* Author
[2024] 4 S.C.R. 694 : 2024 INSC 329
Rehan Ahmed (D) Thr. Lrs.
v.
Akhtar Un Nisa (D) Thr. Lrs.
(Civil Appeal No. 5218 of 2024)
22 April 2024
[Vikram Nath* and Satish Chandra Sharma, JJ.]
Issue for Consideration
Matter pertains to the correctness of the order passed by the High
Court allowing the objections u/s. 47 CPC filed by the respondent
no. 1, setting aside the order passed by the Executing Court and
holding that the decree passed by the trial court in the suit was
inexecutable and a nullity.
Headnotes
Code of Civil Procedure, 1908 – s. 47 – Questions to be
determined by the Court executing decree – Objections u/s. 47
– Property originally owned by defendant No.1 – Execution of
agreement to sell the property by the brother of defendant No.1-
defendant No.2 and also the power of attorney of defendant
No.1, for himself and for the principal defendant No.1 with the
plaintiff – Pursuant thereto, the vendor not executing the sale
deed – Suit for specific performance by the plaintiff against
defendant no.1 and no.2 – During pendency, the parties entered
into a compromise and the suit was decreed – Execution
petition by the plaintiff – Objections by the defendant no. 1 –
Objections dismissed and in the meantime the defendant no. 1
died – Thereafter, order dismissing the objections challenged
by the son of defendant no. 2, and legal heir of defendant No.
1 claiming rights under a sale executed by defendant no 1,
which was dismissed – Special Leave Petition thereagainst also
dismissed – However, new round of objections u/s. 47 initiated
by respondent no. 1-wife of defendant no. 2 – Dismissed by
the executing court – In revision petition, the High Court set
aside the order passed by the Executing Court and held that
the decree passed by the trial court was inexecutable and a
nullity – Correctness:
Held: High Court erred in setting aside the Executing Court’s
order and in declaring the trial court’s decree void – High Court’s
[2024] 4 S.C.R. 695
Rehan Ahmed (D) Thr. Lrs. v. Akhtar Un Nisa (D) Thr. Lrs.
reasoning rests on the erroneous assumption that the property
was jointly owned by defendants No. 1 and No. 2, and that the
absence of defendant No. 2’s signature on the compromise
invalidated the decree – However, defendant No. 2 consistently
acknowledged that he had no ownership rights over the property –
Compromise, signed by defendant No. 1 and the plaintiff and later
verified by defendant No. 2 through an application, substantiates
that defendant No. 1 was the sole owner – These facts were
upheld by the High Court and this Court in previous proceedings
– Defendant no. 2 had limited rights of being in possession of the
third floor of suit property – Due to the said reasons, the plaintiff
and defendant no. 1 were the only necessary parties needed
for the compromise – High Court also incorrectly held that the
provisions of Ord. XXIII, r. 3 were not adhered to, whereas the trial
court correctly recorded and verified the compromise, fulfilling the
requirements of Ord. XXIII, r. 3 – Recording of the compromise and
the consequent decree, although appearing procedurally delayed,
adhered to the process required under CPC – Furthermore, the
High Court overlooked the fact that legal heir of defendant No
2, had previously objected to the execution proceedings, which
was dismissed – Subsequent appeals before the High Court,
including a Special Leave Petition were also dismissed – Thus,
similar objections by respondent No. 1, in her capacity as one
of the legal heirs of defendant No. 2 would not be maintainable
and would amount to abuse of process of law – Executing Court
rightly rejected the objections u/s. 47 filed by the respondent no.
1 – Impugned judgment of the High Court is set aside and that
of the executing court is restored – Ord. XXIII, r. 3.
List of Acts
Code of Civil Procedure, 1908.
List of Keywords
Objections; Execution of agreement to sell; Sale deed; Suit for
specific performance; Compromise.
Case Arising From
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5218 of 2024
From the Judgment and Order dated 21.03.2014 of the High Court of
Judicature for Rajasthan at Jaipur in SBCRP No. 95 of 2007
696 [2024] 4 S.C.R.
Digital Supreme Court Reports
Appearances for Parties
Puneet Jain, Ms. Christi Jain, Ms. Pratibha Jain, Advs. for the
Appellants.
