SOBHA SINGH AND SONS PVT. LTD. versus SHASHI MOHAN KAPUR (DECEASED) THR. L.R. on 15 July 2019

[2019] 9 S.C.R. 949

SOBHA SINGH AND SONS PVT. LTD.

v.

SHASHI MOHAN KAPUR (DECEASED) THR. L.R.

(Civil Appeal No.5534 of 2019)

JULY 15, 2019

[ABHAY MANOHAR SAPRE ANDDINESH MAHESHWARI, JJ.]

Codeof Civil Procedure, 1908 – Or. XX, rr. 6, 6A & 7, Or. 21,rr.2, 11(2) & (3) and Or. XXIII, r.3 and ss. 35-A, 151 – Appellant-landlord is the decree holder and the respondent is the judgmentdebtor – Appellant let out the suit house to the father of the originalrespondent – Appellant filed suit in 2009 against the respondentinter alia for his eviction from the suit house – Respondentcompromised the matter– Suit disposed of in terms of the saidcompromise– Respondent filed application for extension of time tovacate the suit house – Allowed– Respondent filed anotherapplication seeking further time to vacate the suit house – Dismissed– Respondent failed to vacate the suit house – Appellant filedExecution Petition for execution of the consent order dated01.06.2012 for obtaining vacant possession of the suit house –Judgment debtor died leaving behind the present respondent as legalrepresentative of the original tenant – Respondent filed fourapplications challenging the executability of the consent order asbeing null and void – Dismissed by the Executing Court imposingcost of Rs.5 lakhs – First appeal filed by the Respondent – Allowedby the High Court – Held: High Court was not right in holding thatin the absence of a formal decree not being drawn or/and filed, theappellant had no right to file the Execution petition on the strengthof the consent order dated. 01.06.2012 – Principle in r.6A (2) ofOr.XX dealing with the filing of the appeal without enclosing thecopy of the decree along with the judgment and providing theconsequence of not drawing up the decree, can be made applicablealso to filing of the execution application u/Or.XXI, r.2 – It is notnecessary to file copy of the decree along with execution applicationunless the Court directs the decree holder to file certified copy ofthe decree – Thus, even though the appellant did not file the certified

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Acopy of the decree along with the execution application for thereason that the same was not passed by the Court, yet the executionapplication filed by the appellant was maintainable –Further, allthe objections raised by the respondent were frivolous and wereraised only with a view to avoid execution of the compromise decree– Respondent took time twice to vacate the suit house and yet didBnot adhere to the undertaking given –Such conduct cannot becountenanced and is reprehensible– Executing Court was right inrejecting the objections raised by the respondent in his applications– No ground to interfere in the findings of the Executing Court –However, cost of Rs.5 Lakhs is excessive – Respondent to payCcompensatory cost of Rs.50,000/- to the appellant– Furtherdirections issued – Decree.Words & Expressions – “and shall pass a decree inaccordance therewith” – Meaning of – Discussed – Code of CivilProcedure, 1908 – Or. XXIII, r.3.D

Code of Civil Procedure, 1908 – Or.XX, r.6A(2) – Non-filingof the certified copy of the decree, as the decree was not passed bythe Court, along with the execution application – Effect of – Held:Notwithstanding the fact that the decree was not passed, yet byvirtue of principle underlined in Or.XX, r.6A(2), the consent orderEdated 01.06.2012 had the effect of a decree till the date of actualpassing of the decree by the Court for the purposes of execution orfor any other purpose.

Code of Civil Procedure, 1908 – s.152 – Conditions forinvoking power under – Discussed.

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Code of Civil Procedure, 1908 – s.151 r/w Or.XX, r.6A – Held:In the present case, the Court which disposed of the suit, did notdraw the decree but only passed the consent order – In such a case,the decree holder was required to file application u/s.151 r/w Or.XX,r.6A to the Court for drawing a decree in accordance with theconsent order dated. 01.06.2012.G

Allowing the appeal, the Court

Conclusion

HELD: 1.1 The High Court was not right in holding that inthe absence of a formal decree not being drawn or/and filed, theappellant (decree holder) had no right to file the Execution H

petition on the strength of the consent order dated 01.06.2012.This finding of the High Court is not legally sustainable.[Para 24] [960-D]

