IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Civil Revision No. 6908 of 2010 (O&M) Date of decision: February 14, 2011 Chanderwati Saini .. Petitioner Vs. Manju Rani .. Respondent Coram: Hon'ble Mr. Justice A.N. Jindal Present: Mr. Vijay Kumar Jindal, Advocate for the petitioner. Mr. Ranjit Saini, Advocate for the respondent. A.N. Jindal, J This petition assails the order dated 11.10.2010 (Annexure P-1) passed by the Additional Civil Judge (Sr. Division), Kurukshetra dismissing the application/ objection petition filed by the judgment debtor and allowing the execution of the decree for specific performance of the contract to continue. The facts in the background of the case are that a decree for specific performance of the contract was passed in favour of Manju Rani decree- holder respondent (herein referred as, 'the respondent') and against the petitioner on 19.7.2008. On appeal, the first appellate court, while declining the relief of specific performance directed the appellant to pay a sum of Rs.1 lac along with interest @ 9% per annum from the date of execution of the agreement i.e. 29.11.2005 within a period of two months, failing which the respondent could apply for specific performance of the agreement and the parties were left to bear their own costs. The objector has further alleged that in compliance with the decree dated 29.1.2010 he after calculating the interest from 29.11.2005 to 29.3.2010 which comes to Rs.39,000/-, he deposited Rs.1,39,000/- on 29.3.2010. Still the decree holder filed the execution of the said decree while considering the objector to be defaulter. The petitioner filed the objection petition stating that he had complied with the decree. There was no fault on his part, still the executing court considering the petitioner to be defaulter, dismissed his objection petition and permitted the respondent to go ahead with the execution. Civil Revision No. 6908 of 2010 -2- *** Reply to the petition was filed wherein it was alleged that as per judgment and decree dated 29.1.2010 passed by the Appellate Court, the petitioner was to deposit the amount of Rs.1 lac along with interest within two months from the date of order along with costs, but he failed to do so, therefore, he was entitled to execute the judgment and decree dated 19.7.2008 passed by the trial court. The executing court after scrutinizing the judgment dated 29.1.2010 and payment so made by the judgment debtor- petitioner had concluded that the petitioner had failed to pay the costs imposed by the trial court to the tune of Rs.26546/- within the stipulated period. He also did not apply for seeking any clarification regarding the order with regard to the costs within the said period; as such, the executing court while holding that the petitioner had not complied with the judgment and decree passed by the First Appellate Court dated 29.1.2010, dismissed the objection petition and permitted the decree holder to continue with the execution. Arguments heard. Record perused. There is no dispute with the fact that a decree for specific performance was passed by the Additional Civil Judge (Sr. Division), Kurukshetra on 19.7.2008 which was appealed against by the petitioner. While sitting over the appeal, learned Additional District Judge, Kurukshetra vide judgment dated decree dated 29.1.2010 partly accepted the appeal and passed the following order :- “In the aforesaid circumstances, the relief of specific performance cannot be granted to the respondent plaintiff. The present transaction seems to be transaction of loan and, hence a decree for recovery of money amounting to Rs.1,00,000/- which was received by the appellant defendant Chanderwati from respondent plaintiff Manju Rani, is passed, with costs throughout, in favour of the respondent plaintiff and against the appellant defendant. The aforesaid amount of Rs.1,00,000/- shall be paid by appellant defendant Chanderwati to the respondent plaintiff Manju Rani along with interest at the rate of 9% per annum from the date of execution Civil Revision No. 6908 of 2010 -3- *** of alleged agreement to sell i.e. 29.11.2005, within a period of two months from today. In default, the respondent plaintiff shall have a right to execute the impugned judgment and decree dated 19.7.2008 for specific performance of the agreement dated 29.11.2005, passed by the learned trial court. Hence, the present appeal is partly accepted and partly dismissed with no order as to costs and the findings of the learned trial court are modified to the aforesaid extent. Decree sheet be prepared accordingly and after due compliance, file be consigned to record room.” On scrutiny of the aforesaid judgment and decree, one thing is clear that the court never intended to grant decree for specific performance, rather it observed that it was a transaction of loan and passed the decree for payment of money, therefore, court could not order specific performance of such contract (decree dated 19.7.2008) being a default or penal clause. Secondly, the decree passed by the appellate court was self contradictory and confusing. While delving deep into the decree, it could be divided into following three parts :- (i)Decree for recovery of money amounting to Rs.1,00,000/- with costs throughout. (ii)The aforesaid amount of Rs.1,00,000/- shall be paid by the appellant-defendant Chanderwati to the respondent plaintiff Manju Rani along with interest @ 