Full Judgment Text
2024 INSC 329
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. OF 2024
(Arising out of SLP (Civil) No.18772 of 2014)
REHAN AHMED (D) THR. LRS. …APPELLANTS
VERSUS
AKHTAR UN NISA (D) THR.LRS. …RESPONDENTS
J U D G M E N T
VIKRAM NATH, J.
Leave granted.
2. This appeal, by the Decree Holder, assails the
correctness of the judgment and order dated
21.03.2014 passed by the Rajasthan High Court,
Jaipur Bench at Jaipur in S.B. Civil Revision Petition
No.95/2007, Smt. Akhtar Un Nisa vs. Rehan Ahmed,
Signature Not Verified
Digitally signed by
Neetu Khajuria
Date: 2024.04.22
18:33:25 IST
Reason:
whereby the revision filed under Section 115 of the
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1
Code of Civil Procedure, 1908 challenging the order of
the Executing Court dated 03.05.2007 rejecting the
objections under Section 47 CPC, has been allowed. The
order impugned therein passed by the Executing Court
was set aside and it was held that the decree dated
09.05.1979 passed by the Trial Court in Suit No.13/72
was inexecutable and a nullity and accordingly, the
objections under Section 47 CPC, were allowed.
3. The factual matrix giving rise to the present appeal is
as follows:
3.1. The dispute relates to property being Municipal Nos.52-
57, Maniharon Ka Rasta , Jaipur which was originally
owned by Ghulam Mohiuddin (Defendant No.1). An
agreement to Sell dated 04.10.1967 was executed for
sale of the suit property by Saeeduddin – Defendant
No.2 (brother of Defendant No.1) and also the power of
1
CPC
SLP(CIVIL) NO. 18772 OF 2014 Page 2 of 22
attorney of Defendant No.1, for himself and for the
principal Defendant No.1.
3.2. Pursuant to the aforesaid agreement to sell, as the
vendor was not executing the sale deed, the appellant
(plaintiff) instituted a Civil Suit for specific performance
registered as Suit No.13/72 impleading Ghulam
Mohiuddin as Defendant no.1 and Saeeduddin as
Defendant No.2. During the pendency of the Suit, the
parties entered into a compromise dated 11.05.1978
and presented the same before the Trial Court, a copy
of which is filed as Annexure P-4. The terms of the
Compromise Deed are briefly set out below:
“ANNEXURE P-4
IN THE COURT OF ADDL. DIST. JUDGE, CLASS-1,
JAIPUR CITY, JAIPUR
IN THE MATTER OF:
Rehan Ahmad S/o. Sh. Sultan Ahmad, aged about 22
years, Caste Muslim, R/o. Chaukadi Modikhana, Rasta,
Maniharan, H. No. 57, Jaipur-3
... Plaintiff
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VERSUS
1. Gulam Mohiuddin Khan, aged about 58 years S/o.
Sh. Badiuddin Khan, Caste Muslimn, R/o. Mohalla
Kamnagran, Badayun (U.P)
2. Saiduddin Khan aged about 52 years S/o. Sh.
Badiuddin Khan, Caste Muslim, R/o. House of
Abdulramham Khan, Gali Aatishbazi Rampur (U.P)
...Defendants
3. Ahsan Ahmad S/o. Sh. Sultan Ahmad aged about
32 years, Caste Muslim, R/o. Chaukadi
Modikhana, Rasta Maniharan, H.No. 57, Jaipur-3
...Pro forma Defendant
Suit for specific performance of the contract regarding
house and shop situated at Modikhana, Rasta
Maniharan, Jaipur
000
Most respectfully showeth:
In the above civil suit, a compromise has been arrived at
between the parties on under mentioned conditions,
therefore, the suit may be decreed as per the compromise.
1. That, plaintiff and defendant No.3 executed an
agreement for sale with the real brother and
general power of attorney of Def. No.2 named
Saiduddin Khan on 4.10.1967 in writing in
respect to houses and shops No. 52 to 57,
situated at Circle No.1, Chaukadi Modikhana,
Jaipur, whose full description is given under, for
a sale consideration of Rs.40,000/- in his own
capacity and in the capacity of general power of
attorney of Def. No.l, which was not accepted
earlier by the defendant No.1 and 2, but now the
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Def. No.1 admits that agreement for sale was
executed on 4.10.1967 on behalf of Def. No.2 in
his own capacity and on behalf and consent of
Def. No.1.
