Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No.5534 OF 2019
(Arising out of S.L.P.(C) No.3053 of 2019)
Sir Sobha Singh And Sons Pvt. Ltd. ….Appellant(s)
VERSUS
Shashi Mohan Kapur(Deceased)
Thr. L.R. ….Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.
1. Leave granted.
2. This appeal is filed against the final judgment
and order dated 31.10.2018 passed by the High
Court of Delhi at New Delhi in Ex.F.A. No.42 of
Signature Not Verified
Digitally signed by
ASHOK RAJ SINGH
Date: 2019.07.15
16:53:50 IST
Reason:
2018 whereby the High Court allowed the appeal
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filed by the respondent herein and set aside the
order dated 22.10.2018 passed by the ADJ02 &
Waqf Tribunal, New Delhi District, New Delhi in
Execution No.5665 of 2016.
3. A few facts need mention hereinbelow for the
disposal of this appeal, which involves a short point.
4. The appellant is the plaintiff/decree holder
and the respondent is the defendant/judgment
debtor.
5. The dispute arises out of the execution
proceedings and it emanates from Civil Suit No.
369/2009 (new No.675/2009) decided on
01.06.2012.
6. The appellant is the landlord of a FlatG81,
IInd floor along with one Servant Quarter J362,
IIIrd floor situated at Sujan Singh Park, New Delhi
(hereinafter referred to as "suit house”).
7. The appellant let out the suit house to the
father of the original respondentLate Mr. R.L.
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Kapur as back as in 1959. The appellant, however,
determined the tenancy by serving a quit notice to
Mr. R.L. Kapur on 21.12.2004. Mr. R.L. Kapur died
on 13.07.2007 leaving behind the respondent as his
legal representative.
8. The appellant served another quit notice dated
16.01.2009 to the respondent and called upon him
to vacate the suit house. Since the respondent failed
to vacate the suit house, the appellant was
constrained to file Civil Suit in 2009 (Old
No.369/2009 new number 675/2009) against the
respondent in the Court of ADJ for his eviction from
the suit house and the mesne profits .
9. The respondent, after entering his appearance
in the suit, did not contest it and compromised the
matter with the appellant. It was agreed that the
respondent (tenant) would hand over the vacant
possession of the suit house on or before
31.05.2016 to the appellant; Second, the
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respondent would pay a sum of Rs.5,000/ per
month towards user charges w.e.f. 01.06.2012 till
the date of handing over of the suit house to the
appellant; and third, the respondent would not
sublet or create any third party rights in the suit
house.
10. The Trial Court recorded the statement of the
parties and accordingly disposed of the civil suit in
terms of the aforementioned compromise by its
judgment dated 01.06.2012 which reads as under:
"With judicial intervention, the dispute
between the parties has been amicably
settled. It is agreed that defendant shall
vacate and hand over the vacant and peaceful
possession of the suit property, i.e., Flat
No.G81, IInd floor and servant quarter No.J
362, IIIrd floor, Sujan Singh Park, New Delhi,
as shown in the site plans already exhibited
as Ex.PW1/14 and Ex.PW 1/15, to the
plaintiff on or before 31.05.2016. Defendant
also undertakes to pay the user charges of
the suit property at the rate of Rs.5000/ per
month w.e.f. 01.06.2012 to the plaintiff
regularly till the date of handing over of the
suit property to the plaintiff. Defendant also
undertakes not to sublet or create any third
party interest in the suit property.
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It is prayed that the case may be disposed off
as compromised.
Statements of Brig. Gurbax Singh and Mr.
Shashi Mohan Kapur have been separately
recorded and they have been identified by
their respective counsel.
Heard Perused. Considered.
It appears that the statements have been
made voluntarily and are accepted.
Both the sides shall remain bound by their
respective statements.
In view of the submissions made as well as
the statements of both the sides, the case is
hereby disposed off as compromised.
Attested copies of the order be given to both
the sides, dasti, as requested.
After completion of the formalities, file be
consigned to record room."
