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SUPREME COURT OF INDIA
ABHAY MANOHAR SAPRE, DINESH MAHESHWARI, JJ.
Sir Sobha Singh And Sons Pvt. Ltd. – Appellant(s)
VERSUS
Shashi Mohan Kapur(Deceased) Thr. L.R. – Respondent(s)
CIVIL APPEAL No.5534 OF 2019 (Arising out of S.L.P.(C) No.3053 of 2019)
Decided On : 15-07-2019
(a) Code of Civil Procedure, 1908 - Order XXI Rules 11(2) & (3) - Execution petition - Decree holder only required to give details of the judgment and the decree in the execution application along with other details - Executing court ‘may’ require decree holder to produce a certified copy of the decree - Thus decree holder not required to file copy of the decree in execution petition - Execution application shall not be non-maintainable on this account - Decree shall have to be filed only if required by executing court. (Para 29, 30, 31, 32)
(b) Code of Civil Procedure, 1908 - Section 36 r/w Order XXIII Rule 3 - Rule 3 requiring passing of a decree on recording a compromise - Therefore held an order passed under Order XXIII Rule 3 is not capable of execution u/s 36. (Para 35, 36, 37)
(c) Code of Civil Procedure, 1908 - Order XLVII r/w Sections 114 and 151; Sections 47 & 151 r/w Order XXI Rules 11(2) and 26; Order XLVII r/w Sections 114 and 151; Section 151 - Applications filed under these provisions aimed only to delay execution - Respondent not vacating suit house even after taking two extensions of time and having given an undertaking to the court - Executing court rightly dismissed all objections of the respondent. (Para 41)
(d) Code of Civil Procedure, 1908 - Order XX Rule 6A - Order passed under Order XXIII Rule 3 - decree not passed - Held order has to be treated as decree in the interregnum period by virtue of Order XX Rule 6A(2) - The order shall have effect of a decree till the date of actual passing of the decree - Held Executing court rightly entertained the execution petition and decided the objections. (Para 42)
(e) Code of Civil Procedure, 1908 - Order XXIII Rule 3 r/w section 152 - Order passed based on compromise of the parties - Decree not drawn - High Court directing appellant to apply for the decree u/s 152 - Section 152 provides for amendment, correction etc of judgment, decree etc. - Instantly there being no decree, section 152 did not apply - Held, decree holder was required to file an application under Section 151 read with Order 20 Rule 6A to the Court for drawing a decree in accordance with the order recording compromise. (Para 45, 46, 48)
(f) Code of Civil Procedure, 1908 - Section 35A - executing court imposing a compensatory cost of Rs.500000 on respondent for filing applications raising therein frivolous objections to avoid execution of the decree against them - Imposition of cost held valid however the amount held to be excessive - Modified to Rs. 50,000. (Para 51)
Facts of the case:
The appellant let out the suit house to the father of the original respondent Late Mr. R.L. Kapur as back as in 1959. The appellant, however, determined the tenancy by serving a quit notice to Mr. R.L. Kapur on 21.12.2004. Mr. R.L. Kapur died on 13.07.2007 leaving behind the respondent as his legal representative.
The appellant served another quit notice dated 16.01.2009 to the respondent and called upon him to vacate the suit house failing which the appellant filed Civil Suit in 2009 against the respondent for his eviction from the suit house and the mesne profits.
The respondent did not contest the suit and compromised the matter with the appellant. It was agreed that the respondent (tenant) would hand over the vacant possession of the suit house on or before 31.05.2016 to the appellant; Second, the respondent would pay a sum of Rs.5,000/per month towards user charges w.e.f. 01.06.2012 till the date of handing over of the suit house to the appellant; and third, the respondent would not sublet or create any third party rights in the suit house.
The Trial Court recorded the statement of the parties and accordingly disposed of the civil suit in terms of the aforementioned compromise.
The respondent sought extension of time to vacate the suit house which was granted.
Since the respondent failed to vacate the suit house, the appellant filed Execution Petition for execution of the consent decree dated 01.06.2012 against the respondent for obtaining vacant possession of the suit house.
The Executing Court ultimately held that the respondent was indulging in delaying tactics only to avoid the execution of the consent order dated 01.06.2012. The Executing Court held that the respondent having taken time twice to vacate the suit house did not honor the orders of the Court and, therefore, while dismissing his applications and the application of one Mr. Manomohan Kapur imposed a cost of Rs. 5 lakhs upon each of them with a direction to pay 50% to the appellant and remaining 50% to the Delhi Legal Services Authority.
