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2004 DIGILAW 1389 (AP)

S. Hassan v. Sha Peerchand, Pawn Broker and Money lender

2004-11-18

L.NARASIMHA REDDY

body2004
L. NARASIMHA REDDY, J. ( 1 ) THE Civil Miscellaneous Appeal is filed by the judgment-debtors 4 and 5 in E. P. No. 128 of 1994 in O. S. No. 12 of 1979 on the file of the Additional Senior Civil Judge, Guntur, aggrieved by the order, dated 11-3-2002. ( 2 ) THE sole respondent herein filed o. S. No. 12 of 1979 for specific performance for an agreement of sale, dated 19-9-1976 against three persons, who are parties thereto (Defendants 1 to 3) and the appellants herein. It was pleaded that the defendants 1 to 3 have borrowed two sums, namely, Rs. 20,000/- and Rs. 17,000/- from the respondent, by executing two promissory notes and with a view to discharge the liability thereunder, they executed an agreement of sale, to convey the suit schedule property for a consideration of rs. 40,000/ -. The first appellant is said to have purchased part of the suit schedule property under an agreement of sale dated 27-3-1978 and the second appellant purchased the remaining part of it through a sale deed, dated 1-4-1982, therefore, they were impleaded as defendants 4 and 5. ( 3 ) THE trial Court decreed the suit on 31 -3-1982, and granted relief of refund of the consideration. The relief of specific performances was rejected. Feeling aggrieved by the refusal of the relief of specific performance, the respondent filed a. S. No. 1565 of 1984 before this Court, the appeal was allowed through judgment, dated 29-11-1993 and the relief of specific performance was granted. L. P. A. No. 100 of 1994 filed against the judgment in A. S. No. 1565 of 1984 was dismissed on 15-10-1997. Thereby, the suit stood decreed, as prayed for. ( 4 ) THE respondent filed E. P. No. 128 of 1994 for executing the decree. Judgment- debtors 1 to 3 remained ex parte. The appellants herein were set ex parte on 10-4-2000 on account of their non- appearance. Thereafter, the Court proceeded to execute the sale deed and various orders came to be passed in the process. The appellants herein filed c. M. A. Nos. Judgment- debtors 1 to 3 remained ex parte. The appellants herein were set ex parte on 10-4-2000 on account of their non- appearance. Thereafter, the Court proceeded to execute the sale deed and various orders came to be passed in the process. The appellants herein filed c. M. A. Nos. 1838, 2228, 2349 and 3477 of 2000 and C. P. P. No. 2571 of 2000 in this court challenging the orders passed in the e. P. Through a common order, dated 17-7-2001, this Court set aside all the orders passed in the E. P. culminating in the execution of sale deed. The executing Court was directed to give an opportunity to the appellants and to pass fresh orders. On such demand, the Executing Court allowed the e. P. , through the order under appeal. ( 5 ) SRI B. V. S. Sivarama Prasad, learned counsel for the appellants submits that the decree passed in O. S. No. 12 of 1979 was conditional, in that, the respondent was required to deposit balance of consideration within one month from the date of decree in a. S. No. 1565 of 1984 and the said condition has not been complied with so far. He submits that the decree was not executable without compliance of that condition and there was no justification for the executing court in passing the order under appeal. He contends that even assuming that there is an executable decree, there was non- compliance with the provisions of Rule 34 of order 21 of Code of Civil Procedure (for short "c. P. C. ") since the appellants were not furnished with the copy of the draft sale deed. He further contends that the executing court has treated as valid, the sale deed executed by it before this Court passed orders in C. M. A. Nos. 1838 of 2000 and batch and such a course of action is impermissible. He relied upon several judgments in respect of his contention. ( 6 ) SRI B. Adinarayana Rao, learned counsel for the respondent submits that the amount payable by the defendants 1 to 3 to the respondent herein exceeded the consideration under the agreement of sale and in that view of the matter, there was no necessity to pay any further amount. He contends that the objection in this regard can be raised, if at all, by defendant Nos. He contends that the objection in this regard can be raised, if at all, by defendant Nos. 1 to 3 and not by the appellants herein. As to the allegation of non-compliance with Rule 34 of order 21 CPC, the learned counsel submits that the main objections raised by the appellants herein throughout the execution proceedings were that, (a) they are not bound by the decree being not