11. On 27.05.2016, the respondent filed an
application under Section 148 read with Section
151 of the Code of Civil Procedure, 1908 (hereinafter
referred to as “the Code”) and prayed therein for
extension of time to vacate the suit house. The
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extension to vacate the suit house was sought on
medical grounds.
12. By order dated 09.06.2016, the Trial Court
allowed the said application and granted time to the
respondent till 15.07.2016 to vacate the suit house.
The respondent was also directed to clear the
arrears of rent.
13. Instead of vacating the suit house on
15.07.2016, the respondent filed another
application on 18.07.2016 and further sought time
to vacate the suit house. The Trial Court, by order
dated 08.08.2016, dismissed this application and
declined to extend the time to vacate the suit house.
As a result of the dismissal of this application, the
respondent was under a legal obligation to vacate
the suit house immediately.
14. Since the respondent failed to vacate the suit
house, the appellant was constrained to file
Execution Petition (5655/2016) in the Executing
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Court for execution of the consent decree dated
01.06.2012 against the respondent for obtaining
vacant possession of the suit house.
15. The Executing Court, by order dated
30.09.2016, issued a warrant of possession against
the respondent/Judgment debtor in respect of suit
house. Since the respondent obstructed the
execution of decree, the appellant applied to the
Executing Court for providing him the police
assistance for obtaining possession of the suit
house from the respondent. In the meantime, the
Judgment debtor died leaving behind the present
respondent as legal representative of the original
tenant.
16. On 18.10.2016 and 23.07.2018, the respondent
herein filed four applications. One was under Order
47 read with Sections 114 and 151 of the Code for
review of the order; Second was under Sections 47
& 151 read with Order 21 Rules 11(2) and 26 of the
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Code; Third was under Order 47 read with Sections
114 and 151 of the Code; and Fourth was under
Section 151 of the Code. One application was filed
by one Mr. Manmohan Kapur under Order 1 Rule
10 of the Code.
17. These applications were filed to challenge the
executability of the consent order dated 01.06.2012
itself as being null and void. The respondent, in
these applications, raised essentially the following
three grounds.
18. The first ground was that the appellant
obtained the consent order dated 01.06.2012 by
concealing the material facts from the respondent
which, according to him, was in the nature of fraud.
The second ground was that no decree was drawn
by the Trial Court after passing the consent order
dated 01.06.2012; and the third ground was that
the suit in which the consent order dated
01.06.2012 was passed was not maintainable in
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view of Section 50 of the Delhi Rent Control Act. The
appellant filed his reply to the aforementioned
applications denying all the three grounds raised by
the respondent.
19. By order dated 22.10.2018, the Executing
Court dismissed the applications filed by the
respondent (Judgment debtor). The Executing Court
held that the respondent was indulging in delaying
tactics only to avoid the execution of the consent
order dated 01.06.2012. The Executing Court dealt
with each objection raised by the respondent and
found no merit in any of them. The Executing Court
held that the respondent having taken time twice to
vacate the suit house did not honor the orders of
the Court and, therefore, while dismissing his
applications and the application of one Mr.
Manomohan Kapur imposed a cost of Rs. 5 lakhs
upon each of them with a direction to pay 50% to
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the appellant and remaining 50% to the Delhi Legal
Services Authority.
20. The respondent felt aggrieved and filed first
appeal before the Delhi High Court. By impugned
order, the High Court allowed the appeal and set
aside the order dated 22.10.2018 passed by the
Executing Court. The High Court held that since the
Trial Court did not draw up the formal decree after
passing the consent order on 01.06.2012, the
Execution Petition filed by the appellant (decree
holder) is not maintainable. The High Court,
however, granted liberty to the appellant (decree
holder) to apply to the Trial Court under Section
152 of the Code for drawing up a decree in terms of
the consent order dated 01.06.2012. The appellant
(decree holder) felt aggrieved by this order of the
High Court and has filed the present appeal by way
of special leave in this Court.