9% per annum from the date of execution of the alleged agreement to sell i.e. 29.11.2005 within a period of two months from today. In default, the respondent- plaintiff was given the right to execute the decree dated 10.7.2008 passed by the trial court. (iii)The appeal was party accepted and partly dismissed with no order as to costs and the findings of the trial court were modified to the aforesaid extent. Civil Revision No. 6908 of 2010 -4- *** There is no dispute with the fact that the plaintiff had deposited a sum of Rs.1,39,000/- (Rs.1,00,000/- on account of earnest money and Rs.39,000/- on account of interest) within stipulated period and this fact also could be noticed that the plaintiff never claimed relief for recovery of Rs.1,00,000/- before the trial court. It is also settled that the decree passed by the trial court merges into the decree passed by the appellate court. No doubt, the decree dated 29.1.2010 passed by the appellate court appears to be confusing one, as in the first part, it decreed the suit for recovery of Rs.1,00,000/- with costs and in contradiction with the first part, in the second part, the court ordered the petitioner to pay a sum of Rs.1,00,000/- along with interest @ 9% per annum. If the second part is real in consonance with the third part, then no other interpretation than that the court never intended to award costs could be drawn. The third part of decree eradicates that the appeal was dismissed with no order as to costs without mentioning about the costs of the trial court. Thus, in view of the settled law that, decree of the trial court merges into the decree of the appellate court, the decree of the first appellate court will be taken into consideration and accordingly implemented. Though, the first appellate court used the words “a decree for recovery of money amounting to Rs.1,00,000/- ............... is passed with costs throughout” yet, this part being in contradiction with the operative part of the decree are liable to be ignored. In the operative part, the appellate court had directed as under :- “.......Hence, the present appeal is partly accepted and partly dismissed with no order as to costs..........” If the decree is read in entirety, then irrespective of the capability of the judicial officer, who passed the decree, needs to be seriously commented upon. The officer himself held the transaction to be a money transaction and the contract being un-enforceable, again made it enforceable under the penal clause. Concurred, it would be suffice to say that the decree passed by him is in violation of the fundamental principles of law which require that the decree should be clear and categorical and not vague or confusing which may require interpretation by the executing court. Civil Revision No. 6908 of 2010 -5- *** Without further probing into the conduct of the judicial officer which is left to be examined by the Administrative Judge of the Sessions Division. Any way since the appellate court partly accepted the appeal and partly dismissed the same with no order as to costs, therefore, it appears that the appellate court intended not to award costs in favour of the respondent. Had it so intended then it would have specified that the costs as awarded by the trial court would be borne by the petitioner. As such, the petitioner was not bound to deposit the amount of costs before the trial court. The observations made by the executing court that the petitioner was to apply for getting the clarification or that the decree passed by the appellate court along with costs of Rs.26546/- as awarded by the trial court are apparently erroneous. Since the decree itself does not seek any such suggestion or needs clarification, the court has to interpret the same in the right perspective and in accordance with its real intent and spirit by going through it as a whole and should not have lost into the confusions created by the appellate court. While examining the case from another angle, the penal clause attached is qua the non deposit of Rs.1,00,000/- along with interest @ 9% per annum from the date of execution of the alleged agreement to sell and not with the decree with regard to payment of recovery of Rs.1,00,000/-, along with costs, therefore, this penal clause cannot be read along with the first part of the decree. The language which is used in the decree at the first blush indicates to perform a duty by the petitioner to deposit a sum of Rs.1,00,000/- along with interest @ 9% per annum from the date of execution of the agreement within two months which was complied with by the petitioner. At the same time, the decree does not specify if the petitioner was to deposit total costs which had been indicated by the decree holder- respondent in the trial court. Consequently, this court reaches the irresistible conclusion that the petitioner did not commit any default while depositing a sum of Rs.1,39,000/- in compliance with the decree passed by the appellate court and findings recorded by the executing court being perverse are liable to be reversed. Resultantly, I accept the petition, set aside the impugned order and direct the executing court to proceed in accordance with the law. Civil Revision No. 6908 of 2010 -6- *** Copy of the judgment be put up before the Administrative Judge, Kurukshetra Sessions Division for examining the conduct of the judicial officer. February 14, 2011 (A.N. Jindal) deepak Judge