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2018 DIGILAW 861 (GAU)

Subhash Chandra Dey v. Mangal Chandra Sarkar

2018-05-24

KALYAN RAI SURANA

body2018
JUDGMENT & ORDER : Kalyan Rai Surana, J. Heard Mr. N. Das, the learned counsel appearing for the petitioners as well as Mr. A. Biswas, the learned counsel appearing for the respondent. 2. By this revision under Article 227 of the Constitution of India, the petitioners have challenged the order dated 09.12.2014, passed by the learned Civil Judge, Barpeta in Title Execution Case No. 9/2013, thereby rejecting the application filed by the petitioner under section 151 CPC. 3. The petitioner No.1 herein is the defendant No.4 in TS 11/1998 and the petitioner No. 2 herein is the defendant No.3 in the said suit. The suit was instituted by the respondent herein, seeking specific performance of the contract. The following four prayers are made in the plaint:- (a) That a decree be passed for a specific performance of contract by the defendants ordering the defendants to execute and register a sale deed transferring the suit land in favour of the plaintiff and for delivering khas possession of the suit land in favour of the plaintiff, and. (b) That alternatively a decree be passed for the refund of the surplus amount of Rs. 214602.00 which the defendants received from the plaintiff and further a sum of Rs. 30,000/- be decreed in favour of the plaintiff and against the defendants and thus a total sum of Rs. 240000.00 be decreed in favour of the plaintiff and against the defendants, and (c) That the cost of the suit be decreed in favour of the plaintiff and against the defendants, and (d) That any other relief or relief’s to which the plaintiff may be deemed to be entitled under the law and equity may also be decreed in favour of the plaintiff and against the defendants. 4. In the plaint, it was projected that the defendant therein had offered to sell 1 bigha land described in Schedule 'C' in favour of the respondent herein at a sum of Rs. 2,40,000/- and accordingly, earnest money of Rs. 12,002/- was paid in cash and a written agreement to the effect was executed. 4. In the plaint, it was projected that the defendant therein had offered to sell 1 bigha land described in Schedule 'C' in favour of the respondent herein at a sum of Rs. 2,40,000/- and accordingly, earnest money of Rs. 12,002/- was paid in cash and a written agreement to the effect was executed. It was projected that in due course, the defendants No. 1, 3 and 4 had executed a registered Sale Deed No. 832/726 in respect of 1 katha- 71/2 lechas land from Dag No.620 forming a part of the land described in Schedule 'C' in favour of the respondent and that they also agreed to transfer the remaining 3 kathas-121/2 lechas land to the respondent within a week. 5. Alleging refusal to perform their part of the contract, the respondent herein had instituted the said suit. The suit was decreed in favour of the respondent by judgment and decree dated 26.08.2004. 6. Against the said decree, the petitioners herein had preferred an appeal, which was numbered as T.A. No. 13/2007. The learned first appellate Court by appreciating the pleadings and evidence on record, found no infirmity and illegality in the impugned judgment passed by the learned trial Court. As such, the said appeal was dismissed on contest by judgment and decree dated 03.07.2012, passed by the learned Additional District Judge (FTC), Barpeta in Title Appeal No. 13/2007. 7. Thereafter, by filing Title Execution Case No.9/2013 before the Court of learned Civil Judge, Barpeta, the decree was put into execution. In connection with the said execution proceeding, the petitioners herein had received a Court notice dated 08.07.2013, directing the petitioners to appear before the learned Civil Judge, Barpeta on 12.08.2013 at 10:00 am. to execute and register the Sale Deed, as per the enclosed draft, for selling the suit land in favour of the respondent herein. After receipt of the said notice, the petitioners herein had filed a petition under section 151 CPC, which was numbered as petition No. 115/2014 dated 19.09.2014. In the said petition, the petitioners had, inter-alia, taken three pleas. Firstly, it was projected that the execution case was not maintainable as the judgment debtors No.2 and 5 had died but their legal representatives were not impleaded in the execution case. Secondly, the petitioners expressed their inclination to repay Rs. In the said petition, the petitioners had, inter-alia, taken three pleas. Firstly, it was projected that the execution case was not maintainable as the judgment debtors No.2 and 5 had died but their legal representatives were not impleaded in the execution case. Secondly, the petitioners expressed their inclination to repay Rs. 1,40,400/- as the price of the decreetal land along with the cost of the suit in pursuance to the judgment dated 26.08.2014, whereby the learned trial Court had alternatively directed the defendants to pay the said amount