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21. So, the short question, which arises for
consideration in this appeal is whether the High
Court was justified in allowing the respondent's
(Judgment Debtor’s) appeal and thereby was
justified in holding that the Execution Petition filed
by the appellant (5655/2016) was not maintainable
for want of formal decree not being drawn up by the
Court after passing of the order dated 01.06.2012.
22. Heard Mr. Huzefa Ahmadi, learned senior
counsel, for the appellant and Ms. Aishwarya Bhati,
learned senior counsel, for the respondent.
23. Having heard the learned senior counsel for
the parties and on perusal of the record of the case,
we are inclined to allow the appeal, set aside the
impugned order and restore the order of the Trial
Court with modification as indicated below.
24. In our opinion, the High Court was not right
in holding that in the absence of a formal decree not
being drawn or/and filed, the appellant (decree
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holder) had no right to file the Execution petition on
the strength of the consent order dated 01.06.2012.
This finding of the High Court, in our view, is not
legally sustainable for the reasons set out
hereinbelow.
25. The issue in this case is required to be decided
in the light of Order 20 Rule 6, Order 20 Rule 6A,
Order 20 Rule 7, Order 21 Rules 11(2) & (3) and
Order 23 Rule 3 of the Code. These provisions read
as under:
“Order 20 Rule 6
Contents of decree. (1) The decree shall agree
with the judgment; it shall contain the number
of the suit, the names and descriptions of the
parties, their registered addresses, and
particulars of the claim, and shall specify
clearly the relief granted or other
determination of the suit.
(2) The decree shall also state the amount of
costs incurred in the suit, and by whom or out
of what property and in what proportions such
costs are to be paid.
(3) The Court may direct that the costs payable
to one party by the other shall be set off
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against any sum which is admitted or found to
be due from the former to the latter.
Order 20 Rule 6A
Preparation of decree. (1) Every endeavour
shall be made to ensure that the decree is
drawn up as expeditiously as possible, and, in
any case, within fifteen days from the date on
which the judgment is pronounced.
(2) An appeal may be preferred against the
decree without filing a copy of the decree and
in such a case the copy made available to the
party by the Court shall, for the purposes of
rule 1 of Order XLI, be treated as the decree.
But as soon as the decree is drawn, the
judgment shall cease to have the effect of a
decree for the purposes of execution or for any
other purpose.
Order 20 Rule 7
Date of decree The decree shall bear date the
day on which the judgment was pronounced,
and, when the Judge has satisfied himself that
the decree has been drawn up in accordance
with the judgment, he shall sign the decree.
Order 21 Rule 11(2)
Written application—Save as otherwise
provided by subrule(1), every application for
the execution of a decree shall be in writing,
signed and verified by the applicant or by
some other person proved to the satisfaction
of the Court to be acquainted with the facts of
the case, and shall contain in a tabular form
the following particulars, namely—
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(a) the number of the suit;
(b) the names of the parties;
(c) the date of the decree;
(d) whether any appeal has been preferred from
the decree;
(e) whether any, and (if any) what, payment or
other adjustment of the matter in controversy
has been made between the parties
subsequently to the decree;
(f) whether any, and (if any) what, previous
applications have been made for the execution
of the decree, the dates of such applications
and their results;
(g) the amount with interest (if any) due upon
the decree, or other relief granted thereby,
together with particulars of any crossdecree,
whether passed before or after the date of the
decree sought to be executed;
(h) the amount of the costs (if any) awarded;
(i) the name of the person against whom
execution of the decree is sought; and
(j) the mode in which the assistance of the
Court is required whether—
(i) by the delivery of any property specifically
decreed;
[(ii) by the attachment, or by the attachment
and sale, or by the sale without attachment, of
any property;
(iii) by the arrest and detention in prison of
any person;
(iv) by the appointment of a receiver;
(v) otherwise, as the nature of the relief
granted may require.
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Order 21 Rule 11 (3)
The Court to which an application is made
under subrule (2) may require the applicant to
produce a certified copy of the decree.
