M/s. Pushpa Sahakari
Avas Samiti Ltd. Vs. M/s. Gangotri Sahakari Avas S. Ltd. & Ors.
[Civil Appeal No.
8297-8298 of 2004]
J U D G M E N T
Dipak Misra, J.
present appeals by special leave are directed against the judgment and order
dated 10.01.2002 and 07.03.2003 passed by the learned Single Judge of the High
Court of Judicature at Allahabad in Civil Revision No. 341 of 1997 and Review Application
No. 38861 of 2002 respectively. The facts as un curtained in the two appeals are
that the appellant as plaintiff initiated a civil action forming subject matter
of suit No. 501of 1995 against the respondent and others for permanent injunction.
In the suit, the parties entered into a compromise and on the basis of the compromise,
a decree was drawn up on 06.09.1996.
The terms and conditions
of the compromise were made a part of the decree. Be it noted, the compromise
between the parties stipulated certain conditions and one such condition was
that within a span of six months' time, the defendant would pay a certain sum to
the plaintiff. For the sake of clarity and convenience, the said clause of the
compromise is reproduced hereunder:- "That the defendant No. 1
acknowledges and undertakes to pay Lacs Rs. 38,38000/- (Rupees Thirty Eight
Lacs and Thirty Eight Thousand) only to the plaintiff within six months from
the date of this compromise. The payment of the said amount by the defendant
No. 1 to the plaintiff shall have the effect of settling entire claim of the
plaintiff as against the defendant No. 1 in full and final"
the petition for compromise which formed a part of the decree, there were other
stipulations but they are not necessary to be stated for the adjudication of
these appeals. As has been indicated earlier, the decree was drawn up on
the first respondent did not honour the terms of the decree, the appellant
filed an application for execution of the decree on 17.02.1997and the said
application was registered as Misc. Case No. 9 of 1997. The respondent No. 1
entered contest and filed an objection under Section 47 of the Code of Civil
Procedure (for short, 'the Code') which was registered as Misc. Case No. 43 of 1997.
Allegations, counter allegations
and rejoinders were put forth before the Executing Court. One of the objections
raised in the application under Section 47 of the Code was that as the decree
holder had moved the executing court for execution of the decree prior to the
expiry of the six months' period, the application was premature and, therefore,
entire execution proceeding was vitiated being not maintainable.
The learned Civil
Judge who dealt with the execution case did not find any merit in any of the objections
raised and rejected the same. It is worth noting that by the time the matter
was taken up and the order came to be passed, the decree had become mature for execution.
After rejection of the objection, the executing court took into consideration the
submission of the judgment-debtor and, accordingly, directed that the entire
balance money as agreed to in the compromise should be paid to the decree
by the aforesaid order, the first respondent preferred Civil Revision No. 341 of
1997. The learned Single Judge noted the contentions and subsequent orders that
were passed in the execution petition. The revisional court opined that no other
objection could be raised for the first time in the revision and hence, no finding
was warranted to be recorded on the said score.
far as the premature filing of the execution petition is concerned, the learned
Single Judge expressed his view as under:- "The question whether the
execution was premature or not is to be decided with regard to the date at
which the execution was filed. If a suit is found to have been filed premature,
it cannot be decreed for the reason that the period has expired during the
pendency of the suit. Similar principle will not apply to the execution.
If the execution was
premature when it was filed, it is liable to be rejected and cannot be proceeded
with because it has pre-matured during the pendency of the case."Being of
this view, he allowed the revision and set aside the order passed by the
learned Civil Judge as a consequence of which the execution case entailed in
have heard Mr. Dinesh Dwivedi, learned senior counsel for the appellant, and
Mr. S. K. Dubey, learned Senior counsel for the first respondent.
the impugned order passed in Civil Revision, Mr. Dwivedi, learned senior counsel,
has contended that when a suit is premature on the date of its institution and
the Court can grant relief to the plaintiff if no manifest injustice or
prejudice is caused to the party proceeded against, there is no reason or
justification for not applying the said principle to an execution proceeding.
It is urged by him that
the question of a suit being premature does not go to the root of the jurisdiction
of the Court, but the Court in its judicial discretion may grant a decree or
refuse to do so and, therefore, in the case at hand, when the executing court
had proceeded after the expiry of the stipulated period in the decree, there
was no warrant on the part of the revisional court to interfere with the same,
for the said order did not suffer from lack of appropriate exercise of
jurisdiction or exercise of jurisdiction that the court did not possess.
