2010 Supreme(Bom) 204

In the High Court of Bombay at Aurangabad
MR. JUSTICE S.B. DESHMUKH
Jayawant Dattatraya Murtadak
Versus
Namdeo Dada Kolhe & Another
WRIT PETITION NO.990 OF 2010
Decided on: 09-02-2010

Headnote:Civil Procedure Code, 1908 - Section 47 - Order XXI, Rule 34(4) - Suit for specific performance of contract - Filed by decree holder-respondent - Dismissed by trial Court with costs - Directed petitioner-defendant to refund amount with interest to plaintiff respondent - First Appellate Court, in appeal, reversed judgment of trial Court and directed petitioner to execute sale deed in favour of respondent regarding suit property - Second appeal dismissed by High Court - Plaintiffs filed R.D. in Executing Court - Review application dismissed by High Court - Petitioner filed application under Section 47 of Code - Contention, draft sale deed makes mention of delivery of possession and accepted by trial Court illegally - Held - Order of Executing Court, rejecting application filed by petitioner under Section 47 of Code as not maintainable not suffers from any perversity - Judgment debtor tried to delay execution of decree passed by First Appellate Court - Executing Court directed to proceed with execution in accordance with law - Writ petition dismissed. - The trial Court in its order below Exh. 51 has observed that judgment debtor i.e. present petitioner has not mentioned the date on which he has deposited amount of earnest money and interest in the Court or date on which decree holder has withdrawn the said from the Court. Trial Court therefore, on this point arrived at conclusion that there is no substance in this submission that he has deposited amount of earnest money with interest. On the point of alleged permission to be obtained, Executing Court recorded a finding that Appellate Court had not directed the plaintiff/decree holder to obtain permission of the Competent Authority to get execution of the sale-deed. It is pertinent to note that Appellate Court, on the contrary, has observed that on the other hand, it had directed the defendant/ judgment debtor to obtain permission of Competent Authority by accepting the balance amount of consideration of Rs. 10,000/- which is already deposited by the plaintiff. Executing Court therefore hold that there is no substance in this submissio n also of the J.D./petitioner. Mentioning of delivery of possession in the draft saledeed also has been considered by the Executing Court. It is a categorical observation of the Executing Court in the order impugned that decree holder has also not claimed possession in this execution or there is no direction from Appellate Court to deliver possession of the property to the Decree Holder. The Executing Court arrived at a conclusion that application under Section 47 of CPC filed by the petitioner is not maintainable in view of the fact that there was no response to the notice under Order XXI, Rule 22 of Code of Civil Procedure, served to the J.D./present petitioner. Executing Court found it a belated attempt however dealt with the application on merits and rejected the same.

        The procedural Code i.e. Code of Civil Procedure contains around 52 Orders in the First Schedule. Biggest is the Order XXI comprising around 106 Rules. To obtain a decree from Civil Court successfully is itself is a task for the plaintiff litigant. If plaintiff litigant succeeds in his attempt, it is another aspect of the matter for him, if he is drived up to Honourable Supreme Court to substantiate his contention at all levels i.e. at the level of First Appellate Court, Second Appellate Court and ultimately if SLP is filed before Honourable Supreme Court, he has no option. The plaintiff-litigant even if succeeds to support the decree passed by the Civil Court at the first instance, until the Honourable Supreme Court, his ordeal is not over. The plaintiff thereafter is required to approach to Civil Court to seek execution of the decree by filing Execution petition. This point of time comes in the life of plaintiff-litigant after many years, figure may differ from case to case. In the case on hand, the respondent decree holder has undergone this ordeal.

       Order XXI, Rule 34 is relevant in the case on hand. In view of undisputed fact that there is a decree passed by the first Appellate Court for specific performance of contract. Order XXI, Rule 34 comprises round 6 sub-rules. In the case on hand, we are at the stage of Order XXI, Rule 34 sub-rule (4). Indisputably and as Court has have recorded in foregoing paragraphs of this order draft sale-deed is placed on record, copy thereof is served to the petitioner/ judgment debtor, his objection is recorded, rejected by the Executing Court and draft sale-deed is accepted. Sale-deed conveys title of the subject-matter i.e. movable/ immovable property from seller to purchaser. There is no perversity in the order passed by the Executing Court.

        Executing Court in its order has observed that the application under Section 47 is filed at belated stage. Record shows that at every level judgment debtor tried to file proceeding to delay the execution of the decree passed by the first Appellate Court. In Court’s view, no case for invocation of extra-ordinary jurisdiction under Articles 226 and 227 is established.