TECHNOBILE SYSTEMS PVT. LTD vs TRIMURTI INTERNATIONAL NETWORK & ANR on 9 October 2020

**ORDER**

**By S.K. Singh, Chairperson** – Parties have been heard in respect of MAs Nos.182-185 of 2020 filed by the judgment debtors in E.A. Nos.10-13 of 2019. It is relevant to note that the MAs were filed on 17.08.2020 during the hearing of the Execution Applications. Prayers in the MAs are as follows:

- "(a) the delay caused in returning the STBs be condoned.

- (b) The Respondent No.1/Judgment Debtor be permitted to procure more STBs and produce before this Hon'ble Tribunal as much as STBs can be procured and return the same in terms of the prayer made by the Petitioner in the main Petition in order to enable the Respondent No.1/Judgment Debtor to satisfy the decree in terms of the order dated 07.05.2019.

- (c) the Respondent No.1/Judgment Debtor be granted a suitable time to procure and return as much as STBs can be procured.

- (d) any other relief this Hon'ble Tribunal may deems fit and proper."

2. The issue relating to liability of the judgment debtors/respondents to return the STBs claimed by the petitioner/decree holder or to pay to the petitioner the value of STBs required to be returned was set-up for hearing. The parties filed their evidence on affidavit as directed, and participated in the hearing which resulted in disposal of part of the claim relating to STBs in terms of judgment and order dated 07.05.2019. The relief granted on the basis of judgment and order covered B.P.Nos.119, 120, 121 and 123 of 2018. This Tribunal gave findings in all the above four matters as to the number of STBs which respondent No.1 was liable to return to the petitioner, value of the STBs and the total amount on the basis of the value. In the operative part of the judgment and order, this Tribunal held that respondent No.1/judgment debtor should return the determined number of STBs in working condition against receipt from the petitioner or its representative, within four weeks failing which the amount determined in each of the four matters would have to be paid by respondent No.1 within a further period of two weeks. If the amount will not be paid within time, the petitioner/deeree holder would be entitled to recover the amount through execution proceedings along with future interest at the rate of 9% per annum. A decree on the basis of such order was prepared and since the judgment debtors neither returned the STBs within the time indicated nor paid the value of the STBs within further time, the decree holder preferred these Execution Applications bearing Nos.10-13 in July 2019.

3. The materials on record disclose that the judgment and order dated 07.05.2019, under execution was challenged by one of the judgment debtors before the Hon'ble High Court of Delhi through WP(C) No.7327/2019. After considering all the submissions on merits the petition was dismissed on 10.07.2019 with costs. Civil Appeal (Diary No.34519/2019) preferred against the judgment and order dated 07.05.2019 was considered by the Hon'ble Supreme Court. By order dated 04.10.2019, the Apex Court condoned the delay and then dismissed the civil appeal after holding that no ground for interference is made out.

4. In the Execution Applications the judgment debtors appeared after notice. On 26.08.2019 they were granted three weeks' time to file objections, if any. On 23.09.2019 another set of counsels replaced the earlier counsel and on their request two weeks' further time was granted for filing reply/objections to the Execution Applications. Hearing on the objections was deferred on the request of the judgment debtors/respondents on 23.10.2019 but before that could be done, Review Applications were filed in B.P. Nos.119, 120 and 121 of 2018. After hearing counsels for both the parties the Review Applications were dismissed on 28.11.2019. The decree holder prayed for and pursuant to orders of this Tribunal the judgment debtors submitted details of their assets. The bank accounts and some of their assets were attached as per details in the order passed on 03.02.2020. The objections to the Execution Applications were fixed for hearing on 17.03.2020. But in the meantime, the decree holder filed an application for appointment of Receiver. The matter could be taken-up again on 06.07.02020. The objections were rejected on merits on 27.07.2020. On 11.08.2020, Mr.Shashank Shekhar, Advocate was appointed as Receiver for the moveable properties under attachment. However, Receiver was directed not to take possession of the assets till 24.08.2020 because learned counsel for the judgment debtor sought permission that he be permitted to file an application and seek an order for return of the STBs in place of paying their price. The MAs under consideration were filed on 17.08.2020 and were heard and orders reserved on 24.08.2020.

