Sharifa Bee vs Mahaboob and Others

B.S. Patil, J.—1. This matter has a checkered history. Challenge in this Writ Petition (WP No. 101664 of 2016) is to the order dated 08th February 2016 passed by the executing court on I.A. No. XXXI in E.P. No. 167 of 2000. By the said order, the executing court has rejected the application filed by the judgment-debtor No. 4(a) under Section 47 read with Section 151 of the Code of Civil Procedure, 1908 (for short ''CPC'').

By filing I.A. No. XXXI, judgment-debtor No. 4(a) sought for closing the execution petition, on the ground that decree passed in O.S. No. 79 of 1995 had been fully satisfied by executing a sale deed in respect of half portion of the property belonging to judgment-debtors 4 and 5.

Connected Writ Petition No. 110500 of 2015 has been filed challenging the order dated 08th January 2015 passed on I.A. No. XXIV in the very same execution petition, thereby holding that application filed by the legal representatives of judgment-debtor No. 4(a) praying for permission to deposit balance amount of Rs. 35,000/- towards the decreetal debt, did not merit consideration and that they had failed to make out any ground for allowing I.A. No. XXIV. The executing court has further held in the said order that the decree-holder was entitled for execution of sale deed from the legal representatives of the judgment-debtor Nos. 4 and 5 in respect of the share of judgment Nos. 4 and 5, i.e., to an extent of half share in the property as per the compromise decree which was binding only on judgment-debtor Nos. 4 and 5 insofar as their shares. Several orders have been passed by the executing court in the past.

The contentions urged before the executing court by the decree-holder are:

"(i) That the entire suit schedule property measuring 27 feet towards East to West X 29 feet towards North to South [i.e., 27''X 29''] being the subject matter of compromise decree, the decree-holder - respondent No. 1 herein was entitled for execution of the decree for specific performance in respect of the whole property;

(ii) That, it has been already decided by the executing court while disposing of I.A. Nos. XV, XVI & XVII on 16th April 2004 and subsequently, as per the order dated 13th September 2007 passed on I.A. No. XX, that decree-holder was entitled for execution of sale deed in respect of the entire property and that question of effecting partition by filing a suit for partition by the decree-holder would not arise;

(iii) That, the finding recorded by the executing court has been affirmed by this Court in Writ Petition No. 7478 of 2007 which arose out of the order passed on I.A. No. XX dated 13th September 2007."

The contentions urged by the learned counsel appearing for the judgment-debtor No. 4(a) are:

"(a) That the compromise decree passed in the suit is virtually a money decree. Defendant Nos. 4 and 5 had agreed for refund of Rs. 35,000/- received as advance sale consideration at the time of executing agreement to sell, which totally amounted to Rs. 75,000/-, within a period of six months from the date of judgment. His contention is that though the decree specified that failure to pay the amount within prescribed period would result in a decree for specific performance, intention was only to make it a money decree;

(b) The second contention is that as per the compromise decree, half portion of defendants 4 and 5 in the suit property had to be sold in favour of the decree-holder; by appointing the Court Commissioner, half share has been sold by executing a sale deed dated 07th July 2015 through the Court Commissioner and therefore, the decree had been fully satisfied; in the absence of any further direction in the decree to effect partition and hand-over separate possession of the said half share in favour of the plaintiff - decree-holder, in terms of Section 22 of the Specific Relief Act, 1963, there was nothing more to be done in the execution proceedings;

(c) That, unless the decree-holder gets the property divided by seeking partition instituting a separate proceedings and identifying his half share of the property, the executing court cannot put the decree-holder in possession of half share of the property, though the same has been sold by executing a registered sale deed."