to the respondent/decree holder if the petitioners failed to execute the registered Sale Deed in respect of the suit land. Thirdly, it was also stated that the petitioners were residing in the said land for last forty years by constructing houses thereon. The respondent herein had submitted his written objection. The learned executing court by passing the impugned order dated 09.12.2014, inter alia, held that nowhere in the judgment, the petitioners herein were given the choice through the decree that they would be absolved from liability to register the sale deed and/or to transfer the suit land by offering payment of Rs. 1,40,400/- along with the cost of the suit to the respondent herein. Accordingly, finding no merit on the petition, the same was rejected. 8. Assailing the said order, the learned counsel for the petitioners submit that the alternative prayer of the plaintiff for a decree of Rs. 1,40,400/- was allowed in terms of the second prayer made in the plaint and therefore, the said second prayer being decreed, it was open to the petitioners herein to offer the sum of Rs. 1,40,400/- to the respondent and that upon such offer been made, the continuance of execution proceedings for the execution and registration of Sale Deed decree was not maintainable. 9. It is further submitted that in the plaint, there was no prayer to direct the petitioners herein to execute a Sale Deed, and therefore, as there was no prayer in the plaint, there was no decree requiring execution and registration of the Sale Deed. Accordingly, the learned executing court ought not to have send a draft sale deed and insist of appearance of the petitioners did for executing and registering the Sale Deed. Accordingly, the learned executing court ought not to have send a draft sale deed and insist of appearance of the petitioners did for executing and registering the Sale Deed. It is submitted that there was no wrong committed by the petitioners not to execute and register the Sale Deed, as they had offered a sum of Rs. 1,40,400/- as well as cost of the suit to the respondent. Hence, it is submitted that the petitioners are not bound by the decree for specific performance of contract. In this connection, it is further submitted that there being no decree allowing the Court to execute the sale deed, the learned executing Court cannot be permitted to travel beyond the decree to register a sale deed. 10. It is submitted that as there was an alternative decree was passed for refund of Rs. 1,40,400/-, which would operate if the petitioners failed to execute the registered sale deed. It is submitted that in the appeal preferred by the petitioners, the respondent did not invoke the provisions of Order 41, Rule 33 CPC to assail that part of the judgment and decree passed by the learned trial Court, whereby on alternative remedy of receiving the said sum was allowed. In this context, it is submitted that when the petitioners are offering the decreetal sum of Rs. 1,40,400/- to the respondent No. 1 in terms of the decree, the executing Court could not have proceeded to travel beyond the decree and to direct appearance of the petitioners for registration of the sale deed in respect of the suit land. In this regard, the learned counsel for the petitioners has placed reliance on the provisions Order 2, Rule 2 CPC. By referring to the case of Oil and Natural Gas Corporation Ltd. v. Modern Construction Company, (2014) 1 SCC 648 , the learned counsel for the petitioner has submitted that it is a well settled principles of law that the executing Court cannot travel beyond the decree, as such, the learned trial court has no authority to register a sale deed. 11. Per contra, the learned counsel for the respondent has submitted that the alternative remedy as prayed for in the plaint was in consonance with the provisions of section 21 of the Specific Relief Act, 1963. 11. Per contra, the learned counsel for the respondent has submitted that the alternative remedy as prayed for in the plaint was in consonance with the provisions of section 21 of the Specific Relief Act, 1963. Further, it is submitted that this was not a case where there was any inability or failure to perform the decree, but this is a case where the petitioners have approached this Court for refusing to perform the decree for specific performance of contract. The petitioners are refusing to register the sale deed in terms of the decree which amounts to their refusal to obey the decree. It is submitted that refusal to obey the decree is totally different from "inability to perform their part of the contract", as decreed. 