Gujarat High Court
Bhogilal Parsottamdas Patel vs Legal Heirs Of Badriprasad ... on 6 August, 2021
Bench: Bhargav D. Karia
C/SCA/6912/2017 ORDER DATED: 06/08/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 6912 of 2017
With
CIVIL APPLICATION (FOR ABATMENT) NO. 1 of 2017
In
R/SPECIAL CIVIL APPLICATION NO. 6912 of 2017
With
CIVIL APPLICATION (FOR BRINGING HEIRS) NO. 1 of
2019
In
R/SPECIAL CIVIL APPLICATION NO. 6912 of 2017
With
CIVIL APPLICATION (FOR AMENDMENT) NO. 1 of 2020
In
R/SPECIAL CIVIL APPLICATION NO. 6912 of 2017
With
CIVIL APPLICATION (FOR ABATMENT) NO. 2 of 2019
In
R/SPECIAL CIVIL APPLICATION NO. 6912 of 2017
With
CIVIL APPLICATION (FOR DIRECTION) NO. 3 of 2019
In
R/SPECIAL CIVIL APPLICATION NO. 6912 of 2017
With
R/SPECIAL CIVIL APPLICATION NO. 6915 of 2017
With
CIVIL APPLICATION (FOR ABATMENT) NO. 1 of 2017
In
R/SPECIAL CIVIL APPLICATION NO. 6915 of 2017
With
CIVIL APPLICATION (FOR BRINGING HEIRS) NO. 1 of
2019
In
R/SPECIAL CIVIL APPLICATION NO. 6915 of 2017
With
CIVIL APPLICATION (FOR AMENDMENT) NO. 1 of 2020
In
R/SPECIAL CIVIL APPLICATION NO. 6915 of 2017
With
CIVIL APPLICATION (FOR CONDONATION OF DELAY) NO.
2 of 2019
Page 1 of 31
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C/SCA/6912/2017 ORDER DATED: 06/08/2021
In
R/SPECIAL CIVIL APPLICATION NO. 6915 of 2017
With
CIVIL APPLICATION (FOR CONDONATION OF DELAY) NO.
3 of 2019
In
R/SPECIAL CIVIL APPLICATION NO. 6915 of 2017
With
CIVIL APPLICATION (FOR ABATMENT) NO. 4 of 2019
In
R/SPECIAL CIVIL APPLICATION NO. 6915 of 2017
With
CIVIL APPLICATION (FOR DIRECTION) NO. 5 of 2019
In
R/SPECIAL CIVIL APPLICATION NO. 6915 of 2017
With
R/SPECIAL CIVIL APPLICATION NO. 8586 of 2017
=================================================
BHOGILAL PARSOTTAMDAS PATEL
Versus
LEGAL HEIRS OF BADRIPRASAD POONAMCHAND AGRAWAL &
17 other(s)
=================================================
Appearance:
MR MIHIR JOSHI SENIOR ADVOCATE WITH MR DEVANG
NANAVATI SENIOR ADVOCATE FOR M/S WADIAGHANDY AND
CO(5679) for the Petitioner(s) No. 1
for the Respondent(s) No. 1.5.1,1.5.2,1.5.3
DECEASED LITIGANT(100) for the Respondent(s) No.
1,1.1,2,3,5,6
MR. RAJ A TRIVEDI(7024) for the Respondent(s) No.
5.1,5.2,5.3
NOTICE NOT RECD BACK(3) for the Respondent(s) No.
17,18,7,8
NOTICE SERVED(4) for the Respondent(s) No.
10,11,12,13,14,15,16,9
ROHAN LAVKUMAR(9248) for the Respondent(s) No.
1.1.1,1.1.2,1.1.3,1.1.4,1.2,1.3,1.4,1.5,1.6,2.1,2
.2,2.3,3.1,3.2,3.3,3.4,3.5,3.6,4
MR MEHUL SHARAD SHAH WITH ROHAN LAVKUMAR(9248)
WITH MR RUCHIR A PATEL(7954) for the
Respondent(s) No.
1.1.1,1.1.2,1.1.3,1.1.4,1.2,1.3,1.4,1.5,1.6,2.1,2
.2,2.3,3.1,3.2,3.3,3.4,3.5,3.6,4
Page 2 of 31
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C/SCA/6912/2017 ORDER DATED: 06/08/2021
UNSERVED EXPIRED (N)(9) for the Respondent(s) No.
1.1.5
VIRAL K SHAH(5210) for the Respondent(s) No.
