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IN THE HIGH COURT OF ALLAHABAD
D. K. Seth, J.
GANGA RAM - Appellant
Versus
SECOND ADDITIONAL DISTRICT JUDGE, MUZAFFAR NAGAR - Respondents
C. M. W. P. 17234 Of 1998
Decided On : 05/20/1998
SPECIFIC PERFORMANCE - CONTRACT FOR SALE - TRANSFER OF PROPERTY ACT, 1882 - SECTIONS 54, 55 - STAMP ACT, 1899 - SECTION 2(10) - SPECIFIC RELIEF ACT, 1963 - SECTION 17 - INDEMNITY CLAUSE IN SALE DEED - SCOPE AND INTERPRETATION - COURT'S POWER TO APPROVE DRAFT DEED INCORPORATING INDEMNITY CLAUSE - WRIT PETITION CHALLENGING APPROVAL OF DRAFT DEED - DISMISSED.
Fact of the Case:
Plaintiff-decree holder instituted Original Suit No. 625 of 1975 for specific performance of a contract against the defendant-petitioner. The suit was decreed on September 30, 1980. After the decree became final, an execution was levied, and a draft deed was prepared and submitted to the court for approval. The judgment debtor objected to one of the clauses being incorporated in the draft deed, which was overruled by the trial court. The judgment debtor appealed, and the appellate court partly allowed the appeal, modifying the indemnity clause. The judgment debtor challenged the appellate court's order in a writ petition.
Finding of the Court:
The court held that the indemnity clause objected to by the judgment debtor was not outside the scope of the sale deed and was not a modification of the decree. The court found that the indemnity clause was implied by Section 55 of the Transfer of Property Act, 1882, and was necessary to effectuate effective conveyance. The court also held that the appellate court had simplified the indemnity clause, making it more favorable to the judgment debtor.
Issues: 1. Whether the indemnity clause objected to by the judgment debtor was outside the scope of the sale deed and amounted to a modification of the decree. 2. Whether the appellate court erred in approving the incorporation of the indemnity clause in the draft deed.
Ratio Decidendi: 1. The court held that the indemnity clause was not outside the scope of the sale deed because it was implied by Section 55 of the Transfer of Property Act, 1882, and was necessary to effectuate effective conveyance. The court also held that the indemnity clause was not a modification of the decree because it was part of the implied terms of the contract for sale that was the subject of the decree. 2. The court held that the appellate court did not err in approving the incorporation of the indemnity clause in the draft deed because the clause was not outside the scope of the sale deed and was not a modification of the decree.
Final Decision: The court dismissed the writ petition, holding that there was no infirmity in the appellate court's order approving the incorporation of the indemnity clause in the draft deed.
( 1 ) ORIGINAL Suit No. 625 of 1975 was instituted before the Munsif, Muzaffarnagar for specific performance of a contract by the plaintiff-decree holder against the defendant-petitioner. The suit was decreed on 30th September. 1980. After the decree became final, an execution was levied. Execution Case No. 32 of 1984 was registered thereupon. In the said execution process, a draft deed was prepared and submitted to the Court for approval. The judgment debtor objected to one of the clauses being incorporated in the draft deed. The objection was overruled by an order dated 24th March, 1998 passed by the learned Civil Judge (J. D.), Muzaffarnagar in said execution Case No. 32 of 1984. Thereupon, the petitioner preferred an appeal being Misc. Appeal No. 58 of 1998. It was partly allowed by an order dated 21. 4. 1998 passed by the learned additional District Judge, IInd Court, Muzaffarnagar. It is this order which has since been challenged in the present writ petition.
( 2 ) KM. Usha Kiran, learned counsel for the petitioner had argued that in the decree it was directed that the deed should be executed within a period of one month. The judgment debtor did not execute the deed within one month, and therefore after expiry of one month, the decree holder had lost his right to execute the decree. Levy of execution beyond the said period of one month, is therefore not maintainable. She also contends that the agreement enforceable under the decree did not contain the clause which has been sought to be stipulated in the deed Itself and therefore the executing court while approving the draft deed, had sought to modify the decree and thereby proposed to go behind the decree which is otherwise impermissible by the executing court.
( 3 ) MR. P. N. Saxena, learned counsel appearing with Km. Usha Kiran while supporting her contention, submits in addition that unless the agreement contains a specific stipulation to the extent of an undertaking binding the judgment debtor, the same cannot be incorporated in the deed itself, which would amount to going behind the decree by the executing court. Inasmuch as the decree did not permit stipulation of any such undertaking which is not incorporated in the decree itself.
( 4 ) I have heard both Km. Usha Kiran and Mr. P. N. Saxena, who later on led. Km. Usha Kiran in arguing the case, at length. In my view, the point that the execution was levied beyond the period of one month stipulated for executing the decree by the judgment debtor, cannot be sustained. Inasmuch as the decree had provided that the judgment debtor will execute the decree within one month and in default it would be open to the decree holder to get the deed executed through court. A decree of the Court remains executable for the whole period as has been provided in the relevant articles in the Limitation Act which cannot be circumscribed by any stipulation in the decree itself. Though it is not so provided, yet, even if it is assumed that it is so provided in the decree, such part of the decree which is lesser or wider than the period as provided in the limitation Act. is redundant and is to be ignored. However in the present case. it was time fixed for execution by the judgment debtor on his own volition. If the judgment debtor had failed to volunteer to execute the deed, it was open to the decree holder to put the decree into execution within the period of limitation even on the last date when the limitation was expiring. This is a case where execution was levied within the period of limitation, therefore, I am unable to agree with the contention of Km. Usha Kiran to the above extent.
( 5 ) SO far as the other contention that by incorporating the concerned stipulation, the executing court had gone behind the decree, is concerned. 1 have not been able to find any substance in the submission made by Km. Usha Kiran and then further advanced by Mr. P. N. Saxena. The decree was for specific performance of a contract. The contr
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