It is canvassed by
him that if the petition filed under Section 47 of the Code is scrutinized, it will
clearly reveal that objections have been raised in a routine manner to delay the
execution proceeding and such dilatory tactics by a judgment-debtor should, in all
circumstances, be deprecated and decried. In support of his contentions, he has
placed reliance on Vithalbhai (P) Ltd. v. Union Bank of India.
Dubey, learned senior counsel for the first respondent, per contra, contended that
the executing court could not have entertained the application as it was filed
prior to the expiration of the period. In support of his stand, he has placed
reliance on Lal Ram v. Hari Ram. The next submission of Mr. Dubey is that as
the execution was levied in a premature manner before the expiry of the period,
the decree lost its potentiality of executability. Elaborating the said submission,
it is canvassed that the compromise decree could not have been taken up for the
purpose of execution and hence, the objection under Section 47 of the Code should
have been accepted by the executing court, but as it failed to do so, the High Court,
in exercise of the supervisory jurisdiction, has rectified the jurisdictional
The learned senior
counsel further urged that when the compromise decree imposed mutual
obligations on both sides some of which were conditional, no execution could be
ordered unless the party seeking execution not only offered to perform his part
but also satisfied the executing court that he was in a position to do so. In
essence, the proponement of Mr. Dubey is that by levying the execution in a
premature manner, the stipulations in the compromise decree have been totally overlooked
and the real construction of the terms of the decree have been given an
indecent burial. To bolster the said submissions, he has commended us to the
decisions in Jai Narain Ram Lundia v. Kedar Nath Khetan and Chen Shen Ling v.
Nand Kishore Jhajharia.
the very outset, it may be stated that it is an admitted position that the
execution was levied prior to the expiration of the period stipulated in the decree.
The executing court, as is evident, has addressed itself to all the objections
that were raised in the application and rejected the same. The principal objection
relating to the maintainability of the proceeding on the foundation that it was
instituted prematurely did not find favour with it. The learned Single Judge has
observed that if an execution is premature when it is filed, it is liable to be
Mr. Dwivedi has drawn
an analogy between a premature suit and premature execution by placing heavy reliance
on the authority in Vithalbhai (P) Ltd. (supra). In Vithalbhai (supra), while dealing
with the premature filing of a suit, a two-Judge Bench of this Court, after referring
to a number of decisions of various High Courts and this Court, came to hold as
follows:- "The question of suit being premature does not go to the root of
jurisdiction of the court; the court entertaining such a suit and passing
decree therein is not acting without jurisdiction but it is in the judicial discretion
of the court to grant decree or not.
The court would
examine whether any irreparable prejudice was caused to the defendant on account
of the suit having been filed a little before the date on which the plaintiff's
entitlement to relief became due and whether by granting the relief in such
suit a manifest injustice would be caused to the defendant. Taking into consideration
the explanation offered by the plaintiff for filing the suit before the date of
maturity of cause of action, the court may deny the plaintiff his costs or may make
such other order adjusting equities and satisfying the ends of justice as it
may deem fit in its discretion.
The conduct of the parties
and unmerited advantage to the plaintiff or disadvantage amounting to prejudice
to the defendant, if any, would be relevant factors." After so stating,
the Bench ruled that the plea as regards the maintainability of the suit on the
ground of its being premature should be promptly raised and it will be equally
the responsibility of the Court to dispose of such a plea. Thereafter, it was observed
court shall not exercise its discretion in favour of decreeing a premature suit
in the following cases:
there is a mandatory bar created by a statute which disables the plaintiff from
filing the suit on or before a particular date or the occurrence of a
the institution of the suit before the lapse of a particular time or occurrence
of a particular event would have the effect of defeating a public policy or public
such premature institution renders the presentation itself patently void and the
invalidity is incurable such as when it goes to the root of the court's
the lis is not confined to parties alone and affects and involves persons other
than those arrayed as parties, such as in an election petition which affects
and involves the entire constituency.
(See Samar Singh v.
