RAJBIR versus SURAJ BHAN & ANR on 28 February 2022

932

[2022] 16 S.C.R. 932

SUPREME COURT REPORTS

[2022] 16 S.C.R.

RAJBIR

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SURAJ BHAN & ANR.

(Civil Appeal No. 1700 of 2022)

BFEBRUARY 28, 2022

[K.M. JOSEPH AND HRISHIKESH ROY, JJ.]

Code of Civil Procedure, 1908:

Or. XXI r. 34 – Decree for execution of a sale document –CDecree holder-respondents filed for execution petition of decree ofspecific performance of a sale deed – Court issued direction toexecute the sale deed in favor of decree holder – Objections to theexecution of sale deed of judgment debtor rejected – Draft saledeed submitted by the decree-holder was approved by the executioncourt – Revision petition filed by appellant/judgment debtor –DDismissed by the High Court – In appeal before this Court case ofthe appellant/judgment debtor that objection of appellant/judgmentdebtor to the draft sale deed were not taken as required u/OrderXXI Rule 34 – On appeal, held: It is not required that the decreeholder must directly deliver the draft sale deed to the judgment debtorE– Procedure, is that the decree holder must make it available to theCourt – Under Order XXI Rule 34, it becomes the duty of the courtto thereupon cause the draft to be served upon the judgment debtor– There must be a notice inviting objections and the court may fix atime within which objections are to be filed – Judgment debtor mayor may not object – Execution court to hand over the copy of theFdraft sale deed produced by the respondents within the stipulatedperiod – Appellant would be free to file his objections to the draftsale deed and thereafter, after hearing the parties, a decision wouldbe taken on the objections.

Or. XXI r. 34 – Decree for execution of a document – Held:GOrder XXI Rule 34 sub-rule (3) contemplates a situation where thejudgment debtor objects – This is to be contained in writing withinthe time provided – The court is duty bound to make an orderapproving or altering the draft as it thinks fit – It is also important H

from the point of view of the role of the executing court which is toact in conformity with the decree – Though, it is indeed open to theexecuting court to construe the decree; it cannot go beyond thedecree – Order XXI r. 34 cannot be diluted and any such departurefrom the provisions can have highly deleterious consequences notmerely qua the parties but also persons who come to deal with thoseparties in future.

Allowing the appeal, the Court

HELD: 1.1 The present document is a sale, therefore,Order XXI Rule 34 CPC is attracted. It contemplates that if thejudgment debtor neglects or refuses to obey the decree, thedecree-holder is to prepare a draft of the document. In this case,the draft of the document is the draft sale deed. The draft of thesale deed must further be in accordance with the terms of thedecree. It is to be delivered to the court. Thereupon, it is notrequired that the decree holder must directly deliver it to thejudgment debtor. The procedure, therefore, is that the decreeholder must make it available to the Court. Under Order XXIRule 34, it becomes the duty of the court to thereupon cause thedraft to be served upon the judgment debtor. There must be anotice inviting objections and the court may fix a time within whichobjections are to be filed. The judgment debtor may or may notobject. [Para 10]9942-B-D]

1.2 It is well settled that the execution court cannot gobeyond the decree. The decree must be executed as it is. Though,it is indeed open to the executing court to construe the decree;it cannot go beyond the decree. Therefore, when objections arefiled pointing out in a given case that the proposed draft of thesale deed is not in conformity with the decree, it becomes theduty of the executing court to apply its mind and to makealterations in the draft, if needed, to make it in conformity withthe decree. It will be thereafter that the decree holder is to deliverit to the court with the alterations if any made by the court, onproper stamp paper, if required and the execution of the documentis effected by the court or the officer appointed. [Para 11][942-F-G]

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A1.3 This is a case where the court did not invite objectionsof the appellant to the draft sale deed but the application of therespondents for appointment of the commissioner to execute thesale deed is allowed, no doubt, taking note of the order of thesame date, rejecting the objections of the appellant to theexecution of the decree. Objections on behalf of the appellant toBthe execution petition are not to be confused with his objectionsto the proposed sale deed. [Paras 12, 13][943-D-E]

