Case: RAJBIR Vs. SURAJ BHAN &amp; ANR

1. While procedure is said to be the handmaiden of justice and substantial justice must prevail and the former may take the backseat, failure to follow the procedure laid down by law can result in grave miscarriage of justice to the judgment debtor and delay in the decree holder realising the fruits of the decree, all of which will be evident from facts of this case as we narrate them.2. The appellant along with his brother agreed to sell certain property which we shall refer to, to the respondents-Suraj Bhan and Balraj on 28.01.2006. Thereupon, the respondents instituted a suit for specific performance. It was inter alia the case of the respondents that the brother of the appellant (Raj Kumar) had already conveyed his part of the property in conformity with the agreement. The appellant, it would appear, had sold the property to a person who was arrayed as second defendant in the suit. The suit finally came to be decreed. In other words, a decree for specific performance was passed. The terms of the decree may be noticed as follows:35. In view of the findings recorded under above mentioned issues, suit of plaintiffs succeed and is hereby decreed with cost. A decree of declaration to the effect that agreement to sell Ex.D1 and sale deed Ex.D3 are illegal, null and void paper transaction and not finding on the rights of plaintiffs qua the suit land. A decree of possession by way of specific performance in the respective share of plaintiffs is hereby passed in favour of plaintiffs and against the defendants. The defendant no. 1 shall get the sale deed executed and registered in favour of plaintiffs in view of terms and plaintiffs, however, shall deposit the remaining part of sale consideration and within one month from the date of this judgment. In case of failure to get execute and register the sale deed by defendant no. 1, the plaintiffs will be at liberty to take the assistance of court in this regard.Decree in terms thereto is as follows:Suit property: Land comprising in Khewat no. 346 Rect No. & Killa numbers 45 18.10.20/1.2364/3 4,62.78 14 & numbran 882.824 measuring 72 kanal 7 Marlas to the extent of 1/3 shares which comms out 24 kanal 2 Marlas situated in the revenue estate of village salahawas Tehsil & District Jhajjar.This suit coming on this 4 day of January 2013 for for final disposal before me(Fkhruddin, Civil Judge (Sr. Divn. Jhajar) in the presence of Shri M.S Ahlawat counsel for the plaintiff Sh. Mahesh Kumar counsel for defendant no. 1. Sh. R.P. Suhag counsel for defendant no.2.Suit presented on: 16.1.2007It is ordered that suit of plaintiff succeed and is hereby decreed with costs. A decree of declaration to the effect that agreement to sell Ex D1 and sale deed Ex.D3 are illegal, null and void, paper transaction and no binding on the rights of plaintiffs qua the suit land. A decree of possession by way of specific performance in the respective share of plaintiffs is hereby passed in favour of plaintiffs and against the defendants. The defendants no. 1 shall get the sale deed executed and registered in favour of plaintiffs in view of terms and conditions of agreement to sell Ex P2. The plaintiffs however, shall deposit the remaining part of sale consideration and within one month from the date of this judgment. In case of failure to get execute and register the sale deed by defendant no. 1, the plaintiffs will be at liberty to take the assistance of court in this regard.3. The appellant was unsuccessful in challenging the aforesaid decree both in first appeal and, what is more, in the second appeal before the High Court. An attempt made before this Court culminated in the rejection of the special leave petition filed by the appellant. The respondents applied for execution. The appellant filed his objections. They are as follows:The judgment debtor No. 1/ Objecting party preferred an appeal before the Honble High Court of Punjab & Haryana against the judgment and decree under execution vide RSA No. 2187/2013 which was dismissed by the Honble High Court of Punjab & Haryana vide judgment and order dated 16.05.2018. Upon which the judgment debtor No. 1 moved a petition for special leave to appeal before the Honble Supreme Court of India bearing No. 23053/2018 but the same was dismissed vide order dated 31.08.2018 and the judgment debtor No. 1 has no intention to file a review against the same.The Judgment debtor No. 1 submits the following objections against the execution of the judgment and decree dated 04.01.2013:1. That the decree dated 04.01.2013 cannot be executed because of the own act and conduct of the decree holders. In the decree dated 04.01.2013 the Honble Civil Judge (Sr. Div.), Sh. Fakhruddin has clearly mentioned that the decree holders need to deposit the remaining sale consideration within one month from the dated of passing of the judgment and decree dated 04.01.2013. Relevant portion of the decree dated 04.01.2013 is reproduced below:The defendant No. 1 shall get the sale deed executed and registered in favour of the plaintiffs in view of the terms and conditions of the agreement to sell Ex-P2. The plaintiff however, shall deposit the remaining part of sale consideration within one month from the date of this judgment.As per the terms and conditions of the agreement to sell Ex-P2 the total sale consideration for land measuring 42 Kanal and 11 Marla @ of Rs.12,25,000/- per acre amounts to Rs.65,15,469/- out of which Rs.2,50,000/- were paid as earnest money as such the remaining sale consideration amounts to Rs.62,65,469/- whereas the decree holders/plaintiffs allegedly have only deposited an amount of Rs.34,41,100/- which is deficient and there is no provision in the decree for later submission of the balance sale consideration or part payments of the same.Prayer: It is therefore most respectfully prayed that in the present circumstances the application of the Decree Holders may kindly be dismissed with cost. Any other order which this Honble court may deem fit and proper in the facts and circumstances of the present may also be passed in favour of the objecting respondent.4. The objections of the appellant were rejected and dismissed with exemplary cost of Rs.3,000/-, by order dated 30.05.2019. The respondents had produced a draft sale deed. Based on the same, we notice that a further order dated 30.05.2019 came to be passed. The aforesaid order dated 30.05.2019 came to be challenged before the High Court. By the impugned order, the High Court dismissed the revision petition filed by the appellant. We may notice the following part of the impugned judgment:It is evident from the decree that the suit property as mentioned was 24 Kanals 2 Marlas. Similar observations was also made in the RSA No. 2187 of 2013. The SLP preferred by petitioner/JD No. 1 was also dismissed. There is nothing to show that the decree was qua 42 Kanals 11 Marlas and not 24 Kanals 2 Marlas.Learned counsel for the petitioner yet again insisted that the draft sale deed was not served upon him, which is a mandatory requirement. However, no such argument was raised by the JD/objector qua the same.Learned counsel for the petitioner further submitted that an application was filed by the decree holder for appointment of Local Commissioner for execution of the sale deed in compliance of the impugned judgment and decree dated 04.01.2013 and it was allowed on the same day, whereas, it is mandatory to supply the copy of draft sale deed in compliance of Order 21 Rule 34(2) of the Civil Procedure Code, 1908.However, a perusal of the order dated 30.05.2019 (Annexure P-4) passed by the Executing Court shows that a direction was issued to execute the sale deed in favour of the decree holder after getting the draft sale deed approved from the Court. Thus, the stage to hand over the draft sale deed had not arrived and the petitioner could have very well moved an application before the Court concerned to supply him the draft sale deed, which was never done.