1.2 Order 20 Rule 6 of the Code deals with contents ofdecree and provides that the decree shall agree with thejudgment, it shall contain the number of the suit, the names anddescriptions of the parties, their registered addresses andparticulars of claim, relief granted or any other determinationmade in the suit, amount of costs incurred in the suit, and bywhom or out of what property and in what proportions, the costto be paid. Rule 6A deals with the preparation of decree. It saysthat every endeavor shall be made to ensure that the decree isdrawn up as expeditiously as possible and, in any case, withinfifteen days from the date on which the judgment is pronounced.Rule 6A (2) of Order 20 of the Code says that an appeal may bepreferred against the decree without filing a copy of the decreeand in such a case the copy made available to the party by theCourt shall for the purposes of Rule 1 of Order 41 be treated asthe decree but as soon as the decree is drawn, the judgmentshall cease to have the effect of a decree for the purposes ofexecution or for any other purpose. Though Rule 6A (2) of Order20 of the Code deals with the filing of the appeal without enclosingthe copy of the decree along with the judgment and furtherprovides the consequence of not drawing up the decree yet, theprinciple underlined in Rule 6A(2) can be made applicable alsoto filing of the execution application under Order 21 Rule 2 ofthe Code. Order 20 Rule 7 deals with the date of decree. It saysthat the decree shall bear date the day on which the judgmentwas pronounced and when the judge has satisfied himself thatthe decree has been drawn up in accordance with the judgment,he shall sign the decree. [Paras 26-28] [963-A-E]

1.3 Order 21 Rule 11(2) of the Code, which deals with theexecution of the decree, provides that the decree holder is onlyrequired to give details of the judgment and the decree in theexecution application along with other details [see clauses (a) to(j). Similarly, Order 21 Rule 11(3) of the Code makes it clear thatthe Court “may” require the decree holder to produce a certified AB

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Acopy of the decree. This clearly indicates that it is not necessaryto file a copy of the decree along with execution application unlessthe Court directs the decree holder to file a certified copy of thedecree. As and when the decree holder files an application forexecution of any decree, he is required to ensure compliance ofthree things. First, the written application filed under Order 21BRules 10 and 11 (2) of the Code must be duly signed and verifiedby the applicant or any person, who is acquainted with the facts ofthe case, to the satisfaction of the Court; Second, the applicationmust contain the details, which are specified in clauses (a) to (j)of Rule 11(2) of the Code, which include mentioning of the dateCof the judgment and the decree; and Third, filing of the certifiedcopy of the decree, if the Court requires the decree holder to fileit under Order 21 Rule 11(3) of the Code. According to theappellant, the order dated 01.06.2012 itself is capable of beingexecutable by virtue of Section 36 of the Code and, therefore,the High Court was not right in holding that the decree wasDrequired to be drawn. The argument is not acceptable for morethan one reason. [Paras 29-34] [963-F-H; 964-A-E]

1.4 First, the language of Order 23 Rule 3 of the Code doesnot admit passing of an order of the nature urged by the appellant;Second, the expression “the court shall order such agreement,Ecompromise or satisfaction to be recorded and shall pass a decreein accordance therewith” occurring in Order 23 Rule 3 of theCode, in clear terms, suggests that it is necessary after recordingthe compromise in the order to further pass a decree inaccordance therewith. In other words, the expression “and shallFpass a decree in accordance therewith” is a clear indication thatafter the compromise is recorded by the Court, it shall proceedto “pass a decree”. So, the rule contemplates, first an orderrecording of the compromise and then simultaneously pass adecree in accordance with the order. In the light of the clearlanguage of Order 23 Rule 3 of the Code, it is not possible toGaccept the submission of the appellant that the order dated01.06.2012 itself amounts to a decree and, therefore, it is notnecessary for the Court to pass a decree. Had this been theintention, the legislature would not have used the expression“and shall pass a decree in accordance therewith” in Order 23HRule 3 of the Code. [Paras 35-37][964-E-H; 965-A]

1.5 The Executing Court was right in rejecting theobjections raised by the respondent in his applications and,therefore, find no good ground to interfere in those findings ofthe Executing Court. All the objections raised by the respondentwere frivolous and were raised only with a view to avoid executionof the compromise decree. None of the objections raised by therespondent could be gone into after consent order had beenpassed. In any event, none of the objections raised by therespondent had any substance on merits and were, therefore,rightly rejected by the Executing Court. The respondent havingtaken time twice to vacate the suit house and yet not adhering tothe undertaking given, this Court cannot countenancesuch conduct of the respondent. It is reprehensible.[Paras 39-41] [965-B-F]

1.6 Even though the appellant did not file the certifiedcopy of the decree along with the execution application for thereason that the same was not passed by the Court, yet theexecution application filed by the appellant was maintainable.Indeed, so long as the formal decree was not passed, the orderdated 01.06.2012 was to be treated as a decree during theinterregnum period by virtue of Order 20 Rule 6A (2) of the Code.In other words, notwithstanding the fact that the decree had notbeen passed, yet by virtue of principle underlined in Order 20Rule 6A(2) of the Code, the order dated 01.06.2012 had the effectof a decree till the date of actual passing of the decree by theCourt for the purposes of execution or for any other purpose.This empowered the Executing Court to entertain the executionapplication and decide the objections raised by the respondenton merits. [Paras 42] [965-G-H; 966-A-B]