2. That, Def. No.l also admits that a sum of Rs.
10,000/- out of entire agreed sale consideration
was received in respect to the disputed property
on 4.10.1967 and a sum of Rs.1,000/- was
received on 1.1.69 and Rs.500/- on 22.1.69 i.e. a
total of Rs.11,500/- was received by def. No. 2 on
behalf of Def No. 1 which is liable to be adjusted
from the total consideration of the property, but
the plaintiff and defendant No.3 have alleged to
spent Rs.6,500/- in the repairing of house etc,
which amount shall not be adjusted from the sale
consideration because all these repairing and
construction was done after the above agreement
by the plaintiff and Def. No.3. besides this, the
Def. No.1 has received Rs. 1500/- on 17.10.88,
and Rs.1000/- on 24.10.77 and Rs.1000/- on
11.11.77 from the plaintiff towards the cost of this
property.
3. That, the Def. No.1 shall get executed and
registered sale-deed of the above described
houses and shops in favor of plaintiff Rehan
Ahmad till 1.7.1978 and shall receive remaining
sale consideration amount of Rs.25,000/ -. If the
Def. No. 1 fails to execute sale deed in this period
then the plaintiff Rehan Ahmad shall be entitled
to get the sale-deed executed and registered in his
favor through the Court. Entire cost of registry
would be borne equally by the plaintiff Rehan
Ahmad and Def. No.1 Gulam Mohiuddin. In this
respect when the Def. No.1 will ask for half cost
for this from the plaintiff Rehan Ahmed then the
plaintiff Rehan Ahmad shall pay the same taking
receipt from him and because of this the Def. No.1
shall not be entitled to get the period agreed for
registry extended. The def. No.1 has received
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today the half cost of registry i.e. Rs.1,000/- from
the plaintiff Rehan Ahmad. Complete
responsibility to receive N.O.C. shall be of the Def.
No.l.
4. That, Def. No.2 is residing in the third floor of
disputed property which would be got vacated by
defendant No.1 and the physical possession will
be given to the plaintiff Rehan Ahmed prior to
registration, and shall get the rent notes executed
by the tenants who are presently occupying the
disputed property in favour of Rehan Ahmed.
5. That, pro forma defendant No.3 has relinquished
his entire right in respect to the disputed property
in favor of plaintiff Rehan Ahmad on 28.6.1977
through a deed of Relinquishment, which was.
ordered by the court on 28.09.1977. Therefore,
pro forma defendant no.3 shall have no
connection now with this sale.
6. That, the. def. No.2 Saiduddin Khan, himself has
admitted that he did not have right to sell or to
execute agreement for sale of the disputed
property, but now, the defendant No.1, who is the
real owner of this disputed property, admits this
agreement, therefore, now there is no hindrance
in passing decree.
7. That, cost of this suit shall be borne by the parties
respectively.
DESCRIPTION OF PROPERTY
Pucca House comprising of three storeys and One chauk
including entire internal houses of three storevs and five
shops outside, out of which two shops are situated
towards south of Sadar Darwaja and three shops are
situated towards north of Sadar Darwaja along with
staircase adjoining the shops towards the north on which
Municipal No, written on the pole of House is 54/1 and
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Municipal Number of shops situated towards south are
52 and 53 and Municipal Number of shops situated
towards north are 55, 56 and 57, Circle 1 and no number
is assigned to the staircase i.e. entire property including
house and shops having municipal number 52 to 57,
Circle No.1 and boundaries of these houses and shops
are as under:
In East: Rasta Maniharan Government.
In west: House of Sindhi in between which littered
Government street is situated.
In north: Temple of Digambar Jain
In south: House and shops of Tirthdas Shyamiani.
Therefore, it is prayed that compromise be verified and
decree be passed in accordance with the compromise.