1.4 Order XXI Rule 34 cannot be diluted and any suchdeparture from the provisions can have highly deleteriousconsequences not merely qua the parties in question but alsoCpersons who come to deal with those parties in future. It can leadto further litigation. It is all of this which is sought to be avoidedby bringing clarity and precision and execution must be inconformity with the adjudication contained in the decree. [Para14][944-A-B]D

1.5 The execution court Civil Judge (Senior Division) isdirected to hand over the copy of the draft sale deed produced bythe respondents for obtaining objections as required under OrderXXI Rule 34, Code of Civil Procedure, 1908. The appellant willbe free to file his objections to the draft sale deed within a periodEof three weeks thereafter. Thereafter, after hearing the parties,a decision will be taken on the objections. Appropriate order willbe passed by the court so that the decree is executed as isprovided in the decree. Needless to say, in case the sale deedwhich has been executed on the strength of the draft sale deed isfound to be violative of the decree, it will necessarily be set aside,Fand thereafter, a fresh sale deed must be executed by theexecution court. [Para 16][944-E-F; 945-A]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1700of 2022.GFrom the Judgment and Order dated 04.07.2019 of the High Courtof Punjab & Haryana at Chandigarh in CR No. 4027 of 2019.

Tarun Gupta, Adv. for the Appellant.

Ms. Neelam Singh, Sameer Singh, Sandiv Kalia, V. Gopal Achary,Nand Ram, Dr. Sushil Balwada, Advs. for the Respondents.

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The Judgment of the Court was delivered by

K. M. JOSEPH, J.

Leave granted.

1. While procedure is said to be the handmaiden of justice andsubstantial justice must prevail and the former may take the backseat,failure to follow the procedure laid down by law can result in gravemiscarriage of justice to the judgment debtor and delay in the decreeholder realising the fruits of the decree, all of which will be evident fromfacts of this case as we narrate them.

2. The appellant along with his brother agreed to sell certainproperty which we shall refer to, to the respondents-Suraj Bhan andBalraj on 28.01.2006. Thereupon, the respondents instituted a suit forspecific performance. It was inter alia the case of the respondents thatthe brother of the appellant (Raj Kumar) had already conveyed his partof the property in conformity with the agreement. The appellant, it wouldappear, had sold the property to a person who was arrayed as seconddefendant in the suit. The suit finally came to be decreed. In otherwords, a decree for specific performance was passed. The terms ofthe decree may be noticed as follows:

“35. In view of the findings recorded under above mentionedissues, suit of plaintiffs succeed and is hereby decreed withcost. A decree of declaration to the effect that agreementto sell Ex.D1 and sale deed Ex.D3 are illegal, null and voidpaper transaction and not finding on the rights of plaintiffsqua the suit land. A decree of possession by way of specificperformance in the respective share of plaintiffs is herebypassed in favour of plaintiffs and against the defendants.The defendant no. 1 shall get the sale deed executed andregistered in favour of plaintiffs in view of terms andplaintiffs, however, shall deposit the remaining part of saleconsideration and within one month from the date of thisjudgment. In case of failure to get execute and register thesale deed by defendant no. 1, the plaintiffs will be at libertyto take the assistance of court in this regard.”

Decree in terms thereto is as follows:

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“Suit property: Land comprising in Khewat no. 346 RectNo. & Killa numbers 45 18.10.20/1.2364/3 4,62.78 14 &numbran 882.824 measuring 72 kanal 7 Marlas to the extentof 1/3 shares which comms out 24 kanal 2 Marlas situatedin the revenue estate of village salahawas Tehsil & DistrictJhajjar.

This suit coming on this 4 day of January 2013for for final disposal before me(Fkhruddin, Civil Judge (Sr.Divn. Jhajar) in the presence of Shri M.S Ahlawat counselfor the plaintiff Sh. Mahesh Kumar counsel for defendantno. 1. Sh. R.P. Suhag counsel for defendant no.2.