5.1,5.2,5.3
MS TRUSHA PATEL FOR MR UMANG VYAS IN SCA
No.8586/2017
=================================================
CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA
Date : 06/08/2021
COMMON ORAL ORDER
1. Heard learned Senior Advocate Mr. Mihir
Joshi, learned Senior Advocate Mr. Devang
Nanavati assisted by learned advocate Mr.
Kansara for M/s. Wadia Ghandy and Co for the
petitioners, learned Senior Advocate Mr.
Mehul Shah assisted by learned advocates Mr.
Ruchir Patel and Mr. Rohan Lavkumar for
respondent Nos. 1 to 4, learned advocate Ms.
Trusha Patel for learned advocate Mr. Umang
Vyas for the petitioner in Special Civil
Application No. 8586 of 2017 through video
conference.
2. All the three petitions and Civil
Applications are arising from a common
Judgment and Order passed by the Principal
Senior Civil Judge, Deesa in Special Civil
Suit No. 4 of 2002 and therefore, the same
are heard analogously and are being disposed
of by this common order. For the sake of
C/SCA/6912/2017 ORDER DATED: 06/08/2021
convenience, Special Civil Application No.
6912 of 2017 is treated as a lead case.
3. By this petition under Article 227 of the
Constitution of India, the petitioners have
prayed for the following reliefs:
"A. This Hon'ble Court be pleased to
call for the records and proceedings of
Special Civil Suit No.4 0f 2002 from the
Court of Hon'ble Principal Senior Civil
Judge, Deesa and be further pleased to
quash and set aside the Impugned Order
dated 9th March, 2017 ( Exhibit-888)
passed by the Court of Hon'ble Principal
Senior Civil Judge, Deesa in Special
Civil Suit No. 4 of 2002;
B. This Hon'ble Court be pleased to
restore the Special Civil Suit No.4 of
2002 to its file in accordance with the
final judgement dated 5th 6th and 9th
December,2013 (Exhibit-846), which was
affirmed by the Hon'ble Supreme Court of
India vide its Order dated 4th
August,2015 (Exhibit-847)
C. This Hon'ble Court be pleased to
allow the objections filed by petitioner
below Exhibits-623 and 637 and be
further pleased to direct the Court of
Principal Senior Civil Judge, Deesa to
proceed with Special Civil No.4 of 2002
in accordance with law;
D. This Hon'ble Court be pleased to
direct Respondent No. 1 to 4 to hand
over the possession of suit land being
land bearing Revenue Sr. No.221/paiki,
and 225/paiki admeasuring about 52 Acres
C/SCA/6912/2017 ORDER DATED: 06/08/2021
and 4 Gunthas situated at-Village-
Rajpur, Taluka-Deesa, District-
Banaskantha in favour of Petitioner as
well as Respondents No.5,7,17, and 18;
E. Pending admission hearing and final
disposal of present Petition, this
Hon'ble Court be pleased stay the
effect, operation and implementation of
impugned order dt.9th March 2017 and
direct Respondent No.1 to 4 to maintain
Status Quo in relation to the possession
and title of suit land
F. Such other and further relief(s) in
the interest of justice, Equity and good
conscience may be granted to the
petitioner"
4. Facts of the case has a chequered history and
therefore, the same is not narrated into
detail at this stage as these petitions are
being disposed of in view of the preliminary
objection raised as to whether these
petitions can be entertained wherein the
challenge is to the Judgment and Order passed
by the Trial Court below Exh.888 in Special
Civil Suit No. 4 of 2002 which came to be
disposed.
5. It was contended on behalf of the respondents
- original plaintiffs that the remedy for the
petitioners to challenge the impugned
Judgment and Order is by filing First Appeal
under section 96 of the Code of Civil
C/SCA/6912/2017 ORDER DATED: 06/08/2021
Procedure,1908 ['the Code' for short].
6. Learned advocates were heard at length on
28th July, 2021 and at that point of time, it
was pointed out that one another Special
Civil Application No. 8586 of 2017 is also
preferred by the original defendant No.3-
Ramjibhai Purshottambhai Patel which is
pending for adjudication and it was ordered
by this Court to be heard hear with Special
Civil Application No.6915/2017. It was
therefore directed to place the said Special
Civil Application along with other two
matters for hearing on the preliminary issue
of jurisdiction with regard to entertaining
the petitions.
7. Learned Senior Advocate Mr. Mehul Shah
assisted by learned advocates Mr. Ruchir
Patel and Mr. Rohan Lavkumar at the outset,
submitted that by the impugned Judgment and
Order dated 09.03.2017, Principal Senior
Civil Judge, Deesa has disposed of Special
Civil Suit [Old] No. 12 of 1983 [New No.
