Govindram vs Nagar Palika Parishad Mandsaur

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1 CR-593-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE

BEFORE
HON'BLE SHRI JUSTICE VINAY SARAF
CIVIL REVISION No. 593 of 2024
CNR No.: MPHC020237022024
GOVINDRAM
Versus
NAGAR PALIKA PARISHAD MANDSAUR
Appearance:
Shri Mangesh Bhachawat - Advocate for the petitioner.
Shri Veer Kumar Jain - Senior Advocate alongwith Shri Vinay
Vijayvargiya - Advocate for the respondent.
Reserved on : 07.10.2026
Delivered on : 23.10.2026
ORDER
This civil revision petition has been preferred under Section 115 of
the Code of Civil Procedure, 1908 (hereinafter referred as "CPC") impugning
order dated 09.05.2024 passed by Second Civil Judge, Junior Division,
Mandsaur in Execution Case No. 24-A/2019, whereby the objection raised
by the petitioner regarding the executability of the decree of declaration were
rejected by the Executing Court.
2. The facts suffice for disposal of the present petition in nutshell are
that the petitioner filed a suit for declaration against the Nagar Palika
Parishad, Mandsaur in respect of House No. 60, Janta Market, Kalakhet,
Gautam Nagar, Mandsaur seeking decree of declaration to the effect that the
name of the petitioner / plaintiff (hereinafter referred to as "plaintiff") be
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recorded in the property register in respect of the suit property as occupier

and tax payer. The further relief of declaration was sought that the
respondent / defendant (hereinafter referred to as "defendant") Nagar Palika
Parishad has no right to raise any dispute in respect of the said property. The
defendant appeared in the case and raised the objection that the plaintiff has
not paid the deficit development tax and compounding fees for raising the
construction without permission, though the plaintiff is liable to pay,
therefore, the diversion order passed by the Sub Divisional Officer is also
liable to be cancelled and the plaintiff is not entitled to record his name in the
property tax register as occupier and tax payer.
3. The Second Additional Judge to First Civil Judge, Class-II,
Mandsaur in Civil Suit No. 50-A/2011, by judgment and decree dated
18.05.2012 dismissed the suit by holding that without making the payment
of the development tax and the compounding fees, the plaintiff is not entitled
to record his name as occupier and tax payer in the property tax register
maintained by the defendant. The judgment and decree passed by the trial
Court were challenged by the plaintiff in RCSA No. 20-A/2012 before
Second Additional Judge to the Court of First District Judge, Mandsaur,
which was decided by the judgment dated 17.09.2012 and the First Appellate
Court reversed the judgment passed by the trial Court and partly allowed the
appeal by passing the decree of declaration that plaintiff is entitled to record
his name in the property tax register maintained by the defendant in respect
of House No. 60, Janta Market, Kalakhet, Gautam Nagar, Mandsaur as
occupier and tax payer. At the same time, the Appellate Court passed the
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decree that defendant Nagar Palika is also entitled to get the balance

development tax and compounding fees for raising construction without
permission from the plaintiff. The judgment and decree passed by the First
Appellate Court were not assailed by any of the parties and, thus, attained the
finality.
4. The plaintiff filed execution petition and the Municipal Council
recorded the name of the plaintiff in the property tax register as occupier and
tax payer, however, the plaintiff did not pay the balance development tax and
compounding fees for raising construction without sanction map and, thus,
an Execution Petition No. 24/2019 has been preferred by the defendant /
respondent before Second Civil Judge, Junior Division, Mandsaur for
executing the part of the decree of declaration and for recovery of the
amount of Rs. 1,18,54,484/- from the plaintiff. The plaintiff raised the
objection that no counter claim was filed by the defendant in the suit and the
First Appellate Court has only passed the decree of declaration in favour of
the defendant that the defendant is entitled to get the amount of balance
development tax and compounding fees from the plaintiff and thus, the
decree of mere declaration is not executable. The plaintiff prayed for
dismissal of the execution petition.
5. The Executing Court, by impugned order dated 09.05.2024, rejected
the objections raised by the plaintiff on the ground that the First Appellate
Court, by judgment dated 17.09.2012, passed the decree in favour of the
plaintiff that he is entitled for recording his name in the property tax register
maintained by the Municipal Council as occupier and tax payer in respect of
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suit House No. 60, Janta Market, Kalakhet, Gautam Nagar, Mandsaur and