1.7 Further, though the High Court was right in directingthe appellant to apply to the Court for drawing a decree, but wasnot right in directing to apply under Section 152 of the Code.Section 152 of the Code deals with the amendment of judgments,decrees or orders. It provides that any clerical or arithmeticalmistakes in the judgments, decrees or orders or errors arisingtherein from any accidental slip or omission may at any time becorrected by the Court either of its own motion or on theapplication of any of the parties. Order 20 Rule 3 also provides ABC

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Athat judgment can be altered or added either under Section 152or in review. In order to invoke the powers under Section 152 ofthe Code, two conditions must be present. First, there has to bea judgment or decree or an order, as the case may be, and second,the judgment or decree or order, as the case may be, must containany clerical or arithmetical error for its rectification. In otherBwords, Section 152 of the Code contemplates that the Court haspassed the judgment, decree or the order and the same containsclerical or arithmetical error. Any party to such judgment, decreeor order, as the case may be, has a right to apply at any timeunder Section 152 of the Code to the concerned Court forCrectification of any arithmetical or/and clerical error in thejudgment, decree or the order, as the case may be.[Paras 44-47] [966-D-G]

1.8 In the case at hand, the Court which disposed of thesuit, did not draw the decree but only passed the order. In such aDsituation, the decree holder was required to file an applicationunder Section 151 read with Order 20 Rule 6A of the Code to theCourt for drawing a decree in accordance with the order dated01.06.2012. Indeed, in the concluding para of the order dated01.06.2018 that the Court has already directed to ensure compliance of the formalities. It would have been, therefore,Eproper in such circumstances for the Court to simultaneouslydraw a decree the same day itself or in any event within 15 daysas provided in Order 20 Rule 6A. This being a procedural matter,even if it was not done, yet the same could be done by the Courtat the instance of the appellant (decree holder) applying forFdrawing up a decree after filing of the execution application.[Paras 48, 49] [966-G-H; 967-A-C]

1.9 Though it is found that it is a fit case for imposition ofcost but cost of Rs.5 Lakhs is excessive. Having regard to allfacts and circumstances of the case, it is just and proper to imposeGa compensatory cost of Rs. 50,000/- on the respondent underSection 35-A of the Code.[Paras 50, 51] [967-C-E]

1.10 The High Court was not right in holding that theexecution petition itself is not maintainable. The High Courtthough was right in directing the appellant to apply to the H

concerned Court for drawing up a decree but the High Court wasnot right in directing the appellant to apply it under Section 152of the Code. The execution petition filed by the appellant ismaintainable and was, therefore, rightly allowed by the ExecutingCourt by rejecting the objections raised by the respondent exceptwith two modifications indicated above. The appellant is herebygranted two weeks’ time to apply under Section 151 read withOrder 20 Rule 6(A) of the Code to the concerned Court with aprayer for passing a decree in accordance with the order dated01.06.2012 passed under Order 23 Rule 3 of the Code. In thepeculiar circumstance of this case, it is expected that the Courtconcerned passes and draws the decree without any delay and, inany case, within one week of moving of the application by theappellant. Such act of passing and drawing up the decree beingformal in nature, no objection or dispute in that regard is to beentertained by any Court. Once the decree is drawn and its detailsare specified in the execution application as provided under Order21 Rule 11 (2)(c) and the certified copy of the decree is filed, ifrequired by the Court, in terms of Order 21 Rule 11(3) of theCode, the order of the Executing Court dated 22.10.2018 withthe above modification regarding payment of costs amount willbe given effect to against the respondent. The respondent is,however, granted one month’s time to vacate the suit house aftercompletion of the procedural formalities by the concerned Courtafter making payment of all arrears of rent till the date ofdelivery of possession of suit house to the appellant.[Paras 52-55] [967-F-H; 968-A-D]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5534of 2019

From the Judgment and Order dated 31.10.2018 of the High Courtof Delhi at New Delhi in Execution First Appeal No. Ex.F.A./42/2018

Huzefa Ahmadi, Sr. Adv., S. Santanam Swaminadhan, AnandSingh, Ms. Nishtha Khurana, Kartik Malhotra, Mrs. Aarthi Rajan, Advs.for the Appellant.