4/2002] after a de novo remand made by this
Court vide Judgment and Order dated
05/06/09.12.2013 passed in First Appeal No.
2733 of 2009.
C/SCA/6912/2017 ORDER DATED: 06/08/2021
8. Learned Senior Advocate Mr. Shah submitted
that as per section 96 of the Code, the First
Appeal would be maintainable and the Special
Civil Application invoking the extraordinary
jurisdiction under Article 227 of the
Constitution of India should not be
entertained. It was submitted that the issue
is no more res integra in view of the
decision of the Full Bench of this Court in
case of Sakina Sultanali Sunesara (Momin) and
others v. Shia Imami Ismaili Momin Jamat
Samaj and Ors. reported in 2019 GLH (3) 256.
9. It was submitted that Special Civil Suit No.
4 of 2002 was filed in the year 1983 which
was thereafter disposed of in view of the
consent terms arrived at between the parties.
It was submitted that the petitioners who are
original defendants raised objection with
regard to such compromise by filing
applications Exh. 623 and 637 under Rule 3 of
Order 23 of the Code. The Trial Court
rejected such objections and passed a decree
on the basis of the consent terms in the year
2007. The said Judgment and Decree was
challenged before this Court in First Appeal
No. 2733 of 2009. The Division Bench of this
Court, by Judgment and Order dated
05/06/09.12.2013 quashed and set aside the
C/SCA/6912/2017 ORDER DATED: 06/08/2021
Judgment and Decree dated 28.07.2007 passed
by the Trial Court and remanded the matter
back to the Trial Court on seven questions
formulated in the said Judgment and Order.
10. It was therefore, submitted that the
Trial Court, after de novo remand made by
this Court, again adjudicated and passed the
impugned Judgment and Order after permitting
the respective parties to lead oral and
documentary evidence as directed by this
Court in the First Appeal and the Trial Court
rendered findings on all the seven questions
raised by this Court and on the basis of the
same, the Trial Court held that the suit is
required to be disposed of except qua
defendant No.3 who was not party to the
consent terms.
11. It was therefore, submitted that in such
circumstances, for all intents and purpose,
the impugned Judgment and Order is passed in
the Special Civil Suit. It was submitted that
though it is true that the Trial Court has
not drawn any decree pursuant to the impugned
Judgment and Order, however, the First Appeal
is maintainable in view of Rule 6A of Order
20 of the Code which provides that for the
purpose of filing an appeal, copy of the
C/SCA/6912/2017 ORDER DATED: 06/08/2021
Judgment provided by the Trial Court would be
treated as a Decree till the Trial Court
draws the decree on the basis of such
Judgment.
12. Learned Senior Advocate Mr. Shah
therefore submitted that the Special Civil
Applications are not required to be
entertained as the statutory remedy is to
file First Appeals as provided under section
96 of the Code.
13. Learned Senior Advocate Mr. Shah
referred to the definition of 'decree' as per
sub-section(2) of section 2 of the Code read
together with the definition of 'judgment' as
provided in sub-section (9) of section 2 of
the Code read with Rule 6A and 6B of the
Order 20 of the Code to canvass that the
impugned Order is a Judgment rendered by the
Trial Court in the suit and therefore, the
same is required to be challenged by way of
First Appeal as provided under section 96 of
the Code and not by preferring petition under
Article 227 of the Constitution of India.
14. In support of his contentions, learned
Senior Advocate Mr. Shah also relied upon the
decision of this Court in case of Kanji
C/SCA/6912/2017 ORDER DATED: 06/08/2021
Hirjibhai Gondalia v. Jivraj Dharamshi
reported in (1975) 1 GLR 469 to point out
that when there is final adjudication of
issue it amounts to decree within the meaning
of section 2(2) of the Code and till the
Trial Court draws a decree on the basis of
the impugned Judgment and Order, the same can
be challenged by way of an appeal as per the
newly inserted Rule 6A of the Order 20 of the
Code.
15. On the other hand, learned Senior
Advocate Mr. Mihir Joshi and learned Senior
Advocate Mr. Devang Nanavati appearing for
the petitioners in Special Civil Application
No. 6912 of 2017 and 6915 of 2017 assisted by
Learned advocate Mr. Jay Kansara submitted
that there is no harmonious adjudication made
by the Trial Court on the issues which are
determined and answered. It was submitted
that findings given for each of the issues
and operative part of the impugned Judgment
and Order are contradictory as there is no
final determination of the rights of the
parties.
16. It was pointed out that on one hand, the
Trial Court has in the operative part
observed that the part decree can be passed
on the basis of the consent terms without
C/SCA/6912/2017 ORDER DATED: 06/08/2021
reference to the issues which are framed by
the Trial Court on the basis of the seven
questions formulated by this Court in the
Judgment and Order of the First appeal.