Suit presented on: 16.1.2007

It is ordered that suit of plaintiff succeed and is herebydecreed with costs. A decree of declaration to the effectthat agreement to sell Ex D1 and sale deed Ex.D3 are illegal,null and void, paper transaction and no binding on the rightsof plaintiffs qua the suit land. A decree of possession byway of specific performance in the respective share ofplaintiffs is hereby passed in favour of plaintiffs and againstthe defendants. The defendants no. 1 shall get the saledeed executed and registered in favour of plaintiffs in viewof terms and conditions of agreement to sell Ex P2. Theplaintiffs however, shall deposit the remaining part of saleconsideration and within one month from the date of thisjudgment. In case of failure to get execute and register thesale deed by defendant no. 1, the plaintiffs will be at libertyto take the assistance of court in this regard.”

3. The appellant was unsuccessful in challenging the aforesaiddecree both in first appeal and, what is more, in the second appeal beforethe High Court. An attempt made before this Court culminated in therejection of the special leave petition filed by the appellant. Therespondents applied for execution. The appellant filed his objections.They are as follows:

“The judgment debtor No. 1/ Objecting party preferred anappeal before the Hon’ble High Court of Punjab & Haryanaagainst the judgment and decree under execution vide RSA

No. 2187/2013 which was dismissed by the Hon’ble HighCourt of Punjab & Haryana vide judgment and order dated16.05.2018. Upon which the judgment debtor No. 1 moveda petition for special leave to appeal before the Hon’bleSupreme Court of India bearing No. 23053/2018 but thesame was dismissed vide order dated 31.08.2018 and thejudgment debtor No. 1 has no intention to file a review againstthe same.

The Judgment debtor No. 1 submits the followingobjections against the execution of the judgment and decreedated 04.01.2013:

1. That the decree dated 04.01.2013 cannot be executedbecause of the own act and conduct of the decree holders.In the decree dated 04.01.2013 the Hon’ble Civil Judge (Sr.Div.), Sh. Fakhruddin has clearly mentioned that the decreeholders need to deposit the remaining sale considerationwithin one month from the dated of passing of the judgmentand decree dated 04.01.2013. Relevant portion of the decreedated 04.01.2013 is reproduced below:

“The defendant No. 1 shall get the sale deed executedand registered in favour of the plaintiffs in view ofthe terms and conditions of the agreement to sell Ex-P2. The plaintiff however, shall deposit the remainingpart of sale consideration within one month from thedate of this judgment.”

As per the terms and conditions of the agreement tosell Ex-P2 the total sale consideration for land measuring42 Kanal and 11 Marla @ of Rs.12,25,000/- per acreamounts to Rs.65,15,469/- out of which Rs.2,50,000/- werepaid as earnest money as such the remaining saleconsideration amounts to Rs.62,65,469/- whereas the decreeholders/plaintiffs allegedly have only deposited an amountof Rs.34,41,100/- which is deficient and there is no provisionin the decree for later submission of the balance saleconsideration or part payments of the same.

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Prayer: It is therefore most respectfully prayed that in thepresent circumstances the application of the Decree Holdersmay kindly be dismissed with cost.

Any other order which this Hon’ble court may deem fit andproper in the facts and circumstances of the present mayalso be passed in favour of the objecting respondent.”

4. The objections of the appellant were rejected and dismissedwith exemplary cost of Rs.3,000/-, by order dated 30.05.2019. Therespondents had produced a draft sale deed. Based on the same, wenotice that a further order dated 30.05.2019 came to be passed. Theaforesaid order dated 30.05.2019 came to be challenged before the HighCourt. By the impugned order, the High Court dismissed the revisionpetition filed by the appellant. We may notice the following part of theimpugned judgment:

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It is evident from the decree that the suit property asmentioned was 24 Kanals 2 Marlas. Similar observationswas also made in the RSA No. 2187 of 2013. The SLPpreferred by petitioner/JD No. 1 was also dismissed. Thereis nothing to show that the decree was qua 42 Kanals 11Marlas and not 24 Kanals 2 Marlas.

Learned counsel for the petitioner yet again insisted thatthe draft sale deed was not served upon him, which is amandatory requirement. However, no such argument wasraised by the JD/objector qua the same.

