IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 7TH SEPTEMBER 2009 / 16TH BHADRA 1931 WP(C).No. 27797 of 2008(H) --------------------- EP.31/2003 IN OS.95/2001 of SUB COURT,THODUPUZHA .................... PETITIONER(S): --------------- JOSSY ABRAHAM, S/O.N.A.ABRAHAM, NANTHIKATTU KANDATHIL, ERUMELY P.O., ERUMELY SOUTH VILLAGE. BY ADV. SRI.V.C.JAMES SRI.C.HARINDRAMOHAN NAIR SRI.SERGI JOSEPH THOMAS SRI.GEORGE MECHERIL RESPONDENT(S): --------------- ROBIN ABRAHAM, S/O. N.A.ABRAHAM, NANTHIKATTU KANDATHIL, KANJIRAPPALLY P.O., KANJIRAPPALLY VILLAGE. ADV. SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE FOR R1 SRI.K.JAYAKUMAR FOR R1 SRI.P.B.KRISHNAN FOR R1 SMT.GEETHA P.MENON FOR R1 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.27797 OF 2008 (H) ----------------------------------- Dated this the 7th day of September, 2009 J U D G M E N T The writ petition is filed seeking mainly the following reliefs: i. to issue a writ in the nature of prohibition or any other appropriate writ or order, direction, prohibiting the Sub Court, Thodupuzha from executing the sale deed in pursuance of the decree in O.S.No.95 of 2001 of that court and also not do any further act pursuant to the order dated 6.9.2008 by which the draft sale deed was approved. ii. to issue a writ of certiorari or such other appropriate writ, order or direction calling for the records proceedings, leading upto the passing of Ext.P12 order and quash the same. iii. to stay all further proceedings in E.P.No.31 of 2003 in O.S.No.95 of 2001 on the files of Sub Court, Thodupuzha till the disposal of the writ petition. WPC.27797/08 2 2. Petitioner is the judgment debtor/1st defendant in E.P.No.31 of 2003 in O.S.No.95 of 2001 on the file of the Sub Court, Thodupuzha. The decree executed in the above suit was one for specific performance of an agreement of sale. Parties involved are brothers. Subject matter involved was an immovable property having an extent of 30 cents of land and an FL-3 licence. The above suit was jointly tried with another suit filed by the petitioner/1st defendant seeking dissolution of a partnership firm. Suit filed by the petitioner was dismissed and the suit of the respondent for specific performance was decreed. Against the decree, the petitioner preferred an appeal before this Court as A.S.No.465 of 2002. Confirming the decree and judgment of the trial court, the appeal was dismissed. A review petition filed against the judgment rendered by this Court was also dismissed. Petitioner thereupon preferred a Special Leave Petition as S.L.P.No.816 of 2004 before the apex court, and, that too was dismissed. When execution proceedings were taken, it was resisted by the petitioner on various grounds even contending that the WPC.27797/08 3 decree is a nullity. Objections raised by him were overruled and it is conceded that in execution proceedings, a sale deed has already been registered in favour of the respondent/decree holder. Challenge now raised in the writ petition relates to the approval of the draft sale deed by the execution court. Ext.P12 is the copy of the order passed by the learned Sub Judge approving the draft sale deed. Since the sale deed has already been registered, challenge against the approval of the draft sale deed, at this stage, may not have much significance. Still, the learned counsel for the petitioner was permitted to argue on the merits of Ext.P12 order. 3. Ext.P12 order is challenged mainly on the following grounds. The decree provided only for transfer of the land alone and not the building situated therein. The building situated in Item No.1 property, according to the learned counsel for the petitioner, belongs to a firm. Pointing out that building can be owned separately from the land, the learned counsel for the petitioner contended that since the decree does not provide for transfer of the building, the registration WPC.27797/08 4 of the sale deed in execution of the decree can be only in respect of the land alone and not the building. Another objection canvassed by the counsel is that there was an undertaking on the trial side, which is also reflected in the judgment passed by the trial court, that whatever be the liabilities outstanding on the properties, it will be discharged by the decree holder. But, in the draft sale deed produced, a conflicting and contrary term was incorporated that whatever liabilities found in the property were to be cleared by the petitioner/judgment debtor, and, in the event of his default, it should be a charge on his other assets. The third objection canvassed by the counsel is that Item No.1 property covered by the decree schedule is burdened by several liabilities and the same thereunder should also be taken into account in fixing the stamp value and also the registration fee payable on the deed. So much so, the approval of the draft sale deed with the recitals included therein was improper and not correct, and the court below went wrong in accepting such a draft sale deed, submits the counsel. On the other hand, the learned counsel appearing for the respondent/decree holder inviting WPC.27797/08 5 my attention to Ext.R1 (g) pointed out that the decree had been subsequently corrected which clearly demonstrate that the decree takes in not only the land, but also buildings comprised therein. So much so, there is no merit in the objections raised that specific performance is granted in the decree only in respect of the 30 cents of land covered by the decree schedule Item No.1 excluding the building. As regard the second objection canvassed that in the draft sale deed, recitals had been made that the property was free from encumbrance, and liabilities, if any, shall be a charge on the assets of the judgment debtor, the learned counsel submitted it was so stated on account of the usual recitals made in the sale deed. The respondent/decree holder, it is submitted, stands by the undertaking given by the trial court, which is expressed to in Ext.P1 judgment, that he shall clear off whatever be the liabilities outstanding in the property as on the date of agreement of sale. Whatever directions/orders given by this