IMPORTANT POINT
The executing court has the discretion to conduct enquiries to determine the maintainability of execution applications, and procedural defects in such applications can be rectified without dismissal.

JUDGMENT/ORDER

1. Admit.

2. The matter was taken up for final disposal at admission stage itself with consent of parties.

3. Heard Shri Gaurish Agni with Advocate J.P. Supekar and N. D'Souza for the Applicants and Shri Sudhin Usgaonkar learned Senior Counsel with Shri Rui Gomes Perreira learned Advocate for the Respondents.

4. The applicant has challenged the impugned order dtd. 16/3/2019 passed by the learned Trial Court in Execution Application no. 26/2017 thereby postponing the question of maintainability of the execution proceedings on the ground that enquiry is necessary to decide such issue.

5. The applicant is the Judgement-debtor/Respondent in the said execution proceedings. The present Respondents are the Applicants.

6. The parties are hereinafter referred as the Applicants/Respondents as arrayed before the Executing Court for the purpose of convenience.

7. The Applicants who are the owners of the premises, filed an application as Rent Case no. 4/2017 before the Civil Court (the learned Rent Controller) under Sec. 30 of the Goa Buildings (Lease, Rent and Eviction) Control Act, 1968, with the prayer of eviction of the Respondent temporarily from the said portion/tenanted portion in order to carry out the works of pest control, carpentry and repairs.

8. Both parties filed terms of settlement which were accepted by the Rent Controller while disposing of the proceedings under sec. 30 of the Rent Control Act, on 4/7/2017.

9. Since some dispute arose in executing the terms of settlement between the parties the Applicants approached the Civil Court by filing Execution Application no. 26/2017 asking assistance of the Court in executing the terms of settlement.

10. The Respondent objected to such execution proceedings including maintainability of it. Preliminary objections were considered and the same were argued before the Executing Court. On 16/3/2019, the Executing Court instead of deciding preliminary objections, observed that the question of maintainability can only be decided after examining the facts pertaining to consent decree and thus enquiry has to be initiated in the proceedings. This order is challenged before this Court on two fold grounds.

11. Shri Gaurish Agni first of all contended that Execution Application is not tenable as it is not in the format as provided under Order XXI Rule 11 of Civil Procedure Code.

12. Secondly, he contended that such execution proceeding are premature. Thirdly, he contended that the Decree-holder did not specify the specific grounds of assistance required from the Executing Court. Fourthly, he claimed that the Executing Court is not empowered to order any enquiry so as to go beyond the consent terms. Finally, he claimed that the terms of settlement are required to be interpreted without holding any enquiry so as to consider whether Execution Petition is maintainable or not. He also claimed that the Decree-holder/Applicant did not specify as to which term of settlement stands violated.

13. Per contra, the learned Senior Counsel Shri Usgaonkar submitted that though consent terms were signed and the proceedings under Sec. 30 of the Rent Control Act were disposed of, the Respondent/Judgement-debtor was not cooperating and different interpretations were made with regards to the terms. Since the Decree-holder who is the owner of the property was unable to carry out repairs and the pest control treatment due to non-cooperation, he had to approach the Executing Court.

14. Mr Usgaonkar would then submit that the assistance required is already disclosed in the application i.e. by appointing commissioner. He would then submit that even if enquiry is held, no prejudice is caused to the Judgement-debtor. He further submitted that no injustice is caused by the order impugned in the present Revision. According to him, the maintainability issue is still pending adjudication and therefore no illegality or perversity could be attributed to the decision of the Trial Court.

15. Mr Usgaonkar would then