Telangana High Court
Jyothi Raju vs Vital Radha Krishna on 4 February, 2025
THE HONOURABLE SMT. JUSTICE K. SUJANA
CIVIL REVISION PETITION No.1364 of 2024
ORDER:
Challenging the order dated 11.03.2024 passed in
E.A.No.152 of 2023 in E.P.No.216 of 2023 in O.S.No.1485 of
2002 by the learned Principal Junior Civil Judge-cum-
Metropolitan Magistrate, Ranga Reddy District at L.B. Nagar,
the present Civil Revision Petition is filed.
2. The brief facts of the case are that the respondent, a
judgment debtor, filed a petition, vide E.A.No.152 of 2023,
under Section 47 read with 151 of the Civil Procedure Code,
challenging the maintainability of the execution petition filed
by the decree holder. The firm of the respondent, M/s.
Srinivasa Steel Traders and Hardware, was a tenant in a
property, and a suit was filed by the father of the decree
holder for eviction. The matter was settled through a
compromise, and a registered lease deed was executed for 15
years. The respondent claimed that the terms of the
compromise had been fully discharged, and the contract of
tenancy had merged into the lease deed. The respondent also
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argued that the decree holder had no right to terminate the
lease before the lease period and that delivery of possession
could only be sought if there was a violation of the lease
terms.
3. The petitioner/decree holder filed a counter affidavit
before the trial Court, disputing the allegations of the
respondent as false and fabricated. The decree holder claimed
that the execution petition was filed based on a Lok Adalat
award obtained by mutual consent. According to the award,
the respondent was required to hand over vacant possession
of the shop to the decree holder by the end of July, 2023.
4. The trial Court after hearing both sides and considering
the arguments and judgments relied upon by both parties
allowed the petition vide order dated 11.03.2024, observing
that the execution petition was not maintainable as the
parties had entered into a fresh registered lease deed, which
superseded the earlier award. Since there were no violations
of the lease terms, the decree holder could not seek eviction
without issuing a notice under Section 106 of the Transfer of
Property Act. Furthermore, the respondent had filed a suit for
specific performance seeking renewal of the lease period,
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which was pending adjudication. In view of the decisions in
Sudhir Kumar vs. Baldev Krishna Tapar and Mudra Gopala
Krishna vs. M/s Margadarsi Chit Fund Limited, the trial
Court held that the compromise decree was not executable.
Consequently, the execution petition was dismissed.
5. Heard Sri Aravind Kumar Agarwal, learned counsel
appearing on behalf of the petitioner as well as Sri R. A.
Achuthanand, learned counsel appearing on behalf of the
respondent.
6. Learned counsel for the petitioner submitted that the
impugned order is a gross miscarriage of justice, reflecting an
illegal exercise of jurisdiction and determination of the dispute
not in accordance with law and that the order suffers from
multiple flaws, including failure to consider the merits of the
case, ignoring crucial documents and evidence, and
misapplying the law. He further submitted that the executing
Court erred in holding that the compromise decree was not
executable, and its reasoning was based on incorrect
assumptions and inapplicable legal precedents and that the
Court failed to address the contentions of the petitioners,
neglected to consider the collective and conjoint reading of the
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Lok Adalat Award and the registered lease deed, and
overlooked the quintessential facts of the case. Therefore, he
prayed the Court to set aside the order of the trial Court by
allowing this Civil Revision Petition.
7. In support of the submissions of learned counsel for the
petitioner, he relied upon the Judgments of the Hon'ble
Supreme Court of relevant paragraphs are reads as follows:
i. P.T. Thomas v. Thomas Job 1,
16. In our opinion, the award of the Lok Adalat is
fictionally deemed to be a decree of court and
therefore the courts have all the powers in relation
thereto as it has in relation to a decree passed by
itself. This, in our opinion, includes the powers to
extend time in appropriate cases. In our opinion,
the award passed by the Lok Adalat is the decision
of the court itself though arrived at by the simpler
method of conciliation instead of the process of
arguments in court. The effect is the same. In this
connection, the High Court has failed to note that
by the award what was put to an end was the
appeal in the District Court and thereby the
litigations between brothers forever. The view taken
by the High Court, in our view, will totally defeat
the object and purposes of the Legal Services
Authorities Act, 1987 and render the decision of the
Lok Adalat meaningless.
(2005) 6 SCC 478
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Award of Lok Adalat
20. The Lok Adalat shall proceed and dispose the
cases and arrive at a compromise or settlement by
following legal principles, equity and natural
justice. Ultimately, the Lok Adalat passes an award,
and every such award shall be deemed to be a
decree of the civil court or as the case may be,
which is final.
23. The High Court of Andhra Pradesh held that, in
Board of Trustees of the Port of Visakhapatnam v.
Presiding Officer, Permanent, Lok Adalat-cum-
Secy., District Legal Services Authority [(2000) 5 An
LT 577] the award is enforceable as a decree and it
is final. On all fours, the endeavour is only to see
that the disputes are narrowed down and make the
final settlement so that the parties are not again
driven to further litigation or any dispute. Though
the award of a Lok Adalat is not a result of a
contest on merits just as a regular suit by a court
in a regular trial is, however, it is as equal and on a
par with a decree on compromise and will have the
same binding effect and be conclusive. Just as the
decree passed on compromise cannot be challenged
in a regular appeal, the award of the Lok Adalat,
being akin to the same, cannot be challenged by
any of the regular remedies available under law,
including by invoking Article 226 of the
Constitution and challenging the correctness of the
award, on any ground. Judicial review cannot be
invoked in such awards, especially on the grounds
as were raised in the revision petition.
