C.R. No.5876 of 2003 -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.R. No.5876 of 2003 Date of Decision: 09.10.2009 Ram Kishore Vats .....Petitioner Versus Smt. Angoori Devi and another ...Respondents Present: Mr. Gorakh Nath, Advocate for the petitioner. None for the respondent. CORAM:HON'BLE MR. JUSTICE K. KANNAN 1. Whether Reporters of local papers may be allowed to see the judgment ? Yes 2. To be referred to the Reporters or not ? Yes 3. Whether the judgment should be reported in the Digest?Yes -.- K. KANNAN J.(ORAL) 1. The civil revision is filed challenging the order passed by the Executing Court in an application filed by the decree holder under Order 21 Rule 32 CPC for attachment of the properties of the judgment debtor on the ground that a decree for specific performance which had been granted by the trial Court had not been complied with. The relevant portion of the decree is seen as under: “Resultantly, I do hereby decree the present suit and pass a decree for symbolic possession by way of specific performance of the agreement Ex.PW5/A on C.R. No.5876 of 2003 -2- payment of remaining sale consideration of Rs.2 lacs. I do hereby pass a decree also for mandatory injunction directing the defendant to get conveyance deed of the house in question executed in his favour within a period of 3 months from HUDA, at his own responsibility and thereafter execute the sale deed in favour of the plaintiff in terms of the agreement Ex.PW5/A on receipt of the remaining sale consideration upto 31.12.2001. The suit is decreed with costs. Decree sheet be prepared accordingly and file be consigned to record room.” 2. The judgment debtor did not file any objection to the application filed under Order 21 Rule 32 but contended that HUDA, which was directed to execute a sale in favour of the judgment debtor to enable him in turn to execute a sale, had actually resumed the property for non-payment of installments and therefore, it became impossible for him to comply with the terms of the decree. The Executing Court found that the judgment debtor never had the intention to satisfy the decree and he willfully failed to obey the same despite an opportunity and making also note of the fact that the judgment debtor had not even filed his objections but still arguing about the inexecutability of the decree directed the attachment of the property in House No.426, Ward No.11, Panipat as per the averments filed by the decree holder giving the description of the property that was C.R. No.5876 of 2003 -3- required to be attached. While concluding the order, the Executing Court also directed the proof of ownership of the judgment debtor in respect of the same to be given within a period of 10 days. 3. The learned counsel appearing for the judgment debtor challenges the order passed by the Executing Court under Article 227 impugning the order as one, which has been passed without jurisdiction. The learned counsel would refer to the several grounds through which he has urged to show as to how the order is not maintainable. Even before referring to the several grounds and objections which are made, it has to be observed that the decree for specific performance and mandatory injunction that had been granted by the Court of first instance does not appear to have been challenged in any other forum. The whole edifice of objections is built on an admitted premise that the decree, operative portion of which I have already outlined above, has become final. If the decree has become final, the action of the decree holder to resort to the reliefs which are granted under Order 21 Rule 32 cannot be denied. Order 21 Rule 32 (1) provides as follows:- “Where the decree against whom a decree for the specific performance of a contract, or for restitution of conjugal rights, or for an injunction, has been passed, has made an opportunity of obeying the decree and has C.R. No.5876 of 2003 -4- wilfully failed to obey it, the decree may be enforced in the case of a decree for restitution of conjugal rights by the attachment of his property or, in the case of a decree for the specific performance of a contract, or for an injunction by his detention in the civil prison, or by the attachment of his property, or by both.” 4. Whenever there is a decree for specific performance and the judgment debtor has an opportunity of obeying the decree and he had wilfully failed to obey the same, the Court in decree for specific performance has the power to direct detention of the judgment debtor in civil prison, or by attachment of the property or by both. There are three ingredients to the application of the power, which this sub-section enumerates; one, there shall be a decree for specific performance or injunction (the other reliefs are not necessary in our case). In this case, there is a decree for specific performance and injunction. Two, the judgment debtor must have had an opportunity of obeying the decree. This contemplates an appropriate notice through