1 n1364-09.sxw pps IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Notice No.1364 of 2009 . in Suit No. 1313 of 1979 Rekha Shrichand Punjabi .. Plaintiff v/s. Devkumar Pranlal Jogi & Others ..Defendants Mr.D.D.Madon i/b. Wadia Gandhy for the Plaintiff. Mr.S.V.Oak with S.R.Agarkar for the Defendants CORAM : R.Y.GANOO, J. DATED : 26th August, 2010 P.C. : 1. The plaintiff was successful in getting decree in the above suit being dated 21.9.2007. Execution application has been filed. In accordance with provisions of Order 21 Rule 34 it became necessary for the court to hear defendants, before finalizing the draft conveyance submitted by the plaintiff. The defendant no.2 has filed an affidavit opposing the execution of the document in 2 n1364-09.sxw terms of draft submitted by the plaintiff. 2. I have heard learned Counsel on behalf of the plaintiff as well as defendant no.2. The court is informed that defendant no.1 has expired and defendant nos.2 and 3 are the heirs of defendant no.1. In such circumstances there is no need for the plaintiff to bring heirs of defendant no.1 on record and defendant nos.2 and 3 are answerable to the plaintiff as regards execution of the decree. 3. Plaintiff was required to deposit an amount towards consideration in the court in terms of the decree. The plaintiff did not deposit the said amount within the stipulated time. He filed an application to seek extension of time to deposit the amount. The court has by its order dated 19.12.2007 extended the time to deposit the monies. Said amount has been deposited within extended time. 4. Counsel for the defendant nos.2 and 3 contended that while seeking the said order dated 19.12.2007 defendants were not 3 n1364-09.sxw heard and therefore the said order is bad in law and therefore the decree should not be executed. This objection cannot sustain because defendants have not challenged the order dated 19.12.2007 and in any case grant of further time to deposit monies was a discretionary order passed by the court and at this stage it is not possible for this court to accept the objection of the defendants to oppose execution of the decree. 5. It was sought to be contended on behalf of the defendants that appeal against decree dated 21.9.2007 is filed and the same is admitted. It is common ground that the said appeal is admitted. However, before this Court no order is produced so as to stay the execution of the said decree. Hence the job of execution of the decree has to proceed. 6. It was argued that Rekha Punjabi had filed the suit, whereas the draft agreement indicates that the conveyance is to be executed in favour of M/s.R.K.Builders. According to the counsel for the defendants conveyance can be executed in favour of Rekha 4 n1364-09.sxw Punjabi and not R.K.Builders. I have perused the plaint. In the plaint Rekha Punjabi is styled as the person carrying on the business in the name and style of M/s. R.K.Builders. The plaintiff has relied upon the letter at Exhibit B dated 8.4.1979 addressed to M/s. R.K.Builders by which it was sought to be indicated to M/s. R.K.Builders that the property would be sold on terms more particularly stated in the said letter dated 8.4.1979. The said letter dated 8.4.1979 forms the foundation for the suit for the specific performance and consequential decree in terms of the said suit. The draft conveyance shows that the conveyance is to be executed in favour of M/s.R.K.Builders being the sole proprietary concern of Mrs. Rekha S. Punjabi. In my view, looking to the text of the decree as well as the claim of the plaintiff that agreement was in favour of M/s. R.K.Builders the said objection is required to be dismissed. Even otherwise the plaint discloses that Mrs.Rekha Punjabi is carrying on business of construction and if that be so the property will have to be conveyed in the name of the firm M/s.R.K.Builders. The objection in that regard is rejected. 5 n1364-09.sxw 7. The next objection raised by the defendants pertains to the relevant portion of the conveyance where the land over which the right of way has been granted by the plaintiff in favour of the defendants to approach the bungalow. is not the subject matter of the sale. According to the counsel for defendants, reading the plaint as well as the decree nothing is suggested to show that the right of way should be provided to approach the bungalow. According to him, the area which is being shown as right of way cannot be conveyed to the plaintiff. In so far as this objection is concerned, one has to make reference to the description of the property coupled with the prayers in the plaint. The description of the property in regard to which the agreement came to be executed does not exclude the bungalow and land below the said bungalow. However, in the prayer clause (a) there is specific reference as regards the property to be purchased by the plaintiffs other than the said bungalow. Relevant portion of the prayer clause is as follows : “ for declaration that there is a valid, binding and subsisting 6 n1364-09.sxw Agreement for Sale of the said property described in Exhibit A to the plaint except the bungalow