Order 23 Rule 3
Compromise of suit— Where it is proved to the
satisfaction of the Court that a suit has been
adjusted wholly or in part by any lawful
agreement or compromise in writing and
signed by the parties or where the defendant
satisfies the plaintiff in respect of the whole or
any part of the subjectmatter of the suit, the
Court shall order such agreement, compromise
satisfaction to be recorded, and shall pass a
decree in accordance therewith so far as it
relates to the parties to the suit, whether or
not the subjectmatter of the agreement,
compromise or satisfaction is the same as the
subjectmatter of the suit.”
26. Order 20 Rule 6 of the Code deals with
contents of decree and provides that the decree
shall agree with the judgment, it shall contain the
number of the suit, the names and descriptions of
the parties, their registered addresses and
particulars of claim, relief granted or any other
determination made in the suit, amount of costs
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incurred in the suit, and by whom or out of what
property and in what proportions, the cost to be
paid. Rule 6A deals with the preparation of decree.
It says that every endeavor shall be made to ensure
that the decree is drawn up as expeditiously as
possible and, in any case, within fifteen days from
the date on which the judgment is pronounced.
Rule 6A (2) of Order 20 of the Code says that an
appeal may be preferred against the decree without
filing a copy of the decree and in such a case the
copy made available to the party by the Court shall
for the purposes of Rule 1 of Order 41 be treated as
the decree but as soon as the decree is drawn, the
judgment shall cease to have the effect of a decree
for the purposes of execution or for any other
purpose.
27. In our considered opinion, though Rule 6A (2)
of Order 20 of the Code deals with the filing of the
appeal without enclosing the copy of the decree
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along with the judgment and further provides the
consequence of not drawing up the decree yet, in
our opinion, the principle underlined in Rule 6A(2)
can be made applicable also to filing of the
execution application under Order 21 Rule 2 of the
Code.
28. Order 20 Rule 7 deals with the date of decree.
It says that the decree shall bear date the day on
which the judgment was pronounced and when the
judge has satisfied himself that the decree has been
drawn up in accordance with the judgment, he shall
sign the decree.
29. Order 21 Rule 11(2) of the Code, which deals
with the execution of the decree, provides that the
decree holder is only required to give details of the
judgment and the decree in the execution
application along with other details [see clauses (a)
to (j)].
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30. Similarly, Order 21 Rule 11(3) of the Code
makes it clear that the Court "may" require the
decree holder to produce a certified copy of the
decree. This clearly indicates that it is not necessary
to file a copy of the decree along with execution
application unless the Court directs the decree
holder to file a certified copy of the decree.
31. The aforesaid discussion, therefore, leads us to
a conclusion that as and when the decree holder
files an application for execution of any decree, he is
required to ensure compliance of three things.
32. First, the written application filed under Order
21 Rules 10 and 11 (2) of the Code must be duly
signed and verified by the applicant or any person,
who is acquainted with the facts of the case, to the
satisfaction of the Court; Second, the application
must contain the details, which are specified in
clauses (a) to (j) of Rule 11(2) of the Code, which
include mentioning of the date of the judgment and
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the decree; and Third, filing of the certified copy of
the decree, if the Court requires the decree holder to
file it under Order 21 Rule 11(3) of the Code.
33. This takes us to deal with next point urged by
the learned senior counsel for the appellant.
According to learned counsel, the order dated
01.06.2012 itself is capable of being executable by
virtue of Section 36 of the Code and, therefore, the
High Court was not right in holding that the decree
was required to be drawn.
34. The argument is not acceptable for more than
one reason. True it is that there are some orders,
which are in the nature of decree and thus capable
of being executed as such but the question, which
arises for consideration in this case, is whether the
order passed under Order 23 Rule 3 of the Code is
such an order. In our opinion, it is not.
