Syed Aijaz Mohiuddin vs M.A. Mannan Khan, And Another
2022 Latest Caselaw 1152 Tel

         THE HONOURABLE JUSTICE G. SRI DEVI

                     C.R.P. No. 2051 of 2021
ORDER:

This Civil Revision Petition is filed by the Plaintiff/Decree

Holder, under Section 115 of C.P.C., aggrieved by the order,

dated 26.11.2021, passed by the I-Additional District Judge,

Mahabubnagar, in E.A.No.4 of 2021 in E.P.No.65 of 2006,

allowing the said application filed by the defendants/Judgment

Debtors, under Section 47 of C.P.C. read with Section 151 of

C.P.C. seeking to reject the Execution Petition.

The facts in issue are as under:-

The revision petitioner/Plaintiff filed O.S.No.13 of 2003

against the respondents/defendants for specific performance of

an agreement of sale dated 27.05.2003 and also for delivery of

vacant possession of the immovable property covered by the

agreement by receiving Rs.1.00 lakh being the balance sale

consideration. The said suit was decreed on 02.09.2006 directing

the respondents/defendants to execute registered sale deed in

favour of the revision petitioner/plaintiff within one month

from the date of judgment, failing which the revision

petitioner/plaintiff is at liberty to obtain registered sale deed as

per law through the Court. Since the respondents/defendants

failed to execute the sale deed, the revision petitioner/plaintiff

filed E.P.No.65 of 2006 praying the Court to execute the

registered sale deed in respect of the suit schedule land on behalf

of the Judgment Debtors in favour of the revision

petitioner/Decree Holder and put him in possession of the said

land. During the pendency of the said E.P., the respondents/

Judgment Debtors filed E.A.No.4 of 2021 seeking rejection of the

said E.P. After considering rival contentions made by both the

parties, the Executing Court allowed the said E.A. Aggrieved

by the same, the revision petitioner/Decree Holder filed the

present Civil Revision Petition.

Heard both sides and perused the record.

Learned Counsel for the revision petitioner/Decree

Holder would submit that the revision petitioner/Decree Holder

filed O.S.No.13 of 2003 for specific performance of agreement of

sale dated 27.05.2003 and the same was decreed on 02.09.2006

and thereafter the revision petitioner/Decree Holder filed

E.P.No.65 of 2006 for enforcing the said decree; that aggrieved by

the decree in the suit, the respondents/Judgment Debtors filed

A.S.No.657 of 2006 before this Court and the same was

dismissed by a Division Bench of this Court on 26.06.2009 and

aggrieved by the same, they filed review A.S.M.P.No.1632 of

2009 and the same was dismissed by this Court vide order, dated

23.03.2010; that thereafter a claim petition has been filed by third

party vide E.A.No.3 of 2010 in E.P.No.65 of 2006 claiming

interest in the suit schedule property, which was also dismissed

with costs on 04.11.2015 and aggrieved by the same, A.S.No.5 of

2016 has been filed before this Court, which was dismissed as

withdrawn on 03.12.2020. It is further submitted that during the

interregnum period, the revision petitioner/Decree Holder

deposited an amount of Rs.2,99,251/- on 04.02.2016 in the trial

Court towards stamp duty and registration charges by way of

lodgement schedule dated 30.12.2015; that thereafter, the

revision petitioner/Decree Holder filed E.A.No.17 of 2016 in

E.P.No.65 of 2016 seeking permission to withdraw Rs.1,00,000/-

which was previously deposited, and the same was allowed on

14.06.2016. It is also stated that during the pendency of A.S.No.5

of 2016, the respondents/Judgment Debtors have executed a

registered Development Agreement-cum-General Power of

Attorney, dated 24.01.2020 in favour of third parties and

thereafter, the respondents/Judgment Debtors filed E.A.No.4 of

2021 seeking rejection of the E.P. It is further submitted that the

revision petitioner/Decree Holder also filed E.A.No.13 of 2021 in

E.P.No.65 of 2006 along with a demand draft of Rs.1,50,000/-.

