IMPORTANT POINT
The central legal point established in the judgment is that when a consent decree contains directions or acts to be performed by the parties, it can be executed through court process, and the parties are obligated to comply with the terms of the consent decree.

JUDGMENT :

Apurba Sinha Ray, J.

1. The Learned Counsel Ms. Noelle Banerjee appearing for the judgment-debtor/the petitioner in GA 1/2023 has submitted that the instant execution case is not maintainable since a declaratory decree has been passed without having any observation how to execute such decree in case of default. As such the instant proceeding is not maintainable.

2. The Learned Counsel has relied upon several case laws reported at AIR (1923) Cal 252 (para 5), (2013) 4 CLT 1 (para 35).

3. Moreover, the Execution Application being No. EC 190 of 2023 was moved without any notice to the respondents after more than two years of passing of the decree, and further, direction of filing affidavit of assets and the order of attachment of the property of the judgment debtor no. 1 are beyond the scope of order 21 of the C.P.C. in view of the factual matrix of the suit.

4. The Learned Counsel has further argued that failure to comply with the consent decree cannot be executed unless there is a specific remedy in the said consent decree. The judicial decisions reported at (2014) 3 Cal LT 477 (Shivani Properties Pvt. Ltd. Vs. United Bank of India) paras 14 and 15, (1998) 2 SCC 510 (State of M.P. Vs. Mangilal Sharma), (2012) SCC OnLine Del 3446 (Atul Chopra & Ors. Vs. Technotree Corporation & Ors.) paras 60, 61 and 63, have been cited.

5. It is also the contention of the learned counsel of the judgment-debtor that as the decree does not specify the mechanism for execution of the said decree, the decree-holder himself imposes a bar upon himself not to execute the decree. It is argued that it is not a money decree and so an affidavit-of-asset is not required to be filed. Therefore, the prayer as made out in GA No. 1 of 2023 for recalling the order dated 17.05.2023 in this execution proceeding should be allowed since affidavit-of-assets is required to be submitted only when there is any proceeding for execution of a money decree.

6. The learned counsel for the judgment-debtor has also pointed out that the decree-holders have filed execution proceeding without serving any notice and got an order dated 17.05.2023 which is contrary to the provisions as laid down in Order 21 Rule 41(2) of Code of Civil Procedure, 1908. The GA Application being no. 1 of 2023 has been filed for dismissal of the instant execution case and setting aside the order dated 17.05.2023. Moreover, the aforesaid order does not record any reason.

7. The learned counsel of the judgment-debtor has vehemently argued that the instant execution case was filed against three judgment-debtors that is the brother of the decree-holder, brother’s wife and brother’s son. The letter dated 20.07.2017 shows the name of the person who is supposed to release bank guarantees and the clause(d) of the settlement agreement shows that execution proceeding, for argument sake, can be maintainable only against Rajesh Sanei and not against his wife and son. The wife and son of Rajesh Sanei have no obligation under the decree to comply with the consent decree but in spite of that they are made parties only to harass them and to put a pressure upon Rajesh Sanei.

8. The learned counsel for the judgment-debtor has further submitted that the instant proceeding is barred under Article 135 of Limitation Act since the instant execution proceeding was not brought within three years from the date for performance of mandatory obligation/injunction.

9. The consent decree, in a suit according to the learned counsel of the judgment-debtor, is merely a contract between the parties on which the court put its seal. In this regard the case law reported in (1969) 2 SCC 201 has been cited. Therefore, according to the judgment-debtor the execution court should keep its hands away from execution of the consent decree unless there is any mechanism provided therefor. The decree-holder filed a writ petition against the bank seeking release of his personal guarantee.

10. The learned counsel appearing for the decree-holde