Court for execution of the decree and the judgment debtor to know all the directions under the decree. The third component is a willful failure to obey the same. The failure may result on account of a particular conduct that makes it either difficult or impossible for a judgment debtor to perform. In my view, all the three circumstances exist. If the decree directs that the judgment debtor shall make the C.R. No.5876 of 2003 -5- payment to HUDA in his capacity as original allottee and secure a sale deed at his own risk, in order to enable the judgment debtor to transfer his ownership to the decree holder, the judgment debtor is bound to comply with the same by making the payment to HUDA secure a sale deed and in turn, execute the sale in favour of the plaintiff. It cannot be an argument that such decree could not have been passed. If there was anything amiss in the decree, the only remedy of the judgment debtor should have been to challenge the decree in a higher forum. It is a trite of proposition of law that an Executing Court cannot go behind the decree. It is bound to carry out the terms in the decree. A trial Court dealing with the suit for specific performance and exercising powers under Section 20 of the Specific Relief Act may have in appropriate circumstances denied the relief if the relief was such, as although it shall be lawful to grant a relief, the Court may still find that the discretionary relief cannot be granted for any circumstances. If in this case, the Court has exercised its discretion and granted the relief that included the liability on a judgment debtor to do the particular act of payment of all the installments due to HUDA for securing a conveyance to himself at his own risk and then execute the sale deed in favour of the decree holder, it was obligatory on the part of the defendant to undertake the responsibility of securing such sale deed and execute a conveyance in favour of the decree holder. C.R. No.5876 of 2003 -6- 5. The argument in this case is that he did not have money to pay to HUDA and therefore, the sale deed was not executed by HUDA to him and therefore, in turn he could not execute the sale deed in favour of the plaintiff. An inconvenience or inability, which a judgment debtor may have, is itself no ground to say that a decree holder cannot have the decree executed. It will lead to absurd consequence for, even in a suit for recovery of money, if an attempt at a coercive process is taken, a judgment debtor could contend that his inconvenience for making the payment or he has not the money to make the payment. It shall be beyond the power of court that is bound to execute decree to go into the realms of convenience or what is comfortable for a judgment debtor. What the judgment debtor-revision petitioner seeks before this Court is really re-writing the decree or to state that the decree has become inexecutable. If the decree, in this case has become inexecutable in any sense, it is by the conduct of the judgment debtor himself. It shall be impermissible for a judgment debtor to plead his own default or his misconduct as a defence to make the decree unworkable. Learned counsel appearing for the judgment debtor would contend that the remedy of the decree holder was only to seek the Court itself to execute the sale deed if he had defaulted from doing so. If the decree had been that the sale was to be executed by the defendant to the plaintiff in respect of the property, of which he was the owner, C.R. No.5876 of 2003 -7- such a procedure could have been adopted by the decree holder. However, in this case, the decree assigns distinct duties for the judgment debtor. One, to secure a conveyance in his own name from the HUDA and in turn to execute a sale deed in favour of the plaintiff. The Court could not have obtained to itself a sale deed from HUDA for, a sale from HUDA would not have been possible in favour of the Court as a representative or proxy for the judgment debtor. The rights, which a judgment debtor would obtain from HUDA on an allotment through terms of a contract are invariably personal and without the defendant obtaining the right of allotment by payment of the installments, it would not have been possible for the Court to act on behalf of the defendant and execute a sale in favour of the decree holder. 