12. It is further submitted that if the petitioners had any grievance against the executability of the decree, they ought to be have approached the learned executing court under the relevant provisions of law. It is submitted that the provisions of section 151 CPC was not available to raise objection as regards executability of the decree. It is submitted that as there are specific provisions in CPC providing for the manner to raise objection against the executability of the decree. Therefore, it is submitted that the provisions of section 151 CPC cannot be invoked for objecting to the execution of the lawful and a valid decree. It is submitted that in terms of the provisions of Order 21, Rule 34 CPC, a notice, accompanied by draft sale deed was served on the petitioners, calling upon the petitioners to execute and register the sale deed as per the draft provided. 13. In support of his submissions, the learned counsel for the respondent placed reliance on the case of Motilal Jain v. Ramdasi Devi (Smt.) and Ors., (2000) 3 GLT (SC) 6 to project that the claim for the alternative remedy was in accordance with the provisions of section 21 of the Specific Relief Act, 1963. It is further submitted that the provision of Order 21, Rule 34 CPC was required to be followed by the learned executing court for execution and registration of sale deed under the decree. 14. It is further submitted that the provision of Order 21, Rule 34 CPC was required to be followed by the learned executing court for execution and registration of sale deed under the decree. 14. Two questions arise for determination of this Court on the basis of the submissions made by the learned counsel for both sides:- (i) Whether it was open for the petitioners herein to invoke the provisions of section 151 CPC to pray for allowing them to deposit a sum of Rs. 1,40,400/- as the price of the suit land along with the cost of the suit? (ii) Whether the order impugned herein is liable to be interfered in exercise of jurisdiction under Article 227 of the Constitution of India? 15. It is seen that in the present case, the suit of the respondent herein was decreed by the learned trial court. The said decree was upheld by the learned First Appellate Court. In order to appreciate the submissions advanced by the learned counsel for both sides, it is considered to be relevant to quote the order forming the part of the Judgment dated 26.08.2004 passed by the learned trial Court, which read as follows: "ORDER 23. In the result plaintiff's suit is decreed on contest with cost. The plaintiff is entitled for a decree of specific performance of contract and the defendants are directed to execute and registered the sale deed for land measuring 2ks. 181/2 Ls. of dag No. 620 of K.P. Patta No. 163 of village Jakhlibil Pathar in favour of plaintiff and to deliver possession of the said land to plaintiff. If the defendants failed to execute the registered sale deed for the said land mentioned above then alternatively the plaintiff is entitled for a decree of Rs. 1,40,400/- paid by the plaintiff to defendants as price of the land mentioned above and cost of the suit. 24. Prepare the decree accordingly." 16. On a perusal of the above order, the effect of the order can be comparmentalised into two parts. The first part, being for a decree for specific performance of the contract for execution and registration of the Sale Deed in respect of land measuring 2 Katha-181/2 Lecha, covered by Dag No.620 of K.P. Patta No.163 of Village Jakhlibil Pathar in favour of the respondent herein and to deliver possession of the said land to the respondent. The first part, being for a decree for specific performance of the contract for execution and registration of the Sale Deed in respect of land measuring 2 Katha-181/2 Lecha, covered by Dag No.620 of K.P. Patta No.163 of Village Jakhlibil Pathar in favour of the respondent herein and to deliver possession of the said land to the respondent. The second part of the said order is that if the defendant fails to execute the registered Sale Deed in respect of the decreetal land mentioned hereinabove, then alternatively the petitioner herein becomes entitled for the decree of Rs. 1,40,400/- to be paid by the respondents as the sale price of the suit land. 17. On perusal of the provisions of Order 21 CPC, this Court does not find any provision by virtue of which the judgment debtor gets an option from the learned executing court to execute the alternative decree passed in favour of the respondent-plaintiff. On the plain reading of the judgment and decree passed by the learned trial court, the trial court has specifically spelt out that in the event the defendants fail to execute the registered sale deed for the said land mentioned above, then alternatively, the plaintiff is entitled to a decree of Rs. 1,40,400/-. Therefore, this Court is of the considered opinion that the respondent-plaintiff had the right to choose the remedy deemed to be appropriate for his purpose. 