17. Learned Senior Advocate Mr. Joshi
further submitted that as per sub-section (2)
of section 2 of the Code, there has to be
adjudication on the issues which are framed
by the Trial Court. It was submitted that the
Trial Court has not given any formal
expression of adjudication determining the
rights of the parties with regard to all or
any of the matters in controversy in the suit
in the impugned Judgment and Order and
therefore, the impugned Judgment and Order
cannot be said to be a Judgment because the
definition of the 'judgment' as per sub-
section (9) of section 2 of the Code provides
that the judgment means a statement given by
a Judge on the grounds of a decree or order.
It was therefore submitted that the Trial
Court by the impugned order has overreach the
process of rendering a final judgment
pursuant to the Judgment and Order passed by
this Court in First Appeal No. 2733 of 2009.
18. It was pointed out that the Trial Court
has lost sight of the direction given by this
C/SCA/6912/2017 ORDER DATED: 06/08/2021
Court in the Judgment and Order rendered in
the First Appeal. Learned Senior Advocate Mr.
Joshi invited attention of the Court to the
onwards in the Judgment and Order in First
Appeal No. 2733 of 2009. It was pointed out
that the Trial Court has totally missed to
consider the entire Judgment of this Court
rendered in First Appeal and more
particularly, the directions given in Para
nos. 53 to 56 of the Judgment wherein it is
clearly stipulated that the Special Civil
Suit No. 4 of 2002 shall stand restored to
the file of the Principal Senior Civil Judge,
Deesa with the direction that he shall decide
the points as referred to by the Court giving
opportunity to the concerned parties to
produce the evidence after giving opportunity
of hearing.
19. It was also submitted that the Division
Bench of this Court while remanding the
matter back to the Trial Court to give a
fresh decision on all points as directed in
the Judgment has clearly stated that the
observations are made in the Judgment for the
purpose of showing infirmities in the
Judgment and Decree passed by the Trial Court
and for supporting the ground for
C/SCA/6912/2017 ORDER DATED: 06/08/2021
determination of the points to be considered
after remand. The Trial Court was therefore,
directed to arrive at a fresh decision on all
the points raised by this Court in the
Judgment and Order rendered in First Appeal
No. 2733 of 2009. It was therefore pointed
out that the Trial Court without considering
the entire Judgment of this Court in the
First Appeal has passed the impugned order
without drawing a Decree by disposing of the
Special Civil Suit No. 4 of 2002.
20. Learned Senior Advocate Mr. Joshi
further submitted that on bare reading of the
impugned Order, it is not possible for the
Trial Court to draw a decree, more
particularly, as to give effect to the
conclusion arrived at in the final operative
portion in Para no.13 of the impugned Order
as such conclusions are contradictory. It was
pointed out that on one hand the Trial Court
has ordered to continue the suit proceedings
qua defendant no.3 and on the other hand
entire suit is disposed of. It was therefore,
submitted that when it was not possible to
draw a decree on the basis of the order
passed by the Trial Court and hence the same
cannot be challenged by way of an appeal as
per section 96 of the Code and the only
C/SCA/6912/2017 ORDER DATED: 06/08/2021
remedy which would be available to the
petitioners is by way of filing of writ
petitions under Article 227 of the
Constitution of India. It was also pointed
out that this Court has issued notice and
also has passed an order of interim relief by
staying the operation and implementation of
the impugned order dated 09.03.2017 which is
in operation till date and therefore raising
the issue of preliminary objection cannot be
adjudicated at this juncture.
21. It was also pointed out by learned
Senior Advocate Mr. Joshi that by no stretch
of imagination the impugned order can be said
to be a Judgment in view of the definition of
'judgment' and 'decree' given in sections
2(9) and 2(2) of the Code respectively and
therefore, the only remedy available to the
petitioners is to challenge the same by
invoking extraordinary jurisdiction under
Article 227 of the Constitution of India.
22. It was therefore submitted that this
Court should continue to hear these petitions
on merits by deciding the Civil Applications
which are filed and adjudicate upon the
legality of the impugned Order passed by the
Trial Court after the remand made by this
C/SCA/6912/2017 ORDER DATED: 06/08/2021
Court in First Appeal No. 2733 of 2009.
