Research › Browse › Judgment

Patna High Court · body

1991 DIGILAW 367 (PAT)

Sukhdeo Ram v. Suleman Mian

1991-09-12

S.ALI AHMAD

body1991
Judgment S.Ali Ahmad, J. 1. This application has been filed on behalf of the plaintiff decree-holder against the order dated 27-7-1988 by which the Court below rejected the prayer of the petitioner to execute the sale-deed on the ground that no execution case has been initiated. In order to appreciate the points raised in this application certain facts may have to be kept in mind. It is said that the ex parte decree for specific performance directing defendants to execute sale-deed with respect to the property in suit was passed on 9-3-78. That ex parte decree was sought to be set aside on an application under Order IX, Rule 13 of the Code of Civil Procedure. That application was filed in the Court below praying to direct the judgment-debtor to execute sale-deed in terms of the decree passed in title suit No. 22 of 1977. An order was passed on that application directing the petitioner to deposit cost for special messenger. That was deposited and thereafter a notice was sent to the judgment-debtor opposite party on 23-4-1988 asking him to execute sale-deed by 20th May, 1988. That was not done. The petitioner again approached the Court and the Court by its order dated 20-5-1988 directed the petitioner to file requisite stamps for registration of sale-deed. A registered notice was also sent to the judgment-debtor to execute sale deed. This also did not yield any result. Thereafter an application was filed in the trial Court praying to execute the sale-deed as envisaged under Order XXI, Rule 34 of the Code. As stated earlier the prayer was refused on the ground that the decree has not been put into execution. 2. Learned Counsel in support of this application contended that the Court below failed to exercise its jurisdiction. It is said that Order XXI and Rule 34 of the Code itself provides as to how a decree for specific performance has to be executed. He says, under this Rule a duty is cast on the Court below to execute the sale deed if the judgment-debtor refuses or neglects to do so. It is said that necessary formalities were performed and as such the Court below should execute the decree itself. 3. Mr. He says, under this Rule a duty is cast on the Court below to execute the sale deed if the judgment-debtor refuses or neglects to do so. It is said that necessary formalities were performed and as such the Court below should execute the decree itself. 3. Mr. Najmul Hoda, on the other hand, contends that the decree has to be put into execution first as provided under Rule 10 read with Sub-rule (2) of Rule 11 of Order XXI of the Code. He also says that the mode of execution of decree is also provided under Rule 13 onwards of the Code. In that connection learned Counsel says that Rule 34 deals with "the decree for execution of document for endorsement of negotiable instruments. He says that the executing court can exercise powers under Rule 34 only when an application as envisaged under Rule 10 read with Rule 11(2) has been filed. I think that the argument of learned Counsel is correct. Every decree has to be put into execution and unless the decree is put into execution in the manner prescribed for making application for execution of decree for specific performance has been mentioned in Sub-rule (2) of Rule 11 of Order XXI. The words used in the rule are that the application "shall contain in a tabular form the particulars". After this is done then the procedure prescribed under Rule 17 etc. has to be gone into. After that Rule 30 onwards deals with the mode of execution. Rule 32 deals, inter alia, with execution of decree for specific performance. Thereafter, there is another provision contained in Rule 34 which exclusively is for execution of decrees for execution of document or endorsement of negotiable instrument. Under this rule the executing court cases gets jurisdiction to execute sale-deed. All these provisions show that the orders must be passed by the executing court and not by the trial Court. In this case, however, it is admitted that the trial Court itself has to execute the decree as an executing court but that can be done only after an application is filed as envisaged under Sub-rule (2) of Rule 11 of Chapter XXI because the process of execution starts with the filing of such application and not before that. In this case, however, it is admitted that the trial Court itself has to execute the decree as an executing court but that can be done only after an application is filed as envisaged under Sub-rule (2) of Rule 11 of Chapter XXI because the process of execution starts with the filing of such application and not before that. Learned Counsel for the petitioner, in the circumstances urges that he had filed an application on 27-8-1986 in the Court below with a prayer to direct the judgment-debtor to execute the sale deed. He says that the same may be treated as an execution petition. Learned Counsel also says that it is well-settled that as to how a petition is lebelled is not material. He is right. Lebelling of an application is cot material. What is material is as to what prayer has been made and if the informations required under the rule have been mentioned in that application. 4. Learned Counsel for the opposite party very rightly does not dispute this proposition of law. He, however, says that the informations required under Sub-rule (2) of Rule 11 of Order XXI were not mentioned in the petition filed on 27-8-1986. That is a question of fact which can best be determined by the Court below itself. I accordingly allow this application, set aside the impugned order and remit the case back to the Court below with a direction to consider the application filed on 27-8-1986 as to whether it gives all the informations required under Sub-rule (2) of Rule 11 of Order XXI. In case all the requirements are there, then that application should be considered to be an application under Sub-rule (2) of Rule 11 of Order XXI otherwise the application will have to be rejected.