18. It is further seen that as per the provisions of section 47 CPC, the learned executing Court is entitled to adjudicate all questions arising between the parties to the suit in which the decree was passed relating to execution, discharge or satisfaction of the decree. Therefore, in the opinion of this Court, the issue raised by the petitioners herein relates to execution, discharge and satisfaction of the decree and, as such, the questions relating to the delivery of a possession of suit land in question can be adjudicated under section 47, Explanation II(b) CPC, and therefore, such questions can only be determined by the learned executing court under section 47 CPC. 19. In view of the conclusion recorded in the preceding paragraph, this Court is inclined to hold that the petitioners were not entitled to invoke the provisions of section 151 CPC to insist that they be allowed to deposit a sum of Rs. 19. In view of the conclusion recorded in the preceding paragraph, this Court is inclined to hold that the petitioners were not entitled to invoke the provisions of section 151 CPC to insist that they be allowed to deposit a sum of Rs. 1,40,400/- as price of the suit land along with the cost of the suit to enable the respondent-decree holder to receive the same. Hence, the first point of determination is answered in the negative by holding that the provisions of section 151 CPC cannot be invoked to refuse to avoid performance of the first part of the order i.e., for specific performance of contract by executing and registering sale deed in respect of the suit land. As a corollary, in the opinion of this Court, that the second part of the order contained the judgment dated 26.08.2004, passed by the learned trial court does not give any entitlement to the petitioner to refuse to execute the sale deed and make an offer that he was ready to pay a sum of Rs. 1,40,400/- to the respondent so as to avoid performance of the decree. Hence, the first point of determination is answered against the petitioners by holding that the provisions of section 151 CPC cannot be permitted to frustrate the decree by allowing the petitioner to deposit a sum of Rs. 1,40,400/- as the price of the suit land along with the cost of the suit, and thereby not to execute the sale deed in specific performance of contract. 20. As regards, the second question of determination, two sub-issues arise herein. a. Firstly, when there is no prayer in the plaint as to how the decree is to be executed, whether the power of the executing court is circumscribed or restricted only to the prayer made in the plaint? b. The second issue is contained in the question itself, which is whether this Court is entitled to interfere with the impugned order under Article 227 of the Constitution of India? 21. In the opinion of this Court, in so far as a suit for specific performance of contract is concerned, the Civil Procedure Code provides for Form No.47 in Appendix A of CPC. The Form No.1 is a model drafting of a suit for money lent, and paragraph 6 thereof contains the prayer. 21. In the opinion of this Court, in so far as a suit for specific performance of contract is concerned, the Civil Procedure Code provides for Form No.47 in Appendix A of CPC. The Form No.1 is a model drafting of a suit for money lent, and paragraph 6 thereof contains the prayer. In Form No.47 of Appendix A, paragraph 6, which is essentially the draft form of the prayer, reads as follows:- "(Title) xxxx xxxx 6. The plaintiff claims that the Court will order the defendant specifically to perform the agreement and to do all acts necessary to put the plaintiff in full possession of the said property [or to accept a transfer and possession of the said property] and to pay the costs of the suit." 22. It appears from the above quoted form of prayer as provided in paragraph 6 of Form 47 of Appendix-A of CPC, there is no requirement that a prayer in the suit should contain about in the manner in which the executing court shall proceed for registering a sale deed for the purpose of giving effect to the decree. In the considered opinion of this Court, the learned executing court may take recourse to any of the relevant provisions of Order 21 CPC to execute a decree in such manner as may be prescribed. Therefore, this court is not inclined to accept the submissions made by the learned counsel for the petitioner that in absence of any prayer in the plaint, there was no decree for the execution and registration of sale deed by the petitioners. In the opinion of this Court, the trial court is not required to issue any direction as to how a decree is required to be executed and it is left upon to the wisdom of the learned executing court to proceed in the manner of execution in accordance with law. 23. It is too well settled that the executing court does not have the power and jurisdiction to go behind the decree. However, by issuing a notice to the petitioners, who are the judgment debtors to execute and register a sale deed in terms of the decree, cannot be said to be an act of an executing Court, travelling beyond the decree. Therefore, the learned court below did not commit any jurisdictional error in refusing to accept the sum of Rs. However, by issuing a notice to the petitioners, who are the judgment debtors to execute and register a sale deed in terms of the decree, cannot be said to be an act of an executing Court, travelling beyond the decree. Therefore, the learned court below did not commit any jurisdictional error in refusing to accept the sum of Rs. 1,40,400/- and to absolve the petitioners from executing and registering the sale deed towards performance of the decree for specific performance of contract. The notice issued to the petitioners to attend the court and to sign and register the Sale Deed is found to be in furtherance to the decree passed, which cannot be construed as if the executing court is going behind the decree. 