Anuj Bhandari, Gaurav Jain, Rajat Gupta, Mrs. Disha Bhandari, Mrs.
Anjali Doshi, Ms. Preetika Dwivedi, Abhisek Mohanty, Advs. for the
Respondents.
Judgment / Order of the Supreme Court
Judgment
Vikram Nath, J.
Leave granted.
2. This appeal, by the Decree Holder, assails the correctness of the
judgment and order dated 21.03.2014 passed by the Rajasthan
High Court, Jaipur Bench at Jaipur in S.B. Civil Revision Petition
No.95/2007, Smt. Akhtar Un Nisa vs. Rehan Ahmed, whereby the
revision filed under Section 115 of the Code of Civil Procedure,
19081
challenging the order of the Executing Court dated 03.05.2007
rejecting the objections under Section 47 CPC, has been allowed.
The order impugned therein passed by the Executing Court was set
aside and it was held that the decree dated 09.05.1979 passed by
the Trial Court in Suit No.13/72 was inexecutable and a nullity and
accordingly, the objections under Section 47 CPC, were allowed.
3. The factual matrix giving rise to the present appeal is as follows:
3.1 The dispute relates to property being Municipal Nos.52-57,
Maniharon Ka Rasta, Jaipur which was originally owned by
Ghulam Mohiuddin (Defendant No.1). An agreement to Sell
dated 04.10.1967 was executed for sale of the suit property
by Saeeduddin – Defendant No.2 (brother of Defendant No.1)
and also the power of attorney of Defendant No.1, for himself
and for the principal Defendant No.1.
3.2 Pursuant to the aforesaid agreement to sell, as the vendor
was not executing the sale deed, the appellant (plaintiff)
instituted a Civil Suit for specific performance registered as Suit
1 CPC
[2024] 4 S.C.R. 697
Rehan Ahmed (D) Thr. Lrs. v. Akhtar Un Nisa (D) Thr. Lrs.
No.13/72 impleading Ghulam Mohiuddin as Defendant no.1 and
Saeeduddin as Defendant No.2. During the pendency of the
Suit, the parties entered into a compromise dated 11.05.1978
and presented the same before the Trial Court, a copy of which
is filed as Annexure P-4. The terms of the Compromise Deed
are briefly set out below:
“ANNEXURE P-4
IN THE COURT OF ADDL. DIST. JUDGE, CLASS-1,
JAIPUR CITY, JAIPUR
IN THE MATTER OF:
Rehan Ahmad S/o. Sh. Sultan Ahmad, aged about
22 years, Caste Muslim, R/o. Chaukadi Modikhana,
Rasta, Maniharan, H. No. 57, Jaipur-3
... Plaintiff
VERSUS
1. Gulam Mohiuddin Khan, aged about 58 years
S/o. Sh. Badiuddin Khan, Caste Muslimn, R/o.
Mohalla Kamnagran, Badayun (U.P)
2. Saiduddin Khan aged about 52 years S/o. Sh.
Badiuddin Khan, Caste Muslim, R/o. House of
Abdulramham Khan, Gali Aatishbazi Rampur
(U.P)
...Defendants
3. Ahsan Ahmad S/o. Sh. Sultan Ahmad aged
about 32 years, Caste Muslim, R/o. Chaukadi
Modikhana, Rasta Maniharan, H.No. 57, Jaipur-3
...Pro forma Defendant
Suit for specific performance of the contract
regarding house and shop situated at Modikhana,
Rasta Maniharan, Jaipur
000
Most respectfully showeth:
In the above civil suit, a compromise has been
arrived at between the parties on under mentioned
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conditions, therefore, the suit may be decreed as per
the compromise.
1. That, plaintiff and defendant No.3 executed
an agreement for sale with the real brother
and general power of attorney of Def. No.2
named Saiduddin Khan on 4.10.1967 in writing
in respect to houses and shops No. 52 to 57,
situated at Circle No.1, Chaukadi Modikhana,
Jaipur, whose full description is given under,
for a sale consideration of Rs.40,000/- in his
own capacity and in the capacity of general
power of attorney of Def. No.1, which was not
accepted earlier by the defendant No.1 and 2,
but now the Def. No.1 admits that agreement
for sale was executed on 4.10.1967 on behalf
of Def. No.2 in his own capacity and on behalf
and consent of Def. No.1.
