Seller's Failure To Clear Repaid Mortgage Can't Stall Buyer's Decree: Karnataka HC Directs Executing Court To Appoint Commissioner

The parties settled a specific-performance suit by compromise decree.

Under its terms, the defendant was to pay the plaintiff ₹15,00,000 by Ugadi 2021; upon default, the plaintiff could seek registration of the sale deed through the court and obtain possession of the suit land.

After the defendant failed to pay, the plaintiff commenced execution proceedings and sought appointment of a Court Commissioner to take steps to clear an encumbrance and facilitate execution of the sale deed.

The Bank confirmed that the loan secured on the land had been fully repaid, while the Sub-Registrar stated that the mortgagor’s presence was required to register the reconveyance.

The Executing Court directed the decree holder to produce the reconveyance deed or encumbrance clearance before it would consider appointing a Commissioner.

The decree holder challenged that order by writ petition.

The Court relied on Order XXI Rules 32(5) and 34 of the Code of Civil Procedure, 1908, observing that where a judgment debtor fails to perform an act required by a decree, the executing court may cause that act to be performed through a person appointed by it.

The application before the Executing Court was made under Order XXVI Rule 18-A read with Section 151 CPC; the High Court allowed it and directed appointment of a Commissioner for the necessary acts to clear the encumbrance.

No precedent was cited.

The Bank’s report established that the secured loan had been discharged, and the Sub-Registrar’s endorsement showed that the judgment debtor’s presence was necessary to register the reconveyance.

The judgment debtor had nevertheless remained absent in the execution proceedings.

In these circumstances, requiring the decree holder to produce a reconveyance that depended on the judgment debtor’s cooperation would make the compromise decree effectively incapable of execution and reward the judgment debtor’s default.

The Executing Court should instead have used its execution powers to enable the required steps to be taken through a Court Commissioner.

It allowed the writ petition, set aside the order dated 3 April 2025, and allowed I.A. No. 3.

The Executing Court was directed to appoint a Court Commissioner to take the necessary steps with HDFC Bank, the Sub-Registrar, and any other competent authority to clear the encumbrance over the suit property; it was also requested to dispose of the execution proceedings expeditiously.

No order as to costs.