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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
H.S. Madaan, J.
Aamin - Petitioner - Appellant
Versus
Smt. Mridulata Gupta @ Madhu Lata Gupta and others - Respondents - Respondent
CR-4826 of 2019(O&M)
Decided On : 09-05-2023
Execution Petition - Decree Holder's Right to Execution - Sale Deed - Mutation - Lis Pendens - [Section 47 of CPC, M/s Brakewel Automotive Components (India) Pvt. Ltd. Versus P.R. Selvam Alagappan, 2017(2) RCR(Civil)1047] - The court discussed the decree holder's right to execution, the impact of sale deed and mutation, and the principle of lis pendens. The court emphasized that the executing court is required to execute the decree as it is and cannot go beyond the decree. It highlighted the principle that any alienation made during the pendency of the litigation is hit by the principle of lis pendens. The court also referred to the judgment in M/s Brakewel Automotive Components (India) Pvt. Ltd. Versus P.R. Selvam Alagappan, 2017(2) RCR(Civil)1047, emphasizing that the executing court has to execute the decree even if it is erroneous, and only a decree which is a nullity can be the subject matter of objection under Section 47 of CPC.
Fact of the Case:
Plaintiffs obtained a decree for specific performance, but the defendant did not execute the sale deed. The defendant alienated the suit land through a sale deed and mutation. The decree holder initiated execution proceedings, which were dismissed by the executing court.
Finding of the Court:
The impugned order of the executing court was not legally sustainable and was set aside. The executing court was required to execute the decree as it is and could not go beyond the decree. The executing court's advice to declare the sale deed as illegal and file a fresh execution petition was deemed unnecessary and unsolicited.
Issues: The main issue was the legality of the execution petition and the executing court's dismissal of the same.
Ratio Decidendi: The executing court is required to execute the decree as it is and cannot go beyond the decree. Any alienation made during the pendency of the litigation is hit by the principle of lis pendens. The executing court has to execute the decree even if it is erroneous, and only a decree which is a nullity can be the subject matter of objection under Section 47 of CPC.
Final Decision: The revision petition was accepted, the impugned order was set aside, and the execution petition was ordered to be restored at its original number with a direction to the executing court to proceed further in the matter to ensure the execution of the decree in favor of the plaintiff.
H.S. MADAAN, J.
1. Under challenge in this revision petition is the order dated 9.7.2019 (Annexure P3) passed by the Executing Court in Execution Petition No.82 of 2017 titled as 'Aamin Versus Smt.Mridulata Gupta @ Madhu Lata Gupta and others', vide which the execution petition filed by petitioner/decree-holder, seeking execution of judgment and decree dated 19.1.2015 (Annexure P1) had been dismissed by such Court.
2. Briefly stated, facts of the case are that plaintiffs Yasin and others had brought a suit for specific performance against defendants Mridulata Gupta @ Madhu Lata Gupta and others, which was decreed in their favour vide judgment and decree dated 19.1.2015. The defendant No.1 did not come forward to execute the sale deed in favour of the decree-holder in terms of the judgment and decree passed in favour of the plaintiff No.1 and defendant/JD through her GPA had alienated the suit land vide sale deed bearing No.5933 dated 31.3.2015 and mutation No.3010 was sanctioned on the basis thereof.
3. The plaintiff/decree-holder Aamin had initiated execution proceedings contending that sale deed executed by JD No.1 was illegal, null and void and so was the mutation sanctioned on its basis. Therefore, a direction be issued to the JDs to execute the sale deed in favour of the DH.
4. Notice of the execution petition was given to respondents/JDs. Respondents/JDs No.6 as well as 3, 4 and 7 had put in appearance, whereas remaining respondents were proceeded against ex-parte.
5. The trial Court of Additional Civil Judge (Sr.Divn.), Mewat at Nuh vide the impugned order dated 9.7.2019 dismissed the execution petition granting liberty to the decree holder to file a fresh execution petition after getting declared sale deed No.5933 dated 31.3.2015 as illegal, null and void from the competent Court of jurisdiction. The Executing Court had observed that as per sale deed No.5933 dated 31.3.2015, the land had been sold by Yasin being GPA for Mridulata Gupta @ Madhu Lata Gupta in favour of Rehmati, Rajmeena, Marham and Rehmo and since the whole of the land regarding which the execution petition had been filed has also been transferred in favour of JD Nos.3 to 6 before filing of the execution petition, therefore, the judgment and decree dated 19.1.2015 could not be executed as that would lead to multiplicity of litigation.
6. Such order left the applicant/DH Aamin aggrieved and he has approached this Court by way of filing the present revision petition, notice of which was issued to the respondents. Though only respondent No.1 has put in appearance through counsel.
7. I have heard learned counsel for the parties besides going through the record and I find that the impugned order passed by the Executing Court is not legally sustainable and is bound to be set aside.
8. There cannot be any dispute with the proposition of law that Executing Court is required to execute the decree as it is and it cannot go beyond the decree, which had been passed. However, the Executing Court completely forgetting such basic legal principle by adopting erroneous approach and without trying to understand the proper legal position, has dismissed the execution petition. The proper course for the Executing Court was to take steps to execute the decree passed in favour of plaintiff/decree holder Aamin against defendants JDs Mridulata Gupta @ Madhu Lata Gupta and others. In case the purchasers of the land, namely, Rehmati, Rajmeena, Marham and Rehmo have got any objection, they would raise the same before the Executing Court, which could then be adjudicated. It is also to be taken into view that any alienation made during pendency of the litigation is clearly hit by the principle of lis pendens. The Executing Court gave unnecessary and unsolicited advice to the decree holder to get the sale deed No.5933 dated 31.3.2015 declared as illegal, null and void from the Court of competent jurisdiction and then approach the Executing Court by filing a fresh execution petition.
9. Learned
The executing court is required to execute the decree as it is and cannot go beyond the decree. Any alienation made during the pendency of the litigation is hit by the principle of lis pendens.
The court emphasized the limited grounds on which a decree is unexecutable and highlighted that the right of the Decree Holder to obtain relief is determined in accordance with the terms of the decre....
Point of law: If once we accept the legal position that neither a contract for sale nor a decree passed on that basis for specific performance of the contract gives any right or title to the decree-h....
The executing court must execute decrees as rendered and cannot alter them; objections must be raised under prescribed provisions, and erroneous decrees remain binding until properly challenged.
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