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24. The award of Lok Adalat is final and permanent
which is equivalent to a decree executable, and the
same is an ending to the litigation among parties.
ii. K.N. Govindan Kutty Menon v. C.D. Shaji 2,:
26. From the above discussion, the following
propositions emerge:
(1) In view of the unambiguous language of Section
21 of the Act, every award of the Lok Adalat shall be
deemed to be a decree of a civil court and as such it
is executable by that court.
(2) The Act does not make out any such distinction
between the reference made by a civil court and a
criminal court.
(3) There is no restriction on the power of the Lok
Adalat to pass an award based on the compromise
arrived at between the parties in respect of cases
referred to by various courts (both civil and
criminal), tribunals, Family Court, Rent Control
Court, Consumer Redressal Forum, Motor
Accidents Claims Tribunal and other forums of
similar nature.
(4) Even if a matter is referred by a criminal court
under Section 138 of the Negotiable Instruments
Act, 1881 and by virtue of the deeming provisions,
the award passed by the Lok Adalat based on a
compromise has to be treated as a decree capable
of execution by a civil court.
ii. Dilshad Hussain v. Alloju Mallikarjun Rao 3,:
(2012) 2 SCC 51
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3. The E.P. was opposed by the petitioners, on the
ground that though the revised terms of tenancy
were agreed, in the award passed by the Lok
Adalat, the consequence of the violation thereof,
was not provided for. Through its order, dated
23.8.2007, the executing Court allowed the E.P.,
and issued a warrant for eviction of the petitione
Rs. The same is challenged in this CRP.
4. Sri Ghanshyamdas Mandhani, learned Counsel
for the petitioners, submits that the award passed
by the trial Court, does not have any effect, more
than extending the tenure of lease, and if the
respondent is interested in evicting the petitioners,
he has to institute separate proceedings, in
accordance with law. He contends that the order
passed by the executing Court cannot be sustained.
6. Tire relationship between the parties is not
disputed. It is also a matter of record that the suit
filed by the respondent, for eviction of the
petitioners, ended in a compromise, through the
medium of Lok Adalat. The lease, which was in
force upto 1.1.2004, was extended till 31.12.2006,
with enhanced rents. With the expiry of that period,
the petitioners are under obligation to vacate the
premises. Failure thereof, would naturally give rise
to a right to the respondent, to seek execution of
the award.
7. Learned Counsel for the petitioners places
reliance upon the judgment of a Division Bench of
the Orissa High Court in Khalli Rath v. Eppili
Ramachandra, AIR 1953 Ori. 74. It is doubtful
whether such judgment still holds the field. All the
2008 SCC OnLine AP 93
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same, this Court is not at all inclined to adopt the
view that a consent decree, in which the period of
lease is extended, cannot be executed, and the
parties have to institute separate proceedings. Such
a course would render the adjudication, to an
empty formality. Still worse is the case, where the
parties themselves agreed upon certain terms, and
one of them feels free to retract from it. Such a view
would, if at all, arm indiscriminate parties, to defeat
the orders or awards, which are passed with their
consent. The trial Court has examined the matter
from correct perspective, and this Court is not
inclined to interfere with the same.
iv. Karumuri Sambasiva Rao v. Vysyaraju
Suryanarayana Raju 4, :
2. The petitioner in RCC No. 2 of 2005 is the
petitioner in this civil revision petition. The
respondent is the owner of the property, which is in
occupation of the petitioner. Litigation ensued
between the parties, which has led to passing of a
compromise award by the Lok Adalat, Srikakulam
vide award dated 24.10.2007 in RCC No. 2 of 2005
and Lok Adalat Case No. 482 of 2007. Under the
award, both the parties inter alia agreed for
continuance of lease in favour of the petitioner till
February, 2010 and the petitioner agreed to vacate
the premises without prior notice and further
litigation and that he shall handover the vacant
possession on expiry of the lease period. As the
petitioner failed to handover the possession to the
respondent, the latter has filed E.P. on 17.3.2010.
2011 SCC OnLine AP 51
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As noted above, the Court below has issued
warrant under Order XXI Rule 35 of the Code of
Civil Procedure, 1908 (for short, 'CPC').
4. It is not in dispute that the petitioner has
undertaken to deliver vacant possession of the
property immediately on expiry of the agreed lease
period, which subsisted till the end of February
2010. Instead of delivering the vacant possession,
the petitioner embarked upon further litigation by
setting up oral lease and filing a civil suit, which is
pending in the Court of the learned Principal Senior
Civil Judge, Srikakulam. In this context, it is useful
to extract Order XXI Rule 22 CPC.
"22. Notice to show-cause against execution in
certain cases:--(1) Where an application for
execution is made--
(a) more than [two years] after the date of the
decree, or
(b) against the legal representative of a party to the
decree [or where an application is made for
execution of a decree filed under the provisions of
Section 44-A], [or]
(c) against the assignee or receiver in insolvency,
where the party to the decree has been adjudged to
be an insolvent, the Court executing the decree
shall issue a notice to the person against whom
execution is applied for requiring him to show-
cause, on a date to be fixed, why the decree should
not be executed against him.
Provided that no such notice shall be necessary in
consequence of more than [two years] having
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elapsed between the date of the decree and the
application for execution if the application is made
within [two years] from the date of the last order
against the party against whom execution is applied
for, made on any previous application for execution,
or in consequence of the application being made
against the legal representative of the judgment-
debtor, if upon a previous application for execution
against the same person the Court has ordered
execution to issue against him.
(2) Nothing in the foregoing sub-rule shall be
deemed to preclude the Court from issuing any
process in execution of a decree without issuing the
notice thereby prescribed, if, for reasons to be
recorded, it considers that the issue of such notice
would cause unreasonable delay or would defeat
the ends of justice."
