2011 Supreme(Bom) 1506

Bombay High Court
F. M. REIS
Pandurang Sazo Gaonkar
Vs
Adolfo Gomes & Ors.
Decided On : 20/12/2011

Headnote:Civil Procedure Code, 1908 - Order XXI, Rule 1(b) - Consent decree for execution of sale deed. Where payments of agreed balance consideration was paid by petitioner in accordance with Order XXI, Rule 1(b) of Code and evidence in writing by judgment- debtor, therefore execution proceedings cannot be dismissed by Executing Court.

       Constitution of India - Article 226 - Civil Procedure Code, 1908, Order XXI, Rules 1 and 2 - Writ petition - Challenging Order dated 12.3.2009 of Executing Court dismissing Execution proceeding initiated by petitioner - Contention that Executing Court misappreciated evidence on record and erred in concluding that payment made by petitioners, cannot be accepted as same were not duly recognised/certified by Court in accordance with provisions of Order XXI, Rules 1 and 2 of CPC - Payments made by petitioner in terms of consent decree to respondents admitted in writing - Respondents while receiving last instalment by receipt dated 2.8.1987 from petitioner not raised any dispute with regard to amount payable by petitioner in terms of consent decree - Payments made by petitioner directly to respondents not contrary to terms of consent decree and are in accordance with Order XXI, Rule 1(b).

       Held - Executing Court erroneously dismissed Execution proceedings - Failed to consider settled principles of law that decree has to be executed in terms thereof - Impugned order quashed and set aside - Execution proceedings restored - Petition allowed.

       The payment of the amounts by the petitioner and the interest thereon have in fact not been disputed by the respondents. On the basis of the overwhelming evidence as mentioned above and as recorded herein above, It establishes that the amount was paid in terms of the Consent Decree. The only point to be considered is whether merely because the said payments were not recognised by the Court within the provisions of Order XXI Rule 2 of the Civil Procedure Code, the same cannot be accepted by the Executing Court. The payments effected by the petitioner are evidenced in writing within the provisions of Order XXI, Rule 1, sub-rule (b) of the Civil Procedure Code. The consent decree does not in any way contemplate that such payments were to be paid only through the Court. The Decree does not prohibit the petitioner to pay the amounts to the respondents directly. As such, payments by the petitioner to the respondents cannot be said to be contrary to the terms of the consent decree.

       The payment which have been effected by the petitioner are in accordance with Rule XXI, Rule 1 clause (b) of the Civil Procedure Code and the payments have been effected in accordance with the Consent Decree. It is not the case wherein the respondents have received any smaller amount in satisfaction of the Consent Decree passed by the Court. In any event, there is no period of limitation under the provisions of the Indian Limitation Act, 1963, whereby such payments have to be satisfied within the provisions of Order XXI, Rule 2 of the Civil Procedure Code. Article 125 of the Limitation Act sought to be relied upon by the counsel appearing for the respondents, is not at all applicable to the present facts of the case. The period of limitation contemplated therein in cases in which adjustments or satisfaction of decree are to be recorded is within a period of thirty days. Article 125 of the Limitation Act, 1963 does not prescribe any period of limitation for the purpose of recognising the payments paid in accordance with the Decree. In the present case, there was clear averment in the execution application that the amounts have been paid in accordance with the Consent Decree. There was no bar even at this stage for the Executing Court to recognise the payment if it was so required.

       Hence, once the respondents admit the payment, it tentamounts to the decree holder certifying such payments to the Court. In the present case, as held herein above, the respondents by signing the receipts have accepted the payments of the money in accordance with the consent terms. Apart from that, in the reply filed to the execution proceedings, the fact of the payment of the said amount has not been disputed, such admission itself would tentamount to the fact that the respondents have accepted the payment made by the petitioners.

       It is well settled that procedural law is not a tyrant nor an obstruction but an aid to justice. Procedural prescriptions are the handmaid of justice but not a mistress. It is only a lubricant and not a clog in the administration of justice. In the present case, the petitioner cannot raise such untenable contentions on the basis of the Civil Procedure Code only to defeat the rights which crystallize in favour of the petitioner pursuant to the consent decree. There is nothing pointed out by the respondents to the effect that the petitioner has not complied with the terms of the Consent Decree. As such, considering the facts and circumstances of the case, Court finds that the Judge has erroneously dismissed the execution proceedings. The Judge failed to consider at payments of the instalments were as per the consent decree. The question of refusing the relief to the petitioner on the ground that there was breach of clause (e) of the agreement does not arise at all as there was no breach in the payment of any instalments nor did the respondents call upon the petitioner to pay all the instalments on account of such default. Even assuming there was a mistake on the part of the respondents to calculate the interest, it does not mean that the decree gets extinguished. The Judge has exercised its jurisdiction with material irregularity in dismissing the execution proceedings. The Judge has failed to consider the well settled principles of law that the decree has to be executed in terms thereof.