Applicants
Rehan Ahmad, Plaintiff
Rehan (in English)
Gulam Mohiuddin Khan, Def. No.1
sd.Ghulam mohiuddin khan (in
English)
Both Parties
Jaipur:
Date: 11.5.78”
4. In paragraph No.1 of the Compromise Deed, it is
mentioned that Defendant No.1, although had earlier
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not accepted the Agreement to Sell, now admits that the
Agreement to Sell dated 04.10.1967 was executed by
Saeeduddin–Defendant No.2, not only in his own
capacity but also on behalf of Defendant No.1 as Power
of Attorney holder. Paragraph No.2 mentions the details
of the amount received by the Defendant under the
Agreement to Sell as advance until the time the
compromise was arrived at. It would be relevant to
mention that the total sale consideration was
Rs.40,000/- out of which as per paragraph No.2 of the
Compromise Deed, Rs.15,000/- had already been
received by the Defendants. Paragraph No.3 mentions
that the Defendant No.1 will get the Sale Deed executed
and registered in favour of the Plaintiff till 01.07.1978
after receiving Rs.25,000/- of the remaining sale
consideration. It, however, mentioned that if the
Defendant No.1 does not execute the Sale Deed till
01.07.1978, the Plaintiff would be entitled to get the
SLP(CIVIL) NO. 18772 OF 2014 Page 8 of 22
Sale Deed executed and registered in his favour through
the Court. The cost of registration would be borne
equally by the Plaintiff and Defendant No.1. It was
further mentioned that Defendant No.1 had also
received half of the cost of registration from the Plaintiff
and furthermore, the responsibility to receive the NOC
would be of Defendant No.1. Paragraph No.4 mentions
that Saeeduddin–Defendant No.2 was residing on the
third floor of the suit property which Defendant No.1-
Ghulam Mohiuddin would get vacated and ensure that
physical possession is delivered to the Plaintiff-Rehan
Ahmed prior to registration. Further, the rent notes
executed by the tenants who are presently occupying
the suit property, would be executed by the tenants in
favour of Rehan Ahmed. One Ahsan Ahmed has been
impleaded as proforma defendant in respect of whom it
was stated in paragraph No.5 of the Compromise Deed
that he had relinquished his entire right to the property
SLP(CIVIL) NO. 18772 OF 2014 Page 9 of 22
in favour of the Plaintiff–Rehan Ahmed through a Deed
of Relinquishment dated 28.06.1977 which was
accepted by the Court vide order dated 28.09.1977. In
paragraph No.6 it was stated that Defendant No.2-
Saeeduddin admitted that he did not have the right to
sell or execute the Agreement to Sell but now Defendant
No.1, who was the real owner of the suit property,
admits this agreement. Therefore, there is no hindrance
in passing the compromise decree. The property was
also described in the Compromise Deed to be a pacca
house comprising of three stories and one chauk
including the entire internal houses of the three storeys
and five shops outside along with the staircase
adjoining the shops. The house was numbered as 54/1
in the municipal records, whereas the five shops were
numbered as 52, 53, 55, 56 and 57. Thus the entire
property in question including the house of the five
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shops having municipal numbers 52 to 57 (except 54),
Circle No.1.
5. The Addl.District & Sessions Judge, Court No.1, Jaipur
City, Jaipur proceeded with the compromise and
required the same to be duly verified for which due time
was granted to the parties. On 09.05.1979, initially the
suit was dismissed in the absence of the Plaintiff.
However, on the same date, upon an application being
filed, the case was again taken up on board. The Trial
Court recorded that Rehan Ahmed and that Mohiuddin
(Defendant No.1) had executed the compromise. The
Plaintiff (Rehan Ahmed) further stated that he does not
want to pursue any proceedings against Saeeduddin
and also Ahsan Ahmed-Defendant Nos.2 and 3, as such
the suit was dismissed against Saeeduddin and Ahsan
Ahmed. It was decreed against Ghulam Mohiuddin as
per the compromise. Accordingly, a decree was drawn.
As per the decree, when the defendant did not execute
SLP(CIVIL) NO. 18772 OF 2014 Page 11 of 22
the Sale Deed, the Plaintiff -Decree holder initiated the
proceedings for execution. In the execution proceedings
Defendant No.1 Ghulam Mohiuddin filed objections
stating that the Plaintiff had not paid the balance sale
consideration, and had allowed substantial time to pass
for about six to seven years, during which time the
value of the property had doubled and as such the
decree could not be executed now on account of the
default of the Plaintiff-Decree holder. These objections
were dismissed by the Executing Court by a detailed
order dated 09.12.1998 on the findings that before the
registration of the Sale Deed, Defendant No.1 was
required to fulfil his obligations which included getting
the third floor vacated, getting the NOC and also getting
the rent deeds transferred in the name of the Plaintiff.
