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2013 Supreme(Bom) 826
High Court of Judicature at Bombay
ANOOP V. MOHTA, J.
Ashford Developers Pvt. Ltd.
Versus
Pravin Dalpatrai Desai & Others
Chamber Summons No. 572 of 2007 In Execution Application (L) No. 177 of 2007 In Suit No. 3896 of 1990
Decided On : 12-04-2013
For the Plaintiffs:S.U. Kamdar, Senior Advocate with C.S. Kapadia with P.K. Shroff with D.V. Deokar with Medhavin Bhatt with Subodh Joshi i/by M/s. Parimal Shroff and Co., Advocates.
For the Defendants:D1 to D4, Vaibhav Krishna i/by Juris Consillis, Advocates.
Headnote:BOMBAY HIGH COURT (ORIGINAL SIDE) RULES, 1980 - Rules 38 and 314 - Sealing of consent decree.
Though the consent decree is not sealed within time stipulated by Rule 300, even then right of parties to get consent decree executed cannot be restricted. - The office and/or the other party, in such back-ground, could not have insisted sealing of the decree which was under challenge. The issue of limitation and/or discussion with regard to the same, in the present facts and circumstances is irrelevant to adjudicate and/or to decide the power of the Master and Assistant Prothonotary to seal the decree within four weeks and/or after four weeks. Such Rules even otherwise, cannot be utilized to restrict the rights of the parties to get the consent terms executed as there was non-compliance of the other side. The date of decree and/or taking steps from such date in the present facts and circumstances, cannot be the reason to deny the rights and/or power of the office to seal the decree as required.
Even otherwise, Rule 314 empowers the Judge to allow execution even before sealing of the decree or order. The only requirement is, it should be supported by the "good cause" and/or "sufficient rule". Therefore, there is no bar for the Court to pass appropriate order in the facts and circumstances of the case even in view of the period of 30 days so prescribed in Rule 300 of the Rules.
Civil Procedure Code, 1908 - Order XXI, Rule 22(2) - Execution of consent decree.
A consent decree of year 1998, can be executed in year 2007 as it is not beyond period of 12 years. - The consent decree is of 8th June, 1998. The plaintiff sought execution of the same in the year 2007 for the first time. Therefore, it is within limitation so far as it is not beyond the period of 12 years. The consent decree as such is executable.
The learned senior counsel appearing for the Plaintiffs on instructions, restricted the arguments to prayer clauses (a) and (b), which are reproduced as under:-
“(a) That this Hon'ble Court be pleased to order and direct the office of the Prothonotary and Senior Master to take on file, number and process the above Execution Application even before sealing of the Consent Decree dated 8th June 1998 passed in the above matter.
(b) That this Hon'ble Court be pleased to pass an order under Sub-rule (2) of Order XXI Rule 22 of the Code of Civil Procedure 1908 allowing execution of the Consent Decree dated 8th Jun3 1998 passed in the above matter without issuance of the usual Notice under Order XXI Rule 22 of the C.P.C. to the Defendant Nos. 2 to 4 abovenamed.”
2. They are not pressing other prayer clauses i.e. from (c) to (m) at this stage of the Execution. Admittedly, by order dated 8 June 1998 the Suit got disposed of in view of the consent terms. The consent terms was signed by the Plaintiffs and Defendant No.5 only. Other Defendant Nos. 1 to 4 were not present. As averred and as noted from the consent terms there are various reciprocal obligations which were to be complied with by Defendant Nos. 1 to 4 also. There were non-compliances as recorded in the averments including the following paragraph Nos. 10 and 11 of the affidavit, which reads as under:-
“10 I say that Defendant Nos. 1 to 4 have not complied with any of their obligations under the Consent Decree and narrated hereinabove including their obligations under Clauses 22 and 23 thereof. Clause 23 of the Consent Terms provides, inter-alia, that in the event Defendant Nos. 1(deceased) to 4 failed to obtain indenture/s of Conveyance in respect of the said remaining portion of 183 Acres of Survey No.31 of the Suit property from the original owners and furnish index-II to the Plaintiffs in respect of such remaining portion of the Suit property within a period of 6 months from the date of the Consent Terms, the payment of installments by the Plaintiffs to Defendant No.1 (deceased) to 4 shall stand postponed by a period equivalent to the period of delay from the expirty of the said 6 months till the Conveyances in respect of the said remaining portion of the Suit property have been duly registered and Index-II in respect thereof is furnished to the Plaintiffs. I say that since Defendant Nos. 1(deceased) to 4 have failed to obtain such Indentures of Conveyance (for 183 Acres), the payment of the installments set out in the Second Schedule to the Consent Terms stood postponed as aforesaid. The installments in the Second Schedule have therefore still not become due for payment. I say that upon Defendant Nos. 1(deceased) to 4 furnishing to the Plaintiffs Indentures of Conveyance and Index-II in respect of the said 183 Acres (Survey No.31) and also complying with their obligations under Clause 15(a) and (b) of the Consent Terms, the Plaintiffs will make payment of the balance consideration money of Rs.4,98,50,000/- in the manner contemplated by the Consent Decree.
11. I say that the Plaintiffs have always been ready and willing to comply with their obligations under the Consent Decree as mandated by it. I say that the Consent Decree similarly mandates that Defendant Nos.1 (Deceased) to 4 comply with their obligations thereunder. However, Defendant Nos.1 (Deceased) to 4 have despite lapse of more than 9 years failed and neglected to comply with their obligations thereunder. In view thereof, the Plaintiffs have been unable to obtain conveyance of the Suit properties in their favour and to perfect their title thereto as contemplated by the Consent Decree.”
The Plaintiffs therefore, have no option but to put the said consent terms now for the execution. Accordingly, the Execution Application in question filed some time in the year 2007. The Execution Application is still pending, the same was also amended some time in the year 2011.
3. The original Defendant Nos. 1 to 4 ha