5. While this Court refrains from giving a finding on
the tenability or otherwise of the plea of the
petitioner raised in the suit filed by the petitioner as
noted above, it is of the opinion that the facts make
it an eminently fit case for invocation of the
provisions of Order XXI Rule 22(2) of CPC, because
the petitioner made the respondent to await expiry
of the extended lease period under the compromise
award and filed a suit by setting up the plea of oral
lease obviously with a view to thwart the
respondent's effort to recover possession of the
property. Issuance of notice under Clause (1) of
Rule 22 would definitely cause unreasonable delay
and defeat the ends of justice. Therefore, the order
under revision is not liable for interference and the
civil revision petition is accordingly dismissed.
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v. Alla Venkata Krishna Reddy v. Government of
Andhra Pradesh 5,:
33. In view of the above, therefore, we are unable to
accept the contention that merely by an agreement
of sale, any substantive right is created in favour of
the tenant.
36. As contended by the learned Senior Counsel the
tenant himself is not claiming his status as a
tenant but claiming higher status as that of an
agreement holder. As per the award of Lok Adalat,
the tenant has suffered eviction decree and pending
execution of the said decree, he is continuing in
possession beyond the permitted period. He is,
therefore, a judgment debtor in an execution
proceeding of an eviction decree and his status
cannot be equated to that of a tenant holding over
or a licensee. So far as the proclaimed status as an
agreement holder is concerned, the same is sub-
judice and yet to be adjudicated by the civil Court.
Under Rule 6(vi) of the Rules, therefore, it cannot
be said that the tenant has any valid authorization
to occupy the premises and use it for the purpose of
running a bar and restaurant. It goes without
saying that if the tenant succeeds in the suit for
specific performance and if, ultimately, a sale deed
is executed in his favour, he may become the owner
of the property but till such time, we cannot
proceed on the footing that he has a higher status
as that of an agreement holder when the agreement
itself is in serious dispute and in law, does not
create any legal title.
2013 SCC OnLine AP 465
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vi. V. Ramaswami Aiyengar v. Kailasa Thevar 6,:
9. It seems to us that the High Court's approach to
the case has not been a proper one and the
conclusion it has reached cannot be supported in
law. 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, but under the guise of
interpretation they could not make a new decree for
the parties.
vii. Rajasthan Financial Corpn. v. Man Industrial Corpn.
Ltd. 7,:
18. We have considered the rival submissions.
There can be no dispute to the proposition that the
executing court cannot go beyond the decree. There
can be no dispute that the executing court must
take the decree according to its tenor. Also as has
been set out in Greater Cochin Development
Authority case [(2002) 2 SCC 573] when a decree is
in terms of an award/document then the terms of
that document have to be looked at. In this case the
decree is in terms of the compromise deed. The
decree does not provide that the compromise deed
or any of its terms have been varied. To be
remembered, that the decree is passed under Order
23 Rule 3 of the Civil Procedure Code. Under this
provision normally the court passes the decree in
1951 SCC 199
(2003) 7 SCC 522
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terms of the compromise. Of course, the court can
make a change. However, if the court was making a
change it would have had to record why it was
making the change and what change it was making.
It could not then provide that the decree was in
terms of the compromise. If the court was not
passing the decree in terms of the compromise then
this opening portion of the decree could not have
been there. The subsequent portion is mere
classificatory in nature as to which of the options
was to be exercised. This does not govern or detract
from the main terms of the decree which is a decree
in terms of the compromise. Clauses 2 and 7 of the
compromise deed make it very clear that the
appellants were entitled to charge interest on half-
yearly basis. We see no substance in the
submission that the "half-yearly rests" were to
apply only if the rate of interest was to be decided
by the appellants. These words clearly applied to
both the options. In the classificatory portion the
words "on half-yearly basis" have not been
mentioned because the portion is only clarifying
how interest was to be calculated. This portion thus
does not detract from the fact that the decree is in
terms of the compromise deed. Merely because
some other minor changes, which appear to be
inadvertent changes, have crept in do not also
detract from the fact that the decree is in terms of
the compromise deed. We also do not find any
uncertainty in the decree.
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viii. Brakewel Automotive Components (India) (P) Ltd. v.
P.R. Selvam Alagappan 8, :
22. Judicial precedents to the effect that the
purview of scrutiny under Section 47 of the Code
qua a decree is limited to objections to its
executability on the ground of jurisdictional
infirmity or voidness are plethoric. This Court,
amongst others in Vasudev Dhanjibhai Modi v.
Rajabhai Abdul Rehman [Vasudev Dhanjibhai Modi
v. Rajabhai Abdul Rehman, (1970) 1 SCC 670 : AIR
1970 SC 1475 : (1971) 1 SCR 66] in essence
enunciated that only a decree which is a nullity can
be the subject-matter of objection under Section 47
of the Code and not one which is erroneous either
in law or on facts. The following extract from this
decision seems apt : (SCC pp. 672-73, paras 6-7)
"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
(2017) 5 SCC 371
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in a proceeding for execution. Again, when the
decree is made by a court which has no inherent
jurisdiction to make it, 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."
ix. Rahul S. Shah v. Jinendra Kumar Gandhi 9,:
24. In respect of execution of a decree, Section 47
CPC contemplates adjudication of limited nature of
issues relating to execution i.e. discharge or
satisfaction of the decree and is aligned with the
consequential provisions of Order 21 CPC. Section
47 is intended to prevent multiplicity of suits. It
simply lays down the procedure and the form
whereby the court reaches a decision. For the
applicability of the section, two essential requisites
have to be kept in mind. Firstly, the question must
be the one arising between the parties and
secondly, the dispute relates to the execution,
discharge or satisfaction of the decree. Thus, the
objective of Section 47 is to prevent unwanted
litigation and dispose of all objections as
expeditiously as possible.