23. Learned advocate Ms. Trusha Patel
assisted by learned advocate Mr. Umang Vyas
for the petitioner in Special Civil
Application No. 8586 of 2017 submitted that
as per sub- section (3) of section 96, no
appeal would lie when the decree is passed on
the basis of the consent terms arrived at
between the parties. It was submitted that as
far as the petitioner of Special Civil
Application No. 8586 of 2017 is concerned, it
pertains to the defendant No.3 who was not
party to the consent terms and therefore, on
one hand when the Trial Court has ordered to
continue the proceedings qua the respondent
No.3 in Para no.13(iv) of the impugned order
and on the other hand, in Para no. 14 the
entire suit is disposed of and therefore the
only remedy available with the original
defendant No. 3 is to challenge such Order by
way of a petition under Article 227 of the
Constitution of India. It was also submitted
that originally the suit was decreed on the
basis of the consent terms and therefore, the
original defendant No.3 cannot challenge such
Decree under section 96(3) of the Code as it
is barred.
C/SCA/6912/2017 ORDER DATED: 06/08/2021
24. Having heard the learned advocates for
the respective parties and having gone
through the relevant provisions of the Code
together with the chronology of events of the
facts of the case, it appears that the
litigation between the parties has continued
for last ore than three decades. Respondent
Nos.1 to 4 who are the original plaintiffs
have filed suit for specific performance
which was ultimately disposed of on the basis
of compromise decree passed by the Trial
Court in the year 2007. I am not going into
the detail facts of the case at this stage as
at present the only issue is with regard as
to whether these petitions should be
entertained under Article 227 of the
Constitution Of India by the Court against
the impugned Judgment and Order passed by the
Trial Court whereby the Special Civil Suit
No. 4 of 2002 is ordered to be disposed of
after the remand made by the Division Bench
of this Court as per the Judgment and Order
dated 05/06/09.12.2013 in First Appeal No.
2733 of 2009 or the petitioners should be
relegated to the remedy of preferring First
Appeals under the provisions of the Code.
25. The Full Bench of this Court in case of
Sakina Sultanali Sunesara (Momin) and others
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v. Shia Imami Ismaili Momin Jamat Samaj and
Ors. (supra) while considering the issue of
maintainability of First Appeal under section
96 of the Code in case of decree passed by
the Trial Court on the basis of the
compromise between the parties, has
considered similar facts as to whether first
appeal would be maintainable when an
application by an aggrieved party before the
trial Court for setting aside the consent
decree invoking Order 23 Rule 3 of the Code
was preferred. The Full Bench has summed up
the issue of maintainability of the First
Appeal in all such eventualities as follows:
"40. The upshot of the above may be
summed up as under:-
(i) After the deletion of Clause (m) of
Rule 1 of Order XLIII, by the amendment
Act 104 of 1976, no Appeal from Order
against the order passed under Rule 3 of
Order XXIII recording or refusing to
record an agreement, compromise or
satisfaction would lie under Rule 1 of
Order XLIII of CPC. Rule 1A of Order
XLIII does not provide for any remedy to
file an appeal either against any order
or against any decree.
(ii) It is only in an appeal filed under
Section 96(1) read with Order XLI of
CPC, against the decree passed in the
suit after recording of compromise or
refusing to record compromise, the
appellant can contest such decree on the
C/SCA/6912/2017 ORDER DATED: 06/08/2021
ground that the compromise should or
should not have been recorded, in view
of Rule 1A(2) of Order XLIII.
(iii) No appeal would be maintainable
from a decree passed by the Court with
the consent of the parties i.e. on the
basis of the compromise arrived at
between the parties in the suit under
Rule 3 of Order XXIII, in view of the
bar contained in Section 96(3) of CPC.
(iv) No suit shall lie to set aside a
decree passed under Rule 3 of Order
XXIII on the ground that the compromise
on which the decree is based was not
lawful in view of the bar contained in
Rule 3A of Order XXIII.
(v) If the aggrieved party was the party
to the suit, the only remedy available
to him against the decree passed by the
Court on the basis of compromise between
the parties (consent decree), would be
to file an application under the proviso
to Rule 3 of Order XXIII, disputing such
compromise. The Court which passed the
compromise decree has to decide the said
dispute or question raised by the party.
(vi) When there is a dispute raised by
either of the parties to the suit on the
question as to whether there was a
compromise or not, a decree accepting
the compromise on resolution of that
controversy, cannot be said to be a
decree passed with the consent of the
parties. Therefore, the bar under
Section 96(3) of the Code would not have
any application. Section 96(3) is
applicable to cases where the factum of
compromise or agreement is not in
dispute.
C/SCA/6912/2017 ORDER DATED: 06/08/2021
(vii) If the aggrieved party was not the
party to the suit, the remedy available
to him to challenge the decree passed by
the Court on the basis of compromise
between the parties to the suit (consent
decree), would be to file an appeal
under Section 96(1) of CPC, with the
leave of the appellate Court, or to file
a review application before the Court,
which passed the decree, as may be
permissible under Section 114 read with
Order XLVII of CPC.