2. That, Def. No.1 also admits that a sum of Rs.
10,000/- out of entire agreed sale consideration
was received in respect to the disputed property
on 4.10.1967 and a sum of Rs.1,000/- was
received on 1.1.69 and Rs.500/- on 22.1.69
i.e. a total of Rs.11,500/- was received by def.
No. 2 on behalf of Def No. 1 which is liable to
be adjusted from the total consideration of the
property, but the plaintiff and defendant No.3
have alleged to spent Rs.6,500/- in the repairing
of house etc, which amount shall not be adjusted
from the sale consideration because all these
repairing and construction was done after the
above agreement by the plaintiff and Def. No.3.
besides this, the Def. No.1 has received Rs.
1500/- on 17.10.88, and Rs.1000/- on 24.10.77
and Rs.1000/- on 11.11.77 from the plaintiff
towards the cost of this property.
3. That, the Def. No.1 shall get executed and
registered sale-deed of the above described
houses and shops in favor of plaintiff Rehan
Ahmad till 1.7.1978 and shall receive remaining
[2024] 4 S.C.R. 699
Rehan Ahmed (D) Thr. Lrs. v. Akhtar Un Nisa (D) Thr. Lrs.
sale consideration amount of Rs.25,000/ -. If the
Def. No. 1 fails to execute sale deed in this period
then the plaintiff Rehan Ahmad shall be entitled
to get the sale-deed executed and registered
in his favor through the Court. Entire cost of
registry would be borne equally by the plaintiff
Rehan Ahmad and Def. No.1 Gulam Mohiuddin.
In this respect when the Def. No.1 will ask for
half cost for this from the plaintiff Rehan Ahmed
then the plaintiff Rehan Ahmad shall pay the
same taking receipt from him and because of
this the Def. No.1 shall not be entitled to get the
period agreed for registry extended. The def.
No.1 has received today the half cost of registry
i.e. Rs.1,000/- from the plaintiff Rehan Ahmad.
Complete responsibility to receive N.O.C. shall
be of the Def. No.1.
4. That, Def. No.2 is residing in the third floor of
disputed property which would be got vacated
by defendant No.1 and the physical possession
will be given to the plaintiff Rehan Ahmed prior to
registration, and shall get the rent notes executed
by the tenants who are presently occupying the
disputed property in favour of Rehan Ahmed.
5. That, pro forma defendant No.3 has relinquished
his entire right in respect to the disputed
property in favor of plaintiff Rehan Ahmad on
28.6.1977 through a deed of Relinquishment,
which was. ordered by the court on 28.09.1977.
Therefore, pro forma defendant no.3 shall have
no connection now with this sale.
6. That, the. def. No.2 Saiduddin Khan, himself
has admitted that he did not have right to sell
or to execute agreement for sale of the disputed
property, but now, the defendant No.1, who is the
real owner of this disputed property, admits this
agreement, therefore, now there is no hindrance
in passing decree.
700 [2024] 4 S.C.R.
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7. That, cost of this suit shall be borne by the
parties respectively.
DESCRIPTION OF PROPERTY
Pucca House comprising of three storeys and One
chauk including entire internal houses of three storevs
and five shops outside, out of which two shops are
situated towards south of Sadar Darwaja and three
shops are situated towards north of Sadar Darwaja
along with staircase adjoining the shops towards
the north on which Municipal No, written on the pole
of House is 54/1 and Municipal Number of shops
situated towards south are 52 and 53 and Municipal
Number of shops situated towards north are 55, 56
and 57, Circle 1 and no number is assigned to the
staircase i.e. entire property including house and
shops having municipal number 52 to 57, Circle
No.1 and boundaries of these houses and shops
are as under:
In East: Rasta Maniharan Government.
In west: House of Sindhi in between which
littered Government street is situated.
In north: Temple of Digambar Jain
In south: House and shops of Tirthdas
Shyamiani.
Therefore, it is prayed that compromise be verified and
decree be passed in accordance with the compromise.