Therefore, the impugned order is wholly outside the contours of

jurisdiction vested under Section 47 of C.P.C. as it fails to

establish as to how execution of a decree cannot be proceeded

with, that too when the decree sought to be executed is within

the jurisdiction of the Court which passed it, thereby rendering

the impugned order wholly unsustainable in law and prayed to

allow the Civil Revision Petition. In support of his contentions,

he relied upon the following judgments:-

        1.           V.Ramaswami        Aiyengar     and    others    v.
                     T.N.V.Kailasa Thevar1

2. Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman and others2

3. Satyawati v. Rajinder Singh and another3

4. Barkewel Automotive Components (India) Private Limited v. P.R.Selvam Alagappan4

Learned Counsel appearing for the

respondents/Judgment Debtors would submit that the Civil

Revision Petition is not maintainable in the eye of law as the

revision petitioner/Decree Holder has already filed Full

Satisfaction Memo at the time of withdrawal of balance sale

consideration of Rs.1,00,000/- and as such, the Executing Court

has no jurisdiction to proceed further in the E.P. and that the

revision petitioner/Decree Holder had played fraud on the

Executing Court by suppressing the fact of withdrawal of

balance sale consideration. It is further submitted that the

deposit of stamp duty and registration fee, which is mandatory

required to be paid by the revision petitioner/Decree Holder

AIR 1951 SC 189

1970 (1) SCC 670

(2013) 9 SCC 491

(2017) 5 SCC 371

cannot be equated to be part of sale consideration payable and

that a sum of Rs.1,00,000/- payable as balance sale consideration

has remained unpaid. It is further submitted that E.P.No.65 of

2006 was dismissed for default on 27.11.2019 as the Counsel for

the revision petitioner/Decree Holder failed to explain to the

Court as to whether the balance sale consideration of

Rs.1,00,000/- was deposited or not in the Court Account. It is

also submitted that the revision petitioner/Decree Holder

suppressed the fact of withdrawal of balance sale consideration

of Rs.1,00,000/- and also filing of the Full Satisfaction Memo

before the Court below and got the order of restoration of E.P.

vide order dated 27.11.2019 and that after restoration of the said

E.P. only the respondents/Judgment Debtors filed E.A.No.4 of

2021. It is further submitted that the revision petitioner/Decree

Holder has lost his right to proceed with the E.P. as he has

already withdrawn the balance sale consideration of

Rs.1,00,000/-. The revision petitioner/Decree Holder has not

reserved any right to repayment or to redeposit the amount

again in order to proceed with E.P.No.65 of 2006 and, therefore,

the Executing Court has rightly rejected the E.P. It is also

submitted that after withdrawal of the amount along with

interest by accepting Full Satisfaction Memo, the Executing

Court becomes functuous officio and as such there is no power to

the Court again to give permission to redeposit the purported

payment of balance sale consideration of Rs.1,00,000/-. It is also

submitted that E.P.No.65 of 2006 was dismissed for default and

that there is no provision in Order XXI of C.P.C. to restore the

said E.P. The provision of Order 9 of C.P.C. is not applicable to

execution proceedings and, therefore, there is an illegality in the

order of restoration, which came to be passed on

misrepresentation of the revision petitioner/Decree Holder. The

respondents/Judgment Debtors mainly relied on the following

documents:-

1. Affidavit filed by the revision petitioner/Decree Holder in E.A.No.17 of 2016

2. Full Satisfaction Memo, dated 19.08.2016

3. Payment Schedule dated 19.08.2016

4. Lodgment Schedule dated 09.08.2006

5. The Receipt with regard to receipt of balance sale consideration by the revision petitioner/Decree Holder

6. Affidavit and petition in E.A.No.19 of 2016

7. Counter filed by the revision petitioner in E.A.No.4 of 2021 It is also submitted that the judgments relied upon by the

revision petitioner/Decree Holder are not applicable to the

subject matter and the said judgments are not having any

relevancy to the facts and circumstances of the subject matter of

the present case. It is further submitted that the core issue which

had not been answered by the revision petitioner/Decree Holder

either in the Executing Court or before this Court with regard to

the non-remittance of Rs.1,00,000/- towards balance sale

consideration. Learned Counsel for the respondents/Judgment

debtors relied upon the following judgments: -

1. V.S.Palanichery Chettiar Firm v. C.Alagappan and another5

2. M.P.Shreevastava v. Veena6

3. Amar Singh v. Perhlad and others7

AIR 1990 SC 918

AIR 1967 SC 1193

AIR 1989 (P&H) 229

4. M.Parimanam @ Parimana Konar v. T.Egammai8

For the aforesaid pleadings, the point that arises for

consideration is whether the impugned order passed by the

Executing Court is sustainable in law or not?

Undoubtedly, Section 47 of C.P.C. empowers the

Executing Court to decide all the questions arising between the

parties to the suit in which the decree is passed when such

question relates to the execution, discharge or satisfaction of the

decree. In other words, the Executing Court is empowered to

deal with all the points relating to execution or discharge or

satisfaction of a decree.

In V.Ramaswami Aiyengar and others v. T.N.V.Kailasa

Thevar (1 supra), the Apex Court held as under:-

"8. The learned Judges appear to have overlooked the fact that they were sitting only as an Executing Court and their duty was to give effect to the terms of the decree that was already passed and beyond which they could not go. It is true that they were to interpret the decree,

C.R.P.No.122 of 2016 Madras High Court

but under the guise of interpretation they could not make a new decree for the parties."

In Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman

and others (2 supra) the Apex Court held as under:-

"6. A court executing a decree cannot go behind the decree: between the parties or their representatives it must take the decree according to its tenor, and cannot entertain any objection that the decree was incorrect in law or on facts. Until it is set aside by an appropriate proceeding in appeal or revision, a decree even if it be erroneous is still binding between the parties.

7. When a decree which is a nullity, for instance, where it is passed without bringing the legal representative on the record of a person who was dead at the date of the decree, or against a ruling prince without a certificate, is sought to be executed an objection in that behalf may be raised in a proceeding for execution. Again, when the decree is made by a Court which has no inherent jurisdiction to make objection as to its validity may be raised in an execution proceeding if the objection appears on the face of the record: where the objection as to the jurisdiction of the Court to pass the decree does not appear on the face of the record and requires examination of the questions raised and decided at the trial or which could have been but have not been raised,

the executing Court will have no jurisdiction to entertain an objection as to the validity of the decree even on the ground of absence of jurisdiction. In Jnanendra Mohan Bhaduri and another v. Rabindra Nath Chakravarti {LR 60 IA 71}, the Judicial Committee held that where a decree was passed upon an award made under the provisions of the Indian Arbitration Act, 1899, an objection in the course of the execution proceeding that the decree was made without jurisdiction, since under the Indian Arbitration Act, 1899, there is no provision for making a decree upon an award, was competent. That was a case in which the decree was on the face of the record without jurisdiction."

In Satyawati v. Rajinder Singh and another (3 supra) the

Apex Court held as under:-

"9. Looking to the facts of the case and upon hearing the learned counsel, we are of the view that the order passed by the Executing Court dated 16th March, 2009, which has been confirmed by the High Court is not correct for the reason that the Executing Court ought not to have considered other factors and facts which were not forming part of the judgment and the decree passed in favour of the appellant- plaintiff. Once the decree was made in favour of the appellant- plaintiff, in pursuance of the judgment dated 19th January, 1996 delivered by the

District Judge Faridabad, in our opinion, the Executing Court should not have looked into other reports which had been submitted to it afterwards.

10. Upon perusal of the reports, we find that the local commissioner's report clearly describes the land which admeasures 80 sq. yard and which is forming part of Khasra No. 95/24/2 and the report given by the local commissioner also gives details of the land in question by way of a sketch. In our opinion, the Executing Court ought to have looked at the sketch which was prepared by the local commissioner and which was accepted as a correct sketch by the Appellate Court while delivering the judgment dated 19th January, 1996, which has become final.

11. In our opinion, the view expressed by the Executing Court and confirmed by the High Court is not correct and therefore, we allow this appeal and quash and set aside the impugned order of the High Court passed in C.R. No. 2047 of 2010 dated 25th May, 2011, confirming the order passed by the Executing Court dated 16th March, 2009. We direct the Executing Court to do the needful for execution of the decree by taking into account the local commissioner's report and sketch prepared by him dated 17th September, 1989.

12. It is really agonizing to learn that the appellant- decree holder is unable to enjoy the fruits of her success even today i.e. in 2013 though the appellant- plaintiff had finally succeeded in January, 1996. As stated hereinabove, the Privy Council in the case of The General Manager of the Raj Durbhnga under the Court of Wards vs. Maharajah Coomar Ramaput Sing had observed that the difficulties of a litigant in India begin when he has obtained a Decree. Even in 1925, while quoting the aforestated judgment of the Privy Council in the case of Kuer Jang Bahadur vs. Bank of Upper India Ltd., Lucknow [AIR 1925 Oudh 448], the Court was constrained to observe that

"Courts in India have to be careful to see that process of the Court and law of procedure are not abused by the judgment-debtors in such a way as to make Courts of law instrumental in defrauding creditors, who have obtained decrees in accordance with their rights."

13. In spite of the aforestated observation made in 1925, this Court was again constrained to observe in Babu Lal vs. M/s. Hazari Lal Kishori Lal & Ors. [(1982) 1 SCC 525] in para 29 that:

"Procedure is meant to advance the cause of justice and not to retard it. The difficulty of the decree holder starts in getting possession in pursuance of the decree obtained

by him. The judgment debtor tries to thwart the execution by all possible objections......"

16. As stated by us hereinabove, the position has not been improved till today. We strongly feel that there should not be unreasonable delay in execution of a decree because if the decree holder is unable to enjoy the fruits of his success by getting the decree executed, the entire effort of successful litigant would be in vain.

17. We are sure that the Executing Court will do the needful at an early date so as to see that the long drawn litigation which was decided in favour of the appellant is finally concluded and the appellant-plaintiff gets effective justice."