occupied by the defendant nos.1 and 2.” The aforesaid underlined portion would clearly mean that the plaintiff approached this Court with a positive case that the bungalow will not become subject mater of conveyance which will mean that the property mentioned in prayer clause (a) excluding the bungalow will be the subject matter. A perusal of the conveyance would go to show that the plaintiff has in fairness excluded the bungalow. This will mean that the structure standing on the plot described in the prayer clause (a) which is referred to as bungalow in the plan is not to be conveyed to the plaintiff. The very fact that the draft conveyance indicates that the right of way is provided would mean that the plaintiff respects the right of the defendant qua bungalow and right of way is made available to the defendants to approach the bungalow, as the said bungalow is not the subject matter of the sale. Looking to the text of the plaint, the decree and the draft conveyance, one thing is clear that the plaintiff was to get entire land excluding the structure which is 7 n1364-09.sxw styled as bungalow. Hence the plaintiff would become the owner of the strip of land over which right of way is provided. The conduct on the part of the plaintiff in drafting the conveyance so as to provide right of way on the strip of land owned by him is fair and infact the right of way is in the nature of facility provided to defendants to enjoy the said bungalow. The objection is accordingly overruled. 8. It was sought to be contended that defendant no.3 is not required to execute the conveyance. It is seen that the Defendant No.3 is styled by the defendants as the owner of the property. However, decree dated 21.9.2007 specifically casts duty upon the defendant nos.1 and 2 to execute the conveyance. Now that the defendant no.1 has expired and the defendant no.3 is the heir of defendant no.1, she will have to be included in the list of vendors. To that extent the objection raised by the defendants cannot sustain. 9. It was argued that there is no specific mention in the conveyance as regards apportionment of consideration between the vendors. 8 n1364-09.sxw So far as the consideration aspect is concerned, the plaintiff was expected to deposit the consideration in the court and he has performed his part of contract. In the absence of specific apportoinment in the decree it will be open for the defendant nos. 2 and 3 who are now going to be styled as vendors to apply to the court and have the total consideration lying in the court apportoined and court shall pass an appropriate order if such application is filed. 10.It was argued that the conveyance does not include the plan annexed thereto. In the affidavit in reply the plan has been annexed and counsel for the plaintiff contended that the said plan be annexed to the conveyance. He also drew my attention to the location of the right of way and the description of the bungalow which is going to be excluded from the conveyance. There is no counter to this affidavit dated 26.10.2009 and as a result of that I am inclined to treat the plan annexed to the affidavit dated 26.10.2009 as the proper plan which can be annexed to the conveyance to be executed. 9 n1364-09.sxw 11.For the reasons mentioned aforesaid, I am inclined to make the notice under Order XXI Rule 34 absolute. One thing is required to be stated that the draft conveyance which was provided by the plaintiff mentioned the names of all three defendants i.e. the defendant nos.1 to 3. It is common ground that defendant no.1 has expired hence his name cannot appear in the conveyance as vendor. Hence the conveyance will have to be executed by the defendant no.2 Chandrasen and defendant no.3 Subhadra. To that extent amendment be made in the draft conveyance. Needless to mention that the conveyance which will be finally executed shall contain the appropriate recitals mentioning the fact of death of O.P.Jogi defendant no.1 and the circumstances under which defendant nos.2 and 3 have become owners of the property in question. The execution clause will have to be drafted in accordance with provisions of Order XXI Rule 34 r/w. Rule 343 of the Original Side rules to show that the conveyance has been executed by the officer of the Court for and on behalf of the vendors i.e. Chandrasen and Subhadra. The plan annexed to the 10 n1364-09.sxw affidavit in reply dated 26.10.2009 shall also form the part and parcel of the conveyance. Appropriate correction be made to iinclude plan in the conveyance. Needless to mention that after the conveyance is engrossed the officer who would be executing the conveyance on behalf of the vendor shall take steps to lodge the conveyance for registration as contemplated under Order XXI Rule 34(6) of CPC. 12.Learned Counsel for the plaintiff conceded that in the application dated 6.2.2009 the plaintiff has asked for certain prayers in excess of provision of Order XXI Rule 34 of CPC. Court has not expressed any view on these prayers and liberty is granted to the plaintiff to file proper application to seek prayers which are beyond the ambit of Order XXI Rule 34 of CPC. [R.Y.GANOO, J.]