Kedar Nath 13.) One more category of suits which may be added to the above is: where
leave of the court or some authority is mandatorily required to be obtained before
the institution of the suit and was not so obtained." [Emphasis Supplied]
have referred to the aforesaid dictum in extenso as we find that the Bench has
given emphasis on various aspects, namely, an issue getting into the root of
the jurisdiction of the Court; causing of irreparable and manifest injustice; adjustment
of equities; concept of statutory bar; presentation that invites a void action and
anything that affects the rights of the other party; and obtaining of leave of
the Court or authority where it is a mandatory requirement, etc. On a perusal of
the various provisions relating to execution as enshrined under Order XXI of the
Code, we do not find anything which lays down that premature filing of an execution
would entail its rejection. The principles that have been laid down for filing
of a premature suit, in our considered opinion, do throw certain light while
dealing with an application for execution that is filed prematurely and we are
disposed to think that the same can safely be applied to the case at hand.
we shall advert to the submission of Mr. Dubey that the executing court could
not have entertained the application as it was filed before the expiration of
the period. The learned senior counsel has relied on the decision rendered in
Lala Ram (supra). In the said case, an order of acquittal passed -by the
learned Magistrate was assailed before the High Court by seeking leave under Section
417(3) of the Code of Criminal Procedure, 1898 and the High Court granted leave
as a consequence of which the appeal came to be filed eventually. The High
Court accepted the appeal and convicted the accused.
It was contended before
this Court that the appeal could not have been entertained by the High Court
having been filed beyond the expiry of sixty days in view of the language employed
under Section 417(4) of the Code. Emphasis was laid on the term "entertain".
Repelling the contention, this court held as follows: - "The learned counsel
also suggests that the word "entertain" which occurs in Section 417
(4) means "to deal with or hear" and in this connection he relies on the
judgment of this Court in Lakshmi Rattan Engineering Works v. Asst. Commr., Sales
Tax, (1968) 1 SCR 505 = (AIR 1968 SC 488).
It seems to us that
in this context "entertain" means "file or received by the Court"
and it has no reference to the actual hearing of the application for leave to
appeal; otherwise the result would be that in many cases applications for leave
to appeal would be barred because the applications have not been put up for
hearing before the High Court within 60 days of the order of acquittal" On
a perusal of the aforesaid passage, it is vivid that the three-Judge Bench
interpreted the terms 'were entertained' in the context they were used under
the old Code and did not accept the submission 'to deal with or hear'. Regard
being had to the context, we have no shadow of doubt that the said decision is
distinguishable and not applicable to the obtaining factual matrix.
this context, we may refer with profit to the two-Judge Bench decision in
Martin & Harris Ltd. v. VIth Additional Distt. Judge and others]. In the
said Case, the Court was interpreting the language employed in the proviso to Section
21(1) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act,
1972. The proviso stipulated that where the building was in occupation of a
tenant before its purchase by the landlord, such purchase being made after the commencement
of the Act, no application shall be entertained on the grounds mentioned in Clause
(a) of the said Section unless three years' period had lapsed since the date of
A contention was canvassed
that filing of an application before the expiry of the three years' period was
barred by the provision contained in the said proviso. Repelling the said submission,
the Bench opined thus: - "It must be kept in view that the proviso nowhere
lays down that no application on the grounds mentioned in clause (a) of Section
21(1) could be "instituted" within a period of three years from the
date of purchase. On the contrary, the proviso lays down that such application on
the said grounds cannot be "entertained" by the authority before the
expiry of that period. Consequently it is not possible to agree with the extreme
contention canvassed by the learned Senior Counsel for the appellant that such
an application could not have been filed at all within the said period of three
"After so stating,
the Bench distinguished the decision rendered in Anandilal Bhanwarlal v. Kasturi
Devi Ganeriwala which dealt with" institution" and eventually came to
hold as follows: - "Thus the word "entertain" mentioned in the first
proviso to Section 21(1) in connection with grounds mentioned in clause (a) would
necessarily mean entertaining the ground for consideration for the purpose of
adjudication on merits and not at any stage prior thereto as tried to be submitted
by learned Senior Counsel, Shri Rao, for the appellant. Neither at the stage at
which the application is filed in the office of the authority nor at the stage
when summons is issued to the tenant the question of entertaining such application
by the prescribed authority would arise for consideration.
