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2013 Supreme(Bom) 1040
High Court of Judicature at Bombay
R.M. SAVANT, J.
Rajendra Singh s/o Chandrama Singh
Versus
Deenanath Keshav Bhoir, since deceased by his heir and legal representatives & Others
Writ Petition No.6777 of 2012
Decided on : 13-06-2013
For the Petitioner:G.S. Godbole, Anil D Yadav, Advocates.
For the Respondents:R4 to R6, Shailesh Shah i/by R.D. Suryawanshi, Advocates.
Headnote:Civil Procedure Code, 1908 - Order XXI, Rule 1 - Income Tax Act, 1961, Section 230-A - Enforcement of consent decree.
Where parties to suit for specific performance of agreement of sale, entered into compromise and recorded consent terms therefore decree is enforceable from day one. - In so far as the submission based on Section 230-A of the Income Tax Act is concerned, the said condition of obtaining the certificate under Section 230-A of the Income Tax Act cannot be said to be a condition precedent for the enforceability of the decree and therefore cannot extend the period of limitation or suspend the period of limitation till such time as the certificate is obtained. The Executing Court has therefore rightly observed that whether the Decree Holder could have waited indefinitely for the Judgment Debtors to get the said certificate and whether the period of limitation would stand suspended till such time, the repeal of Section 230-A from the Statute Book in the year 2001, cannot aid the case of the decree holder as the decree was enforceable right from day one.
Civil Procedure Code, 1908 - Order XXI, Rule 1 - Limitation Act, Section 18(1) - Execution of decree.
Since an application for execution of decree, cannot be deemed to be an application in respect of any property or right hence Section 18(1) of Act not attracted to execution of decree. - Decree holder also sought to rely upon Section 18(1) of the Limitation Act to contend that since payment has been accepted by the judgment-debtors between the years 2004 to 2007 in lieu of the fiat admeasuring 600 sq.ft. which was to be handed over to the Judgment Debtors, the limitation period would get extended as a fresh period of limitation would have to be computed from the date of payment and therefore the application filed in the year 2010 was within time.
In so far as the said submission is concerned, a serious objection-was taken on behalf of the judgment-debtors to the said submission on the ground that the receipts which are sought to be relied upon in the present petition do not disclose that the payment was made in lieu of the flat which was to be handed over to the judgment-debtors. Secondly, the decree holder would rightly rely upon clause (c) of Section 18 of the Limitation Act which carves out an exception in so far as the application for execution of a decree is concerned, the said clause (c) provides that an application for execution shall not be deemed to be an application in respect of any property or right. Hence Section 18(1) would have no application to the execution of a decree in the present case and therefore the receipts which are sought to be relied upon for payments being made in lieu of the constructed portion to be handed over to the judgment-debtors, would not in any manner aid the decree holder in getting the time extended.
Civil Procedure Code, 1908 - Order XXI, Rule 1 - Limitation Act, Article 136 - Execution of consent decree.
Since an agreement of sale between parties has translated itself into a decree hence such consent decree can be executed in terms of Article 136 of Act. - Now coming to the first submission of the counsel for the decree holder, no doubt a consent decree presupposes an agreement which has been arrived at between the parties and in terms of which agreement, the parties desire that the proceedings be disposed of. The consent decree in the instant case, no doubt reflects the agreement which was arrived at between the parties in the said suit. However, the said agreement cannot be equated with an agreement of which the enforcement is sought in a suit. The agreement in question in the instant matter has translated itself into a decree and therefore all the attributes of a decree would be applicable to it. The submission of the decree holder based on Clause 4 seems to be attractive at the first blush, but does not hold water on deeper scrutiny. As indicated above, the decree in question was enforceable from day one as the Court in question was not required to do anything further in the matter for the decree being made enforceable. Therefore, the analogy sought to be drawn by the decree holder with an agreement which contains a covenant. providing for compliance as and when the plaintiff calls upon the defendants to do so cannot be applied in the facts of this case, as though in the instant case the suit has been disposed of in terms of the agreement, the agreement is nevertheless a decree passed in the suit and would therefore be executable in terms of Article 136 of the Limitation Act. Though the submission based on Clause 4 does not seem to have been urged before the Executing Court, High Court has proceeded consider the same as the same impinges upon the entitlement of the decree holder to get the decree executed.