As such there was no default on the part of the Plaintiff.
In the meantime, the Defendant No.1 Mohiuddin died.
The order dated 09.12.1998 was challenged by one
SLP(CIVIL) NO. 18772 OF 2014 Page 12 of 22
General Tariq, s/o. Defendant No.2- Saeeduddin and
legal heir of Defendant No.1 Gulam Mohiuddin,
claiming rights under a sale executed by Defendant
No.1 Mohiuddin by way of S.B.Civil Revision Petition
No.55 of 1999. The said revision came to be dismissed
by the High Court vide order dated 02.06.2006. General
Tariq preferred a Special Leave Petition before this
Court registered as S.L.P.(C) No.12463 of 2006, which
came to be dismissed by this Court vide order dated
11.08.2006. With the dismissal of the Special Leave
Petition the innings of the objections under Section 47
CPC filed by the Judgment-debtor – Defendant No.1
Mohiuddin came to an end. General Tariq, s/o.
Defendant no.2- Saeeduddin did not carry the matter
any further by way of review or otherwise before this
court. However, a new round of objections under
Section 47 CPC came to be initiated by respondent no.1
– Akhtar Un Nisa, wife of Defendant No.2-Saeeduddin
SLP(CIVIL) NO. 18772 OF 2014 Page 13 of 22
and the mother of General Tariq. The objections by
respondent No.1 Akhtar Un Nisa are to the following
effect:
I. The decree dated 09.05.1979 is without
jurisdiction and a nullity;
II. The property in the suit was a joint property of
Ghulam Mohiuddin and Saeeduddin–
Defendants No. 1 and 2 respectively;
III. The suit having been filed as against both the
brothers, the compromise deed could not have
been arrived at between the Plaintiff and
Defendant No.1 alone;
IV. The Trial Court could not have accepted the
settlement/compromise between the Plaintiff
and Defendant No.1 regarding Defendant No.2
vacating the third story of the house in question
and the rent notes being transferred in favour
of the plaintiff.
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V. Since there was no decree against Saeeduddin,
as such Decree holder could not have any right
of getting possession of the portion of the
property which was admittedly in possession of
Saeeduddin and owner. Further, the tenants of
Saeeduddin in the disputed property were
tenants of the applicant-objector Akhtar Un
Nisa-respondent no.1.
6. The Executing Court, vide judgment and order dated
03.05.2007, dismissed the objections under Section 47
CPC filed by Smt.Akhtar Un Nisa.
7. Aggrieved by the same, Smt.Akhtar Un Nisa preferred a
revision before the High Court which has since been
allowed by the impugned order giving rise to the present
appeal.
8. After careful consideration of the arguments presented
by both sides, this Court believes that the High Court
erred in setting aside the Executing Court's order dated
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09.12.1998 and in declaring the Trial Court's decree
dated 09.05.1979 void. The High Court's decision
appears to be based on several incorrect assumptions
and observations.
9. The core of the High Court's reasoning rests on the
erroneous assumption that the property was jointly
owned by Defendants No. 1 and No. 2, and that the
absence of Defendant No. 2's signature on the
compromise dated 11.05.1978 invalidated the decree.
However, Defendant No. 2 has consistently
acknowledged that he had no ownership rights over the
property. In his written statement to the Trial Court in
Suit No. 13/72, he explicitly stated that the property
belonged solely to Defendant No. 1. This was further
supported by a family arrangement dated 17.09.1976
and reinforced in Paragraph 6 of the compromise deed.
The compromise, signed by Defendant No. 1 and the
plaintiff and later verified by Defendant No. 2 through
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an application dated 14.05.1979, substantiates that
Defendant No. 1 was the sole owner. These facts were
upheld by the High Court and this Court in previous
proceedings. During the challenge to the execution
proceedings filed by General Tarik before the High
Court, the High Court vide order dated 11.8.2006 had
also recorded the finding that Defendant no.2 did not
have ownership rights over the suit property which fact
was also upheld by this Court. Defendant no. 2 had
limited rights of being in possession of the third floor of
suit property. Due to the aforesaid reasons, the Plaintiff
and Defendant no. 1 were the only necessary parties
needed for the compromise dated 11.05.1978 as
Defendant no.1 was the sole owner of the suit property.