parties to the agreement of sale, and, (b) that the respondent did not comply with the condition as to the payment of balance of consideration. He contends that at no point of time, the appellants have taken any objection for clauses contained in the sale deed, be it before or after the judgment of this Court. He also contends that once the executing Court found that the decree was capable of being executed, there is nothing in law, which prohibits or prevents it from treating the sale deed, which was already executed, as valid. ( 7 ) THIS is the second round of litigation at the stage of execution. As observed in the preceding paragraphs, the suit filed by the respondent for the relief of the specific performance came to be decreed by this court, in an appeal. On the decree becoming final, the respondent filed E. P. The parties to the agreement of sale, defendants 1 to 3, remained ex parte in the e. P. The appellants alone were contesting the matter. They too were set ex parte on 10-4-2000. Thereafter, a sale deed was executed by the Court. In C. M. A. No. 1838 of 2000 and batch filed by the appellants, this court set aside various orders passed in e. P. and the matter was remanded for fresh consideration. After remand, the appellants pleaded that there was non-compliance with the condition as to the payment of balance of consideration. They filed an additional counter before the executing Court stating that a sum of Rs. 2,560. 01 remained unpaid by the respondent. Another contention raised by them was that the respondent did not serve a copy of the draft sale deed upon them. ( 8 ) FROM the contentions advanced on behalf of the respective parties, the following aspects fall for consideration in this appeal: (A) Whether there was compliance by the 1st respondent with the condition contained in the decree passed in A. S. No. 1565 of 1984? ( 8 ) FROM the contentions advanced on behalf of the respective parties, the following aspects fall for consideration in this appeal: (A) Whether there was compliance by the 1st respondent with the condition contained in the decree passed in A. S. No. 1565 of 1984? (b) Whether there is violation of the procedure prescribed under Rule 34 of Order 21 C. P. C. ? (c) Whether the executing Court committed any irregularity in treating as valid, a sale deed which was executed by it on earlier occasion? ( 9 ) THE suit was decreed by the trial Court granting relief of refund of the sale consideration. Aggrieved thereby, the respondent filed A. S. No. 1565 of 1984. This court decreed the suit as prayed for. Two clauses of the decree passed by this Court are important, and they read as under: (I) that the decree of the Court of the addl. Subordinate Judge, Guntur, and passed in O. S. No. 12 of 1979 be AND HEREBY IS SET ASIDE; and it is held that the Appellant/ plaintiff shall be entitled to the relief of specific performance in terms of agreement of sale, Ex. A-1 by defendants 1 to 5 (Respondents herein ). (II) that after giving credit to the sum of rs. 1,000/- paid as advance and also the amounts due as on the date of filing of the suit under two promissory notes, Exhibits A-3 and a-4 the plaintiff shall deposit in the lower Court, the balance of the amount agreed consideration under ex. A-1 within one month from the date of this order. The controversy is as to whether the condition No. 2 was complied with by the 1st respondent. ( 10 ) THE following ingredients can be discerned from Condition No. 2, namely; (A) The respondent (Plaintiff) shall be under obligation to pay the consideration under the agreement, ex. A-1; (b) In deciding the amount payable by him, (i) The amount of Rs. 1,000/- paid as advance and; (ii) The amount, which is due as on the date of filing of the suit under two promissory notes namely, exs. A-3 and A-4, shall be given credit to. The consideration payable under Ex. A-1 is rs. 40,000/ -. The defendants 1 to 3 borrowed a sum of Rs. 22,000/- under Ex. A-3 on 14-2-1976 and another sum of Rs. 10,000/- under Ex. A-4, on 6-3-1976. A-3 and A-4, shall be given credit to. The consideration payable under Ex. A-1 is rs. 40,000/ -. The defendants 1 to 3 borrowed a sum of Rs. 22,000/- under Ex. A-3 on 14-2-1976 and another sum of Rs. 10,000/- under Ex. A-4, on 6-3-1976. The appellants contend that with the execution of Ex. A-1, the liability under Ex. A-3 and A-4 stood discharged and that the interest for the amounts covered by those promissory notes can be calculated only up to the date of execution of Ex. A-1, i. e. 19-9-1976. Reliance is placed upon the meaning given to the word "discharge" in The Concise Law dictionary by P. G. Osborn and The Law lexicon by P. Ramanatha Aiyar and the judgment of the Supreme Court in Sarda prasad v. Jumna Prasatf. ( 11 ) IN the two dictionaries referred to above, the meaning is given as under: "discharge". To deprive a right or obligation of its binding force; to release a person from an obligation; thus payment discharges a debt. "discharge": Release absolves, as, of an obligation, claim1. the act of freeing from obligation, liability. 2. the act of clearing off a pecuniary liability. 3. to relive of obligation. "the Supreme Court has adopted virtually the same meaning referred to above in Sarada prasad s case (1 supra ). In fact, there is no dispute as to the meaning that can be ascribed to the word "discharge". The question is as to whether there is such a discharge in the present case. ( 12 ) IT is true that in Ex. A-1, it is stated that the amount payable under Exs. A-3 and A-4 shall be treated as part of consideration and the obligation thereunder shall stand discharged. This condition is contingent upon the executors thereof (defendants 1 to 3) discharging their part of obligation. The clauses in a contract cannot be treated, or interpreted in isolation. The discharge of the obligation under Exs. A-3 and A-4 depended upon the execution of sale deed by the defendants 1 to 3. The fact that they have committed breach of contract was evident from their refusal to execute the sale deed and the necessity for the respondent to file the suit. Therefore, it is not possible to accept the contention of the respondent that the interest payable on the amounts under exs. The fact that they have committed breach of contract was evident from their refusal to execute the sale deed and the necessity for the respondent to file the suit. Therefore, it is not possible to accept the contention of the respondent that the interest payable on the amounts under exs. A-3 and A-4 has to be stagnated upto the date of Ex. A-1. This Court was very clear in its mind when it said that the amount due under Exs. A-3 and A-4 "as on the date of the filing of the suit" was to be given credit to. It means that the amounts payable under exs. A-3 and A-4 shall carry the interest upto the date of filing of the suit namely, 30-1-1979. It is not in dispute that if the interest, at the rate specified in Exs. A-3 and a-4 is calculated upto 30-1-1979, the amount payable under them far exceeds the consideration. The best persons who have raised this objection were defendants 1 to 3 and they did not plead any grievance about it. The objection raised at the instance of the appellants can certainly be taken into account since they are the immediately affected parties. ( 13 ) THE learned counsel for the appellants relied upon a judgment of the supreme Court in Assistant Custodian- general of Evacuee Property v. Lila Devi#2 in support of his contention that where a condition in a decree is not complied with, it does not become executable. There is absolutely no quarrel with this proposition. The discussion undertaken in the preceding paragraphs discloses that the condition No. 2 of the decree in A. S. No. 1565 of 1984 passed by this Court stood complied with. ( 14 ) BY referring to the observation made by the executing Court as to the limits of the exercise of jurisdiction, the learned counsel submits that it is competent for an executing court to interpret a decree, if necessary by going through the pleadings. He placed reliance upon the judgment of the Supreme court in Bhavan Vaja v. Solanki Hanujp. While reaffirming the principle that an executing Court cannot go beyond the decree, the Supreme Court held that if the circumstances warrant, it is competent for an executing Court to refer to the pleadings as well as the record, for the purpose of understanding the decree. While reaffirming the principle that an executing Court cannot go beyond the decree, the Supreme Court held that if the circumstances warrant, it is competent for an executing Court to refer to the pleadings as well as the record, for the purpose of understanding the decree. In fact, given the circumstances, such an exercise was treated as duty. In the instant case, the condition incorporated in the decree is clear and the necessity to construe the same, much less, with reference to the pleadings of the parties, did not arise. Alternatively, even if the pleadings and the entire proceedings culminating the decree are perused, it clearly emerges that no amount remained unpaid towards consideration under Ex. A-1. ( 15 ) THE second aspect is about compliance with Rule 34 of Order 21 C. P. C. This provision mandates that where the judgment debtor, in a decree for execution of a document, neglects or refuses to comply with the same, the decree holder can prepare a draft and submit to the Court. The court, in turn, is required to furnish the draft, to the judgment debtor, enabling him to submit objections, if any. If the judgment debtor submits any objections, the executing court is required to take the same into account and pass an appropriate order, either confirming or altering the draft. The judgment debtors, in this case, did not comply with the decree even after E. P. was filed. The judgment debtors 1 to 3 remained ex parte from the beginning. The appellants therein, judgment debtors 4 and 5, though entered appearance, were set ex parte at a latter point of time. The respondent Turnished the draft sale deed and non-judicial stamp papers. The executing Court did not feel it necessary to serve a draft on the appellants or judgment-debtors because they remained, or were set ex pane. Ultimately, a sale deed came to be executed. This Court, in its order, dated 17-7-2001 in C. M. A. No. 1838 of 2000 and batch, set various proceedings. ( 16 ) BY the time the matter was remanded at the instance of the appellants, there was not only a draft sale deed, but in fact, it stood executed and registered. Though several objections were raised in the execution, they did not point out any objections to the draft sale deed. ( 16 ) BY the time the matter was remanded at the instance of the appellants, there was not only a draft sale deed, but in fact, it stood executed and registered. Though several objections were raised in the execution, they did not point out any objections to the draft sale deed. The only objection raised in the additional counter affidavit touching on this aspect is that the respondent did not serve the draft of sale deed upon them. Rule 34 does not require the decree holder to serve the draft of the sale deed on the judgment debtor. The rule requires the Court to do that. The object underlying the same is to put the judgment debtors on notice and to enable them to raise any objections. The purport of such objections is to ensure that the document that may be executed, accords with the decree and does not exceed the same. It is impermissible to raise the objections on the aspects, which already stood adjudicated in the suit. ( 17 ) THE appellants were already aware of the sale deed and its contents. They did not point out any defect in it. Even at the appellate stage, they have not pointed out any objection or defect in the sale deed. The procedure prescribed under C. P. C. , particularly, the one under Order 21 is to aid the Court in giving effect to the decree, which has become final. While executing the decree, the main object would be to extend the benefit of the decree to the decree holder and to see that the rights of the judgment-debtors or persons claiming through them are not affected except to the extent of the decree. Unless the nature of detriment suffered by persons objecting to the execution is pointed out, minor discrepancies or omissions cannot be permitted to scuttle the execution proceedings. The principle underlying sub- rule (2) of Rule 90 of Order 21 C. P. C. provides sufficient guidance in this regard. Since no defect or illegality is pointed out in the draft sale deed filed by the respondent-herein, the objection raised by the appellants cannot be sustained. ( 18 ) NOW remains the last aspect, namely, whether it was competent for the Court to treat the sale deed executed by it on earlier occasion, as holding good in favour of the respondent. ( 18 ) NOW remains the last aspect, namely, whether it was competent for the Court to treat the sale deed executed by it on earlier occasion, as holding good in favour of the respondent. This Court, set aside various steps taken by the executing Court mainly on the ground that the appellants were prevented from attending the Court on 10-4-2000 due to the boycott of the Courts. The order does not disclose that the sale deed, as such, was set aside. The effect of the order passed by this Court in C. M. A. No. 1838 of 2000 and batch is that the sale deed, which is already executed, does not hold good, if ultimately, the Execution petition is dismissed on any ground. In a way, it can be said that it was kept in hibernation. Once the executing Court found that the respondent was entitled for the execution of a sale deed in his favour, there is nothing wrong in treating the same as valid. Otherwise, the respondent would be required to meet the stamp duty and registration charges, which are very exorbitant in extent, once again, for no fault of him. It is not as if the appellants would be benefitted out of it, in any way. ( 19 ) FOR the foregoing reasons, C. M. A. is dismissed. There shall be no order as to costs.