Applicants
Rehan Ahmad, Plaintiff
Rehan (in English)
Gulam Mohiuddin Khan, Def. No.1
sd.Ghulam mohiuddin khan (in English)
Both Parties
Jaipur:
Date: 11.5.78”
[2024] 4 S.C.R. 701
Rehan Ahmed (D) Thr. Lrs. v. Akhtar Un Nisa (D) Thr. Lrs.
4. In paragraph No.1 of the Compromise Deed, it is mentioned that
Defendant No.1, although had earlier not accepted the Agreement
to Sell, now admits that the Agreement to Sell dated 04.10.1967
was executed by Saeeduddin–Defendant No.2, not only in his own
capacity but also on behalf of Defendant No.1 as Power of Attorney
holder. Paragraph No.2 mentions the details of the amount received
by the Defendant under the Agreement to Sell as advance until the
time the compromise was arrived at. It would be relevant to mention
that the total sale consideration was Rs.40,000/- out of which as per
paragraph No.2 of the Compromise Deed, Rs.15,000/- had already
been received by the Defendants. Paragraph No.3 mentions that
the Defendant No.1 will get the Sale Deed executed and registered
in favour of the Plaintiff till 01.07.1978 after receiving Rs.25,000/- of
the remaining sale consideration. It, however, mentioned that if the
Defendant No.1 does not execute the Sale Deed till 01.07.1978,
the Plaintiff would be entitled to get the Sale Deed executed and
registered in his favour through the Court. The cost of registration
would be borne equally by the Plaintiff and Defendant No.1. It was
further mentioned that Defendant No.1 had also received half of the
cost of registration from the Plaintiff and furthermore, the responsibility
to receive the NOC would be of Defendant No.1. Paragraph No.4
mentions that Saeeduddin–Defendant No.2 was residing on the third
floor of the suit property which Defendant No.1-Ghulam Mohiuddin
would get vacated and ensure that physical possession is delivered
to the Plaintiff-Rehan Ahmed prior to registration. Further, the rent
notes executed by the tenants who are presently occupying the
suit property, would be executed by the tenants in favour of Rehan
Ahmed. One Ahsan Ahmed has been impleaded as proforma
defendant in respect of whom it was stated in paragraph No.5 of the
Compromise Deed that he had relinquished his entire right to the
property in favour of the Plaintiff–Rehan Ahmed through a Deed of
Relinquishment dated 28.06.1977 which was accepted by the Court
vide order dated 28.09.1977. In paragraph No.6 it was stated that
Defendant No.2-Saeeduddin admitted that he did not have the right
to sell or execute the Agreement to Sell but now Defendant No.1,
who was the real owner of the suit property, admits this agreement.
Therefore, there is no hindrance in passing the compromise decree.
The property was also described in the Compromise Deed to be a
pacca house comprising of three stories and one chauk including
the entire internal houses of the three storeys and five shops
702 [2024] 4 S.C.R.
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outside along with the staircase adjoining the shops. The house was
numbered as 54/1 in the municipal records, whereas the five shops
were numbered as 52, 53, 55, 56 and 57. Thus the entire property
in question including the house of the five shops having municipal
numbers 52 to 57 (except 54), Circle No.1.
5. The Addl.District & Sessions Judge, Court No.1, Jaipur City, Jaipur
proceeded with the compromise and required the same to be duly
verified for which due time was granted to the parties. On 09.05.1979,
initially the suit was dismissed in the absence of the Plaintiff.
However, on the same date, upon an application being filed, the
case was again taken up on board. The Trial Court recorded that
Rehan Ahmed and that Mohiuddin (Defendant No.1) had executed
the compromise. The Plaintiff (Rehan Ahmed) further stated that he
does not want to pursue any proceedings against Saeeduddin and
also Ahsan Ahmed-Defendant Nos.2 and 3, as such the suit was
dismissed against Saeeduddin and Ahsan Ahmed. It was decreed
against Ghulam Mohiuddin as per the compromise. Accordingly, a
decree was drawn. As per the decree, when the defendant did not
execute the Sale Deed, the Plaintiff -Decree holder initiated the
proceedings for execution. In the execution proceedings Defendant
No.1 Ghulam Mohiuddin filed objections stating that the Plaintiff had
not paid the balance sale consideration, and had allowed substantial
time to pass for about six to seven years, during which time the
value of the property had doubled and as such the decree could not
be executed now on account of the default of the Plaintiff-Decree
holder. These objections were dismissed by the Executing Court
by a detailed order dated 09.12.1998 on the findings that before
the registration of the Sale Deed, Defendant No.1 was required to
fulfil his obligations which included getting the third floor vacated,
getting the NOC and also getting the rent deeds transferred in the
name of the Plaintiff. As such there was no default on the part of the
Plaintiff. In the meantime, the Defendant No.1 Mohiuddin died. The
order dated 09.12.1998 was challenged by one General Tariq, s/o.