1. Rule, with the consent of the learned counsel for the parties made returnable forthwith and heard.
2. The writ jurisdiction of this Court under Article 227 of the Constitution of India is invoked against the Judgment and Order dated 21st April 2012 passed below Exhibit-1 in Special Darkhast No.28 of 2010 by which the Executing Court has held that in so far as the execution of conveyance is concerned, the same is barred by limitation.
3. The facts necessary to be cited for an adjudication of the above Petition can be stated thus:-
The Petitioner herein is the original Plaintiff in Special Civil Suit No.1208 of 1994. The Respondents herein are the original Defendants in the said suit. The said suit was filed for specific performance of the Agreement of Sale dated 25th January 1994, which Agreement of Sale was in respect of the suit lands. The cause for filing the said suit was the reluctance of the Defendants in complying with the terms and conditions of the said Agreement of Sale dated 25th January 1994. In the said suit the relief sought was in respect of specific performance of the said Agreement of Sale dated 25th January 1994 as also the letter dated 18th October 1994. During the pendency of the said suit, the parties entered into a compromise which was recorded in the Consent Terms which were drawn up. The said Consent Terms were filed in the said suit on 5th January 1995 and the said suit was decreed in terms of the said Consent Terms. It has been recorded in the said Consent Terms which have been signed by the parties that the Defendants have received a sum of Rs.25,50,000/- from the Plaintiff i.e. the Petitioner herein in full and final settlement towards the consideration of the suit lands. The Defendants undertook to execute conveyance in respect of the suit lands. The Defendants also undertook to produce the Certificate under Section 230-A of the Income Tax Act, 1961 on or before execution of the conveyance. The said Consent Terms also provided that the Plaintiff i.e. the Petitioner herein would provide a residential flat admeasuring 600 sq.ft. free of cost to the Defendants which would stand in the name of Prema Dinanath Bhoir. It is the case of the Plaintiff that after filing of the Consent Terms dated 5th January 1995, he requested Dinanath Keshav Bhoir – the original Defendant No.1 on many occasions when they met personally to obtain the said Certificate under Section 230-A of the Income Tax Act. However, the said Dinanath Bhoir did not take any steps to obtain the said Certificate. On 12th July 1998 the said Dinanath Bhoir died. It is the case of the Plaintiff that thereafter he followed up the matter with Ramesh Dinanath Bhoir and Ranjan Dinanath Bhoir requesting them to get the said Certificate as it was the obligation of the Defendants to get the said Certificate under the said Consent Terms. However, in spite of the repeated requests of the Plaintiff, the said Certificate was not obtained by either Ramesh Bhoir or Ranjan Bhoir. It is the case of the Plaintiff that thereafter on 1st June 2001 there was a repeal of Section 230-A of the Income Tax Act by virtue of which the said Section 230-A stood deleted from the statute book. It is the case of the Plaintiff that he was ready to provide the residential flat admeasuring 600 sq.ft as per the said Consent Terms to the Defendants. However, the Defendants demanded money in lieu of the flat as consideration. After discussion it was agreed between the parties that the Plaintiff would pay an amount of Rs.11,00,000/- in lieu of the flat. According to the Plaintiff, he has paid the amount of Rs.8,00,000/- by cheque and Rs.3,00,000/- by cash to the Defendants, which the Defendants have accepted and issued a receipt for the same. It is the case of the Plaintiff that after the receipt of the amounts in lieu of the flat and in view of the fact that the Defendants had already received the amount of consideration as per the Consent Terms, the Defendants would com