the declaratory decree has also been passed in favour of Municipal Council
that Municipal Council is entitled to get the amount of balance development
tax and compounding fees for raising construction without permission and,
thus the Appellate Court has passed the decree for payment of balance
development tax and compounding fees and, consequently, the objections are
not sustainable and the objections have been rejected by the Executing
Court. However, direction was issued to the Municipal Council to submit the
calculation before the Court to satisfy that how the amount of Rs.
1,18,54,484/- is recoverable from the plaintiff.
6. The plaintiff has preferred this revision petition impugning the order
dated 09.05.2024 on various grounds inter alia that the Executing Court has
committed error in holding that the Municipal Council is entitled to receive
the amount of balance development tax and compounding fees from the
plaintiff in the absence of any executable decree passed by the Appellate
Court.
7. Shri Mangesh Bhachawat, learned counsel appearing on behalf of
the petitioner / plaintiff argued that no decree for recovery of any specific
sum was passed by the First Appellate Court and only the decree of
declaration has been passed by the First Appellate Court, therefore, the
Executing Court has committed error in holding that the direction for
payment of balance development tax and compounding tax can be issued.
The execution has been filed for issuance of recovery warrant of Rs.
1,18,54,484/-, which cannot be issued in the absence of any executable
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decree. Mr. Bhachawat further submits that the Executing Court has no

jurisdiction to call for the accounts or particulars and adjudicate in the
execution proceedings that how much amount is outstanding under the head
of compounding fees and balance development tax. He submits that the
defendant / respondent neither raised any counter claim in the suit nor paid
any court fees, therefore, no decree of recovery was passed in favour of the
defendant and now, Executing Court cannot issue a recovery warrant in the
case by travelling behind the decree. The decree is not executable at all and
the execution petition is liable to be dismissed.
8. Mr. Bhachawat relied on the judgment delivered by the Supreme
Court in The State of Punjab v/s Buta Singh, 1995 Supp (3) SCC 684 ,
wherein the Supreme Court has held that in execution of a decree for a mere
declaration, the Executing Court cannot direct recovery of any amount from
the judgment debtor and the Executing Court had no jurisdiction to direct the
recovery of any amount, which was not granted by the decree of mere
declaration. The Supreme Court has further held that the order of the
Executing Court being without jurisdiction and thus, no recovery order could
be passed by the Executing Court. He further relied on the judgment
delivered by the Supreme Court in the matter of State of Madhya Pradesh v/s
Mangilal Sharma, 1998 (2) SCC 510, wherein the Supreme Court has held
that in the absence of any executable decree no order for recovery can be
passed by the Executing Court and no recovery warrant can be issued and a
declaratory decree is not executable.
9. Mr. Bhachawat submits that the order passed by the Executing
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Court is completely without jurisdiction and the execution petition preferred

by the defendant / respondent seeking execution of the decree of declaration
is not maintainable and consequently, the same is liable to be rejected. He
further submits that the execution petition has been filed for recovery of an
amount, which has not been decreed in favour of the defendant and,
therefore, the revision be allowed by setting aside the impugned order and
the execution petition preferred by the respondent / defendant be rejected.
10. Shri Veer Kumar Jain, learned senior counsel alongwith Shri
Vinay Vijaywargiya, Advocate appearing on behalf of the respondent
submits that the decree is executable as the First Appellate Court at the time
of passing the decree of declaration in favour of the plaintiff that he is
entitled to record his name in the register of property tax maintained by
Municipal Council in respect of the subject House No. 60, Janta Market,
Kalakhet, Gautam Nagar, Mandsaur as occupier and tax payer, the First
Appellate Court also passed the decree in favour of the respondent /
defendant by holding that the Municipal Council is entitled to receive the
amount of balance development tax and compounding fees. He submits that
the decree was not challenged by any of the party and thus, has attained
finality and, therefore, now, the plaintiff is precluded from raising any
objection in respect of the decree.
11. Mr. Jain further submits that the execution petition preferred by the
Municipal Council is maintainable as the Municipal Council has already
recorded the name of the plaintiff as occupier and tax payer in the register of
property tax maintained by the Municipal Council, but the plaintiff has not
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complied with the decree, by which the First Appellate Court has declared

entitlement of the Municipal Council to receive balance development tax and
compounding fees. He submits that the decree of declaration passed in favour
of the plaintiff was conditional and the name of the plaintiff could have been
recorded in the property tax register of Municipal Council only upon making
payment of the balance development tax and compounding fees. As the
plaintiff has not paid the balance development tax and compounding fees, the
Municipal Council is entitled to file the execution for the purpose of
execution of the said decree and recovery of the said amount from the
plaintiff. He submits that the Executing Court has not travelled beyond the
decree passed by the First Appellate Court and no illegality committed by
the Executing Court in holding that the execution petition is maintainable.
He prays for dismissal of the present revision petition by affirming the
impugned order.
12. I have heard the counsel for the parties and perused the documents
available on record.
13. It is not in dispute that the plaintiff filed a suit for declaration in
respect of House No. 60, Janta Market, Kalakhet, Gautam Nagar, Mandsaur
and no counter claim was filed by the defendant. The suit was dismissed by
the trial Court and plaintiff preferred the first appeal against the judgment
and decree passed by the trial Court. The First Appellate Court by judgment
dated 17.09.2012 passed the decree of declaration in favour of the plaintiff
by partly allowing the appeal and the First Appellate Court declared the
plaintiff entitled to record his name as occupier and tax payer in the property
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tax record maintained by the Municipal Council in respect of suit house.