35. First, the language of Order 23 Rule 3 of the
Code does not admit passing of an order of the
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nature urged by the learned senior counsel for
appellant; Second, the expression "the court shall
order such agreement, compromise or satisfaction
to be recorded and shall pass a decree in
accordance therewith" occurring in Order 23 Rule 3
of the Code, in clear terms, suggests that it is
necessary after recording the compromise in the
order to further pass a decree in accordance
therewith.
36. In other words, the expression "and shall pass
a decree in accordance therewith" is a clear
indication that after the compromise is recorded by
the Court, it shall proceed to "pass a decree". So,
the rule contemplates, first an order recording of the
compromise and then simultaneously pass a decree
in accordance with the order.
37. In the light of the clear language of Order 23
Rule 3 of the Code, it is not possible to accept the
submission of learned senior counsel for the
20
appellant that the order dated 01.06.2012 itself
amounts to a decree and, therefore, it is not
necessary for the Court to pass a decree. Had this
been the intention, the legislature would not have
used the expression "and shall pass a decree in
accordance therewith" in Order 23 Rule 3 of the
Code.
38. This takes us to examine the next question
though not decided by the High Court on merits.
39. As mentioned above, the Executing Court
dismissed the applications filed by the respondent
with a cost of Rs. 5 lakhs which resulted in
issuance of warrant of possession of the suit house.
The High Court, by impugned order, set aside the
order of the Executing Court and dismissed the
execution application as being not maintainable.
The High Court, however, did not then consider it
necessary to examine the question as to whether
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the Executing Court was right in rejecting the
respondent’s applications.
40. We have, therefore, perused the order of the
Executing Court. Having perused it, we are of the
considered view that the Executing Court was right
in rejecting the objections raised by the respondent
in his applications and, therefore, find no good
ground to interfere in those findings of the
Executing Court.
41. In our view, all the objections raised by the
respondent were frivolous and were raised only with
a view to avoid execution of the compromise decree.
None of the objections raised by the respondent
could be gone into after consent order had been
passed. In any event, none of the objections raised
by the respondent had any substance on merits and
were, therefore, rightly rejected by the Executing
Court to which we concur. In our view, the
respondent having taken time twice to vacate the
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suit house and yet not adhering to the undertaking
given, this Court cannot countenance such conduct
of the respondent. It is reprehensible.
42. This takes us to examine the next question,
namely, what is the effect of not filing the copy of
the decree along with the execution application filed
by the appellant. In our view, even though the
appellant did not file the certified copy of the decree
along with the execution application for the reason
that the same was not passed by the Court, yet the
execution application filed by the appellant, in our
view, was maintainable. Indeed, so long as the
formal decree was not passed, the order dated
01.06.2012 was to be treated as a decree during the
interregnum period by virtue of Order 20 Rule 6A (2)
of the Code. In other words, notwithstanding the
fact that the decree had not been passed, yet by
virtue of principle underlined in Order 20 Rule 6A(2)
of the Code, the order dated 01.06.2012 had the
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effect of a decree till the date of actual passing of
the decree by the Court for the purposes of
execution or for any other purpose. This empowered
the Executing Court to entertain the execution
application and decide the objections raised by the
respondent on merits.
43. This takes us to examine the last point as to
whether the High Court was justified in directing
the appellant to apply under Section 152 of the
Code for drawing a decree.
44. In our opinion, though the High Court was
right in directing the appellant to apply to the Court
for drawing a decree, but was not right in directing
to apply under Section 152 of the Code.
45. Section 152 of the Code deals with the
amendment of judgments, decrees or orders. It
provides that any clerical or arithmetical mistakes
in the judgments, decrees or orders or errors arising
therein from any accidental slip or omission may at
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any time be corrected by the Court either of its own
motion or on the application of any of the parties.
Order 20 Rule 3 also provides that judgment can be
altered or added either under Section 152 or in
review.
46. In our opinion, in order to invoke the powers
under Section 152 of the Code, two conditions must
be present. First, there has to be a judgment or
decree or an order, as the case may be, and second,
the judgment or decree or order, as the case may
be, must contain any clerical or arithmetical error
for its rectification. In other words, Section 152 of
the Code contemplates that the Court has passed
the judgment, decree or the order and the same
contains clerical or arithmetical error.