5. Mr.Ehraj Zafar, Advocate has appeared on behalf of the judgment debtors/applicants. According to him, while executing a judgment and decree passed by the TDSAT, its Bench has ample power to modify or amend the original judgment and decree at the stage of execution because the Tribunal is not bound by the Code of Civil Procedure and can regulate its own procedure keeping in view the principles of natural justice. The other submission is that in view of provisions in Sections 20 and 28(1) of the Specific Relief Act, 1963, in the course of execution of a decree for specific performance, court can grant extension of time to the judgment debtor to pay the amount or to perform the conditions mentioned in the decree before the execution of the decree. For this an application for extension of time is required and not condonation of delay under Section 5 of the Limitation Act. Learned counsel for the applicant has also placed reliance in support of the aforesaid principle of law upon a judgment of the Hon'ble Supreme Court in the case of **Sardar Mohan Singh Vs. Mangi Lal; (1997) 9 SCC 217.**

6. On the other hand, learned counsel for the decree holder/non-applicant has submitted that it is not a matter of specific performance of contract attracting the provisions of the Specific Relief Act, 1963 under which the court passing the decree retains jurisdiction to deal with the decree of specific performance and of exercising power to grant order of rescission of the decree and to enlarge the time in favour of the judgment debtor for paying the amount or to perform the conditions as per the decree. According to the learned counsel for the decree holder the judgment and decree under execution has attained finality because the appeal preferred before the Hon'ble Supreme Court has also been rejected and in such circumstances this Tribunal while exercising its jurisdiction to execute the judgment and decree cannot go behind the decree unless the decree is a nullity for lack of jurisdiction appearing of on the face of the decree. The only limited role as an executing court is to interpret the terms of the decree, if required for its execution and execute the decree on that basis. In support of this well-established proposition he has referred to judgments of the Hon'ble Supreme Court in a large number of cases which are as follows:

- (i) **Manish Mohan Sharma & Ors. Vs. Ram Bahadur Thakur Ltd. & Ors.; (2006) 4 SCC 416;**

- (ii) **Karnataka Housing Board Vs. K.A. Nagamani; (2019) 6 SCC 424;**

- (iii) **State of Karnataka Vs. Vishwabharathi House Building Coop. Society & Ors.; (2003) 2 SCC 412;**

- (iv) **Deepa Bhargava & Anr. Vs. Mahesh Bhargava & Ors.; (2009) 2 SCC 294;**

- (v) **G.F. Angadi Vs. Y.S. Hirannayya; (1972) 1 SCC 191; and**

- (vi) **Vasudev Dhanjibhai Modi Vs. Rajabhai Abdul Rehman & Ors.; 1970(1) SCC 670.**

The aforesaid proposition of law relating to jurisdiction of the executing court/forum is well-established. In the case of **Deepa Bhargava(supra.)** the Apex Court has reiterated the law in Para 9 that an executing court cannot go behind the decree. It has no jurisdiction to modify a decree. It must execute the decree as it is.

7. No provision of law other than Section 151 of the CPC is mentioned in the M.As. under consideration seeking directions as per the prayer. Section 151 of the CPC, as per submissions of the learned counsel for the applicant is not expressly available to this Tribunal because he has submitted that provisions of the CPC do not strictly apply to this Tribunal. Even if it is held that Section 151 or its principles are available, this Tribunal has been specifically given power of review which has been availed by the applicants unsuccessfully. In such circumstances power under Section 151 cannot be resorted to achieve a result desired by the applicants, i.e. to alter or modify the judgment and decree which has attained finality. Such a course would be impermissible because such result is not permitted by the express provisions of the CPC. It is interesting to note that under Order XX Rule 11(2) of the CPC after passing of a decree, an order for payment by installments can be passed on the application of the judgment debtor only with the consent of the decree holder on terms as to payment of interest, taking of security etc.

8. It further appears from the conduct of the judgment debtors that they have resorted to desperate means only to delay the execution. They want time to collect the STBs and then return these if they succeed in collecting some. The applications under Section 151 of the CPC for the reliefs are found to be without merits. The MAs are accordingly dismissed. The judgment and decree provide the consequences of not returning STBs within the time indicated. The consequences have already taken effect and cannot be undone by this Tribunal while exercising the available power of executing court or forum. The applicants/judgment debtors are aware that their objections to the judgment and decree as well as Review Applications have been rejected on merits and still such prayers have been made only to cause delay and further loss to the decree holders. Hence, the applicants are directed to pay costs of Rs.10,000/- to decree holder/non-applicant in each of the four matters within two weeks from today failing which this cost will also be realized from the judgment debtors in accordance with law. The Receiver will proceed now to act as per earlier order and parties shall give him full co-operation.

9. Post the matters for further orders, particularly, for the guidance of the Receiver on 16.10.2020.

(S.K. Singh) Chairperson

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