Date of Judgement:
28th February 2022.
Bench:
K.M. Joseph, J.
Hrishikesh Roy, J.
Parties:
Appellant – Rajbir.
Respondent – Suraj Bhan & Anr.
Subject
The Supreme Court in this appeal has observed that the provisions of Order 21Rule 34 of the Code of Civil Procedure cannot be relaxed, and the decree-holder must solicit objections from the judgment debtor to the draught deed/document filed. It requires the decree-holder to solicit objections from the judgment-debtor to the draught deed provided by the decree-holder.
Legal Provisions
- Order 21 Rule 34 of Code of Civil Procedure, 1908 – states that when objections are made, it is the court’s responsibility to serve the draught on the judgment debtor and to apply its thinking and make changes to the draught as needed.
- Order 21(Execution) of Code of Civil Procedure, 1908 – states that the court must be meticulous in implementing a decree issued after a lengthy adjudication; it is also the court's obligation to execute the decree exactly as it is and in line with the law.
Overview
- The Apex court while entertaining a petition filed by the aggrieved appellant along with his brother, observed that if the decree is made for the execution of a document and the judgment debtor refuses to follow it, the decree-holder shall make a draft of the document and send the same to the concerned court, then the draft will be sent on behalf of the judgment debtor along with an authorized notice asking the judgment debtor to file his concerns and obligations within a stipulated time frame approved by the Court.
- Here, the appellant was selling certain property to the respondent and the agreement for the same was entered into by them on 28/01/2006 following which the respondents filed a suit demanding specific performance from the appellant. From the observation of the court, it was found that the brother of the concerned appellant (Raj Kumar) had already attested his share of the concerned property concerning the agreement.
- Upon further examination by the court, it appeared that the appellant had sold his property to another person. After due perusal by the court, the decree for specific performance was passed against the appellant, and the court directed the defendants to get the sale deed executed and duly registered in favor of the plaintiff.
- Subsequently it was observed that the appellant failed to challenge the decree in the first as well as second appeal, following which a special leave petition before the Hon’ble Supreme court was rejected, and the appellants thereafter file their objections.
- Appellant/judgment debtor in his objections stated that the decree dated 04//01/2013 cannot be executed because of non-compliance of the decree holders, the appellant contended that in the aforementioned decree the Learned Civil Judge has specifically directed that the “decree holders shall deposit the remaining sale consideration within one month from the date of passing of judgment”.
- But as per the arguments put forth by learned counsel for the appellant that the total sale consideration amounted to Rs.65,15,469/- (Rupees sixty-five lakhs, fifteen thousand, four hundred and sixty-nine only) out of which only Rs.2,50,000/- (Rupees two lakh fifty thousand) was paid as a token amount for considerations and there existed a differential of 28,24,369/- (Twenty eight lacs, twenty-four thousand, three hundred and sixty-nine rupees) which is not yet paid, further the appellant point that there existed no specific provision in the decree for meting out the late payment or for later submission of the balance for sale considerations.
- The contentions put forth by learned counsel for the appellant were rejected with a cost of R.s 3,000/- via order dated 30/05/2019.
- Additionally, the learned counsel contended that the draft sale deed was not served upon him, for which he pleaded that it was a requirement, but the Hon’ble Court stated that no contentions were made by the judgment debtor regarding the same.
- According to the learned counsel for the petitioner further pleased that an application upon the appointment of a Local Commissioner for the execution of the deed and it is necessary to supply a copy of the same under ‘Order 21 Rule 34(2) of the Code of Civil Procedure.
- However, the court stated that the petitioner could have comfortably moved an application before the concerned court to get a copy of the sale deed, which the petitioner never did, even though the draft sale deed was approved by the court.
Issues
- Whether it was necessary on the part of the court to deliver a copy of executed sale deed to the petitioner under Order 21 Rule 34 of the Code of Civil Procedure?
- Whether it wasan act justified act by the Local Commissioner who immediately proceeded to execute the sale deed without giving a fair opportunity to the appellant to file his objections?
Judgment
- The Hon’ble court observed that if the appellant/judgment debtor ignores and subsequently refuses to obey the decree and the fact the draft sale deed and the objections filed against it are inexecutable does not preclude the court from proceeding with the subject of evaluating the sale deed and the objections raised against it.
- Furthermore, The Court further stated that whenever an objection is submitted that the draught sale deed is not in accordance with the decree, it is the responsibility of the executing Court to apply its thinking and make changes to the document.
- Likewise, the Hon’ble Court also stated that it is a well-settled law that the execution court cannot go beyond the decree, and it can only execute the concerned decree as it is.
- Thus, the bench noted that when objections are made in a specific case pointing out that the proposed draught of the sale deed is not in accordance with the decree, the executing court must apply its thinking and make changes to the draught.
- The hon’ble court also stated that the courts while executing the decree must be careful, and the court is duty-bound to execute the concerned decree within the conformity of law, also the court emphasized that the deviation from the provisions under Order 21 Rule 34 of the Code of Civil Procedure can have a drastic effect on the concerned parties in question, which can further lead to complexities and increase the risk of denying justice to the parties.
- It was also highlighted that deviating from the provisions of Order 21 Rule 34 of the Civil Procedure Code would cause substantial injury not only to the interests of the parties but also to others who would deal with the parties in the future and may lead to a multiplicity of litigation.
- Thus, the Hon’ble Court allowed the appeal setting aside the order and directed the learned civil judge(senior division) to comply with the provisions of Order 21 Rule 34 of Code of Civil Procedure.
Conclusion
The court in these instances must be meticulous in implementing a decree given after lengthy adjudications and it is also a duty of the court to execute the decree exactly as it is and in accordance with the rule, similarly, it should be noted that Order 21 Rule 34 cannot be dissolved and any such deviations from the restrictions can result into a serious matter not only for the concerned parties but in future in anyone else comes into the picture of that agreement, and to avoid multiplicity of litigation and complaints factual clarity must be added by the court to avoid inefficiencies.
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