(2021) 6 SCC 418
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25. These provisions contemplate that for execution
of decrees, executing court must not go beyond the
decree. However, there is steady rise of proceedings
akin to a retrial at the time of execution causing
failure of realisation of fruits of decree and relief
which the party seeks from the courts despite there
being a decree in their favour. Experience has
shown that various objections are filed before the
executing court and the decree-holder is deprived of
the fruits of the litigation and the judgment-debtor,
in abuse of process of law, is allowed to benefit
from the subject-matter which he is otherwise not
entitled to.
42.8. The court exercising jurisdiction under
Section 47 or under Order 21 CPC, must not issue
notice on an application of third party claiming
rights in a mechanical manner. Further, the court
should refrain from entertaining any such
application(s) that has already been considered by
the court while adjudicating the suit or which
raises any such issue which otherwise could have
been raised and determined during adjudication of
suit if due diligence was exercised by the applicant.
x. Beedam Reddappa Reddy v. Yellaboyina Vani 10,:
6. In this case, there is no dispute that with
consent of the petitioner and respondents, the
matter was referred to Lok Adalat, which passed an
award and it is binding on the parties. If any
document is required for registration, as per the
award, it shall be done according to law and there
2011 SCC OnLine AP 503
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is no requirement of the Court sending the award of
the Lok Adalat for registration.
xi. Rajasthan State Industrial Development &
Investment Corpn. v. Diamond & Gem Development
Corpn. Ltd. 11,:
IV. Interpretation of the terms of contract
23. A party cannot claim anything more than what
is covered by the terms of contract, for the reason
that contract is a transaction between the two
parties and has been entered into with open eyes
and understanding the nature of contract. Thus,
contract being a creature of an agreement between
two or more parties, has to be interpreted giving
literal meanings unless, there is some ambiguity
therein. The contract is to be interpreted giving the
actual meaning to the words contained in the
contract and it is not permissible for the court to
make a new contract, however reasonable, if the
parties have not made it themselves. It is to be
interpreted in such a way that its terms may not be
varied. The contract has to be interpreted without
any outside aid. The terms of the contract have to
be construed strictly without altering the nature of
the contract, as it may affect the interest of either of
the parties adversely. [Vide United India Insurance
Co. Ltd. v. Harchand Rai Chandan Lal [(2004) 8
SCC 644 : AIR 2004 SC 4794] and Polymat India (P)
Ltd. v. National Insurance Co. Ltd. [(2005) 9 SCC
174 : AIR 2005 SC 286] ].
(2013) 5 SCC 470
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8. On the other hand, learned counsel for the respondent
submitted that after the decree was executed, a fresh lease
deed was executed, which outlined specific terms and
conditions. He further submitted that the petitioner and
respondent had also entered into a new lease agreement, and
a suit for specific performance of the sale lease deed was
already pending. Learned counsel argued that in light of the
fresh lease deed, the parties are bound by its terms and
conditions, and therefore, the petitioner should file a suit for
eviction rather than an execution petition. Therefore, he
requested the Court to dismiss the civil revision petition.
9. In support of the submissions made by the learned
counsel for the respondent, he relied upon the judgments of
the Hon'ble Supreme Court of relevant paragraphs are reads
as under:
i. M.P. Shreevastava v. Veena 12,:
5. But it was said that the respondent could not
maintain an application for recording adjustment of
the decree under Order 21 Rule 2 CPC nor could
she maintained an application for recording
satisfaction of the decree for restitution of conjugal
rights so long as the husband did not apply to
1966 SCC OnLine SC 27
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execute the decree, or did not claim a decree for
divorce under Section 27 of the Special Marriages
Act. Order 21 Rule 2 prescribes the procedure for
recording payment of money under any decree or
for adjustment of any decree to the satisfaction of
the decree-holder. If any money payable under a
decree of any kind is paid out of Court, or the
decree is otherwise adjusted in whole or in part to
the satisfaction of the decree-holder, the decree-
holder is enjoined by Rule 2(1) of Order 21 to certify
such payment or adjustment to the court : the
judgment-debtor may also inform the court of such
payment or adjustment, and it may be recorded
after enquiry : Rule 2(2) of Order 21. In the present
case, however, there is no adjustment. Adjustment
contemplates mutual agreement, and in the present
case, there is no evidence of any consent on the
part of the appellant who was never willing to take
back the wife and resume conjugal relations. Order
21 Rule 2 contemplates adjustment of the decree by
consent -- express or implied -- of the parties :
where there is no such consent, Order 21 Rule 2
does not apply.
6. But Order 21 Rule 2 prescribes a special
procedure for recording adjustment of a decree, or
for recording payment of money paid out of court
under any decree. However the plenary power
conferred by Section 47 CPC upon the court
executing the decree to determine all questions
arising between the parties to the suit in which the
decree was passed, and relating to execution,
discharge or satisfaction of the decree, is not
thereby affected. Whereas Order 21 Rule 2 deals
with the procedure to be followed in a limited class
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of cases relating to discharge or satisfaction of
decrees, where there has been payment of money or
adjustment or satisfaction of the decree by
consensual arrangement, Section 47 CPC deals
with the power of the court executing the decree.
