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IN THE HIGH COURT OF KARNATAKA
Suraj Govindaraj, J.
Dada & Ors. - Appellants
Versus
Appasaheb & Ors. - Respondents
Writ Petition No. 102158 of 2021 (GM-CPC)
Decided On : 16-06-2022
ORDER - Specific Performance - Order 21 Rule 34 - The court held that the provisions of Order 21 Rule 34 are mandatory and the execution court is required to provide an opportunity to the Judgment debtor to file objections to the draft sale deed while executing the decree for specific performance. The court also discussed the nature of objections that could be filed by a Judgment debtor requiring consideration under Order 21 Rule 34 of CPC. The court further held that the execution Court can issue a delivery warrant directing handing over of possession to the decree-holder even if the relief of possession was not sought for in the plaint but sought for in the execution proceedings. The court referred to Section 22 of the Specific Relief Act and Section 28 of the Specific Relief Act to support its decision.
Fact of the Case:
The petitioners, who are judgment debtors, sought relief from the court to quash the order allowing IA No.2 and to quash the delivery warrant issued in EP No.73/2014. The respondents, as decree holders, had filed a suit against the petitioners seeking specific performance and a direction to execute a sale deed. The petitioners alleged that their advocate colluded with the respondents, leading to an ex-parte decree. The execution court allowed IA-2 for a delivery warrant, which the petitioners challenged.
Finding of the Court:
The court found that the provisions of Order 21 Rule 34 are mandatory and discussed the nature of objections that could be filed by a Judgment debtor requiring consideration under Order 21 Rule 34 of CPC. The court also held that the execution Court can issue a delivery warrant directing handing over of possession to the decree-holder even if the relief of possession was not sought for in the plaint but sought for in the execution proceedings. The court referred to Section 22 of the Specific Relief Act and Section 28 of the Specific Relief Act to support its decision.
Issues: 1. Whether the provisions of Order 21 Rule 34 are mandatory and provide an opportunity for the Judgment debtor to file objections to the draft sale deed. 2. What are the nature of objections that could be filed by a Judgment debtor requiring consideration under Order 21 Rule 34 of CPC? 3. Whether the execution Court can issue a delivery warrant directing handing over of possession to the decree-holder even if the relief of possession was not sought for in the plaint but sought for in the execution proceedings?
Ratio Decidendi: The court held that the provisions of Order 21 Rule 34 are mandatory and the execution court is required to provide an opportunity to the Judgment debtor to file objections to the draft sale deed while executing the decree for specific performance. The court also discussed the nature of objections that could be filed by a Judgment debtor requiring consideration under Order 21 Rule 34 of CPC. The court further held that the execution Court can issue a delivery warrant directing handing over of possession to the decree-holder even if the relief of possession was not sought for in the plaint but sought for in the execution proceedings. The court referred to Section 22 of the Specific Relief Act and Section 28 of the Specific Relief Act to support its decision.
Final Decision: The writ petition stands dismissed.
ORDER
1. The petitioner is before this Court seeking for the following reliefs:
a. Issue a writ or direction in the nature of Certiorari quashing the Order dated 23.04.2021 in allowing IA No.2. Consequently, quash the delivery warrant issued in EP No.73/2014 on the file of Principal Senior Civil Judge, Chikkodi, vide Annexure-J.
b. Issue any other writ or direction which this Hon'ble deems fit to meet the ends of justice.
2. Brief facts of the case are:
2.1. The petitioners are Judgment debtors and respondents are decree holders in Execution Petition No.73/2014 pending on the file of the Prl. Senior Civil Judge, Chikodi.
2.2. The respondents who are plaintiffs had filed a suit against the petitioners in O.S.No.65/2010 before the Senior Civil Judge, Chikodi seeking for a decree of specific performance and a direction to the petitioners herein to execute a sale deed in respect of the suit land as per the agreement of sale dated 29.03.2008.
2.3. Though the petitioners entered appearance through their counsel, the petitioners allege that due to the mistake on part of the counsel, written statement on behalf of petitioners was not filed, the suit proceeded to trial and the trial Court decreed the suit vide Judgment dated 26.06.2013 in pursuance of which a decree was drawn up.
2.4. The petitioners filed Mis. No.60/2014 under Order 9 Rule 13 of CPC seeking for setting aside the Judgment and decree dated 26.06.2013 which also came to be dismissed for non-prosecution on 9.08.2017. Prior to the dismissal of Mis. Petition No.60/2014, the respondents filed Execution proceedings in E.P.No.73/2014. The petitioners thereafter filed first appeal in RFA No.100033/2021 on 12.01.2021 challenging the judgment and decree passed in O.S No. 65/2010. Though the said RFA is pending, there is no stay of the execution proceedings ordered in the said appeal.
2.5. The petitioners on being served in the execution proceedings, entered appearance through their counsel, petitioner No.1 filed statement of objections to the execution petition which came to be adopted by petitioner No.2 by filing a memo. Petitioner No.1 had also filed additional objections subsequently.
2.6. In the Statement of objections, petitioner No.1 has contended as under:
2.6.1. The advocate engaged by the petitioners earlier in O.S No.65/2010 had colluded with the respondents herein. The said advocate failed to file written statement and the suit came to be decreed ex-parte which came to the knowledge of the petitioners only on 05-09-2014, as they are illiterates and relied on the advocate.
2.6.2. The respondents are in money lending business under the style and name M/s Dhanalaxmi Finance Corporation and M/s Laxmi Finance Corporation. The petitioners have borrowed money from these business and has no intention of selling the suit property.
2.6.3. The present valuation of the suit property is more than a crore rupees.
2.6.4. Since there is no specific prayer for relief of possession, the right to possession does not accrue to the respondents.
2.6.5. The suit land is in the name of one Marudevi who has not been impleaded in the suit as such she is not bound by the decree consequently the respondents are not entitled to the suit property.
3. Respondents filed IA-1 in the said execution proceedings seeking appointment of Court Commissioner to execute a registered sale deed in favour of respondents. The said application came to be allowed on 30.08.2018.
4. The Execution Court taking note of the fact that a draft sale deed has been furnished and no objections have been filed by the petitioners was of the opinion that in terms of the decree passed in O.S No.65/2010, the petitioners are liable to execute a sale deed in respect of the suit schedule property in favour of the decree holders as per the agreement dated 29.03.2008. The execution Court not being empowered to go beyond the decree was of the opinion that it was just and proper to appoint a Court Commissioner for the purpose of executing a registered sal
The provisions of Order 21 Rule 34 are mandatory and provide an opportunity for the Judgment debtor to file objections to the draft sale deed while executing the decree for specific performance. The ....
The decree for specific performance inherently includes the right to possession, making separate requests for possession unnecessary unless specific circumstances require it.
Point of law: If once we accept the legal position that neither a contract for sale nor a decree passed on that basis for specific performance of the contract gives any right or title to the decree-h....
The court reinforced that obstruction claims in execution proceedings must be heard to uphold rights, ensuring adherence to natural justice principles.
The Court retains control over a decree for specific performance and is empowered to grant ancillary reliefs to protect its orders and give them sanctity.
Court neither loses its jurisdiction after grant of decree for specific performance nor it becomes functus officio – If an ancillary or incidental relief is not granted, there would be no value to de....
Court exercising jurisdiction under Section 47 or under Order 21 of CPC must not issue notice on application of a third party claiming right in a mechanical manner.
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