Ms. Aishwarya Bhati, Sr. Adv., Ms. Suruchi Mittal, Karan Kapur,Abhishek Gautam, Advs. for the Respondent.

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AThe Judgment of the Court was delivered by ABHAY MANOHAR SAPRE, J.

1. Leave granted.

2. This appeal is filed against the final judgment and order datedB31.10.2018 passed by the High Court of Delhi at New Delhi in Ex.F.A.No.42 of 2018 whereby the High Court allowed the appeal filed by therespondent herein and set aside the order dated 22.10.2018 passed bythe ADJ-02 & Waqf Tribunal, New Delhi District, New Delhi inExecution No.5655 of 2016.

C3. A few facts need mention hereinbelow for the disposal of thisappeal, which involves a short point.

4. The appellant is the plaintiff/decree holder and the respondentis the defendant/judgment debtor.

5. The dispute arises out of the execution proceedings and itDemanates from Civil Suit No. 369/2009 (new No.675/2009) decided on01.06.2012.

6. The appellant is the landlord of a Flat-G-81, IInd floor alongwith one Servant Quarter J-3-62, IIIrd floor situated at Sujan Singh Park,New Delhi (hereinafter referred to as “suit house”).

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7. The appellant let out the suit house to the father of the originalrespondent-Late Mr. R.L. Kapur as back as in 1959. The appellant,however, determined the tenancy by serving a quit notice to Mr. R.L.Kapur on 21.12.2004. Mr. R.L. Kapur died on 13.07.2007 leaving behindthe respondent as his legal representative.

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8. The appellant served another quit notice dated 16.01.2009 tothe respondent and called upon him to vacate the suit house. Since therespondent failed to vacate the suit house, the appellant was constrainedto file Civil Suit in 2009 (Old No.369/2009 new number 675/2009) againstthe respondent in the Court of ADJ for his eviction from the suit houseGand the mesne profits.

9. The respondent, after entering his appearance in the suit, didnot contest it and compromised the matter with the appellant. It wasagreed that the respondent (tenant) would hand over the vacantpossession of the suit house on or before 31.05.2016 to the appellant; H

Second, the respondent would pay a sum of Rs.5,000/- per month towardsuser charges w.e.f. 01.06.2012 till the date of handing over of the suithouse to the appellant; and third, the respondent would not sublet orcreate any third party rights in the suit house.

10. The Trial Court recorded the statement of the parties andaccordingly disposed of the civil suit in terms of the aforementionedcompromise by its judgment dated 01.06.2012 which reads as under:

“With judicial intervention, the dispute between the partieshas been amicably settled. It is agreed that defendant shallvacate and hand over the vacant and peaceful possessionof the suit property, i.e., Flat No.G-81, IInd floor andservant quarter No.J-3-62, IIIrd floor, Sujan Singh Park,New Delhi, as shown in the site plans already exhibited asEx.PW1/14 and Ex.PW 1/15, to the plaintiff on or before31.05.2016. Defendant also undertakes to pay the usercharges of the suit property at the rate of Rs.5000/- permonth w.e.f. 01.06.2012 to the plaintiff regularly till thedate of handing over of the suit property to the plaintiff.Defendant also undertakes not to sublet or create any thirdparty interest in the suit property.

It is prayed that the case may be disposed off ascompromised.

Statements of Brig. Gurbax Singh and Mr. Shashi MohanKapur have been separately recorded and they have beenidentified by their respective counsel.

Heard Perused. Considered.

It appears that the statements have been made voluntarilyand are accepted.

Both the sides shall remain bound by their respectivestatements.

In view of the submissions made as well as the statementsof both the sides, the case is hereby disposed off ascompromised.

Attested copies of the order be given to both the sides,dasti, as requested.

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AAfter completion of the formalities, file be consigned torecord room.”

11. On 27.05.2016, the respondent filed an application under Section148 read with Section 151 of the Code of Civil Procedure, 1908(hereinafter referred to as “the Code”) and prayed therein for extensionof time to vacate the suit house. The extension to vacate the suit housewas sought on medical grounds.

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12. By order dated 09.06.2016, the Trial Court allowed the saidapplication and granted time to the respondent till 15.07.2016 to vacatethe suit house. The respondent was also directed to clear the arrears ofCrent.

13. Instead of vacating the suit house on 15.07.2016, the respondentfiled another application on 18.07.2016 and further sought time to vacatethe suit house. The Trial Court, by order dated 08.08.2016, dismissedthis application and declined to extend the time to vacate the suit house.DAs a result of the dismissal of this application, the respondent was undera legal obligation to vacate the suit house immediately.