(viii) The words "signed by the parties"
contained in Rule 3 of Order XXIII would
include the compromise signed by the
duly authorized pleaders or the power-
of-attorney holders or the recognized
agents of the parties concerned."
26. In view of the above conclusion arrived
at by the Full Bench it is clear that if the
aggrieved party was the party to the suit,
the only remedy available to him against the
decree passed by the Court on the basis of
the compromise between the parties would be
to file an application under the provision to
Rule 3 Order 23 of the Code to dispute the
compromise. In the facts of the case the
petitioners who were aggrieved by the
compromise decree has preferred an
application under Rule 3 of Order 23 which
was adjudicated upon by the Trial Court and
thereafter Judgment and Decree was passed.
The Trial Court while deciding the suit by
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the Judgment and Decree dated 20.07.2007 had
held as under:
"1. The application at exh. 623 & 637 as
well as application at exh. 626 & 638
all are here by dismissed.
2. The application of plffs. at exh.645
to pass the decree as per compromise at
exh.600 & 635 is hereby allowed.
3. As per terms of the compromise at
exh.600 & 635 it is hereby declared that
sale deed at. Exh.501, 503 & 505 are
null and void.
4. The possession of the suit fields
which is already handed over by the
defts. no.8 to 15 to plff. is hereby
confirmed as a decree of possession from
deft.no.1/1 to 1/3, 2,5,6 & 7.
5. The relief of specific performance as
prayed in para 24(1) of the plaint is
hereby granted and it is directed to
deft.no.1/1 to 1/3, 2,5,6 & 7 that they
should execute the sale deed of the
lands mentioned in said relief para in
favour of plffs or as per the names
shown by plffs, within 15 days on
providing the proper non judicial stamp
fee by plffs. On satisfaction of
remaining consideration as per Banakhat
dtd. 14/02/81. Copy of this order be
kept with the concerned exhibits.
6. No order to cost
7. Decree should be drawn as per the
order."
C/SCA/6912/2017 ORDER DATED: 06/08/2021
27. Thus, the Trial Court dismissed the
application Exh.623 and Exh.637 as well as
application Exh 626 and Exh.638 by which the
petitioners have disputed the compromise and
passed a decree as per the compromise at Exh
635. The said Judgment and Decree was
challenged before this Court in First Appeal
No. 2733 of 2009 which was decided by the
Division Bench of this Court vide Judgment
and Order dated 5th 6th and 9th December, 2013.
It is pertinent to note that when the
Division Bench passed the Judgment and Order,
the decision of Full Bench was not available
and inspite of the same with the consent of
all the concerned parties, the Division Bench
proceeded to decide the First Appeal in view
of the order passed by the Division Bench at
the relevant point of time in Civil
Application No. 3170 of 2013.
28. With regard to the objection raised on
behalf of the petitioners that the impugned
order cannot be said to be a Judgment as it
is not possible to draw a decree from such
order and the contention that there is no
harmonious adjudication which can be treated
as decree giving final adjudication upon the
disputes between the parties are concerned,
the same would lie in the realm of
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adjudication on merits of the case and
therefore, I am not inclined to examine such
aspects at this stage as to whether the
findings given by the Trial Court would
amount to adjudication of any dispute which
are raised between the parties or whether
such adjudication or the findings of the
Trial Court would be capable of being drawn
as decree or not at this stage. Otherwise
either party would be prejudiced by such
analysis and findings which may be carried
out at this stage.
29. It is not in dispute that the Division
Bench of this Court while disposing of the
First Appeal No. 2733 of 2009 has quashed and
set aside the Judgment and Decree passed by
the Trial Court in the year 2007 and remanded
the matter to the Trial Court after taking
into consideration the applicability of Order
41 Rule 25 which provides for calling upon
the Trial Court to decide certain issues
only. In the facts of the Case, the Division
Bench has quashed the entire Judgment and
Decree by remanding the matter back to the
Trial Court by holding as follows:
"53. In view of the aforesaid
observations and discussions, the
impugned order dated 20.07.2007 passed
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by the learned lower court below
exhibits 623, 637, 626, 638, 645 and 635
is quashed and set aside. Consequently,
the consent decree passed as per
impugned order is also quashed and set
aside.
54. It is further observed and directed
that Special Civil Suit No.4/02
(original no.12/83) shall stand restored
to the file of the Principal Senior
Civil Judge, Deesa with the direction
that he shall decide the points as
referred to hereinabove after giving
opportunity to the concerned parties to
produce the evidence and after giving
opportunity of hearing to the concerned
parties. The decision shall be rendered
as early as possible, preferably within
a period of six months from the order of
this Court.
