Maurice W. Innis vs Lily Kazrooni @ Lily Arif Shaikh

Pankaj Mithal, J

Heard learned counsel for the parties.

Leave granted.

The dispute in this appeal is in connection with the execution of a compromise decree dated 14.07.2017 passed in a Civil Suit No. 68 of 2012.

The suit land measures 51R (54895 sq. feet). It is a non-agricultural land of plot No.396(A) situate in village Panchgani, Taluka Mahabaleshwar, Satara in the State of Maharashtra.

The plaintiff-appellant had purchased 97.12R area of land of plot no. 396(A) in village Panchgani as referred to above. The plaintiff-appellant initially sold 57R of the aforesaid land purchased by him to the defendant-respondent. Thus,  retaining  only  40.12R  with  himself.  The  purchaser i.e., the defendant-respondent sold back 6R of the said land to the plaintiff-appellant. Thus, the plaintiff-appellant became the owner of a total of 46.12R of the aforesaid plot of  land.  The  defendant-respondent  after  selling  6R  to  the plaintiff-appellant, remained with only 51R of the land out of the 57R initially purchased by him. The dispute is regarding this 51R of land retained by the defendant- respondent.

The defendant-respondent entered into an agreement to sell the aforesaid 51R of land to the plaintiff-appellant vide registered agreement dated 17.04.2009. The plaintiff- appellant  filed  suit  no.68  of  2012  against  the  defendant- respondent praying for specific performance of the agreement to sell dated 17.04.2009. In the said suit, parties entered into a compromise on 08.07.2017. The said compromise  inter  alia  provided  that  10R  of  the  said  land would remain a common land in common ownership of both the partners. The remaining 41R of land would be equally divided between them to the extent of 20.5R each. The area of 20.5R to be retained by each one 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. Accordingly, a decree would be drawn.

It appears that on the basis of the aforesaid compromise, the suit was decreed after completing the formalities of the survey and valuation. Finally, a decree was drawn on 14.07.2017  incorporating  the  respective  areas  falling  into the share of each party.

The aforesaid compromise decree states that the plaintiff- appellant who had purchased 97.12R of plot No.396(A)  of village Panchgani had a sanctioned map dated 09.04.2010 which is part and parcel of the compromise and that both parties  agree  to  the  said  map.  The  disputed  land  is  only 51R which is situate on the western side of plot No.396(A). The area of 10R is common land for exercise of easementary right as common road for access to their properties.

The aforesaid compromise decree in unequivocal terms provided that the area of residential bungalow and the area of construction up to the plinth level towards the southern side of the bungalow plus the area on the western side of plot No.396(A) including two bungalows shown in the sanctioned  map,  having  a  total  area  of  20.5R  goes  to  the share of the plaintiff-appellant. Thus, the area of 20.5R falling into the share of plaintiff-appellant was clearly described.

Similarly, the area of 20.5R falling into the share of defendant-respondent was described as situate on the western side of the bungalow of the plaintiff-appellant and includes structures up to the plinth level extending up to the boundary of the two bungalows on eastern side.

The decree also provided that the defendant-respondent shall execute the sale deed of the property falling into the share  of  the  plaintiff-appellant  on  consideration  of  Rs.10 lakhs which is already paid.

The said decree was put into execution by both the parties separately. The plaintiff-appellant filed  Execution Petition No.38 of 2020, which allegedly remains pending as on date. The defendant-respondent filed a separate Execution Petition  No.21  of  2018  for  the  execution  of  the  aforesaid compromise  decree  dated  14.07.2017  claiming  himself  to be the decree holder.

Accordingly, the defendant-respondent became the decree holder and the plaintiff-appellant became the judgment debtor.

The Executing Court in Execution Petition No.21 of 2018 of the defendant-respondent passed an order on 19.07.2021 and issued certain directions, modifying the area of land allotted to the parties in the final compromise decree, to the Court Commissioner to execute the decree. The aforesaid modifications were made in the area allotted to the parties inter alia for the reason that the permanent constructionsmade to the extreme western side of the plot were not as per the sanctioned plan and, therefore, it was not practicable to allot that area to the defendant- respondent. It was also not considered to be practicable to allot  the  portion  towards  the  extreme  western  side  to  the defendant-respondent as it was 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.

In  short,  the Executing  Court  varied  the  area  allotted  to the parties under the compromise decree and allotted them some different portions, thus in effect modifying the compromise decree.

The defendant-respondent was not satisfied and filed a review petition seeking  further  modification  of the  above order passed by the Executing Court. The aforesaid review petition was allowed  by the order dated 26.08.2021 and the modifications made by the Executing Court in the original compromise decree were further modified.

Aggrieved by the aforesaid judgment and order allowing the  review  petition,  plaintiff-appellant  filed  a  writ  petition before the High Court challenging the orders passed by the Executing Court dated 19.07.2021, order passed on review petition dated 26.08.2021 as well as the order dated 11.10.2021 directing the delivery of possession. Finally, the writ petition was dismissed on 21.04.2022. Thus, the orders passed by the Executing Court were upheld. 18. The plaintiff-appellant has thus preferred this appeal.