Learned counsel for the petitioner further submitted thatan application was filed by the decree holder for appointmentof Local Commissioner for execution of the sale deed incompliance of the impugned judgment and decree dated04.01.2013 and it was allowed on the same day, whereas, itis mandatory to supply the copy of draft sale deed incompliance of Order 21 Rule 34(2) of the Civil ProcedureCode, 1908.

However, a perusal of the order dated 30.05.2019(Annexure P-4) passed by the Executing Court shows thata direction was issued to execute the sale deed in favour ofthe decree holder after getting the draft sale deed approvedfrom the Court. Thus, the stage to hand over the draft saledeed had not arrived and the petitioner could have verywell moved an application before the Court concerned tosupply him the draft sale deed, which was never done.”

5. We have heard Mr. Tarun Gupta, learned counsel for theappellant, and Ms. Neelam Singh, learned counsel for the respondents-decree holders.

6. Learned counsel for the appellant would point out that this caseinvolves a clear contravention of Order XXI Rule 34 of the Code ofCivil Procedure, 1908 (CPC). He would point out that the Court wasduty bound upon the draft sale deed being produced before it by thedecree holder, to make it over to the judgment debtor and to consider theobjections of the judgment debtor, and thereafter follow the proceduretherein, and only thereupon, a sale deed as such could be executed. It isa salutary provision in law and it had been observed in its breach and itwould cause miscarriage of justice. He points out that the respondentshave not complied with the decree. It appears to be the case of theappellant inter alia that what is involved under the agreement to salewas about 66 Kanals. He would further point out that what transpired inthe court as a result of the court ignoring the mandatory provisions ofOrder XXI Rule 34 may be noticed. He points out that on the basis ofthe draft sale deed which was produced, without giving an opportunityto the appellant to file his objections, a commissioner was appointed whoimmediately proceeded to execute the sale deed itself. He furtheremphasised that what actually happened was that the sale deed hasbeen executed, which is again in departure from the terms of the decree.The sale deed takes in a different survey number. In this regard, hepoints out that the decree is relatable to Khewat 346. The agreementalso relates to Khewat 346. Thus, the property which was agreed to besold and which is the subject matter of adjudication and decree, wasKhewat 346, whereas the sale deed, he points out is relatable to Khewat448. In this regard, he would submit that the decree schedule propertyis part of a larger extent of the property and that the sale deed relates toproperty abutting the road. The result of the court not giving an A

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Aopportunity to the judgment debtor as is required under Order XXI Rule34 is that the execution court has countenanced the situation which isinconsistent with the terms of the decree.

7. Per contra, Ms. Neelam Singh, learned counsel for therespondents, would point out that what has been agreed to be sold andBwhat is further the subject matter of the decree was only 24 Kanals and2 Marlas; it was part of 48 Kanals and 4 Marlas. The appellant and hisbrother were the persons who had right over the same. The appellant’sbrother has already conveyed title and he has no right over the same.The appellant, by being called upon to execute the sale deed in respectof 24 Kanals and 2 Marlas, would not be prejudiced in any manner. SheCwould point out that the respondents had produced the draft sale deedand it may have been the duty of the court to act in terms of Order XXIRule 34. She further drew our attention to the proceeding at page 89 ofthe SLP paperbook (Annexure R1) to point out that the case was pendingconsideration before the court and it would have proceeded with theDmatter but for the stay granted by this Court.

FINDINGS

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8. As far as the case relating to the exact extent which was thesubject matter of adjudication is concerned, we do not think that it willbe open to the appellant to revisit the matter by pointing out that theErespondents had not complied with the decree in not depositing theconsideration as provided therein. An attempt to fix the extent whichthe appellant is duty bound to convey by the decree in excess of 24Kanals and 2 Marlas cannot be countenanced. We would, therefore,hold that the property which is the subject matter of the decree is 24FKanals and 2 Marlas. The said property would be comprised in KhewatNo. 346 and it is a part of larger extent of 48 canals and 4 Marlas which,in turn, undoubtedly, is part of larger extent of 72 Kanals and 7 Marlasas referred to in the agreement. This is on the basis of the terms of thedecree. It is, thereafter, that the respondents-decree holders filedexecution proceedings.G

9. Order XXI Rule 34 reads as follows:

“34. Decree for execution of document, or endorsement ofnegotiable instrument.-(1) Where a decree is for theexecution of a document or for the endorsement for anegotiable instrument and the judgment-debtor neglects or H

refuses to obey the decree, the decree-holder may preparea draft of the document or endorsement in accordance withthe terms of the decree and deliver the same to the Court.