55. It is also observed that any
observations made by this Court in the
present judgment are for the purpose of
showing infirmities in the impugned
order and for supporting the ground for
determination of the points to be
considered after remand and same shall
not be considered or treated as
concluded by the lower court at the time
when fresh decision is to be taken on
all points, as directed hereinabove.
56. It is further observed and directed
that until a fresh decision is rendered,
as directed hereinabove, the interim
passed for maintenance to the status quo
qua possession and title of the property
shall be maintained by both the sides."
30. The contention raised on behalf of the
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petitioners that the Trial Court has not
considered the directions given by this Court
in the Judgment and Order of the First Appeal
would again fall within the realm of going
into the merits of the matter and I
therefore, refrain from considering such
submissions at this stage when the only
question which is considered at this stage is
with regard to whether such petitions are
required to be entertained or not so as to
relegate the petitioners to file statutory
remedy of First Appeal under section 96 of
the Code.
31. Another issue which has cropped up
during the course of the hearing is that no
decree is passed by the Trial Court after the
impugned order is passed in the month of
March 2017 and therefore, no appeal can be
filed because section 96 of the Code provides
that the appeal would lie against the decree.
As against this contention, the answer would
lie in Rule 6A of the Order 20 of the Code
which reads as under:
"6A. Preparation of decree.- (1) Every
endeavour shall be made to ensure that
the decree is drawn up as expeditiously
as possible and, in any case, within
fifteen days from the date on which the
judgment is pronounced.
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(2) An appeal may be preferred against
the decree without filing a copy of the
decree and in such a case the copy made
available to the party by the court
shall for the purposes of rule 1 of
Order XLI be treated as the decree. But
as soon as the decree is drawn, the
judgment shall cease to have the effect
of a decree for the purposes of
execution or for any other purpose."
32. In view of the above provisions of Rule
6A of the order 20 of the Code, a copy of the
judgment provided by the Trial Court to the
concerned parties would be enough to prefer
an appeal till the Trial Court draws a
decree. Therefore, in that view of the matter
reliance is also placed on the decision of
the Apex Court in case of Sir Sobha Singh and
Sons Pvt. Ltd. v. Shashi Mohan Kapur
(Deceased) Thr.L.R. reported in AIR 2019
Supreme Court Cases 5416 wherein the Apex
Court had held as under:
"42. This takes us to examine the next
question, namely, what is the effect of
not filing the copy of the decree along
with the execution application filed by
the appellant. In our view, even though
the appellant did not file the certified
copy of the decree along with the
execution application for the reason
that the same was not passed by the
Court, yet the execution application
filed by the appellant, in our view, was
maintainable. Indeed, so long as the
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formal decree was not passed, the order
dated 01.06.2012 was to be treated as a
decree during the interregnum period by
virtue of Order 20 Rule 6A (2) of the
Code. In other words, notwithstanding
the fact that the decree had not been
passed, yet by virtue of principle
underlined in Order 20 Rule 6A(2) of the
Code, the order dated 01.06.2012 had the
effect of a decree till the date of
actual passing of the decree by the
Court for the purposes of execution or
for any other purpose. This empowered
the Executing Court to entertain the
execution application and decide the
objections raised by the respondent on
merits."
33. The Apex Court was considering the
filing of execution application without there
being any decree drawn and after considering
the Order 20 Rule 6A of the Code, the Apex
Court held that section 152 of the Code deals
with amendment of judgments, decrees or
orders and it provides that any clerical or
arithmetical mistakes in the judgments,
decrees or orders or errors arising therein
from any accidental slip or omission may at
any time be corrected by the Court either of
its own motion or on the application of any
of the parties. It was further held that
any party to such judgment, decree or order,
as the case may be, has a right to apply at
any time under section 152 of the Code to the
concerned Court for rectification of any
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arithmetical or/and clerical error in the
judgment, decree or the order. It was
therefore, held that execution petition filed
by the appellant without the copy of the
decree is maintainable and was rightly
allowed by the Executing Court. In such
circumstances, it was held as under :
"49. Be that as it may, this being a
procedural matter, even if it was not
done, yet the same could be done by the
Court at the instance of the appellant
(decree holder) applying for drawing up
a decree after filing of the execution
application.
50. This takes us to examine the last
question as to whether the Executing
Court was right in imposing a cost of
Rs.5 lakhs on the respondent for filing
applications raising therein frivolous
objections to avoid execution of the
decree against them. As mentioned above,
the Executing Court while rejecting the
respondent's objection imposed a
compensatory cost of Rs.5 lakhs on the
respondent. In our view, though we find
that it is a fit case for imposition of
cost but imposition of cost of Rs.5
Lakhs is excessive.