In Brakewel Automotive Components (India) Private

Limited v. P.R.Selvam Alagappan (4 supra) the Apex Court held

as under:-

"20. It is no longer res integra that an executing Court can neither travel behind the decree nor sit in appeal over the same or pass any order jeopardizing the rights of the parties thereunder. It is only in the limited cases where the decree is by a Court lacking inherent jurisdiction or is a nullity that the same is rendered non est and is thus unexecutable. An erroneous decree cannot be equalled

with one which is a nullity. There are no intervening developments as well to render the decree unexecutable.

21. As it is, Section 47 of the Code mandates determination by an executing Court, questions arising between the parties or their representatives relating to the execution, discharge or satisfaction of the decree and does not contemplate any adjudication beyond the same. A decree of court of law being sacrosanct in nature, the execution thereof ought not to be thwarted on mere asking and on untenable and purported grounds having no bearing on the validity or the executability thereof."

In the instant case, the undisputed facts are that the

revision petitioner/Decree Holder filed O.S.No.13 of 2003 for

specific performance of agreement of sale, dated 27.05.2003, and

the same was decreed with costs on 02.09.2006. In order to

enforce the said decree, the revision petitioner/D.Hr filed

E.P.No.65 of 2006. It is also not in dispute that A.S.No.657 of

2006 filed by the respondents/J.Drs against the said judgment

and decree in O.S. No.13 of 2003 was dismissed by a Division

Bench of this Court on 26.06.2009 and the review petition filed

against the dismissal of appeal was also dismissed on 23.03.2010.

Further, the claim petition filed by a third party claiming interest

over the suit schedule property was also dismissed on 04.11.2015

vide E.A.No.3 of 2010 in E.P.No.65 of 2006 and the appeal filed

before this Court against the dismissal of claim-petition was also

dismissed as withdrawn on 03.12.2020. From a perusal of the

judgment in O.S.No.13 of 2003 dated 02.09.2006, it is evident that

the balance sale consideration of Rs.1,00,000/- to be paid under

the agreement of sale dated 27.05.2003 was deposited by the

revision petitioner/D.Hr during the pendency of the suit by way

of C.C.D.746 dated 30.08.2006. Therefore, the objection of the

respondents/J.Drs. that there was no direction of payment of

balance sale consideration of Rs.1,00,000/- to them in the decree

passed in the suit does not hold water. Further, the Executing

Court has failed to take note of the fact, which is borne by

record, that an amount of Rs.2,99,251/- was already deposited

by the revision petitioner/D.Hr to the credit of E.P.No.65 of 2006

and if any withdrawal of Rs.1,00,000/- with or without interest is

sought by the respondents/J.Drs., the same was available to be

disbursed to them. It is needless to state that any further money

towards registration charges would anyhow be borne by the

revision petitioner/D.Hr. if such a situation arises.

The second objection of the respondents/J.Drs for

execution of the decree is that the decree did not speak about

delivery of possession to the revision petitioner/D.Hr. by the

respondents/J.Drs. and, therefore, the Executing Court has no

jurisdiction to pass any relief or direction as prayed for in the

E.P. filed by the revision petitioner/D.Hr. From a perusal of the

impugned order, it is evident that the Executing Court observed

that the delivery of possession would arise only on execution of

sale deed by the respondents/J.Drs. or by the Court, but not

before that. However, the Executing Court refused to order the

execution of sale deed in spite of the decree dated 02.09.2006,

which is impermissible and a transgression of jurisdiction.

That apart, the Executing Court has failed to take note of

the fact that on the date of filing of Execution Petition, the

revision petitioner/D.Hr. was not only entitled to execution of

sale deed in terms of the decree, but also costs of Rs.1,05,660/-

from the respondents/J.Drs. and as such there was no occasion

for the J.Drs. to maintain any application much less an

application under Section 47 of C.P.C. Undoubtedly the

Executing Court cannot travel beyond the decree under

execution. Further, the decree is unexecutable only on limited

grounds where it suffers from jurisdictional error/infirmity or is

void and a nullity. Further, the decree sought to be executed by

the revision petitioner/D.Hr. is within the jurisdiction of the

Court and the right of the Decree Holder to obtain relief is

determined in accordance with the terms of the decree. In view

of the settled law and since the decree had already been made in

favour of the revision petitioner/D.Hr, the Court need not go

into the facts of the case.

For the aforesaid reasons, the Executing Court has

committed an error in rejecting the Execution Petition filed by

the revision petitioner/D.Hr for enforcement of the decree.

Therefore, this Court is of the view that the impugned order is

wholly unsustainable in law and is liable to be set aside.

Accordingly, the C.R.P. is allowed by setting aside the

impugned order dated 26.11.2021, passed by the I-Additional

District Judge, Mahabubnagar, in E.A.No.4 of 2021 in E.P.No.65

of 2006 and consequently the Execution Petition is restored to its

original file. There shall be no order as to costs.

Miscellaneous petitions, if any, pending shall stand closed.

______________________ JUSTICE G.SRI DEVI

14.03.2022 Gsn/gkv.