10. The High Court also incorrectly held that the provisions
of Order XXIII, Rule 3 of the CPC were not adhered to,
claiming that the Trial Court failed to properly verify the
compromise. It is essential to clarify that the
SLP(CIVIL) NO. 18772 OF 2014 Page 17 of 22
compromise was indeed reached on 11.05.1978, with
its verification delayed due to various adjournments
caused by the absence or illness of Defendant No.1 and
other procedural delays. On 09.05.1979, a fresh
compromise application containing identical terms was
submitted and duly signed by both parties due to the
original being misplaced. The Trial Court then correctly
recorded and verified this compromise, fulfilling the
requirements of Order XXIII, Rule 3 of the CPC.
11. It must be made clear that the compromise between the
Plaintiff and Defendant no. 1 was arrived on 11.05.1978
and it was only the procedural requirements of Order
XXIII Rule 3 of verifying and the compromise before the
Court which were eventually completed on 09.05.1979.
A perusal of the record of proceedings before the Trial
Court reveals that verification of the terms of the
compromise was attempted on 11.05.1978 but was not
possible as Defendant No.1 was not present. Moreover,
SLP(CIVIL) NO. 18772 OF 2014 Page 18 of 22
on subsequent dates being 11.5.1978, 24.07.1978,
31.01.1979 and 20.03.1979, either due to the illness of
Defendant no.1 or due to the Presiding Officer not being
present, there were various adjournments before the
Trial Court. Finally, on 09.05.1979, Gulam Mohiuddin
appeared before the Court and the parties submitted a
fresh compromise application was filed because the
earlier compromise application submitted on 11-05-
1978 was not traceable on the record of the Court
containing the same terms and conditions as in the
compromise application earlier filed on 11.05.1978. The
said application was also duly signed by both the
parties. On the basis of the said compromise presented
on 09.05.1979, the Trial Court took the compromise
application on record, verified the fresh compromise
application fulfilling all the terms and conditions of
Order XXIII Rule 3 CPC. The terms and conditions of
the compromise were read over to the parties and were
SLP(CIVIL) NO. 18772 OF 2014 Page 19 of 22
accepted by them and the signatures of the parities
were taken on the compromise application by the Court
and thereafter the Court recorded its satisfaction on the
compromise application, which is on the record of the
Trial Court. The decree dated 09.05.1979 was passed
based on this compromise.
12. As far as the terms of the compromise are concerned,
which have also been questioned by the High Court, the
agreement stipulated that Defendant No. 1 was to
execute and register the sale deed in favor of the
plaintiff by 01.07.1978, after receiving balance
payment of Rs 25,000/-. The decree's execution was
contingent upon Defendant No. 1 fulfilling conditions
such as obtaining the NOC and ensuring Defendant No.
2 vacating the portion of the property in question in his
possession. The recording of the compromise and the
consequent decree on 09.05.1979, although appearing
SLP(CIVIL) NO. 18772 OF 2014 Page 20 of 22
procedurally delayed, adhered to the process required
under CPC.
13. Furthermore, the High Court overlooked the fact that
General Tarik, legal heir of Defendant No. 2, had
previously objected to the execution proceedings, which
was dismissed on 09.12.1988. Subsequent appeals
before the High Court, including a Special Leave
Petition to this Court, were also dismissed. Therefore,
similar objections by Respondent No. 1, Smt. Akhtar Un
Nisa, in her capacity as one of the legal heirs of
Defendant No. 2 would not be maintainable and would
amount to abuse of process of law.
14. In light of the reasons recorded above, this Court finds
merit in the appellant-plaintiff’s argument and holds
that the Executing Court had rightly rejected the
objections under Section 47 CPC filed by Smt.Akhtar
Un Nisa vide order 03.05.2007.
SLP(CIVIL) NO. 18772 OF 2014 Page 21 of 22
15. Accordingly, the appeal is allowed. The impugned
judgement of the High Court is set aside, and the
Executing Court's order dated 03.05.2007 is restored
and the objections of Respondent no.1 under Section 47
of the CPC stand rejected.
16. There shall, however, be no order as to costs.
………………………………..……J
(VIKRAM NATH)
………………………………..……J
(SATISH CHANDRA SHARMA)
NEW DELHI
APRIL 22, 2024
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