24. Moreover, as regards the plea that on the death of judgment debtors No. 2 and 5 had died, which was recorded in the order dated 12.08.2013, the execution case was not maintainable, it is seen that T.S. No. 11/1998 was decreed on 26.08.2004. Thereafter, T.A. No. 13/2007 was dismissed on 03.07.2012. The date of death of defendants No.2 and 5 is neither disclosed in petition No.115/14 dated 19.09.2014 nor in this present application. If the said defendants had died during the pendency of the suit of the first appeal, the suit and/or the appeal would have abated. Hence, it must follow that the said defendants No. 2 and 5 had died after the appeal was dismissed. In this connection, it is seen that it is provided in the provisions of Order 22, Rule 12 CPC that Rules 3, 4 and 8 of Order 22 shall not apply to a proceeding in execution of a decree or order. Thus, the death of a judgment debtor at the execution stage does not have any adverse affect on the decree, as such, this Court is unable to accept the proposition advanced by the learned counsel for the petitioner that the execution proceeding was not maintainable on death of two judgment debtors, i.e. defendants No.2 and 5. 25. In view of the discussions above, this Court is unhesitatingly inclined to hold that the learned executing Court did not commit any jurisdictional error in dismissing petition No.115/2014 dated 19.09.2014. 25. In view of the discussions above, this Court is unhesitatingly inclined to hold that the learned executing Court did not commit any jurisdictional error in dismissing petition No.115/2014 dated 19.09.2014. It is further held that the jurisdiction of the Court under Article 227 of the Constitution of India is limited and that it can interfere with the orders of the subordinate court only if such an order is found to be vitiated by jurisdictional error. However, in this case, no jurisdictional error could be found, as such, this Court is not entitled to substitute its view upon the finding recorded by the learned trial court. Hence, the second point of the determination is answered against the petitioner. As a result, this Court does not find any merit in the present application. Accordingly, the same is dismissed. 26. The parties are left to bear their own cost. 27. The petitioners and the respondent, who are duly represented by their learned counsel are directed to appear before the learned executing court without any further notice of appearance on 18.06.2018 and by producing a certified copy of this order, the parties shall seek further instructions from the said learned trial court. 28. Send back the LCR. 29. At this stage, after the judgment was pronounced in the open court, the learned counsel for the petitioners has submitted that the quoting of the provisions of section 151 CPC may be construed to a wrong quoting of provisions of law and the said petition may be deemed to be a petition under section 47 CPC. In this connection, the learned counsel for the petitioner has placed reliance on the case of N. Mani v. Sangeetha Theatre and Ors., (2004) 12 SCC 278 . 30. In the considered view of this Court, this is not a case where the wrong provisions have been quoted by the petitioner. The petition was filed under section 151 CPC and the learned executing Court proceeded to hear the same as an application under section 151 CPC. Moreover, the learned executing Court had not dismissed the said petition on the ground that wrong provisions of law had been quoted. Therefore, neither this court, nor the learned executing court had dismissed the said petition No. 115/14 on the ground of misquoting of the provisions of law. Moreover, the learned executing Court had not dismissed the said petition on the ground that wrong provisions of law had been quoted. Therefore, neither this court, nor the learned executing court had dismissed the said petition No. 115/14 on the ground of misquoting of the provisions of law. It is while dealing with the matter that this Court had found that the provisions of Section 151 cannot be permitted to frustrate the decree. Moreover, at this revisional stage, it is not permissible to treat the petition No. 115/14 dated 19.09.2014 to be a petition filed before the learned executing Court as a petition under section 47 CPC. Hence, the said oral prayer made by the learned counsel for the petitioner to treat the petition filed under section 151 CPC to be a petition under section 47 CPC is also refused. Revision Dismissed.