The respondent filed first appeal before the High Court. By impugned order, the High Court allowed the appeal and set aside the order passed by the Executing Court. The High Court held that since the Trial Court did not draw up the formal decree after passing the consent order on 01.06.2012, the Execution Petition filed by the appellant (decree holder) is not maintainable. The High Court, however, granted liberty to the appellant (decree holder) to apply to the Trial Court under Section 152 of the Code for drawing up a decree in terms of the consent order dated 01.06.2012.
Finding of the Court:
Impugned judgment cannot be sustained.
Result: Appeal allowed.
JUDGMENT
Abhay Manohar Sapre, J.
1. Leave granted.
2. This appeal is filed against the final judgment and order dated 31.10.2018 passed by the High Court of Delhi at New Delhi in Ex.F.A. No.42 of 2018 whereby the High Court allowed the appeal filed by the respondent herein and set aside the order dated 22.10.2018 passed by the ADJ-02 & Waqf Tribunal, New Delhi District, New Delhi in Execution No.5665 of 2016.
3. A few facts need mention hereinbelow for the disposal of this appeal, which involves a short point.
4. The appellant is the plaintiff/decree holder and the respondent is the defendant/judgment debtor.
5. The dispute arises out of the execution proceedings and it emanates from Civil Suit No. 369/2009 (new No.675/2009) decided on 01.06.2012.
6. The appellant is the landlord of a Flat-G-81, IInd floor along with one Servant Quarter J-3-62, IIIrd floor situated at Sujan Singh Park, New Delhi (hereinafter referred to as "suit house”).
7. The appellant let out the suit house to the father of the original respondent-Late Mr. R.L. Kapur as back as in 1959. The appellant, however, determined the tenancy by serving a quit notice to Mr. R.L. Kapur on 21.12.2004. Mr. R.L. Kapur died on 13.07.2007 leaving behind the respondent as his legal representative.
8. The appellant served another quit notice dated 16.01.2009 to the respondent and called upon him to vacate the suit house. Since the respondent failed to vacate the suit house, the appellant was constrained to file Civil Suit in 2009 (Old No.369/2009 new number 675/2009) against the respondent in the Court of ADJ for his eviction from the suit house and the mesne profits.
9. The respondent, after entering his appearance in the suit, did not contest it and compromised the matter with the appellant. It was agreed that the respondent (tenant) would hand over the vacant possession of the suit house on or before 31.05.2016 to the appellant; Second, the respondent would pay a sum of Rs.5,000/- per month towards user charges w.e.f. 01.06.2012 till the date of handing over of the suit house to the appellant; and third, the respondent would not sublet or create any third party rights in the suit house.
10. The Trial Court recorded the statement of the parties and accordingly disposed of the civil suit in terms of the aforementioned compromise by its judgment dated 01.06.2012 which reads as under:
"With judicial intervention, the dispute between the parties has been amicably settled. It is agreed that defendant shall vacate and hand over the vacant and peaceful possession of the suit property, i.e., Flat No.G81, IInd floor and servant quarter No.J362, IIIrd floor, Sujan Singh Park, New Delhi, as shown in the site plans already exhibited as Ex.PW1/14 and Ex.PW 1/15, to the plaintiff on or before 31.05.2016. Defendant also undertakes to pay the user charges of the suit property at the rate of Rs.5000/- per month w.e.f. 01.06.2012 to the plaintiff regularly till the date of handing over of the suit property to the plaintiff. Defendant also undertakes not to sublet or create any third party interest in the suit property.
It is prayed that the case may be disposed off as compromised.
Statements of Brig. Gurbax Singh and Mr. Shashi Mohan Kapur have been separately recorded and they have been identified by their respective counsel.
Heard Perused. Considered.
It appears that the statements have been made voluntarily and are accepted.
Both the sides shall remain bound by their respective statements.
In view of the submissions made as well as the statements of both the sides, the case is hereby disposed off as compromised.
Attested copies of the order be given to both the sides, dasti, as requested.
After completion of the formalities, file be consigned to record room."
11. On 27.05.2016, the respondent filed an application under Section 148 read with Section 151 of the Code of Civil Procedure, 1908 (hereinafter referred to as “the Code”) and prayed therein for extension of time to vacate the suit
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