(2) The Court shall thereupon cause the draft to be servedon the judgment-debtor together with a notice requiring hisobjections (if any) to be made within such time as the Courtfixes in this behalf.

(3) Where the judgment-debtor object tot he draft, hisobjections shall be stated in writing within such time, andthe court shall make such order approving or altering thedraft, as it thinks fit.

(4) The decree-holder shall deliver to the Court a copy ofthe draft with such alterations (if any) as the Court mayhave directed upon the proper stamp-paper if a stamp isrequired by the law for the time being in force; and theJudge or such officer as may be appointed in this behalfshall execute the document so delivered.

(5) The execution of a document or the endorsement of anegotiable instrument under this rule may be in the followingform, namely- “C.D., Judge of the Court of (or as the case may be), for A.B. in suit by E.F.against A.B.”

and shall have the same effect as the execution ofthe document or the endorsement of the negotiableinstrument by the party ordered to execute or endorse the same.

(6) (a) Where the registration of the document is requiredunder any law for the time being in force, the Court, orsuch officer of the court as may be authorised in this behalfby the Court, shall cause the document to be registered inaccordance with such law.

(b) Where the registration of the document is not so required,but the decree-holder desires it to be registered, the Courtmay make such order as it thinks fit.

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(c) Where the Court makes any order for the registrationof any document, it may make such order as it thinks fit asto the expenses of registration.”

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10. The present is indeed a case where the decree in questionprovides for the execution of the document. The document is theBdocument of sale as contemplated under the decree. Therefore, OrderXXI Rule 34 is clearly attracted. It contemplates that if the judgmentdebtor neglects or refuses to obey the decree, the decree-holder is toprepare a draft of the document. In this case, the draft of the documentis the draft sale deed. The draft of the sale deed must further be inaccordance with the terms of the decree. It is to be delivered to theCcourt. Thereupon, it is not required that the decree holder must directlydeliver it to the judgment debtor. The procedure, therefore, is that thedecree holder must make it available to the Court. Under Order XXIRule 34, it becomes the duty of the court to thereupon cause the draft tobe served upon the judgment debtor. There must be a notice invitingDobjections and the court may fix a time within which objections are to befiled. The judgment debtor may or may not object. Order XXI Rule 34sub-rule (3) contemplates a situation where the judgment debtor objects.This is to be contained in writing within the time provided. The court isduty bound to make an order approving or altering the draft as it thinksfit. This is of considerable importance having regard to what may followEsubsequently on the strength of the decree. It is also important from thepoint of view of the role of the executing court which is to act in conformitywith the decree.

11. It is well settled that the execution court cannot go beyond thedecree. The decree must be executed as it is. Though, it is indeed openFto the executing court to construe the decree; it cannot go beyond thedecree. Therefore, when objections are filed pointing out in a givencase that the proposed draft of the sale deed is not in conformity withthe decree, it becomes the duty of the executing court to apply its mindand to make alterations in the draft, if needed, to make it in conformityGwith the decree. It will be thereafter that the decree holder is to deliverit to the court with the alterations if any made by the court, on properstamp paper, if required and the execution of the document is effectedby the court or the officer appointed. There are other formalitiescontemplated in regard to registration, all of which take place only after H

the procedure which is contemplated in Order XXI Rule 34 sub-rule (1)to (4) is followed.

