-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Writ Petition No.1122 of 2007 with Writ Petition No.79 of 2008 Shri Shrikant Murlidhar Chandratreya ..Petitioner vs. 1. Shri Ratnakar Kashinath Chandorkar and ors. ..Respondents Shri P.K.Hushing for petitioner. Shri Shriram S.Kulkarni for respondent no.1. Shri P.M.Shah for respondent nos. 2 and 3. CORAM: S.C.DHARMADHIKARI J. CORAM: S.C.DHARMADHIKARI J. CORAM: S.C.DHARMADHIKARI J. 5th February, 2008 5th February, 2008 5th February, 2008 P.C. P.C. P.C. 1. The writ petition no.1122 of 2007 is by original defendant no.4 challenging the order dated 2nd January, 2007 passed by the Executing Court below Exh.68 in Special Darkhast No.17 of 2001. 2,. The Executing Court has held that as far as the objection regarding Executability of the Decree is concerned, that cannot be entertained and, therefore, has been over ruled. 3. The petitioner filed Exh.68 along with other defendants (defendant nos. 1 to 5) and their plea was that the objection raised by them -2- (Exh.21) be decided before deciding application (Exh.28A). The decree holder has contested these objections by filing his say at Exh.68 and after perusing the application and considering the reply filed by the decree holder, the Executing Court has passed the impugned order. 4. The Executing Court in the order, which may not be happily worded, has dealt with the argument with regard to executability of the decree. 5. It is not in dispute before me that respondent no.1 had entered into the agreement for sale on 22nd October, 1984 with respondent no.2 and the present petitioner and respondent nos.3 to 5 were consenting parties. That agreement was with regard to plot no.36 and consideration was also determined. Since the agreement did not result in conveyance in favour of the first respondent, after detailed correspondence, he filed Special Civil Suit No.438 of 1988 in the Court of Civil Judge, Sr.Dn., Nasik for specific performance. The said suit was decreed on 13th August, 1993. The balance consideration of Rs.10,000/- was deposited in the Trial Court on 20th September, -3- 1993. An appeal was preferred in this Court by the defendants, to the suit being, First Appeal no. 880 of 1994. This Court considered the arguments of both sides and ultimately dismissed the First Appeal on 9th January, 1997. Despite dismissal, the sale deed was not executed. Hence, the above Execution Petition/Darkhast was filed. 6. It is not necessary to enter into further details in as much as resistance to the execution of the sale deed from the defendants is obvious. There are repeated objections raised. It appears that one objection was that appeal being dismissed does not mean straightway that the decree must be executed. The other objection pertains is that the Decree and Area mentioned therein differs from the description of the suit property in the plaint. Therefore, an attempt was made to correct the decree so as to bring it in cosonance with the pleadings or vice versa. That attempt was made by the decree holder and it failed. The decree holder aggrieved by that order filed a civil revision application in this Court which Civil Revision Application no.298 of 2000 was also dismissed summarily on 24th March, 2000. Thereafter two -4- applications were made (Exhibits 28 A and 29) and aggrieved by the order passed thereon, once again the decree holder approached this Court. Exh.28 was an application whereby the decree holder sought appointment of Commissioner under Order 21 Rule 32(5) of the Code of Civil Procedure for execution of the decree for specific performance and by Exh.29 the correction of area was once again sought. Both the applications were rejected. In Writ Petition No.6520 of 2002 to challenge that order, decree holder did not press the relief in sofar as Exh.29, namely, correction is concerned, however, relief inso far as appointment of Commissioner was concerned (Exh.28A) was pressed and this Court passed the following order: "9. In view of the above, Rule made absolute in terms of prayer clause (c), which reads as follows: "(C) After examining the legality, validity, propriety and correctness of the impugned order dated 5.7.2001, below Exhs.28A passed by the Jt.Civil Judge, Senior Division, Nasik, in Special -5- Darkhast No. 17 of 2001 be quashed, set aside and/or reversed." 10. The matter is remanded back to the executing court for fresh decision on Exhibit 28-A in accordance with law. 11. In the circumstances of the case, there shall be no order as to costs. 12. All Authorities concerned to act on an ordinary copy of this order duly authenticated as true copy by the Sheristedar of this Court." The matter was remanded for fresh decision on application Exh.28A. 7. It appears that the Judgment debtor has sought leave of this Court to urge that the decree itself is inexecutable. This Court observed that the said question must be decided by the Executing Court. 8. The Executing Court has decided that objection and held that the decree is executable and unenforceable. This order is challenged in -6- writ petition no.1122 of 2007. 