Darshan Kaur vs Gurdial Singh and others

The matter here concerns the execution of a decree for specific performance.

Execution of a decree of specific performance having been applied for, notice was served upon the judgment-debtor. The judgment-debtor was proceeded against ex parte when he did not appear despite service. On the application of the decree-holder, thereafter, it appears, a Local Commissioner was appointed who executed a sale deed pertaining to the land which was the subject matter of the decree. It was thereafter that the judgment-debtor filed an application under S. 47 of Civil P. C. seeking the setting aside of the said sale deed on the ground that the draft of the document to be executed had not been served upon him and no opportunity had been afforded to him for filing objections to the proposed sale deed. The reference here being to the provisions of Order 21, Rule 34 of the Civil P. C. This objection prevailed with the trial Court where there provisions were held to be mandatory and the sale deed was consequently set aside and notice of the draft sale deed was ordered to be given to the judgment-debtor.

A reading of the impugned order of the trial Court would show that what appears to have tilted this case against the decree-holder was the judgment of the High Court of Andhra Pradesh in P. Venkanna Chetti and Another Vs. B. Apparao Naidu, , where it was held that the provisions of O.21, R. 34 (3) that the court must consider the objections of the judgment-debtor to the draft sale deed, were mandatory. A reading of this judgment would however show that on facts, it was clearly distinguishable from the present case, in that, there as draft sale deed had been served upon the judgment-debtor, with the notice to him to file objections, if any, to it. The judgment-debtor instead filed another draft sale deed. The court without considering the objections of the judgment-debtor accepted the draft submitted by the decree-holder. It was in this context, that the court observed that the provisions of O. 21, R. 34(3) of the Civil P. C. were mandatory. The order of the executing court was consequently set aside and the trial Court was directed to consider the objections of the judgment-debtor to the draft sale deed. It deserves note that unlike the present case, that was not a case where the judgment-debtor was being proceeded against ex parte for failure to appear despite notice.

It would also be pertinent to note here that the judgment-debtor has not comeforth to state his objections if any, to the sale deed as registered nor has he pointed out any prejudice caused to him by the contents of the sale deed as executed.

In a case like the present where the judgment-debt or does not appear despite notice and is proceeded against ex parte, the provisions of O.21, R. 34 of the Civil P.C., that the court shall cause a draft of the sale deed to be executed to be served upon the judgment-debtor for inviting his objections, if any to it, must be held to be merely directory and non-compliance with them will not vitiate the sale deed executed under orders of the court under unless the judgment-debtor is able to show that prejudice was caused to him by the draft sale deed not being served upon him and opportunity thereby being denied to him to file his objections against it.

Seen in this light, the impugned order of the trial Court cannot indeed be sustained and is accordingly hereby set aside. This revision is thus accepted with costs. Counsel fee Rs. 300/-.

Petition allowed.