Also passed the decree in favour of Municipal Council that the council is
entitled to get deficit amount of development tax and compounding fees
from the plaintiff. After passing the decree by the First Appellate Court, the
plaintiff filed the execution petition, which was disposed of in full
satisfaction by the Executing Court and thereafter, on 17.07.2019, the subject
execution petition is preferred by the CMHO, Municipal council, Mandsaur
seeking recovery of the amount of Rs. 1,18,54,484/-. Hence, the application
for rejection of the execution was filed by the petitioner, which has been
dismissed by impugned order dated 09.05.2024. Hence, the plaintiff has
preferred this civil revision.
14. The first question which is involved in this case is that in the
absence of any counter claim and payment of court fees, whether the First
Appellate Court could pass the decree for recovery of Rs. 1,18,54,484/-
against the plaintiff ? The law is settled on that issue that without seeking any
relief and without payment of court fees, no decree for recovery can be
passed. However, considering the defence raised by the defendant in written
statement that as the plaintiff has not paid the balance development tax and
compounding fees, the Municipal Council is not recording his name as
occupier and tax payer in the property tax register in respect of the suit
house, the First Appellate Court, at the time of partly decreeing the suit filed
by the plaintiff, also passed a decree of declaration that the Municipal
Council is entitled to get the amount of balance development tax and
compounding fees from the plaintiff.
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15. By no stretch of imagination, it can be argued that the said decree

is for recovery of amount and any attachment warrant can be issued in
execution of the said decree. The decree in question is a decree of declaration
and the question for consideration is that whether a decree for declaration is
executable ? As per Section 51 read with Order XXI Rule 10 of CPC, the
decree for declaration is not executable. This issue was originally raised
before the Supreme Court in Prakash Chand Khurana v/s Harnam Singh &
Ors., 1973 (2) SCC 484, wherein the Supreme Court has held that a decree
merely for declaration of the rights of the parties is not executable. The
Supreme Court further held in that case that if any party defaulted in
discharging their obligations under the decree, the decree would not become
executable as it was merely to declare the rights of the parties. The Supreme
Court further fortified this position of law in the case of State of Punjab and
another v/s Buta Singh (supra), wherein the Supreme Court has held that
Executing Court cannot direct recovery of any amount in execution of a
decree for mere declaration, which is not executable.
16. The Supreme Court in the matter of State of Madhya Pradesh v/s
Mangilal Sharma (supra) considered this issue in detail and held that a
declaratory decree merely declares the right of the decree holder vis a vis the
judgment debtor and does not in terms direct the judgment debtor to do or
refrain from doing any particular act or thing and, therefore, the same is not
executable. The relevant paragraphs of the judgment read as under:
"6. A declaratory decree merely declares the right of the decree-holder
vis-à-vis the judgment-debtor and does not in terms direct the judgment-
debtor to do or refrain from doing any particular act or thing. Since in the
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present case decree does not direct reinstatement or payment of arrears of
salary the executing court could not issue any process for the purpose as
that would be going outside or beyond the decree. The respondent as a
decree-holder was free to seek his remedy for arrears of salary in the suit
for declaration. The executing court has no jurisdiction to direct payment
of salary or grant any other consequential relief which does not flow
directly and necessarily from the declaratory decree. It is not that if in a
suit for declaration where the plaintiff is able to seek further relief he must
seek that relief though he may not be in need of that further relief. In the
present suit the plaintiff while seeking relief of declaration would certainly
have asked for other reliefs like the reinstatement, arrears of salary and
consequential benefits. He was, however, satisfied with a relief of
declaration knowing that the Government would honour the decree and
would reinstate him. We will therefore assume that the suit for mere
declaration filed by the respondent-plaintiff was maintainable, as the
question of maintainability of the suit is not in issue before us.