Defendant No.2- Saeeduddin and legal heir of Defendant No.1 Gulam
Mohiuddin, claiming rights under a sale executed by Defendant No.1
Mohiuddin by way of S.B.Civil Revision Petition No.55 of 1999. The
said revision came to be dismissed by the High Court vide order
dated 02.06.2006. General Tariq preferred a Special Leave Petition
before this Court registered as S.L.P.(C) No.12463 of 2006, which
[2024] 4 S.C.R. 703
Rehan Ahmed (D) Thr. Lrs. v. Akhtar Un Nisa (D) Thr. Lrs.
came to be dismissed by this Court vide order dated 11.08.2006.
With the dismissal of the Special Leave Petition the innings of the
objections under Section 47 CPC filed by the Judgment-debtor –
Defendant No.1 Mohiuddin came to an end. General Tariq, s/o.
Defendant no.2- Saeeduddin did not carry the matter any further by
way of review or otherwise before this court. However, a new round of
objections under Section 47 CPC came to be initiated by respondent
no.1 – Akhtar Un Nisa, wife of Defendant No.2-Saeeduddin and the
mother of General Tariq. The objections by respondent No.1 Akhtar
Un Nisa are to the following effect:
I. The decree dated 09.05.1979 is without jurisdiction and a nullity;
II. The property in the suit was a joint property of Ghulam Mohiuddin
and Saeeduddin– Defendants No. 1 and 2 respectively;
III. The suit having been filed as against both the brothers, the
compromise deed could not have been arrived at between the
Plaintiff and Defendant No.1 alone;
IV. The Trial Court could not have accepted the settlement/
compromise between the Plaintiff and Defendant No.1 regarding
Defendant No.2 vacating the third story of the house in question
and the rent notes being transferred in favour of the plaintiff.
V. Since there was no decree against Saeeduddin, as such Decree
holder could not have any right of getting possession of the
portion of the property which was admittedly in possession of
Saeeduddin and owner. Further, the tenants of Saeeduddin in
the disputed property were tenants of the applicant-objector
Akhtar Un Nisa-respondent no.1.
6. The Executing Court, vide judgment and order dated 03.05.2007,
dismissed the objections under Section 47 CPC filed by Smt.Akhtar
Un Nisa.
7. Aggrieved by the same, Smt.Akhtar Un Nisa preferred a revision
before the High Court which has since been allowed by the impugned
order giving rise to the present appeal.
8. After careful consideration of the arguments presented by both
sides, this Court believes that the High Court erred in setting aside
the Executing Court’s order dated 09.12.1998 and in declaring
the Trial Court’s decree dated 09.05.1979 void. The High Court’s
704 [2024] 4 S.C.R.
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decision appears to be based on several incorrect assumptions and
observations.
9. The core of the High Court’s reasoning rests on the erroneous
assumption that the property was jointly owned by Defendants No.
1 and No. 2, and that the absence of Defendant No. 2’s signature on
the compromise dated 11.05.1978 invalidated the decree. However,
Defendant No. 2 has consistently acknowledged that he had no
ownership rights over the property. In his written statement to the
Trial Court in Suit No. 13/72, he explicitly stated that the property
belonged solely to Defendant No. 1. This was further supported by a
family arrangement dated 17.09.1976 and reinforced in Paragraph 6
of the compromise deed. The compromise, signed by Defendant No.
1 and the plaintiff and later verified by Defendant No. 2 through an
application dated 14.05.1979, substantiates that Defendant No. 1 was
the sole owner. These facts were upheld by the High Court and this
Court in previous proceedings. During the challenge to the execution
proceedings filed by General Tarik before the High Court, the High
Court vide order dated 11.8.2006 had also recorded the finding that
Defendant no.2 did not have ownership rights over the suit property
which fact was also upheld by this Court. Defendant no. 2 had limited
rights of being in possession of the third floor of suit property. Due
to the aforesaid reasons, the Plaintiff and Defendant no. 1 were the
only necessary parties needed for the compromise dated 11.05.1978
as Defendant no.1 was the sole owner of the suit property.