14. Since the respondent failed to vacate the suit house, theappellant was constrained to file Execution Petition (5655/2016) in theExecuting Court for execution of the consent decree dated 01.06.2012Eagainst the respondent for obtaining vacant possession of the suit house.

15. The Executing Court, by order dated 30.09.2016, issued awarrant of possession against the respondent/Judgment debtor in respectof suit house. Since the respondent obstructed the execution of decree,the appellant applied to the Executing Court for providing him the policeFassistance for obtaining possession of the suit house from the respondent.In the meantime, the Judgment debtor died leaving behind the presentrespondent as legal representative of the original tenant.

16. On 18.10.2016 and 23.07.2018, the respondent herein filedfour applications. One was under Order 47 read with Sections 114 and151 of the Code for review of the order; Second was under Sections 47G& 151 read with Order 21 Rules 11(2) and 26 of the Code; Third wasunder Order 47 read with Sections 114 and 151 of the Code; and Fourthwas under Section 151 of the Code. One application was filed by oneMr. Manmohan Kapur under Order 1 Rule 10 of the Code.

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17. These applications were filed to challenge the executability ofthe consent order dated 01.06.2012 itself as being null and void. Therespondent, in these applications, raised essentially the following threegrounds.

18. The first ground was that the appellant obtained the consentorder dated 01.06.2012 by concealing the material facts from therespondent which, according to him, was in the nature of fraud. Thesecond ground was that no decree was drawn by the Trial Court afterpassing the consent order dated 01.06.2012; and the third ground wasthat the suit in which the consent order dated 01.06.2012 was passedwas not maintainable in view of Section 50 of the Delhi Rent ControlAct. The appellant filed his reply to the aforementioned applicationsdenying all the three grounds raised by the respondent.

19. By order dated 22.10.2018, the Executing Court dismissedthe applications filed by the respondent (Judgment debtor). The ExecutingCourt held that the respondent was indulging in delaying tactics only toavoid the execution of the consent order dated 01.06.2012. The ExecutingCourt dealt with each objection raised by the respondent and found nomerit in any of them. The Executing Court held that the respondenthaving taken time twice to vacate the suit house did not honor the ordersof the Court and, therefore, while dismissing his applications and theapplication of one Mr. Manomohan Kapur imposed a cost of Rs. 5 lakhsupon each of them with a direction to pay 50% to the appellant andremaining 50% to the Delhi Legal Services Authority.

20. The respondent felt aggrieved and filed first appeal before theDelhi High Court. By impugned order, the High Court allowed the appealand set aside the order dated 22.10.2018 passed by the Executing Court.The High Court held that since the Trial Court did not draw up the formaldecree after passing the consent order on 01.06.2012, the ExecutionPetition filed by the appellant (decree holder) is not maintainable. TheHigh Court, however, granted liberty to the appellant (decree holder) toapply to the Trial Court under Section 152 of the Code for drawing up adecree in terms of the consent order dated 01.06.2012. The appellant(decree holder) felt aggrieved by this order of the High Court and hasfiled the present appeal by way of special leave in this Court.

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A21. So, the short question, which arises for consideration in thisappeal is whether the High Court was justified in allowing therespondent’s (Judgment Debtor’s) appeal and thereby was justified inholding that the Execution Petition filed by the appellant (5655/2016)was not maintainable for want of formal decree not being drawn up bythe Court after passing of the order dated 01.06.2012.B

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22. Heard Mr. Huzefa Ahmadi, learned senior counsel, for theappellant and Ms. Aishwarya Bhati, learned senior counsel, for therespondent.

23. Having heard the learned senior counsel for the parties andCon perusal of the record of the case, we are inclined to allow the appeal,set aside the impugned order and restore the order of the Trial Courtwith modification as indicated below.

24. In our opinion, the High Court was not right in holding that inthe absence of a formal decree not being drawn or/and filed, the appellantD(decree holder) had no right to file the Execution petition on the strengthof the consent order dated 01.06.2012. This finding of the High Court, inour view, is not legally sustainable for the reasons set out hereinbelow.

25. The issue in this case is required to be decided in the light ofOrder 20 Rule 6, Order 20 Rule 6A, Order 20 Rule 7, Order 21 RulesE11(2) & (3) and Order 23 Rule 3 of the Code. These provisions read asunder:

“Order 20 Rule 6

Contents of decree. (1) The decree shall agree with thejudgment; it shall contain the number of the suit, the namesFand descriptions of the parties, their registered addresses,and particulars of the claim, and shall specify clearly therelief granted or other determination of the suit.

(2) The decree shall also state the amount of costs incurredin the suit, and by whom or out of what property and in whatGproportions such costs are to be paid.