7. Mr Gambhir, learned counsel for the respondent, has been unable to
show as to how a decree for declaration which the respondent got could at
all be executable. It was, therefore, submitted by him that once the court
gave a declaration about the legal status of the respondent that he was still
in continuance of service of the appellant and his services were never
terminated, the necessary consequence would be that the respondent
should be granted arrears of salary and other consequential benefits by the
appellant unlike in a case which was governed by law of contract between
the parties. It is difficult to accept this proposition as the provisions of law
contained in Section 34 of the Specific Relief Act are specific and in that
case even declaration could not have been granted as it could be said that
the respondent was able to seek further relief than a mere declaration of
his legal status and which he omitted to do so. In State of Punjab v.
Krishan Dayal Sharma² the plaintiff obtained a decree that he was entitled
to be promoted from the post of Inspector of Police to that of Deputy
Superintendent of Police with effect from the date when his juniors were
promoted and further claimed relief for all consequential benefits, rights
and privileges. The suit was decreed and in the execution application filed
by the plaintiff in addition to the benefits flowing from the decree, he also
claimed compound interest at the rate of 12% per annum on the amount
found due to him. The claim of interest was allowed by the executing
court. This Court noticed that the decree which was put to execution did
not contain any order or direction for the payment of any interest on the
amount which was payable to the decree-holder consequent to the
declaration made by the Court decreeing a suit. It was also not disputed
that no relief for interest had been claimed by the decree-holder in his suit
nor any such claim was discussed or awarded by the Court decreeing the

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suit. This Court held that the executing court was bound by the terms of
the decree and could not add or alter the decree on its notion of fairness or
justice. The Court further observed that no doubt the courts had power to
award interest on the arrears of salary or pension or other amount to which
a government servant was found entitled to having regard to the facts and
circumstances of the case but that power could not be exercised by the
executing court in the absence of any direction in the decree. In Parkash
Chand Khurana v. Harnam Singh³ one of the contentions raised by the
appellants before this Court was that the award in question was merely
declaratory of the rights of the parties and was, therefore, inexecutable.
The Court observed as under: (SCC pp. 490-91, para 18)

"This contention is based on the wording of clause 7 of the award
which provides that on the happening of certain events the
respondents shall be entitled to take back the possession'. We are
unable to appreciate how this clause makes the award merely
declaratory. It is never a precondition of the executability of a
decree that it must provide expressly that the party entitled to a relief
under it must file an execution application for obtaining that relief.
The tenor of the award shows that the arbitrator did not intend
merely to declare the rights of the parties. It is a clear intendment of
the award that if the appellants defaulted in discharging their
obligations under the award, the respondents would be entitled to
apply for and obtain possession of the property."

8. In Prakash Chand v. S.S. Grewal the petitioner had a decree in his
favour declaring his dismissal from service to be illegal, void and of no
effect. The Punjab Government did not reinstate him nor paid him the
arrears of salary. He, therefore, filed a writ petition for taking contempt of
court proceedings against certain officials of the State Government. The
Court held as under:
"A declaratory decree, in my opinion, cannot be executed as it
only declares the rights of the decree-holder qua the judgment-debtor
and does not, in terms, direct the judgment-debtor to do or to refrain
from doing any particular act or thing. Since there is no command
issued to the judgment-debtor to obey, the civil process cannot be
issued for the compliance of that mandate or command. The decree-
holder is free to seek his legal remedies by way of suit or otherwise
on the basis of the declaration given in his favour."

9. In our view, it is a correct statement of law except that it may not be
fully applicable in the case of a government servant who acquires a status
and his service conditions are governed by statutory rules as noticed
above.

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10. We are, therefore, of the opinion that the courts below did not
exercise their jurisdiction properly and the respondent could not have
sought execution of the declaratory decree when no relief was granted to
him towards arrears of salary and other consequential benefits."

17. The Supreme Court further reiterated the same law in the case of
Mohinder Singh (Dead) through Legal Representatives v/s Paramjit Singh
and others, 2018 (5) SCC 698, Akkamma & Ors. v/s Vemavathi & Ors.,
2021 (18) SCC 371 a n d Venkataraja and Others v/s Vidyane
Doureradjaperumal (Dead) through Legal Representatives and Others, 2014
(14) SCC 502, wherein the Supreme Court has held that a decree of
declaration is not executable and the same cannot be executed.
18. Considering the law laid down by the Supreme Court and
considering the facts and circumstances of the case, wherein the petitioner /
plaintiff has filed a suit for declaration in respect of the subject house and no
counter claim was filed by the respondent / defendant and no court fees was
paid by the respondent, the respondent cannot put the decree for execution,
by which merely it is declared that the respondent is also entitled to get the
amount of balance development tax and compounding fees from the plaintiff.
The petitioner preferred an execution, which was disposed of in full
satisfaction and, thereafter, the second execution filed by the respondent
cannot be treated as maintainable. In considered view of this Court, the
Executing Court has committed jurisdictional error in rejecting the
objections raised by the petitioner.
19. Consequently, the Civil Revision Petition is allowed. Impugned
order dated 09.05.2024 is hereby set aside and the proceedings of Execution
Case No. 24-A/2019 pending in the Court of Second Civil Judge, Junior
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Division, Mandsaur are hereby quashed.

20. No order as to costs.
21. Copy of this order be forwarded to the Executing Court.
(VINAY SARAF)
JUDGE
Divyansh

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