Reasoning:
8. As far as the case relating to the exact extent which was the subject matter of adjudication is concerned, we do not think that it will be open to the appellant to revisit the matter by pointing out that the respondents had not complied with the decree in not depositing the consideration as provided therein. An attempt to fix the extent which the appellant is duty bound to convey by the decree in excess of 24 Kanals and 2 Marlas cannot be countenanced. We would, therefore, hold that the property which is the subject matter of the decree is 24 Kanals and 2 Marlas. The said property would becomprised in Khewat No. 346 and it is a part of larger extent of 48 canals and 4 Marlas which, in turn, undoubtedly, is part of larger extent of 72 Kanals and 7 Marlas as referred to in the agreement. This is on the basis of the terms of the decree. It is, thereafter, that the respondents-decree holders filed execution proceedings.10. The present is indeed a case where the decree in question provides for the execution of the document. The document is the document of sale as contemplated under the decree. Therefore, Order XXI Rule 34 is clearly attracted. It contemplates that if the judgment debtor neglects or refuses to obey the decree, the decreeholder is to prepare a draft of the document. In this case, the draft of the document is the draft sale deed. The draft of the sale deed must further be in accordance with the terms of the decree. It is to be delivered to the court. Thereupon, it is not required that the decree holder must directly deliver it to the judgment debtor. The procedure, therefore, is that the decree holder must make it available to the Court. Under Order XXI Rule 34, it becomes the duty of the court to thereupon cause the draft to be served upon the judgment debtor. There must be a notice inviting objections and the court may fix a time within which objections are to be filed. The judgment debtor may or may not object. Order XXI Rule 34 sub-rule (3) contemplates a situation where the judgment debtor objects. This is to be contained in writing within the time provided. The court is duty bound to make an order approving or altering the draft as it thinks fit. This is of considerable importance having regard to what may follow subsequently on the strength of the decree. It is also important from the point of view of the role of the executing court which is to act in conformity with the decree.12. In the facts of this case, we may notice the order which is impugned by the appellant before the High Court. We notice from the order that the proposed sale deed is seen taken on file. Thereafter the court refers to the application filed for appointment of a local commissioner for the execution of the sale deed. The court refers to the decree bearing the date 04.01.2013. Thereafter, the court says that in the light of the present facts and circumstances the present application was allowed. The Civil Nazar of the Court was appointed as local commissioner who was directed to carry out the formalities for execution of the sale deed in accordance with the terms and conditions of the agreement after getting the approved draft sale deed from the court and report to this effect was to be submitted in the court well before 06.07.2019. This order is dated 30.05.2019. The sale deed came to be executed on 11.06.2019. Thus, this is a case where the court did not invite objections of the appellant to the draft sale deed but the application of the respondents for appointment of the commissioner to execute the sale deed is allowed, no doubt, taking note of the order of the same date, rejecting the objections of the appellant to the execution of the decree.13. We must notice here that the objections on behalf of the appellant to the execution petition are not be confused with his objections to the proposed sale deed. That the appellant may have raised contentions to the effect that the decree itself is inexecutable and it was found meritless, would not absolve the court of its duty to proceed with the matter of considering the draft sale deed and the objections thereto under the provisions of Order XXI Rule 34. Subsequent to the impugned order dated 30.05.2019, without objections being invited and considered, the sale deed dated 11.06.2019 came to be executed which was registered. Therefore, we are of the view that this approach of the court in the matter of executing the decree in question clearly contravenes the salutary provisions of Order XXI Rule 34.14. The complain of the appellant is sought to be buttressed with reference to the difference in the survey numbers as noticed by us earlier. While it is true that the court must be diligent in the matter of executing a decree passed after adjudication which spans a long period of time, it is also the duty of the court to execute the decree as it is and in accordance with law. Order XXI Rule 34 cannot be diluted and any such departure from the provisions can have highly deleterious consequences not merely qua the parties in question but also persons who come to deal with those parties in future. It can lead to further litigation. It is all of this which is sought to be avoided by bringing clarity and precision and execution must be in conformity with the adjudication contained in the decree.15. In this case, the court is presented with a fait accompli. This is for the reason that putting the cart before the horse, as it were, without giving an opportunity to file objections to the draft sale deed, the order impugned was passed. The sale deed itself has been executed in terms of the draft sale deed without objections being called for and considered.