7. Counsel for the appellant does not deny to the
court executing the decree power to decide all
questions relating to execution, discharge or
satisfaction of the decree arising between the
parties to the suit in which the decree was passed,
but contends that since the power to record
discharge or satisfaction of a decree is exercisable
only by the court executing the decree, no
substantive petition lies at the instance of the
person against whom a decree is passed to record
adjustment or satisfaction so long as the decree-
holder has not applied for execution. Counsel says
that the expression "Court executing the decree"
means the "Court which is executing the decree at
the instance of the decree-holder" and in support of
his contention relies upon the different expressions
used in Order 21 Rules 1 and 2 CPC. He points out
that under Order 21 Rule 1(1)(a) money payable
under a decree may be paid into the court whose
duty it is to execute the decree. Similarly an
application under clause (1) or clause (2) of Rule 2
Order 21 for recording payment of money under or
adjustment of a decree has to be made to the court
whose duty it is to execute the decree, whereas
prohibition against recognition of an uncertified
payment or adjustment is imposed upon the court
executing the decree by sub-rule (3). There is no
doubt that the expression "Court whose duty it is to
execute the decree" means a court which is under
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the law competent to, and when requested bound
to, execute the decree which is in law enforceable,
and where an application is made under Order 21
Rule 1(1)(a) or under Order 21 Rule 2(1) or (2) there
need be substantive application for execution
pending. It also appears, from the terms of clause
(3) of Order 21 Rule 2, that the prohibition is
against the court executing the decree. But there is
no warrant for the argument that the expression
"Court executing the decree" as used in Section 47
CPC means a "Court which is seized of an
application for execution of a decree at the instance
of the decree-holder". Section 47 enacts the
salutary rule that all questions relating to
execution, discharge or satisfaction of the decree
shall be determined not by a separate suit, but in
execution of the decree. The power so conferred
may not be limited by any strained or artificial
construction of the words "Court executing the
decree". The expression "Court executing the
decree" has not been defined, and having regard to
the scheme of the Code it cannot have a limited
meaning, as argued by counsel for the appellant.
The principle of the section is that all questions
relating to execution, discharge or satisfaction of a
decree and arising between the parties to the suit in
which the decree is passed, shall be determined in
the execution proceeding, and not by a separate
suit : it follows as a corollary that a question
relating to execution, discharge or satisfaction of a
decree may be raised by the decree-holder or by the
judgment-debtor in the execution department and
that pendency of an application for execution by the
decree-holder is not a condition of its exercise. An
application made by the judgment-debtor which
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raises a question relating to execution, discharge or
satisfaction of a decree in a suit to which he, or the
person of whom he is a representative, was a party
is an application before the court executing the
decree, and must be tried in that court.
ii. Sudhir Kumar v. Baldev Krishna Thapar 13,:
5. The question whether under the terms of the
compromise the parties entered into a fresh lease or
the decree-holders merely granted an extension of
time for delivery of possession of the premises
demised essentially depends on the intention of the
parties who entered into the compromise as could
be gathered from the compromise petition as well
as the compromise decree. It is necessary to note
that in the compromise petition, it is specifically
stated that the parties had agreed "that the
defendants shall remain as lessees of Uttam
Talkies, Residency Road, Jammu, on terms and
conditions on which they previously held the said
premises machinery furniture fittings, etc. up to
31-12-1962 and pay to the plaintiff rent at Rs 3000
per month from 1st January, 1959 in the following
proportion...." It is further stated therein that "the
rest of the terms and conditions will be as
contained in the agreement a deed, dated 17th
Assuj 2011 registered on 18th Assuj, 2011". But
the last clause in the compromise petition reads: "it
is therefore prayed that a decree may kindly be
passed directing ejectment on 1st January, 1963 on
terms and conditions contained herein". The
compromise decree refers to the defendants as
"lessees" and the compensation payable by them as
(1969) 3 SCC 611
SKS,J
"rent". At the same time clause (2) of the decree
says that the defendants shall be liable to ejectment
and shall vacate the premises on 1st January, 1963
on the terms and conditions as stated above. The
compromise and the compromise decree speak, so
to say, in two voices: If we had been merely left with
the specific terms incorporated in the compromise
petition and the compromise decree without
bringing in by reference the terms of the original
lease as to matters not specifically covered in the
compromise petition and the compromise decree,
there would have been some difficulty in spelling
out the real intention of the parties. But by
incorporating the terms of the old lease, to the
extent not covered by the new terms, the parties
had agreed to incorporate into the new agreement
the term relating to renewal found in the original
lease. On an analysis of the terms of the
compromise, it is seen that the lessors had granted
a fresh lease of the cinema talkies demised; a
monthly rental was fixed in respect of the same and
the lessees were given an option to renew the lease
at the end of the term fixed though that right is
subject to certain conditions. Under these
circumstances, the direction in the decree to vacate
the suit premises at the end of the term fixed in the
compromise in accordance with the terms of the
compromise would amount to an ineffective
direction. Such a direction cannot be considered as
an ejectment decree. It is at best a declaration of
the right of the lessors to eject the lessees at the
end of the lease period if the lessees fail to get a
renewal.
SKS,J
iii. Bibekananda Bhowal v. Satindra Mohan Deb 14,
12. Are the Debs entitled to evict the Bhowals from
land admeasuring 1 katha and 7 chataks as also
the building standing thereon, in execution of the
compromise decree of 10-5-1965? It is necessary to
first examine the terms of the consent decree of 10-
5-1965. Clause A of the consent terms has been set
out earlier. It requires the Bhowals to give up
possession of an area of 7′ × 7′ in the south-western
corner of the room in the suit property. The clause
further provides:
"In the event of non-compliance with the terms
contained above for his default the defendant-
appellant (Bhowal) will be liable to ejectment in
execution of the decree passed in the suit in terms
of the compromise."
Clearly, therefore, if the Bhowals do not give up
possession of this area of 7′ × 7′, they can be
ejected from this portion in execution of the
compromise decree.
13. The next part of the compromise decree deals
with possession by the Bhowals of the rest of the
building located on 1 katha 7 chataks of land.