10. The High Court also incorrectly held that the provisions of Order
XXIII, Rule 3 of the CPC were not adhered to, claiming that the
Trial Court failed to properly verify the compromise. It is essential
to clarify that the compromise was indeed reached on 11.05.1978,
with its verification delayed due to various adjournments caused
by the absence or illness of Defendant No.1 and other procedural
delays. On 09.05.1979, a fresh compromise application containing
identical terms was submitted and duly signed by both parties due to
the original being misplaced. The Trial Court then correctly recorded
and verified this compromise, fulfilling the requirements of Order
XXIII, Rule 3 of the CPC.
11. It must be made clear that the compromise between the Plaintiff
and Defendant no. 1 was arrived on 11.05.1978 and it was only the
procedural requirements of Order XXIII Rule 3 of verifying and the
[2024] 4 S.C.R. 705
Rehan Ahmed (D) Thr. Lrs. v. Akhtar Un Nisa (D) Thr. Lrs.
compromise before the Court which were eventually completed on
09.05.1979. A perusal of the record of proceedings before the Trial
Court reveals that verification of the terms of the compromise was
attempted on 11.05.1978 but was not possible as Defendant No.1
was not present. Moreover, on subsequent dates being 11.5.1978,
24.07.1978, 31.01.1979 and 20.03.1979, either due to the illness of
Defendant no.1 or due to the Presiding Officer not being present,
there were various adjournments before the Trial Court. Finally, on
09.05.1979, Gulam Mohiuddin appeared before the Court and the
parties submitted a fresh compromise application was filed because
the earlier compromise application submitted on 11-05-1978 was not
traceable on the record of the Court containing the same terms and
conditions as in the compromise application earlier filed on 11.05.1978.
The said application was also duly signed by both the parties. On
the basis of the said compromise presented on 09.05.1979, the Trial
Court took the compromise application on record, verified the fresh
compromise application fulfilling all the terms and conditions of Order
XXIII Rule 3 CPC. The terms and conditions of the compromise
were read over to the parties and were accepted by them and the
signatures of the parities were taken on the compromise application
by the Court and thereafter the Court recorded its satisfaction on the
compromise application, which is on the record of the Trial Court. The
decree dated 09.05.1979 was passed based on this compromise.
12. As far as the terms of the compromise are concerned, which have
also been questioned by the High Court, the agreement stipulated
that Defendant No. 1 was to execute and register the sale deed in
favor of the plaintiff by 01.07.1978, after receiving balance payment of
Rs 25,000/-. The decree’s execution was contingent upon Defendant
No. 1 fulfilling conditions such as obtaining the NOC and ensuring
Defendant No. 2 vacating the portion of the property in question in
his possession. The recording of the compromise and the consequent
decree on 09.05.1979, although appearing procedurally delayed,
adhered to the process required under CPC.
13. Furthermore, the High Court overlooked the fact that General Tarik,
legal heir of Defendant No. 2, had previously objected to the execution
proceedings, which was dismissed on 09.12.1988. Subsequent
appeals before the High Court, including a Special Leave Petition
to this Court, were also dismissed. Therefore, similar objections by
Respondent No. 1, Smt. Akhtar Un Nisa, in her capacity as one of
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the legal heirs of Defendant No. 2 would not be maintainable and
would amount to abuse of process of law.
14. In light of the reasons recorded above, this Court finds merit in the
appellant-plaintiff’s argument and holds that the Executing Court had
rightly rejected the objections under Section 47 CPC filed by Smt.
Akhtar Un Nisa vide order 03.05.2007.
15. Accordingly, the appeal is allowed. The impugned judgement of
the High Court is set aside, and the Executing Court’s order dated
03.05.2007 is restored and the objections of Respondent no.1 under
Section 47 of the CPC stand rejected.
16. There shall, however, be no order as to costs.
Headnotes prepared by: Nidhi Jain Result of the case:
Appeal allowed.