Learned counsel has placed relied on the judgment of the Apex Court in the case of BABULAL versus M/s. HAZARI LAL KISHORI LAL AND OTHERS, , AIR 1982 SC 818, to contend that circumstances in the present case are such that relief of possession cannot be effectively granted to the decree-holder in the absence of specific claim made for possession, because, the property that was agreed to be conveyed was jointly held by the judgment-debtors and 5 along with defendant Nos. 2 and 3, against whom the suit was dismissed. Hence, in order to obtain complete and effective relief, plaintiff must claim partition of the property and possession of the share of the defendants. Attention of the Court is invited to the observations made in paragraph 14 of the judgment.

In this regard, reliance is also placed by him on the judgment of the Apex Court in the case of BADRI NARAIN PRASAD CHOUDHARY AND OTHERS versus NIL RATAN, , AIR 1978 SC 845, to contend that when the suit property was incapable of division in specie, the alternative method called owelty has to be resorted to by allowing one of them to retain whole of the property by delivering possession to the other. It is urged by the learned counsel that none of these grounds have been considered by the Court below and therefore, the Order under challenge suffered from non-application of mind to the relevant facts.

A careful consideration of the entire material on record, in the light of the contentions raised, makes it clear that on 16th January 2012 in Writ Petition No. 17478 of 2007, a compromise was entered into between the plaintiff and judgment-debtors 4 and 5. As the suit against judgment-debtors 2 and 3 stood dismissed, compromise decree would bind judgment-debtor Nos. 4 and 5 only. It is useful to extract the portion of the order passed by this Court in the aforementioned judgment in paragraph No. 9, which reads as under:

"9...... Indeed in the circumstances, I am of the view that the question of interference with the impugned orders does not arise inasmuch as in all the applications which are filed by the decree holder or by the judgment debtors, there is a finding recorded that the decree would bind only judgment debtors 4 and 5 and not 2 and 3. Indeed the directions issued by the executing Court to file a suit for partition has also been set at naught. Hence, in the circumstances, I am of the view that the question of interfering with the impugned orders does not arise except making an observation that the compromise decree would bind only judgment debtors 4 and 5 insofar as their share i.e. to an extent of half share in the property is concerned."

It is, thus, clear from the Order passed by this Court that, this Court has made it clear that the compromise decree passed in the suit was in respect of half share of judgment-debtors 4 and 5 in the entire property. Therefore, it is not open now to contend that decree pertained to the entire suit property. This order passed by this Court has attained finality. Therefore, this question cannot be reopened.

Insofar as the question whether partition ought to have been sought by the plaintiff and in the absence of a decree directing partition of the property, whether the decree-holder was entitled for possession of half share of the judgment-debtors 4 and 5 in the suit property, the High Court has confirmed the order passed by the executing court wherein the executing court made it clear that no such requirement seeking partition of the shares of the judgment-debtors 4 and 5 was necessary because, there was already a partition. Hence, the contention urged in this regard by the judgment-debtors 4 and 5 having been rejected and having attained finality, the same cannot be re-opened now.

Indeed, judgment-debtors 4 and 5 have executed a sale deed in respect of half portion of the suit property on 07th July 2015. The draft sale deed prepared in this regard has been approved and accepted by the executing court on 17th June 2015. Therefore, what remains for consideration now is the identification of the portion of the property to be handed over to the decree-holder in terms of the sale deed executed and its feasibility. The executing court has to only apply its mind to the nature of the property, the actual extent of the property available and feasibility of handing over possession of half extent in favour of the decree-holder. Instead of allowing the executing court to complete this exercise, both parties have been virtually re-agitating the matter putting the clock back.

Therefore, these writ petitions are disposed of with a direction that the executing court has to only undertake the exercise of identifying the share of the decree-holder in the suit property and examine the feasibility of delivering possession of the same to the decree-holder or in the alternative, if such delivery of possession was not feasible, to explore the possibility of valuing the share of the decree-holder and deciding on the option of paying the market price to the decree-holder or to the judgment-debtors, as the case may be.

The Orders passed by the Court below stand modified to the above extent.

The matter shall be disposed of expeditiously, at any rate, within a period of two months from the date of receipt of a copy of this order.