Court for carrying out such corrections to give effect to the undertaking, it is submitted by the counsel, shall be honoured by the decree holder. So far as the objection WPC.27797/08 6 raised that the valuation in the sale deed should cover the liabilities outstanding on the property as well and registration fee and stamp fee should be calculated for sum also, as canvassed by the learned counsel for the petitioner/judgment debtor, is challenged by the learned counsel for the respondent/decree holder pointing that the value shown as per the terms of the agreement in respect of which specific performance was granted by the court need alone be shown as the sale price as per law. If at all registration fee or stamp fee is found to be deficient by the competent authorities, it is open for those authorities to proceed on the ground that the deed is undervalued or the stamp fee paid is deficient, submits the counsel. Further more, it is submitted that it cannot be a ground for the judgment debtor to resist the execution of a decree for specific performance. 4. After having heard the counsel on both sides at length and perusing Ext.P12 order passed by the court below, I find there is no merit in the objections raised by the petitioner/judgment debtor that the decree for specific WPC.27797/08 7 performance is granted only in respect of the land, but, not of the building. Even assuming that the buildings in the land belong to a firm, the judgment debtor, even if he is a partner, is bound by the decree and he is bound to transfer his title over the property in favour of the judgment debtor. Any right over the building by the firm, even if it is assumed to be so, will not confer any right on the judgment debtor to evade the execution of the decree. Further more, I find that the very same objection had been canvassed by the judgment debtor more than once before the execution court and, later, before this Corut also and found against. In fact, Ext.P12 order discloses that from time to time nearly 54 applications had been moved by the petitioner/judgment debtor to resist the execution of the decree on one ground or the other. So far as the objection raised that the liabilities also to be included in the sale price for registration of the sale deed, needless to point out that it deserves to be taken note of only for its rejection. Sale deed has to be executed in terms of the decree. If at all the document is undervalued, then, the competent authorities can resort to appropriate proceedings WPC.27797/08 8 as envisaged by law and judgment debtor is incompetent to raise any such ground to resist the execution of the decree. However, I find that the objection raised by the judgment debtor that liabilities had been cast upon him under the deed in conflict with the undertaking given by the decree holder before the court deserves to be taken note of and considered. Ext.P12 order and also the submissions made by the counsel on both sides would show that the above objections had been canvassed before the execution court atleast on two applications and were repelled. In E.A.Nos.136 of 2008 and 149 of 2008, it is submitted, the very same objection was mooted but repelled by the execution court. Ext.P1 judgment rendered by the trial court indicate beyond the shadow of doubt that the plaintiff/decree holder had given a solemn undertaking before the court that whatever be the liabilities as on the date of agreement, as and when it is demanded, it shall be cleared by him. Though that undertaking does not form part of the decree as a specific term, I find its decisive force cannot be ignored. In a suit for specific performance, needless to point out that when a decree is granted, the trial WPC.27797/08 9 court is concerned only with the question whether the performance of the contract is allowable or not, and the rest has to be done by the execution court as provided under Section 28 of the Specific Relief Act. That being so, even if it is not specifically provided in the decree, the execution court can pass appropriate orders to give effect to the decree providing for whatever is necessary for execution of a proper conveyance in accordance with law. That is all the more so since no separate suit will lie to enforce the undertaking given by the decree holder that he will clear off the liabilities. So much so, the above mentioned recitals in the draft sale deed were not proper and correct. Though subsequently a sale deed had also been registered on the approved draft sale deed, it requires modification. The decree holder/plaintiff shall move an application before the court below to permit him to register a correction deed so as to include in the sale deed, that whatever liabilities as on the date of execution of the agreement of sale will be cleared by the decree holder and no such liability will be cast upon the judgment debtor. The learned counsel for the petitioner submits that such an WPC.27797/08 10 application can be moved only after getting the registered sale deed from the Sub Registrar Office. I make it clear that the application seeking permission to include the corrections in the lines indicated above, shall be moved by the decree holder within one month from the date of collection of the registered sale deed from the Sub Registrar Office. I make it clear that the recitals to be corrected in the sale deed are only to the effect that liabilities outstanding on the date of agreement of sale are to be discharged by the decree holder and not of any subsequent encumbrances created over the property. It is also abundantly made clear that no further application from the judgment debtor will be entertained in respect of the decree already executed with the registering of the sale deed. To work out equity and justice, for that alone, in executing the decree the above orders have been issued, for registering the correction deed as indicated above, which on no account should be taken nor be allowed to continue any other proceeding at the instance of the judgment debtor. WPC.27797/08 11 Subject to the above directions, the writ petition is closed. S.S.SATHEESACHANDRAN JUDGE prp