(3) The Court may direct that the costs payable to one partyby the other shall be set off against any sum which isadmitted or found to be due from the former to the latter.

Order 20 Rule 6A

Preparation of decree. (1) Every endeavour shall be madeto ensure that the decree is drawn up as expeditiously aspossible, and, in any case, within fifteen days from the dateon which the judgment is pronounced.

(2) An appeal may be preferred against the decree withoutfiling a copy of the decree and in such a case the copy madeavailable to the party by the Court shall, for the purposesof rule 1 of Order XLI, be treated as the decree. But assoon as the decree is drawn, the judgment shall cease tohave the effect of a decree for the purposes of execution orfor any other purpose.

Order 20 Rule 7

Date of decree- The decree shall bear date the day on whichthe judgment was pronounced, and, when the Judge hassatisfied himself that the decree has been drawn up inaccordance with the judgment, he shall sign the decree.

Order 21 Rule 11(2)

Written application—Save as otherwise provided by sub-rule(1), every application for the execution of a decree shallbe in writing, signed and verified by the applicant or bysome other person proved to the satisfaction of the Courtto be acquainted with the facts of the case, and shall containin a tabular form the following particulars, namely—

(a) the number of the suit;

(b) the names of the parties;

(c) the date of the decree;

(d) whether any appeal has been preferred from the decree; (e) whether any, and (if any) what, payment or otheradjustment of the matter in controversy has been madebetween the parties subsequently to the decree; (f) whether any, and (if any) what, previous applications havebeen made for the execution of the decree, the dates ofsuch applications and their results; A

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962SUPREME COURT REPORTS

A(g) the amount with interest (if any) due upon the decree,or other relief granted thereby, together with particulars ofany cross-decree, whether passed before or after the dateof the decree sought to be executed; (h) the amount of the costs (if any) awarded;

B(i) the name of the person against whom execution of thedecree is sought; and (j) the mode in which the assistance of the Court is requiredwhether—

(i) by the delivery of any property specifically decreed; C

[(ii) by the attachment, or by the attachment and sale, or bythe sale without attachment, of any property;

(iii) by the arrest and detention in prison of any person;

(iv) by the appointment of a receiver;

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(v) otherwise, as the nature of the relief granted mayrequire.

Order21 Rule 11 (3)

The Court to which an application is made under sub-ruleE(2) may require the applicant to produce a certified copy ofthe decree.

Order 23 Rule 3

Compromise of suit— Where it is proved to the satisfactionFof the Court that a suit has been adjusted wholly or in partby any lawful agreement or compromise in writing andsigned by the parties or where the defendant satisfies theplaintiff in respect of the whole or any part of the subject-matter of the suit, the Court shall order such agreement,compromise satisfaction to be recorded, and shall pass aGdecree in accordance therewith so far as it relates to theparties to the suit, whether or not the subject-matter of theagreement, compromise or satisfaction is the same as thesubject-matter of the suit.”

26. Order 20 Rule 6 of the Code deals with contents of decreeand provides that the decree shall agree with the judgment, it shall containthe number of the suit, the names and descriptions of the parties, theirregistered addresses and particulars of claim, relief granted or any otherdetermination made in the suit, amount of costs incurred in the suit, andby whom or out of what property and in what proportions, the cost to bepaid. Rule 6A deals with the preparation of decree. It says that everyendeavor shall be made to ensure that the decree is drawn up asexpeditiously as possible and, in any case, within fifteen days from thedate on which the judgment is pronounced. Rule 6A (2) of Order 20 ofthe Code says that an appeal may be preferred against the decree withoutfiling a copy of the decree and in such a case the copy made available tothe party by the Court shall for the purposes of Rule 1 of Order 41 betreated as the decree but as soon as the decree is drawn, the judgmentshall cease to have the effect of a decree for the purposes of executionor for any other purpose.

27. In our considered opinion, though Rule 6A (2) of Order 20 ofthe Code deals with the filing of the appeal without enclosing the copy ofthe decree along with the judgment and further provides the consequenceof not drawing up the decree yet, in our opinion, the principle underlinedin Rule 6A(2) can be made applicable also to filing of the executionapplication under Order 21 Rule 2 of the Code.

28. Order 20 Rule 7 deals with the date of decree. It says that thedecree shall bear date the day on which the judgment was pronouncedand when the judge has satisfied himself that the decree has been drawnup in accordance with the judgment, he shall sign the decree.

29. Order 21 Rule 11(2) of the Code, which deals with the executionof the decree, provides that the decree holder is only required to givedetails of the judgment and the decree in the execution application alongwith other details [see clauses (a) to (j)].