12. In the facts of this case, we may notice the order which isimpugned by the appellant before the High Court. We notice from theorder that the proposed sale deed is seen taken on file. Thereafter thecourt refers to the application filed for appointment of a localcommissioner for the execution of the sale deed. The court refers to thedecree bearing the date 04.01.2013. Thereafter, the court says that inthe light of the present facts and circumstances the present applicationwas allowed. The Civil Nazar of the Court was appointed as localcommissioner who was directed to carry out the formalities for executionof the sale deed in accordance with the terms and conditions of theagreement after getting the approved draft sale deed from the court andreport to this effect was to be submitted in the court well before06.07.2019. This order is dated 30.05.2019. The sale deed came to beexecuted on 11.06.2019. Thus, this is a case where the court did notinvite objections of the appellant to the draft sale deed but the applicationof the respondents for appointment of the commissioner to execute thesale deed is allowed, no doubt, taking note of the order of the same date,rejecting the objections of the appellant to the execution of the decree.

13. We must notice here that the objections on behalf of the appellantto the execution petition are not be confused with his objections to theproposed sale deed. That the appellant may have raised contentions tothe effect that the decree itself is inexecutable and it was found meritless,would not absolve the court of its duty to proceed with the matter ofconsidering the draft sale deed and the objections thereto under theprovisions of Order XXI Rule 34. Subsequent to the impugned orderdated 30.05.2019, without objections being invited and considered, thesale deed dated 11.06.2019 came to be executed which was registered.Therefore, we are of the view that this approach of the court in thematter of executing the decree in question clearly contravenes the salutaryprovisions of Order XXI Rule 34.

14. The complain of the appellant is sought to be buttressed withreference to the difference in the survey numbers as noticed by us earlier.While it is true that the court must be diligent in the matter of executinga decree passed after adjudication which spans a long period of time, itis also the duty of the court to execute the decree as it is and in AB

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Aaccordance with law. Order XXI Rule 34 cannot be diluted and anysuch departure from the provisions can have highly deleteriousconsequences not merely qua the parties in question but also personswho come to deal with those parties in future. It can lead to furtherlitigation. It is all of this which is sought to be avoided by bringing clarityand precision and execution must be in conformity with the adjudicationBcontained in the decree.

15. In this case, the court is presented with a fait accompli. Thisis for the reason that putting the cart before the horse, as it were, withoutgiving an opportunity to file objections to the draft sale deed, the orderimpugned was passed. The sale deed itself has been executed in termsCof the draft sale deed without objections being called for and considered.Learned counsel for respondents points out that the case is taken upnow to consider the objections by the court. The only course which isavailable to us is to direct the objections of the appellant to the draft saledeed to be considered. It is, however, pointed out by Mr. Tarun Gupta,Dlearned counsel for the appellant, that the copy of the draft sale deedhas not yet been served on the appellant.

16. In such circumstances, we are inclined to pass the following order:

The appeal is allowed. We set aside the impugned order. WeEdirect that the execution court Civil Judge (Senior Division), Jhajjar shallhand over the copy of the draft sale deed produced by the respondentswithin a period of two weeks from the date of production of copy of thisjudgment before the execution court. The appellant will be free to filehis objections to the draft sale deed within a period of three weeksFthereafter. Thereafter, after hearing the parties, a decision will be takenon the objections. Learned counsel for the appellant would point outthat appellant will in case the sale deed is found to fall foul of the decree,bear the expenses which has been incurred by the respondents towardsregistration. If the sale deed is found to not be in conformity with thedecree, fresh proceedings will be taken. Appropriate order will be passedGby the court so that the decree is executed as is provided in the decree.Needless to say, in case the sale deed which has been executed on thestrength of the draft sale deed is found to be violative of the decree, itwill necessarily be set aside, and thereafter, a fresh sale deed must be H

executed by the execution court. The entire process shall be completedAwithin four months from the date copy of the judgment is produced beforethe court.

Further proceedings based on the sale deed dated 11.06.2019 shallbe kept in abeyance till a decision is taken by the Court.

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The appeal is allowed as above.

The parties will bear their respective costs.

Nidhi Jain and Anurag Bhaskar(Assisted by : Vrinda Singh, LCRA)

Appeal allowed.

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