It is in this background that we have heard Shri Shoeb Alam, senior counsel for the plaintiff-appellant and Shri Gopal Jha, counsel for the defendant-respondent.

The primary argument of the plaintiff-appellant is that the Executing  Court  cannot  go  beyond the  decree  and  has  to execute the decree as it stands without making any modifications therein. Therefore, the Executing Court manifestly erred in passing the order dated 19.07.2021 and the order dated 26.08.2021 on review petition.

From the side of the defendant-respondent, it is submitted that the Executing Court has rightly interpreted the decree and in view of the peculiar facts and circumstances of the case, respondent rightly allotted portions so that the decree does not become inexecutable. The Executing Court, in the facts and circumstances of the case, had correctly passed the orders dated 19.07.2021 and 26.08.2021.

The counsel for the defendant-respondent relied upon a three judges bench decision in the case of Jai Narain Ram Lundia v. Kedar Nath Khetan and Ors. (1956) 1 SCC 75  to contend that the Executing  Court is not powerless to ensure that the parties are 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 and as such, there was no error on part of the Executing Court in passing the order dated 19.07.2021 or 26.08.2021

In order to address the controversy arising in this appeal, it  would  be  profitable  to  first  place  Section  47  of  Code  of Civil Procedure ‘CPC’ which provides for the questions to be determined by the Executing Court. The aforesaid Section 47 CPC is reproduced hereinbelow :-

“47. Questions to be determined by the Court executing decree: -

(1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit.

(2) * * * * (omitted)

(3) Where a question arises as to whether any person is or is not the representative of a party, such question shall,  for  the  purposes  of  this  section,  be determined by the Court.”

A  plain  reading  of  the  aforesaid  provision  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.

In Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman and Ors. (1970) 1 SCC 670, it has been held as under :-

“6. 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.”

The aforesaid view has been reiterated and fortified by the Supreme  Court  in  Sunder Dass v. Ram Prakash (1977) 2 SCC 662. The relevant portion is reproduced hereinbelow :-

“3. Now, the law is well settled that an executing  court  cannot  go  behind  the  decree nor can it question its legality or correctness. But there is one exception to this general rule and  that  is  that  where  the  decree  sought  to be  executed  is  a nullity  for  lack of  inherent jurisdiction in the court passing it, its invalidity can be set up in an execution proceeding. Where there is lack of inherent jurisdiction, it goes to the root of the competence of the court to try the case and a decree  which  is  a nullity  is  void  and  can  be declared to be void by any court in which it is presented. Its nullity can be set up whenever and  wherever  it  is  sought  to  be  enforced  or relied upon and even at the stage of execution or even in collateral proceedings. The executing court can, therefore, entertain an objection that the decree is a nullity and can refuse to execute the decree. By doing so, the executing court would not incur the reproach that it is going behind the decree, because the decree being null and void, there would really be decree at all. Vide Kiran Singh v. Chaman Paswan  [AIR  1954  SC  340  and  Seth  Hiralal Patni v. Sri Kali Nath [AIR 1962 SC 199]. It is, therefore, obvious that in the present case, it was competent to the executing court to examine whether the decree for eviction was a nullity on the ground that the civil court had no inherent jurisdiction to entertain the suit in which  the  decree for  eviction was passed.  If the decree for eviction was a nullity, the executing court could declare it to be such and decline to execute it against the respondent.”

In view of the above case laws, 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.

In so far as the case relied upon by the defendant- respondent  i.e.  Jai  Narain  Ram  Lundia (supra),  it  cuts no  ice  in  her  favour.  The  aforesaid  decision  simply  states that if there are reciprocal obligations under the decree which  are  interlinked,  the  court  must  ensure  compliance of reciprocal obligations. It further states that the Executing Court has power to determine that one party gives the very thing to the other  party which the decree directs and in case any dispute in this regard arises it can be decided by the Executing Court, otherwise the Executing Court must execute the decree as it stands and cannot go beyond the decree and vary its term.

The above decision in clear terms states 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.

In  the  instant  case,  there  is  no  dispute  of  identity  of  the land falling into the shares of both the parties. The compromise  decree  clearly  describes  the  portions  of  land falling into the shares of the parties. Therefore, 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.  Since the Executing Court in passing the orders dated 19.07.2021 and 26.08.2021 has gone beyond its jurisdiction and instead of directing for the execution of the decree as it stands, has altered its terms by changing certain portions of the land allotted to the parties, the same are unsustainable in law. Accordingly, both the above orders dated 19.07.2021 and 26.08.2021 and the consequential order dated 11.10.2021 are hereby set aside.

The appeal is allowed and the Execution Court is directed to execute the decree in its terms and tenor.

Pending application(s), if any, stands disposed of.