Under clause C of the consent terms the Bhowals
are permitted to remain in possession of the rest of
the building as monthly tenants of the Debs for a
period of ten years from 1-5-1965 till 30-4-1975 on
payment of a rent of Rs 225 per month. Clause D
prohibits the Bhowals from sub-letting or
transferring any portion of the said premises. It
(1996) 9 SCC 292
SKS,J
further provides that on the expiry of the period of
ten years the Bhowals will vacate and deliver
possession of the said premises to the Debs. Clause
I provides:
"In the event of any breach of any condition
mentioned above the defendant-appellant (Bhowals)
will be liable to ejectment by appropriate action in a
court of law."
There is a striking difference in the language used
in clause A relating to ejectment and in clause I
relating to ejectment. Clause A clearly contemplates
ejectment of the Bhowals in execution of the
compromise decree if they do not hand over
possession of an area of 7′ × 7′. However, in respect
of their tenancy relating to the rest of the building,
if they commit any breach of any of the conditions
stipulated in the compromise decree (which would
presumably include the condition relating to
handing over possession on the expiry of ten years)
the Bhowals are liable to ejectment by appropriate
action in a court of law. This is in contradistinction
to the ejectment in execution of the compromise
decree contemplated under clause A. In this
context, ejectment by appropriate action in a court
of law can only mean ejectment by taking action by
filing a suit or taking any other proceeding in a
court of law. Clearly, the parties did not
contemplate ejectment by execution of the
compromise decree in relation to a breach of clause
C. This difference in the phraseology of clauses A
and I is understandable because a tenant who may
otherwise be liable to ejectment, may be protected
by provisions of the Rent Act or by any other
provision of law. This issue can only be adjudicated
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properly in an appropriate proceeding and not in
the execution of a decree. Had the intention been to
allow the Bhowals only permissive possession for a
period of ten years, and ejectment thereafter in
execution of the compromise decree, the decree
would have so provided. It does not do so.
Therefore, assuming that the tenancy of the
Bhowals has come to an end, the Debs cannot eject
the Bhowals from the building in their possession
without taking appropriate legal action by filing a
suit for ejectment or in any other manner as may
be permissible in law; but not by applying for
execution of the compromise decree.
iv. Krishna Kashinath Patil v. S. Mohandas Kamath 15, :
17. The learned Counsel for the respondent further
contended that the old house, which was the
subject mater of the old lease deed and that of old
Suit No. 2 of 1970 no longer existed in view of its
demolition, with the result, old lease came to an
end. The new house was to be constructed by the
respondent under the compromise decree. The said
new house was the subject matter of the fresh
lease. Based on these facts, he contended that the
compromise decree worked itself out and as such it
stood extinguished. In his submission, compromise
decree stood superseded with the execution of fresh
lease deed. The compromise decree thus no longer
exists. The executing Court found that it could not
be executed against the respondent.
18. The learned counsel for the respondent, based
on the aforesaid submissions, further went on to
2001 SCC OnLine Bom 930
SKS,J
submit that at the highest, even if it is assumed
that the period of lease agreed between the parties
expired on 31-12-1984, as per the clause
incorporated in the compromise decree, even then
the same would have to be enforced by a suit for
possession filed under the Bombay Rent Act. He
submits that it will have to be enforced in the same
manner as any other contract is enforced, as the
compromise decree being an agreement with seal of
the Court.
20. The learned counsel for the respondent further
contended that when fresh contract of lease was
created, the Bombay Rent Act was in operation in
that area, consequently, the relationship between
the parties would be governed by the provisions of
the said Act. The petitioner/landlord thus cannot
obtain possession of tenanted premises from the
respondent unless the Court is satisfied that a
statutory ground for eviction of the respondent as a
tenant exists. The respondent-tenant who is
protected by the provisions of the Bombay Rent Act,
cannot be evicted in execution of the decree in
question, which in this submission, is non-est for
the reasons already canvassed.
19. The learned counsel for the respondent faintly
tried to contend that clause relating to handing
over possession after expiry of 15 years, cannot be
said to be in accordance with law as it would
amount to contracting out of the statutory rights
conferred on a tenant by the Bombay Rent Act. He,
therefore, contended that this part of the decree
could not be allowed to be executed in view of the
judgment of the Apex Court in Gurupadappa v.
Bibekanand, AIR 1996 SC 198.
SKS,J
v. Padhiyar Prahladji Chenaji v. Maniben Jagmalbhai 16,:
26. Now, so far as the submission on behalf of the
plaintiff that even if the plaintiff failed to get the
declaratory relief and relief for cancellation of
registered sale deed and her suit for the said reliefs
came to be dismissed and the plaintiff is found to
be in possession and therefore, the only remedy
available to Defendant 1 would be to file a
substantive suit to get back the possession is
noticed only to be rejected outright. It is the
contention on behalf of the plaintiff that once the
plaintiff is found to be in possession, her
possession cannot be disturbed except by due
process of law and Defendant 1 though may be the
true owner has to file a substantive suit for
recovery of possession.
27. While considering the aforesaid submission, the
decision of this Court in Maria Margarida Sequeira
Fernandes v. Erasmo Jack de Sequeira [Maria
Margarida Sequeira Fernandes v. Erasmo Jack de
Sequeira, (2012) 5 SCC 370 : (2012) 3 SCC (Civ)
126] is required to be referred to. What is meant by
due process of law has been explained by this
Court in para 79, which reads as under : (SCC p.
392)
"79. Due process of law means that nobody ought
to be condemned unheard. The due process of law
means a person in settled possession will not be
dispossessed except by due process of law. Due
process means an opportunity to the defendant to
file pleadings including written statement and
(2022) 12 SCC 128
SKS,J
documents before the court of law. It does not mean
the whole trial. Due process of law is satisfied the
moment rights of the parties are adjudicated upon
by a competent court."