this context, we may usefully refer to the decision in Hindusthan Commercial
Bank Ltd. v. Punnu Sahu (Dead) Through Legal Representatives. In the said
case, this Court was interpreting Rule 90 of Order XXI of the Code of Civil
Procedure as amended by the Allahabad High Court. The amended proviso to Rule
90 stipulated the circumstances under which no application to set aside the
sale shall be entertained. It was contended before this Court that the expression
"entertain" found in the proviso referred to the initiation of the
proceedings and not to the stage when the Court had taken up the application
for consideration. This Court referred to the earlier decision in Lakshmiratan Engineering
Works Ltd. v. Asst. Comm., Sales Tax, Kanpur and opined that the expression "entertain"
conveys the meaning "adjudicate upon" or "proceed to consider on
State of Haryana v. Maruti Udyog Ltd. and Others , this Court was dealing
with Section 39 (5) of the Haryana General Sales Tax Act, 1973which stipulated
that no appeal shall be entertained unless it is filed within sixty days from
the date of the order appealed against and the appellate authority was
satisfied that the amount of tax assessed and the penalty and interest, if any,
recoverable from the persons had been paid. The Bench interpreting the term
"entertainment" of the appeal ruled that when the first proviso to
Section 39 (5) speaks of the "entertainment of the appeal", it means that
the appeal will not be admitted for consideration unless there is satisfactory
proof available of the making of the deposit of admitted tax.
view of the aforesaid authorities in the field, the submission of Mr. Dubey
that the executing court could not have entertained the execution proceeding
solely because it was instituted before the expiry of the period stipulated in
the compromised decree despite the factum that by the time the Court adverted
to the petition the said period was over, is absolutely unacceptable.
next limb of proponement of Mr. Dubey is that the decree had lost its
potentiality of executability having been filed on a premature date. On a first
flush, the aforesaid submission looks quite attractive but on a deeper probe and
keener scrutiny, it melts into insignificance. In Dhurandhar Prasad Singh v.
Jai Prakash University and Others, while dealing with the power of the
executing court under Section 47 of the Code of Civil Procedure, a two-Judge
Bench has expressed thus:-
"The exercise of
powers under Section 47 of the Code is microscopic and lies in a very narrow
inspection hole. Thus it is plain that executing court can allow objection
under Section 47 of the Code to the executability of the decree if it is found that
the same is void ab initio and a nullity, apart from the ground that the decree
is not capable of execution under law either because the same was passed in
ignorance of such a provision of law or the law was promulgated making a decree
in executable after its passing "
on the anvil of the aforesaid principle, it is difficult to accept the stand
that the decree had become in executable, and, accordingly, we repel the same.
learned senior counsel for the respondent has further propounded that the
executing court could not have passed any order on the application for execution
as it was filed prior to the expiry of the period. Pyramiding the said
submission, it is urged by him that such advertence inan execution proceeding
frustrates the construction of the terms of the decree. Mr. Dubey has drawn
immense inspiration from the verdict in Chen Shen Ling (supra).
On a careful perusal
of the aforesaid decision, it is plain and patent that the three-Judge Bench had
dealt with the consideration of the terms of the decree and eventually, placing
reliance on the decision in Jai Narain Ram Lundia (supra), expressed the view that
no execution can be ordered unless the party seeking execution not only offered
to perform his part but, also when objection was taken, satisfied the executing
court that he was in a position to do so.
Be it noted, in the
case Jai Narain Ram Lundia (supra), this Court has adverted to the reciprocal
application, their inter-linking and the indivisibility of the terms of the
decree and opined that the executing court cannot go behind the decree and it
cannot defeat the directions in the decree. In both the decisions, the issue
pertained to the nature of order to be passed by the executing court or the
type of direction to be issued by it.
The ratio enunciated
therein does not remotely deal with the filing of an execution petition in
respect of a compromise decree prior to the expiry of the date as stipulated in
the terms and conditions of the decree. Hence, we have no scintilla of doubt
that the said authorities do not support the stand so vehemently put forth by
Mr. Dubey, learned senior counsel for the first respondent.
view of our aforesaid premised reasons, we arrive at their resistible
conclusion that the executing court did not commit any error by entertaining
the execution petition. The learned Single Judge in civil revision has annulled
the said order without any justification. While so doing, he had not dealt with
other objections raised by the Judgment-debtor on the ground that they are
raised for the first time. On a query being made,
Mr Dwivedi, learned
senior counsel for the petitioner, fairly stated that the said objections were
raised in a different manner in the objection filed under Section 47 of the
Code and the revisional court should have been well advised to deal with the
same on merits. Regard being had to the aforesaid analysis, we set aside the
order passed in civil revision and remit the matter to the High Court to deal
with the objections on merits.
As it is an old
matter, we request the learned Chief Justice of the High Court of Allahabad to
nominate a learned Judge to dispose of the civil revision within a period of
six months. It is hereby made clear that the parties shall not seek unnecessary
adjournment before the revisional court and should cooperate so that the
revision shall be disposed of within the time frame.
the appeals are allowed to the extent indicated herein above leaving the
parties to bear their respective costs.