Executing Court has no jurisdiction to go beyond the decree - Supreme Court
A Division Bench of Justices Pankaj Mithal and Prasanna B.Varale set aside the orders of Executing Court and High Court of Bombay which had upheld the order of Executing Court on observation that the Executing Court had gone beyond its jurisdiction under Section 47 of CPC, 1908 which provides for the questions to be determined by the Executing Court [Maurice W. Innis Vs . Lily Kazrooni @ Lily Arif Shaikh]
FACTS
OF THE CASE
The
dispute between the plaintiff-appellant and defendant-respondent is about a
non-agricultural land measuring 51R situated at village Panchgani in the State
of Maharashtra. Initially, the plaintiff-appellant sold 57R of Land to
purchaser i.e. defendant-respondent out of the total area measuring 97R. Thus
retaining only 40.12R with her. The defendant-respondent again sold 6R of the
said land to the plaintiff-appellant, thus holding 46R of land and
defendant-respondent holding only 51R of land out of 57R sold.
The
defendant-respondent entered into an agreement to sell the remaining 51R of
land to the plaintiff-appellant vide registered agreement in 2009. The
plaintiff-appellant file suit for specific performance of the agreement to sell
against the defendant-respondent in 2012. In the suit parties entered into a
compromise in 2017 wherein it was provided that 10R of the said land would
remain a common land for easementary right in common ownership of both the
parties and the remaining land i.e. 41R of land would be divided between them
that make 20.5 to each of them. The area of each of them would be ascertained
by the surveyor and the value of the bungalow and the plinth level construction
existing on part of the said land would be determined by the Government valuer.
On
the basis of the compromise, the suit was decreed after formalities of the
surveyor and valuation.
The
decree also provided that the defendant-respondent shall execute sale deed of
the property falling into the share of the plaintiff-appellant on consideration
of Rs. 10 lakhs already paid.
The
said decree was put into execution by both the parties separately for the
execution of said compromise decree. The defendant-respondent claimed himself
to be the decree holder. Accordingly, the plaintiff-appellant became the
judgment debtor.
The
Executing Court in Execution Petition of the defendant-respondent passed an impugned order and issued directions, modifying the area of land allotted to the parties
in the final compromise decree, to the Court Commissioner to execute the
decree. The modifications were made in the area allotted to the parties for
reason that permanent constructions made in the western side of plot was not as
per the sanctioned plan. Therefore it was not practicable to allot that area to
the defendant-respondent.
The
Executing Court considered that it is not practicable to allot the western side
of the plot as it is likely to cause inconvenience to her in future and that
the area of 10R of the suit plot towards
the extreme western side had already been sold by plaintiff-appellant to the
third party.
The
Executing Court varied the area allotted land under the compromise deed by
allotting them some different portions.
The
defendant-respondent dissatisfied, file a review petition seeking further
modification of the order of the Executing Court. the review petition was
allowed. The plaintiff-appellant writ petition before the High Court
challenging the orders passed of the Executing Court, order in review petition
as well as the order directing delivery of possession. The writ petition too
was dismissed, thus upholding the order of the Executing Court.
Therefore
plaintiff-appellant aggrieved thereby, preferred before the Supreme Court with
prayer to set aside all the orders passed by the Court below.
SUBMISSIONS
The primary
submission of the Learned Counsel on behalf of plaintiff-appellant was that the
Executing Court cannot go beyond the decree and has to execute the decree as it
stands without making any modifications therein. The Executing Court has
manifestly erred in passing order in
contravention of compromise decree.
Whereas
Learned Counsel on behalf of defendant-respondent submitted that the Executing
Court has rightly interpreted the decree in view of the peculiar facts and
circumstances of the case. The Executing Court has rightly allotted portion so
that the decree does not become unexecutable.
The
counsel of defendant-respondent relied on the case of Jai Narain Ram Lundia vs. Kedar
Nath Khetan and Ors (1956) to contend that the Executing Court is not
powerless to ensure that the parties given the very thing that the decree
directs and if there is any dispute in this regard, it is for the Executing
Court to decide it. There was no error on part of the Executing Court in
passing the order.
DICISION
A plain reading
of provision under Section 47 of CPC makes
it clear that the Executing Court is empowered to decide questions relating to
execution, discharge or satisfaction of the decree and has no jurisdiction to
go beyond the decree sought to be executed. In other words, it has to execute
the decree as it is without changing the same.
It is
settled in law that the jurisdiction of Executing Court is limited to give
effect to the decree as passed and not to assume the role of a trial court so
as to substitute its own view in place of that expressed under the decree –
Supreme Court.
The
top Court took reliance from the case of Vasudev Dhanjibhai Modi vs. Rajabhai Abdul
Rehman and Ors. (1970) which later was reiterated in case of Sundar
Dass vs. Ram Prakash (1977). It has been held -
“A
court executing a decree cannot go behind the decree: between the parties or
their representatives it must take the decree according to its tenor, cannot
entertain any objection that the decree was incorrect in law or on facts. Until
it is set aside by an appropriate proceeding in appeal or revision, a decree
even if it be erroneous is still binding between the parties”.
Hon’ble
Supreme Court viewed, the Executing Court has to strictly conform to the decree
under execution and if the decree provides for reciprocal obligations, it must
ensure compliance of those conditions by both the parties in pith and
substance, unless the decree is a nullity which is not the case herein.
The
previous decisions are clear that the Executing Court has no jurisdiction to
vary the terms of the decree. It is only where the dispute as to the identity
of the land which has to be given as part of the obligation to the other side
arises, the court can decide the same – Supreme Court.
Therefore,
the Hon’ble Supreme Court allowed the petition of the plaintiff-appellant with
reasoning there is no dispute of
identity of the land falling into the shares of the parties. The compromise
deed clearly describes the portions of land falling into the shares of the
parties. The Executing Court has to ensure that both the parties fulfil their
obligations and exchange the land as per the decree and to see that the sale
deed is executed as directed.
Merely for the reasons that exchange of some
portions of the land may not be practicable for the reason that constructions
on it are not as per the sanctioned map or that part of it has been sold off,
are all immaterial – Court viewed.
Hence top Court directed the Executing
Court to execute the decree in its terms and tenor.
Case Title: Maurice W. Innis Vs . Lily Kazrooni @ Lily Arif Shaikh
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