28. In the said decision in Maria Margarida [Maria
Margarida Sequeira Fernandes v. Erasmo Jack de
Sequeira, (2012) 5 SCC 370 : (2012) 3 SCC (Civ)
126] , this Court has approved the following
findings of the High Court of Delhi in Thomas Cook
(India) Ltd. v. Hotel Imperial [Thomas Cook (India)
Ltd. v. Hotel Imperial, 2006 SCC OnLine Del 36 :
(2006) 88 DRJ 545] : (Hotel Imperial case [Thomas
Cook (India) Ltd. v. Hotel Imperial, 2006 SCC
OnLine Del 36 : (2006) 88 DRJ 545] , SCC OnLine
Del para 28)
"28. The expressions "due process of law", "due
course of law" and "recourse to law" have been
interchangeably used in the decisions referred to
above which say that the settled possession of even
a person in unlawful possession cannot be
disturbed "forcibly" by the true owner taking law in
his own hands. All these expressions, however,
mean the same thing--ejectment from settled
possession can only be had by recourse to a court
of law. Clearly, "due process of law" or "due course
of law", here, simply mean that a person in settled
possession cannot be ejected without a court of law
having adjudicated upon his rights qua the true
owner.
Now, this "due process" or "due course" condition is
satisfied the moment the rights of the parties are
adjudicated upon by a court of competent
jurisdiction. It does not matter who brought the
SKS,J
action to court. It could be the owner in an action
for enforcement of his right to eject the person in
unlawful possession. It could be the person who is
sought to be ejected, in an action preventing the
owner from ejecting him. Whether the action is for
enforcement of a right (recovery of possession) or
protection of a right (injunction against
dispossession), is not of much consequence. What
is important is that in either event it is an action
before the court and the court adjudicates upon it.
If that is done then, the "bare minimum"
requirement of "due process" or "due course" of law
would stand satisfied as recourse to law would have
been taken. In this context, when a party
approaches a court seeking a protective remedy
such as an injunction and it fails in setting up a
good case, can it then say that the other party must
now institute an action in a court of law for
enforcing his rights i.e. for taking back something
from the first party who holds it unlawfully, and, till
such time, the court hearing the injunction action
must grant an injunction anyway? I would think
not. In any event, the "recourse to law" stipulation
stands satisfied when a judicial determination is
made with regard to the first party's protective
action. Thus, in the present case, the plaintiff's
failure to make out a case for an injunction does
not mean that its consequent cessation of user of
the said two rooms would have been brought about
without recourse to law."
vi. S. Saktivel v. M. Venugopal Pillai 17,
(2000) 7 SCC 104
SKS,J
5. Learned counsel appearing for the appellant
urged that the view taken by the High Court in
decreeing the suit of the plaintiff was erroneous
inasmuch as the settlees under Ext. A-1 got the
suit property and by the subsequent oral
arrangement, they agreed to work out their rights
without varying or substituting the terms of Ext. A-
1 and, therefore, the High Court was not right in
not considering the oral arrangement as pleaded by
the defendant-appellant. It is not disputed that
disposition under Ext. A-1 in the present case is by
way of grant and under the said disposition all the
sons of Muthuswamy Pillai acquired rights. It is
also not disputed that the settlement deed is a
registered document and by virtue of alleged
subsequent oral arrangement, the other sons of
Muthuswamy Pillai were divested of the rights
which they acquired under the settlement deed.
Under such circumstances the question that arises
for consideration is as to whether any parol
evidence can be let in to substantiate subsequent
oral arrangement rescinding or modifying the terms
of the document which, under law, is required to be
in writing or is a registered document, namely, Ext.
A-1. Section 92 of the Evidence Act reads as thus:
"92. Exclusion of evidence of oral agreement.--
When the terms of any such contract, grant or
other disposition of property, or any matter
required by law to be reduced to the form of a
document, have been proved according to the last
section, no evidence of any oral agreement or
statement shall be admitted, as between the parties
to any such instrument or their representatives in
SKS,J
interest, for the purpose of contradicting, varying,
adding to, or subtracting from, its terms:
***
Proviso (4).--The existence of any distinct
subsequent oral agreement to rescind or modify any
such contract, grant or disposition of property, may
be proved, except in cases in which such contract,
grant or disposition of property is by law required to
be in writing, or has been registered according to
the law in force for the time being as to the
registration of documents."
A perusal of the aforesaid provision shows that
what Section 92 provides is that when the terms of
any contract, grant or other disposition of property,
or any matter required by law to be reduced in the
form of a document, have been proved, no evidence
of any oral agreement or statement is permissible
for the purpose of contradicting, varying, adding or
subtracting from the said written document.
However this provision is subject to provisos (1) to
(6) but we are not concerned with other provisos
except proviso (4), which is relevant in the present
case. The question then is whether the defendant-
appellant can derive any benefit out of proviso (4) to
Section 92 for setting up oral arrangement arrived
at in the year 1941 which has the effect of
modifying the written and registered disposition.
Proviso (4) to Section 92 contemplates three
situations, whereby:
(i) The existence of any distinct subsequent oral
agreement to rescind or modify any earlier contract,
grant or disposition of property can be proved.
SKS,J
(ii) However, this is not permissible where the
contract, grant or disposition of property is by law
required to be in writing.
(iii) No parol evidence can be let in to substantiate
any subsequent oral arrangement which has the
effect of rescinding a contract or disposition of
property which is registered according to the law in
force for the time being as to the registration of
documents.