47. Any party to such judgment, decree or order,
as the case may be, has a right to apply at any time
under Section 152 of the Code to the concerned
Court for rectification of any arithmetical or/and
25
clerical error in the judgment, decree or the order,
as the case may be.
48. In the case at hand, we find that the Court,
which disposed of the suit, did not draw the decree
but only passed the order. In such a situation, the
decree holder was required to file an application
under Section 151 read with Order 20 Rule 6A of
the Code to the Court for drawing a decree in
accordance with the order dated 01.06.2012.
Indeed, we find in the concluding para of the order
dated 01.06.2018 that the Court has already
directed to ensure compliance of the formalities. It
would have been, therefore, proper in such
circumstances for the Court to simultaneously draw
a decree the same day itself or in any event within
15 days as provided in Order 20 Rule 6A.
49. Be that as it may, this being a procedural
matter, even if it was not done, yet the same could
be done by the Court at the instance of the
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appellant (decree holder) applying for drawing up a
decree after filing of the execution application.
50. This takes us to examine the last question as
to whether the Executing Court was right in
imposing a cost of Rs.5 lakhs on the respondent for
filing applications raising therein frivolous
objections to avoid execution of the decree against
them. As mentioned above, the Executing Court
while rejecting the respondent’s objection imposed a
compensatory cost of Rs.5 lakhs on the respondent.
In our view, though we find that it is a fit case for
imposition of cost but imposition of cost of Rs.5
Lakhs is excessive.
51. Having regard to all facts and circumstances of
the case which we have discussed above, we
consider it just and proper to impose a
compensatory cost of Rs. 50,000/ on the
respondent under Section 35A of the Code. Let it
27
be paid by the respondent to the appellant within
one month from the date of this order.
52. We are, therefore, of the considered opinion
that the High Court was not right in holding that
the execution petition itself is not maintainable. The
High Court though was right in directing the
appellant to apply to the concerned Court for
drawing up a decree but the High Court was not
right in directing the appellant to apply it under
Section 152 of the Code.
53. In view of the foregoing discussion, we hold
that the execution petition filed by the appellant is
maintainable and was, therefore, rightly allowed by
the Executing Court by rejecting the objections
raised by the respondent except with two
modifications indicated above.
54. The appellant is hereby granted two weeks’
time to apply under Section 151 read with Order 20
Rule 6(A) of the Code to the concerned Court with a
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prayer for passing a decree in accordance with the
order dated 01.06.2012 passed under Order 23
Rule 3 of the Code. In the peculiar circumstance of
this case, we would expect the Court concerned to
pass and draw the decree without any delay and, in
any case, within one week of moving of the
application by the appellant. It is also made clear
that such act of passing and drawing up the decree
being formal in nature, no objection or dispute in
that regard is to be entertained by any Court. Once
the decree is drawn and its details are specified in
the execution application as provided under Order
21 Rule 11 (2)(c) and the certified copy of the decree
is filed, if required by the Court, in terms of Order
21 Rule 11(3) of the Code, the order of the
Executing Court dated 22.10.2018 with the above
modification regarding payment of costs amount will
be given effect to against the respondent.
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55. Let the aforementioned procedural proceedings
be completed within the time framed by the
concerned Court. The respondent is, however,
granted one month’s time to vacate the suit house
after completion of the procedural formalities by the
concerned Court after making payment of all
arrears of rent till the date of delivery of possession
of suit house to the appellant.
56. In view of the foregoing discussion, the appeal
succeeds and is accordingly allowed. The impugned
order is set aside whereas the order of the
Executing Court is modified to the extent indicated
above.
.………...................................J.
[ABHAY MANOHAR SAPRE]
…...……..................................J.
[DINESH MAHESHWARI]
New Delhi;
July 15, 2019
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