51. Having regard to all facts and
circumstances of the case which we have
discussed above, we consider it just and
proper to impose a compensatory cost of
Rs. 50,000/ on the respondent
under Section 35A of the Code. Let it be
paid by the respondent to the appellant
within one month from the date of this
order.
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52. We are, therefore, of the considered
opinion that the High Court was not
right in holding that the execution
petition itself is not maintainable. The
High Court though was right in directing
the appellant to apply to the concerned
Court for drawing up a decree but the
High Court was not right in directing
the appellant to apply it under Section
152 of the Code.
53. In view of the foregoing discussion,
we hold that the execution petition
filed by the appellant is maintainable
and was, therefore, rightly allowed by
the Executing Court by rejecting the
objections raised by the respondent
except with two modifications indicated
above.
54. The appellant is hereby granted two
weeks' time to apply under Section
151 read with Order 20 Rule 6(A) of the
Code to the concerned Court with
a prayer for passing a decree in
accordance with the order dated
01.06.2012 passed under Order 23 Rule 3
of the Code. In the peculiar
circumstance of this case, we would
expect the Court concerned to pass and
draw the decree without any delay and,
in any case, within one week of moving
of the application by the appellant. It
is also made clear that such act of
passing and drawing up the decree being
formal in nature, no objection or
dispute in that regard is to be
entertained by any Court. Once the
decree is drawn and its details are
specified in the execution application
as provided under Order 21 Rule 11 (2)
(c) and the certified copy of the decree
is filed, if required by the Court, in
terms of Order 21 Rule 11(3) of the
Code, the order of the Executing Court
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dated 22.10.2018 with the above
modification regarding payment of costs
amount will be given effect to against
the respondent."
34. In view of above discussion it can be
summarized that a Judgment is a statement
given by a Judge on the grounds of a decree
or order. It is not necessary for a Judge to
give a statement in a decree though it is
necessary in a judgment. It is also not
necessary that there should be a formal
expression of the order in the Judgment,
though it is desirable to do so. Rule 6 Order
20 of the Code states that last paragraph of
the judgment should state precisely the
relief granted. A Judgment contemplates a
stage prior to the passing of a Decree or an
Order and after the pronouncement of the
Judgment, a Decree shall follow. The
adjudication of a court of law may either a
Decree or an Order but it cannot be both.
There are some common elements in a Decree
and an Order such as (i)Both relate to
matters in controversy; (ii) Both are
decisions given by a court;(iii)Both are
adjudications of a court of law and (iv) Both
are formal expressions of a decision.
However, (1) a Decree can only be passed in a
suit which commenced by presentation of a
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plaint whereas; an order may originate from a
suit by presentation of a plaint or may arise
from a proceeding commenced by a petition or
application,(2) A decree is an adjudication
conclusively determining the rights of the
parties with regard to all or any of the
matters in controversy whereas; an order on
the other hand, may or may not finally
determine such rights, (3) A decree may be
preliminary or final or partly preliminary
and partly final, but there cannot be a
preliminary order,(4) Except in certain
suits, where two decrees, one preliminary and
other final are passed, in every suit there
can be only one Decree; but in the case of a
suit or a proceeding, a number of orders may
be passed,(5) Every decree is appealable,
unless otherwise expressly provided, but
every order is not appealable, only those
orders are appealable as specified in the
Code.
35. From foregoing reasons, only conclusion
which may be arrived at is that an appeal
would be maintainable under section 96 of the
Code without the accompanying Decree subject
to filing of the Decree later on by the
concerned parties so as to see that the copy
of the judgment which is filed along with the
memo of the appeal is to be treated as Decree
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till such Decree is made available or drawn
by the Trial Court.
36. In view of the above discussion and
reasons facts, these petitions cannot be
entertained under Article 227 of the
Constitution of India as the petitioners are
required to file First Appeal under section
96 read with Rule 6A of Order 20 of the Code.
37. These petitions are therefore disposed
of at this stage with a liberty to the
petitioners to prefer First Appeal within a
period of four weeks from today and interim
relief granted by this Court in these
petitions shall continue up to 6th September,
2021.
38. All other Civil Applications are also
disposed of with a liberty to the petitioners
to prefer such applications in the First
Appeal which may be filed by the petitioners
under section 96 of the Code. Petitions and
civil applications are accordingly disposed
of. Notice is discharged.
(BHARGAV D. KARIA, J)
JYOTI V. JANI
