v.lakshminarayanan (prop) 29 December 2009

execution pendency

dear members

i am sorry if this query is already answered. i earlier used another e mail id which is no longer functional. hence the repeat question.

my query is this: the suit proceeding for sale of a land to a tenant is already over upto supreme court. the execution proceeding for executing the sale deed is also over upto supreme court and the sale deed is also executed by the executing court itself as the landlord refused to execute it. the execution of sale deed is not challenged in any superior forum and the supreme court while dismissing the SLP arising from execution proceedings, had refused to stay the execution of the sale deed.

after the execution was ordered by the executing court, the landlord filed appeal but the proceeding was never stayed by the high court. when the appeal was pending, an amendment to the parent act came to force. the amendment provides that fully satisfied or executed proceedings are exempt from the amendment. the landlord claimed the benefit of amendment in the appeal (orally) and in the supreme court by way of SLP but both were dismissed.

the amendment did not have any retrospective effect. the sale amount was deposited 10 years before the amendment and the executing court ordered the execution of the sale deed immediately thereafter. only the administrative act of the physical execution of the sale deed was pending at the time of the amendment. the order of the executing court directing the execution of the sale deed has not been modified or set aside till now.

however, the landlord's review petition was allowed by high court and the appeal filed by us as tenant has been dismissed by supreme court holding that the original petition was pending at the time of the amendment without going into the question as to what constituted the full satisfaction of the decree.

can it be stated that the execution is pending when the administrative act alone is pending and when the appeals against execution proceedings are over upto supreme court and when the benefit of the amendment was raised and rejected upto supreme court?

what is the normal meaning of the expression "decree fully satisfied" especially in such part money decrees where the sale value is deposited long back and also accepted by the executing court?

the parent act also provides that on deposit of the sale value and on passing of the order of conveyance by the trial court, the suit of the landlord stood dismissed and the execution proceeding would be vacated. following this, only the landlord's eviction suit should be deemed to have been dismissed and the execution proceeding terminated once the sale value is deposited and the court ordered the conveyance of the property. it is another matter that till 2007, the possession was with us the tenant. it is also another matter that supreme court has not quashed the earlier proceedings in which we as tenant succeeded and has also not ordered our eviction.

is there any supreme court authorities on this point?

thanks for any advice

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2 Replies

Raj Kumar Makkad (Adv P & H High Court Chandigarh) 30 December 2009

It is definitely an interesting case wherein the SC has dismissed your review petition against the order of HC. In my view, untill and unless the sale-deed is not actually executed and possession is not duly handed over to the decree-holder by way of sale-deed, the execution petition remains pending but the matter in your case is that even the appeals against all this have already been dismissed by HC & SCI so there might not have any scope for judgment debtor landlord but SCI is final authority in this country and our opinion has no value before SCI. Its latest verdict shall prevail. Contest your case before HC vigorously containing all the previos facts/judgments. I hope you shall ultimately make the goal.

v.lakshminarayanan (prop) 30 December 2009

dear mr.makkad

thanks for your encouraging words.

in our case, the possession has been with us the tenant throughout and the sale deed has also been executed by the executing court itself without any objection or appeal from the landlord. in my view, the execution becomes final since no appeal has been filed against it.

the act itself is silent on the execution of the sale deed. it only says that an order has to be made directing the conveyance. the amendment act itself says that fully satisfied proceedings are exempt from the operation of the amendment. in my view, ours is a fully satisfied proceeding since we have deposited the sale value 10 years before the amendment and the courts have upheld the execution. the physical execution of the sale deed is only an administrative act and not a judicial act. in fact, the landlord has not filed any formal petition anywhere claiming the benefit of the amendment and he is raising it only after the execution of the sale deed. is it permissible?

as you rightly say, the SCI is supreme and its decisions are binding on all. but the fact remains that they do some times make mistakes.

i heard that they do not generally allow review petitions and curative petitions. hence what is the remedy for a litigant receiving an incorrect decision?

in our case, there is one more glaring error in the SCI order : the order says that evidence has been scrutinised and accepted by the high court when in fact no such evidence has been scrutinised by the high court and it has rejected the documents which were newly introduced in review. the trial court only looked into the evidence and it has rejected all the documents outright.

the point is, how to correct such serious errors? what is the mechanism?