6. The other contention of the learned counsel was that HUDA could have been directed to sale the property to the decree-holder. That also shall not be possible for the same reason as I have set out in the previous para that a right secured by an allottee, which is a personal right, could not have been assigned directly by HUDA. The plea of inexecutability of the decree is also equally without substance for, the decree that directs sale of the property for a judgment debtor on the performance of certain acts is not wholly new to the scheme of the Specific Relief Act. Section 13 of the Specific Relief Act provides for rights of purchaser or lessee against a person with no title or imperfect C.R. No.5876 of 2003 -8- title. Section 13(1)(b) refers to a situation where the concurrence of other person is necessary for validating the title and they are bound to concur at the request of the vendor, the purchaser may compel him to procure such concurrence. It is precisely this type of situation that enables the Court to give a direction to a vendor to obtain such concurrence by a transaction. If the judgment debtor has by his conduct not taken a sale deed from HUDA as in this case, he has tried to show that he did not have money, this objection cannot be done at the execution stage. This objection is really in the nature of an objection to a decree, which ought not to have been passed on the premise that the Court could not have exercised its discretion to grant a decree. We have passed to a stage when a decree has been passed by the Court on due consideration of relevant facts and that decree has also become final. If the decree is not assailed in a manner known to law, the execution of such a decree cannot be stultified by inconvenience or difficulties of a judgment debtor to comply with the same. The only exceptional circumstance when an Executing Court shall not execute the decree is when a decree is passed by Court without jurisdiction or when the decree is null and void. The nullity of a decree must arise from a jurisdictional fact of a Court executing a decree which it had no competence to pass. A suit for specific performance before a Court of competent jurisdiction is a decree that is at all times enforceable. The judgment debtor shall not be C.R. No.5876 of 2003 -9- permitted to urge that the decree has become null and void only by the difficulties that he had to undergo or the impossibility of the judgment debtor to secure a conveyance from HUDA. 7. Yet another objection of the learned counsel appearing for the petitioner is that the property has been attached even without ascertaining the ownership relating to the property and the Court has directed the proof of ownership to be given subsequently. According to him, the proof of ownership must have been demanded from the decree holder before attachment was issued. There is a builtin safeguard provided under the rules of Civil Procedure against illegal attachments. Attachment is a process, which is duly advertised in the manner referred to by the various provisions of the Civil Procedure Code. It enables a third person who is affected by such attachment to intervene with a claim and to seek for raising of attachment. The Court, before an attachment order is issued, is to ensure to itself that there is semblance of title of the person against whom the attachment is issued. The Executing Court was well aware of what it was doing and it has, therefore, taken the precaution of directing the decree holder to submit the proof of the ownership of the judgment debtor. Even without such a direction, the attachment could still be sustained for what is attached invariably is the right, title and interest of the judgment debtor and there is no warranty for title in the matter of attachment. The contention before me by the C.R. No.5876 of 2003 -10- learned counsel was that the property is an ancestral property in which his brothers have also a share. At least, the saving grace is that the judgment debtor is not prepared to say that he is not in any way interested in the property. The attachment will enure to such interest as the judgment debtor has. The other contention of the learned counsel was that the property, which is attached is a residential house and it cannot be attached under the provisions of Section 60 of the Civil Procedure Code. This objection is also without merit for, there is no prohibition in law for attachment of the residential house. All that the law prohibits is what obtains in relation to buildings contemplated Section 60(c) that reads "houses and other buildings (with the materials and the sites thereof and the land immediately appurtenant thereto and necessary for their enjoyment) belonging to [an agriculturist or a labourer or a domestic servant] and occupied by him." The non- attachability of a property is invariably a question of fact that shall depend on how a person states that the propery is not capable of being attached. It is not brought out before the Executing Court at any time that it is a residential house of an agriculturist or a domestic servant as contemplated under Section 60(c). I have already observed that the order of the Executing Court came to be passed when the defendant opted not to file his objection to the application filed by the decree holder for action under Order 21 Rule 32. C.R. No.5876 of 2003 -11- 8. The order passed by the Executing Court is, under the circumstances, perfectly justified and the civil revision is a vexatious exercise. The civil revision petition is dismissed with costs assessed at Rs.3,000/-. (K. KANNAN) JUDGE October 09, 2009 Pankaj*