M Ex. No.26/11 01.03.2013

Present: Sh. M.N.Jha, Counsel for the DH.

Sh. Ramesh Kumar, counsel for JD No.3.

Today again, it is observed that in the file, there is no copy of decree sheet. Order 21 Rule 11 (3) of CPC makes it compulsory that the applicant is required to produce certified copy of the decree. Since, no decree sheet is available, therefore, this execution application is not maintainable at all. The same is rejected. File be consigned to record room.

Sd/-

(Jitendra Kumar Mishra) ADJ-09 (Central), Tis Hazari Delhi/01.03.2013"

4. A perusal of the aforesaid order would show that the execution

application of the petitioners was rejected on the ground of non

production of the decree sheet.

5. The learned counsel for the petitioners has contended that the

decree sheet is not necessary for effecting execution of the order.

6. I do not agree with the contention of the learned counsel for the

petitioners that the decree sheet is not necessary for execution of

the order. It may be pertinent here to refer to the provisions of

Order 21 Rule 10 Code of Civil Procedure, 1908 (CPC) onwards

which deal with the execution of the decrees.

7. Rule 10 of Order 21 CPC lays down that where the holder of a

decree desires to execute it, he shall apply to the Court which has

passed the decree for the execution of the same. It is not necessary

to refer to the remaining portion of the Rule.

8. Rule 11 sub-rule (1) says that in case of money decree, even an oral

application will be entertained by the executing Court which has

passed the decree, provided that such a request is made at the time

when the decree is passed and immediately the Court will arrest the

judgment debtor before preparation of the warrants, if he is

available within the precincts of the Court.

9. Sub-rule (2) of Rule 11 of Order 21 CPC lays down except as

provided in sub-rule (1) every application seeking execution of a

decree has to be in writing and it has to give various details which

are mentioned in the said sub-rule.

10. Sub-rule (3) of Rule 11 of Order 21 CPC specifically lays down the

Court to which the application is made under sub-rule (2) may

(emphasis added) require the applicant to produce the certified

copy of the decree. Although sub-rule (3) of Rule 11 of Order 21

CPC uses the word 'may' but it has to be read as 'shall'. The

reason for this is that without the production of the decree sheet, it

is not possible to decipher by the Court as to what is the number of

the suit, the name of the parties, whether any appeal was preferred

or not and the other details which are mentioned in sub-rule (2).

Therefore, in the absence of non-production of the decree sheet

there is every possibility of the contents of the decree not being

known and the decree being executed against a wrong person. It is

with this idea that in order to obviate any difficulty with the

execution of the decree that the production of the decree sheet is a

sine qua non for the execution of the decree. Therefore, I feel as

the decree sheet has not been produced, there was no other option

available to the learned Presiding Officer but to reject the

application. Hence, there is no illegality, impropriety or jurisdiction

error in the impugned order.

11. There is another flaw with regard to the maintainability of the

revision petition.

12. If one reads Section 115 CPC after the amendment in 1999, the

ambit of revision has been reduced considerably. It may be

pertinent here to reproduce the exact language of Section 115 CPC

which reads as under:-

"115. Revision.- (1) The High Court may call for the record of any case which has been decide by any court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate court appears--

(a) to have exercised a jurisdiction not vested in it by law, or

(b) to have failed to exercise a jurisdiction so vested, or

(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit:--

Provided that the High Court shall not, under this section, vary or reverse any order made, or any order

deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings.