Research › Search › Judgment

Karnataka High Court · body

2008 DIGILAW 782 (KAR)

Rajakumaragouda v. Sharanagouda

2008-12-17

N.KUMAR

body2008
ORDER N. Kumar, J : The petitioners have challenged in this writ petition the order dated 30/08/2006 passed in the Execution Petition No.8/1995 as per Annexure-‘L’ holding that the execution petition filed by the decree holder is not time barred. 2. One Shivawwa-mother of the respondent filed a suit O.S.No.39/ 1971 for a decree of specific performance of the agreement of sale dated 27.07.1970 and for a decree of permanent injunction. The suit was contested. After Trial, the plaintiff s suit was decreed as prayed for with costs. The said judgment was delivered on 24th November, 1973. Shivawwa died on 25.01.1982. After her death, the respondent herein, her son, has preferred an Execution Petition No.8/1995 on 27/01/1995 for execution of the sale deed in terms of the decree. After service of notice, the petitioners, who are the legal representatives of the original defendant entered appearance and filed their written objections contending that the execution petition filed for executing the decree dated 24.11.1973 is barred by time. The Trial Court held that as in the decree no time or specific date is fixed to execute the sale deed, the sale deed has to be executed after receiving the balance sale consideration. In the event of failure on the part of the judgment-debtors to execute the sale deed, the Court shall execute the sale deed on behalf of the judgment debtors through a Commissioner. Therefore, the decree passed in a suit for specific performance is in the nature of a preliminary decree. It does not terminate the suit. Therefore, it overruled the objections and held that the execution petition is maintainable and is in time. Aggrieved by the said order, petitioners are before this Court. 3. Learned Counsel for the petitioners assailing the impugned order contends that, the decree for specific performance cannot be construed as a preliminary decree. The decree of specific performance becomes executable forthwith and therefore, execution petition filed after 12 years from the date of the judgment and decree, is clearly barred by time. 4. Per contra, Learned Counsel for the respondent contended that the plaintiffs suit was decreed as prayed for holding that the plaintiff is entitled to a decree of specific performance and also for injunction and that the plaintiff is in possession of the property as on the date of the suit. 4. Per contra, Learned Counsel for the respondent contended that the plaintiffs suit was decreed as prayed for holding that the plaintiff is entitled to a decree of specific performance and also for injunction and that the plaintiff is in possession of the property as on the date of the suit. On the failure of the judgment-debtors executing the sale deed, the Court has to execute the sale deed and till the said deed is executed, the decree has to be construed as a preliminary decree, as rightly held by the Trial Court and therefore, the execution petition is not barred by time. 5. Therefore, the question that arises for consideration is :- "Whether a decree for specific performance is a preliminary decree or a final decree? 6. Sub-Section (2) of Section 2 of the Code of Civil Procedure, 1908 defines the decree as under: (2) “Decree” means a formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 144, but shall not include... (a) any adjudication from which an appeal lies as an appeal from an order; or (b) any order of dismissal for default. Explanation.-A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of It is final when such adjudication completely disposes of the suit, it may be partly preliminary and partly final. 7. From the aforesaid definition clause it is clear that there are four important elements in a decree. Firstly, it is a formal expression of an adjudication. Secondly, it is an adjudication of the rights of the parties with regard to all or any of the matters in controversy. Thirdly, it conclusively determines the rights of the parties. Lastly that such an adjudication must be in a suit. Therefore, decree means the formal expression of an adjudication, conclusively determining the rights of the parties with regard to all or any of the matters in controversy in the suit. A decree may be either preliminary or final. It may also be partly preliminary and partly final. Lastly that such an adjudication must be in a suit. Therefore, decree means the formal expression of an adjudication, conclusively determining the rights of the parties with regard to all or any of the matters in controversy in the suit. A decree may be either preliminary or final. It may also be partly preliminary and partly final. A decree is preliminary when further proceedings have to be taken before the suit could be completely disposed of. It is final when such adjudication completely disposes of the suit. 8. In a suit for specific performance the dispute is whether the plaintiff is entitled to a decree of specific performance i.e., entitled to get a sale deed in his favour. If the Court conclusively determines the said right of the plaintiff after adjudication in a suit and passes a decree holding that the plaintiff is entitled to a decree of specific performance, then the said adjudication completely disposes of the suit and no further proceedings 'are required to be done in the said suit. If the defendant refuses to execute the sale deed, the plaintiff can sue for execution of such decree. If after notice, the judgment-debtor does not appear or having appeared refuses to execute the sale deed, the Court executes the sale deed in favour of the plaintiff. If after such execution the judgment-debtor refuses to deliver possession to the plaintiff, the Court recovers possession and puts the plaintiff in possession of the same. All this is done on the execution side because, the rights of the parties are conclusively determined on the original side and no more adjudication is required to be done after such decree for specific performance is passed. In the suit, after the decree for specific performance is passed, nothing more requires to be done. The decree for specific performance finally disposes of the suit. Therefore, it is a final decree. 9. In fact the Apex Court in the case of Smt. Sandhya Rani Sarkar Vs. Smt. Sudha Rani Debi and Others, (1978) 2 SCC 116 dealing with the decree for specific performance, held that the Trial Court has called upon the defendant to execute the conveyance on receipt of consideration. Such a decree could never be a preliminary decree. 10. Therefore, the contention that a decree for specific performance is in the nature of preliminary decree is without any substance. 11. Such a decree could never be a preliminary decree. 10. Therefore, the contention that a decree for specific performance is in the nature of preliminary decree is without any substance. 11. Section 3 of the Limitation Act, 1963 deals with Bar of Limitation. It categorically states that subject to the provisions contained, under Sections 4 to 24, every suit instituted, appeal preferred and an application made after the prescribed period shall be dismissed, although limitation has not been set up as defence. Article 136 of the Limitation Act deals with applications for the execution of any decree (other than a decree granting a mandatory injunction) or order of any Civil Court. The period of limitation prescribed for filing such application is 12 years when the decree becomes enforceable or when the decree or any subsequent order directs any payment of money or delivery of any property to be made at a certain date or at recurring periods when default in respect of which execution is sought, takes place. However, if there is any delay in filing such application, Section 5 of the Limitation Act is not applicable because though Section 5 of the Limitation Act provides for extension of prescribed period in certain cases, it categorically excludes an application under any of the provisions of Order 21 of the Code of Civil Procedure, 1908. Therefore, if an application for execution of the decree is filed beyond time, the question of filing an application under Section 5 of the Limitation Act for condoning the delay would not arise. 12. In the instant case, as set out above, the plaintiff suit was decreed as prayed for with costs. No specific time or period is stipulated in the decree directing the plaintiff to pay the balance sale consideration and take the sale deed. Therefore, decree becomes enforceable from 27/11/1973 i.e., the date on which the judgment was pronounced. The execution petition is filed on 27/1/1995. It is filed beyond 12 years period prescribed i.e., nearly after 22 years. There is no provision for condoning the delay j] filing the execution petition. Under these circumstances, the execution petition filed is barred by limitation. 13. Therefore, decree becomes enforceable from 27/11/1973 i.e., the date on which the judgment was pronounced. The execution petition is filed on 27/1/1995. It is filed beyond 12 years period prescribed i.e., nearly after 22 years. There is no provision for condoning the delay j] filing the execution petition. Under these circumstances, the execution petition filed is barred by limitation. 13. In that view of the matter, the order passed by the Trial Court holding that the decree for specific performance is in the nature of preliminary decree is not correct Hence, I pass the following order: (a) Writ Petition is allowed. (b) The impugned order is set aside. (c) Execution petition filed is dismissed as barred by time.