9. After perusing the petition and annexures thereto, so also, the objections raised and order of this Court passed thereon, I am of the view that there is no substance in the contention of Shri Hushing appearing on behalf of the judgment debtor/defendant no.4. The order passed by this Court so also the Division Bench of this Court in First Appeal referred to above does not in any manner indicate that the decree itself is inexecutable or not enforceable. The decree was for specific performance.It has been confirmed right upto this Court. Even if there is a request to alter the area made by the decree holder and that request is rejected does not mean that the decree itself become unenforceable. The decree is not rendered illegal or a nullity. The executing court has gone by the settled principles and held that in its limited jurisdiction it is not permissible for it to go beyond the decree and question the validity thereof. In the peculiar facts of this case, the Executing Court cannot decide the question of identity of the property. In this behalf the objection raised is that the decree holder -7- himself is in doubt on the identity and area of the suit property and, therefore, the decree cannot be enforced. There is no substance in this objection. The decree must be executed to the extent of area indicated therein. In this behalf, a reference can usefully be made to the observations of this Court in the Appellate judgment. Shri Kulkarni’s reliance thereon is appropriate. In para 16 this Court held thus: "16. The next contention raised by the defendants that the Civil Court has no jurisdiction to entertain the suit, as the same is barred under section 91 of the Maharashtra Cooperative Societies Act. But as far as the instant case is concerned, there is no doubt and it is an admitted fact that the plaintiff is a non member and is claiming the relief for specific performance of the contract through the legal heirs of the members of the 6th defendant society and as such the dispute between the parties does not come within the ambit of the provision as contemplated under section 91 of the said Cooperative Societies Act. That being so, there is no substance in the -8- contention of the defence. The Civil Court has certainly jurisdiction to entertain the suit for specific performance of the contract against the legal heir of the deceased member of the society, and therefore, according to our opinion the trial court is right in granting specific performance of the suit land as mentioned in Exh.77 more particularly prescribed in para 1 of the plaint and hence the judgment and decree of the trial court is legal and proper and we hereby confirm the same with no order as to costs." 10. In such circumstances the order of the executing Court does not require any interference. Respondent no.1’s affidavit discloses that the agreement for sale is of 1984. The suit is filed by him in 1988. It is decreed as far back as on 13th August, 1993 which decree is also confirmed by this Court but he has yet to get the fruits thereof. The decree to the extent of area which has been mentioned in the plaint and decree being in conformity therewith, there is no question of this Court holding that discretion exercised by -9- Executing Court is arbitrary or capricious so as to warrant interference under Article 227 of the Constitution of India. Petition is accordingly dismissed. (2) Writ Petition No.79 of 2008. 11. Writ Petition No.79 of 2008 is by the same defendant no.4 and it is directed against the order dated 14th September, 2007 below Exh.28A. The said application, as already stated above is for the relief that the Executing Court must decide as to whether the decree can be executed by resorting to appointment of the Commissioner or that such a mode is impermissible under Order 21 Rule 32(5) of the Code of Civil Procedure. 12. The Executing Court has referred to the orders passed by this Court and has held that Exh.28A has to be decided in accordance with law. The principal contention of the petitioner/judgment debtor no.1/defendant no.4 is that he has challenged the order dated 2nd January, 2007 (below Exh.68) before this Court. During the pendency of such challenge the Executing Court cannot take up the application Exh.28A. That objection has been overruled. -10- 13. The order below Exh.68 dated 2nd January, 2007 has been upheld by me in the companion writ petition. In such circumstances, it was permissible for the decree holder to press his application Exh.28A. That apart, there was no stay of execution of the decree. In such circumstaces the executing Court’s decision to proceed and direct the execution of the sale deed by the judgment debtor or in default by appointment of the Court Commissioner cannot be said to be vitiated by any error apparent or perversity. The only objection raised by Shri Hushing is that the provision which has been referred to by the Executing Court did not warrant appointment of Court Commissioner. In my view that is an aspect which has to be decided by the Executing Court and which has been decided. The direction to the judgement debtor is to execute the sale deed in favour of the decree holder. Order 21 rule 32(5) postulates that in a case for decree of specific performance of the contract or an injunction being disobeyed, then, in lieu of or in addition to all or any of the processes under order 21 Rule 32 he can be directed to perform the Act or the act required to be done may be done so far -11- as practicable by the decree holder or some other person appointed by the Court at the cost of the judgment debtor and upon the act being done the expenses incurred may be ascertained in such manner as the Court may direct and may be recovered as if they were included in the decree. The said provision appears after order 21 Rule 32(1) which contemplates an opportunity to the judgment debtor of obeying the decree. If he has willfully failed to obey, then, the decree has to be enforced and executed in the manner provided by order 21 Rule 32. Sub-rule (5) contemplates that in addition to all processes which the court may take it can also direct that any acts which are required to be done may be done at the costs of the judgment debtor. It is not the case of a judgment debtor that the decree for specific performance cannot be executed in the manner provided under order 21 Rule 32. Their objection is only to the appointment of the Court Commissioner. In my view, if that is the only objection, then, the executing Court may consider the same and pass appropriate orders, but that in no case shall prevent the executing court from executing the decree in terms of the above mentioned legal provisions and in accordance therewith. This -12- writ petition is disposed of accordingly. (S.C.DHARMADHIKARI J.) (S.C.DHARMADHIKARI J.) (S.C.DHARMADHIKARI J.)