30. Similarly, Order 21 Rule 11(3) of the Code makes it clear thatthe Court “may” require the decree holder to produce a certified copyof the decree. This clearly indicates that it is not necessary to file a copyof the decree along with execution application unless the Court directsthe decree holder to file a certified copy of the decree.

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31. The aforesaid discussion, therefore, leads us to a conclusionthat as and when the decree holder files an application for execution ofany decree, he is required to ensure compliance of three things.

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32. First, the written application filed under Order 21 Rules 10and 11 (2) of the Code must be duly signed and verified by the applicantor any person, who is acquainted with the facts of the case, to thesatisfaction of the Court; Second, the application must contain the details,which are specified in clauses (a) to (j) of Rule 11(2) of the Code, whichinclude mentioning of the date of the judgment and the decree; and Third,filing of the certified copy of the decree, if the Court requires thedecree holder to file it under Order 21 Rule 11(3) of the Code.

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33. This takes us to deal with next point urged by the learnedsenior counsel for the appellant. According to learned counsel, the orderdated 01.06.2012 itself is capable of being executable by virtue of Section36 of the Code and, therefore, the High Court was not right in holdingthat the decree was required to be drawn.D

34. The argument is not acceptable for more than one reason.True it is that there are some orders, which are in the nature of decreeand thus capable of being executed as such but the question, whicharises for consideration in this case, is whether the order passed underOrder 23 Rule 3 of the Code is such an order. In our opinion, it is not.

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35. First, the language of Order 23 Rule 3 of the Code does notadmit passing of an order of the nature urged by the learned seniorcounsel for appellant; Second, the expression “the court shall order suchagreement, compromise or satisfaction to be recorded and shall pass adecree in accordance therewith” occurring in Order 23 Rule 3 of theFCode, in clear terms, suggests that it is necessary after recording thecompromise in the order to further pass a decree in accordance therewith.

36. In other words, the expression “and shall pass a decree inaccordance therewith” is a clear indication that after the compromise isrecorded by the Court, it shall proceed to “pass a decree”. So, the ruleGcontemplates, first an order recording of the compromise and thensimultaneously pass a decree in accordance with the order.

37. In the light of the clear language of Order 23 Rule 3 of theCode, it is not possible to accept the submission of learned senior counselfor the appellant that the order dated 01.06.2012 itself amounts to a H

decree and, therefore, it is not necessary for the Court to pass a decree.Had this been the intention, the legislature would not have used theexpression “and shall pass a decree in accordance therewith” in Order23 Rule 3 of the Code.

38. This takes us to examine the next question though not decidedby the High Court on merits.

39. As mentioned above, the Executing Court dismissed theapplications filed by the respondent with a cost of Rs. 5 lakhs whichresulted in issuance of warrant of possession of the suit house. TheHigh Court, by impugned order, set aside the order of the ExecutingCourt and dismissed the execution application as being not maintainable.The High Court, however, did not then consider it necessary to examinethe question as to whether the Executing Court was right in rejecting therespondent’s applications.

40. We have, therefore, perused the order of the Executing Court.Having perused it, we are of the considered view that the ExecutingCourt was right in rejecting the objections raised by the respondent in hisapplications and, therefore, find no good ground to interfere in thosefindings of the Executing Court.

41. In our view, all the objections raised by the respondent werefrivolous and were raised only with a view to avoid execution of thecompromise decree. None of the objections raised by the respondentcould be gone into after consent order had been passed. In any event,none of the objections raised by the respondent had any substance onmerits and were, therefore, rightly rejected by the Executing Court towhich we concur. In our view, the respondent having taken time twiceto vacate the suit house and yet not adhering to the undertaking given,this Court cannot countenance such conduct of the respondent. It isreprehensible.

42. This takes us to examine the next question, namely, what isthe effect of not filing the copy of the decree along with the executionapplication filed by the appellant. In our view, even though the appellantdid not file the certified copy of the decree along with the executionapplication for the reason that the same was not passed by the Court,yet the execution application filed by the appellant, in our view, wasmaintainable. Indeed, so long as the formal decree was not passed, the A

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Aorder dated 01.06.2012 was to be treated as a decree during theinterregnum period by virtue of Order 20 Rule 6A (2) of the Code. Inother words, notwithstanding the fact that the decree had not been passed,yet by virtue of principle underlined in Order 20 Rule 6A(2) of the Code,the order dated 01.06.2012 had the effect of a decree till the date ofactual passing of the decree by the Court for the purposes of executionBor for any other purpose. This empowered the Executing Court toentertain the execution application and decide the objections raised bythe respondent on merits.