6. In sum and substance what proviso (4) to Section
92 provides is that where a contract or disposition,
not required by law to be in writing, has been
arrived at orally then subsequent oral agreement
modifying or rescinding the said contract or
disposition can be substantiated by parol evidence
and such evidence is admissible. Thus if a party
has entered into a contract which is not required to
be reduced in writing but such a contract has been
reduced in writing, or it is oral, in such situations it
is always open to the parties to the contract to
modify its terms and even substitute by a new oral
contract and it can be substantiated by parol
evidence. In such kind of cases the oral evidence
can be let in to prove that the earlier contract or
agreement has been modified or substituted by a
new oral agreement. Where under law a contract or
disposition is required to be in writing and the
same has been reduced to writing, its terms cannot
be modified or altered or substituted by oral
contract or disposition. No parol evidence will be
admissible to substantiate such an oral contract or
disposition. A document for its validity or
effectiveness is required by law to be in writing and,
therefore, no modification or alteration or
SKS,J
substitution of such written document is
permissible by parol evidence and it is only by
another written document the terms of earlier
written document can be altered, rescinded or
substituted. There is another reason why the
defendant-appellant cannot be permitted to let in
parol evidence to substantiate the subsequent oral
arrangement. The reason being that the settlement
deed is a registered document. The second part of
proviso (4) to Section 92 does not permit leading of
parol evidence for proving a subsequent oral
agreement modifying or rescinding the registered
instrument. The terms of registered document can
be altered, rescinded or varied only by subsequent
registered document and not otherwise. If the oral
arrangement as pleaded by the appellant, is allowed
to be substantiated by parol evidence, it would
mean rewriting of Ext. A-1 and, therefore, no parol
evidence is permissible."
10. In the light of the submissions made by both the
learned counsel, a perusal of the material available on record
and the law laid down by the Hon'ble Supreme Court in the
aforesaid judgments, this Court observes that the execution of
decrees and Lok Adalat awards is governed by specific
principles, which are essential for ensuring that the rights of
parties are protected and that the rule of law is upheld.
11. Initially, Lok Adalat awards are deemed decrees of a civil
court, making them executable and final, with the same effect
SKS,J
as a decree passed by a Court. This means that the award is
binding on the parties and can be enforced like any other
decree. The scrutiny of a decree by the executing Court is
limited to objections based on jurisdictional infirmity or
voidness, and not on errors of law or fact, unless the decree is
a nullity. This is in line with the principles of finality and
certainty, which are essential for the effective administration
of justice. Once a decree is passed, it is considered final and
binding, and the parties must abide by its terms.
12. Further, the contracts, including those that form the
basis of a decree or award, must be interpreted literally, giving
actual meaning to its words, unless there is ambiguity. This
means that the terms of the contract must be understood in
their plain and ordinary sense, without adding or subtracting
anything. The intentions of the parties, as expressed in the
contract, must be respected and enforced.
13. Furthermore, the terms of a contract cannot be altered
or modified by oral agreements or parol evidence, especially
when the contract is a registered document. Section 92 of the
Evidence Act prohibits the admission of oral evidence to
contradict, vary, or add to the terms of a registered document.
SKS,J
This is to prevent parties from attempting to alter or modify
the terms of a contract through oral agreements or parol
evidence, which could lead to uncertainty and disputes.
14. A person in settled possession cannot be dispossessed
except by a court of law, following due process. This is a
fundamental principle of law, which is essential for protecting
the rights of parties and ensuring that the rule of law is
upheld. The executing court must ensure that the decree is
executed in accordance with the terms of the contract or
agreement, and that the rights of the parties are respected
and enforced.
15. In additional to that Section 47 of the CPC empowers
the executing Court to determine all questions related to
execution, discharge, or satisfaction of the decree. This means
that the executing court has the power to consider
applications from either the decree-holder or the judgment-
debtor, and to make orders as necessary for the effective
execution of the decree. The role of the executing Court is to
enforce the decree in accordance with its terms, without
reinterpreting or altering its substance.
SKS,J
16. Therefore, the execution of decrees and Lok Adalat
awards is governed by specific principles, which are essential
for ensuring that the rights of parties are protected and that
the rule of law is upheld. The executing Court must ensure
that the decree is executed in accordance with the terms of
the contract or agreement, and that the parties' rights are
respected and enforced.
17. Reverting to the facts of the case on hand, the primary
issue is whether the petitioner should file an execution
petition or a suit for eviction based on the terms of the lease
deed and the Lok Adalat award in O.S.No.1485 of 2002. A
perusal of the award reveals that the parties mutually agreed
to specific terms, including a 10% annual rent increase and
the use of the premises for business purposes by the
defendant. The award also stipulates that the defendant shall
hand over vacant possession of the shop to the plaintiff after
the lease period. However, the award further provides that in
case of any violation of the lease terms, the plaintiff shall
issue a notice to the defendant to rectify the violation. If the
defendant fails to comply, the plaintiff may cancel the
compromise and evict the defendant.
SKS,J
18. This Court holds that the terms of the lease deed and
the Lok Adalat award clearly indicate that the due process of
law for resolving disputes is through a suit for eviction, not an
execution petition. Although the Lok Adalat award is an
executable decree, the parties must follow the procedure laid
down by law, which in this case requires filing a suit for
eviction. In light of the above findings, this Court upholds the
order of the trial Court order and dismisses the petition, as
there is no illegality in the order of the trial Court and no
merits in this petition.
19. Accordingly, this Civil Revision Petition is dismissed
confirming the order dated 11.03.2024 passed in E.A.No.152
of 2023 in E.P.No.216 of 2023 in O.S.No.1485 of 2002 by the
learned Principal Junior Civil Judge-cum-Metropolitan
Magistrate, Ranga Reddy District at L.B. Nagar. There shall
be no order as to costs.
Miscellaneous applications, if any pending, shall stand
closed.
_______________
K. SUJANA, J
Date: 04.02.2025
SAI