43. This takes us to examine the last point as to whether the HighCourt was justified in directing the appellant to apply under Section 152Cof the Code for drawing a decree.

44. In our opinion, though the High Court was right in directingthe appellant to apply to the Court for drawing a decree, but was notright in directing to apply under Section 152 of the Code.

D45. Section 152 of the Code deals with the amendment ofjudgments, decrees or orders. It provides that any clerical or arithmeticalmistakes in the judgments, decrees or orders or errors arising thereinfrom any accidental slip or omission may at any time be corrected by theCourt either of its own motion or on the application of any of the parties.Order 20 Rule 3 also provides that judgment can be altered or addedEeither under Section 152 or in review.

46. In our opinion, in order to invoke the powers under Section152 of the Code, two conditions must be present. First, there has to be ajudgment or decree or an order, as the case may be, and second, thejudgment or decree or order, as the case may be, must contain anyFclerical or arithmetical error for its rectification. In other words, Section152 of the Code contemplates that the Court has passed the judgment,decree or the order and the same contains clerical or arithmetical error.

47. Any party to such judgment, decree or order, as the case maybe, has a right to apply at any time under Section 152 of the Code to theGconcerned Court for rectification of any arithmetical or/and clerical errorin the judgment, decree or the order, as the case may be.

48. In the case at hand, we find that the Court, which disposed ofthe suit, did not draw the decree but only passed the order. In such asituation, the decree holder was required to file an application under H

Section 151 read with Order 20 Rule 6A of the Code to the Court fordrawing a decree in accordance with the order dated 01.06.2012. Indeed,we find in the concluding para of the order dated 01.06.2018 that theCourt has already directed to ensure compliance of the formalities. Itwould have been, therefore, proper in such circumstances for the Courtto simultaneously draw a decree the same day itself or in any eventwithin 15 days as provided in Order 20 Rule 6A.

49. Be that as it may, this being a procedural matter, even if it wasnot done, yet the same could be done by the Court at the instance of theappellant (decree holder) applying for drawing up a decree after filing ofthe execution application.

50. This takes us to examine the last question as to whether theExecuting Court was right in imposing a cost of Rs.5 lakhs on therespondent for filing applications raising therein frivolous objections toavoid execution of the decree against them. As mentioned above, theExecuting Court while rejecting the respondent’s objection imposed acompensatory cost of Rs.5 lakhs on the respondent. In our view, thoughwe find that it is a fit case for imposition of cost but imposition of cost ofRs.5 Lakhs is excessive.

51. Having regard to all facts and circumstances of the case whichwe have discussed above, we consider it just and proper to impose acompensatory cost of Rs. 50,000/- on the respondent under Section 35-A of the Code. Let it be paid by the respondent to the appellant withinone month from the date of this order.

52. We are, therefore, of the considered opinion that the HighCourt was not right in holding that the execution petition itself is notmaintainable. The High Court though was right in directing the appellantto apply to the concerned Court for drawing up a decree but the HighCourt was not right in directing the appellant to apply it under Section152 of the Code.

53. In view of the foregoing discussion, we hold that the executionpetition filed by the appellant is maintainable and was, therefore, rightlyallowed by the Executing Court by rejecting the objections raised by therespondent except with two modifications indicated above.

54. The appellant is hereby granted two weeks’ time to applyunder Section 151 read with Order 20 Rule 6(A) of the Code to the AB

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Aconcerned Court with a prayer for passing a decree in accordance withthe order dated 01.06.2012 passed under Order 23 Rule 3 of the Code.In the peculiar circumstance of this case, we would expect the Courtconcerned to pass and draw the decree without any delay and, in anycase, within one week of moving of the application by the appellant. Itis also made clear that such act of passing and drawing up the decreeBbeing formal in nature, no objection or dispute in that regard is to beentertained by any Court. Once the decree is drawn and its details arespecified in the execution application as provided under Order 21 Rule11 (2)(c) and the certified copy of the decree is filed, if required by theCourt, in terms of Order 21 Rule 11(3) of the Code, the order of theCExecuting Court dated 22.10.2018 with the above modification regardingpayment of costs amount will be given effect to against the respondent.

55. Let the aforementioned procedural proceedings be completedwithin the time framed by the concerned Court. The respondent is,however, granted one month’s time to vacate the suit house afterDcompletion of the procedural formalities by the concerned Court aftermaking payment of all arrears of rent till the date of delivery of possessionof suit house to the appellant.

56. In view of the foregoing discussion, the appeal succeeds andis accordingly allowed. The impugned order is set aside whereas theEorder of the Executing Court is modified to the extent indicated above.

Divya Pandey

Appeal allowed.

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