Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No. 8297-8298 OF 2004
M/s. Pushpa Sahakari Avas Samiti Ltd. ..... Appellant
Versus
M/s. Gangotri Sahakari Avas S. Ltd. & Ors. ... Respondents
J U D G M E N T
Dipak Misra, J.
The present appeals by special leave are directed against the
judgment and order dated 10.01.2002 and 07.03.2003 passed by the learned
Single Judge of the High Court of Judicature at Allahabad in Civil Revision
No. 341 of 1997 and Review Application No. 38861 of 2002 respectively.
The facts as uncurtained in the two appeals are that the appellant as
plaintiff initiated a civil action forming subject matter of suit No. 501
of 1995 against the respondent and others for permanent injunction. In
the suit, the parties entered into a compromise and on the basis of the
compromise, a decree was drawn up on 06.09.1996. The terms and conditions
of the compromise were made a part of the decree. Be it noted, the
compromise between the parties stipulated certain conditions and one such
condition was that within a span of six months' time, the defendant would
pay a certain sum to the plaintiff. For the sake of clarity and
convenience, the said clause of the compromise is reproduced hereunder:-
"That the defendant No. 1 acknowledges and undertakes to pay
Lacs Rs. 38,38000/- (Rupees Thirty Eight Lacs and Thirty Eight
Thousand) only to the plaintiff within six months from the date
of this compromise. The payment of the said amount by the
defendant No. 1 to the plaintiff shall have the effect of
settling entire claim of the plaintiff as against the defendant
No. 1 in full and final"
2. In the petition for compromise which formed a part of the decree,
there were other stipulations but they are not necessary to be stated for
the adjudication of these appeals. As has been indicated earlier, the
decree was drawn up on 06.09.1996.
3. As the first respondent did not honour the terms of the decree, the
appellant filed an application for execution of the decree on 17.02.1997
and the said application was registered as Misc. Case No. 9 of 1997. The
respondent No. 1 entered contest and filed an objection under Section 47 of
the Code of Civil Procedure (for short, 'the Code') which was registered as
Misc. Case No. 43 of 1997. Allegations, counter allegations and
rejoinders were put forth before the Executing Court. One of the
objections raised in the application under Section 47 of the Code was that
as the decree holder had moved the executing court for execution of the
decree prior to the expiry of the six months' period, the application was
premature and, therefore, entire execution proceeding was vitiated being
not maintainable. The learned Civil Judge who dealt with the execution
case did not find any merit in any of the objections raised and rejected
the same. It is worth noting that by the time the matter was taken up and
the order came to be passed, the decree had become mature for execution.
After rejection of the objection, the executing court took into
consideration the submission of the judgment-debtor and, accordingly,
directed that the entire balance money as agreed to in the compromise
should be paid to the decree holder.
4. Aggrieved by the aforesaid order, the first respondent preferred
Civil Revision No. 341 of 1997. The learned Single Judge noted the
contentions and subsequent orders that were passed in the execution
petition. The revisional court opined that no other objection could be
raised for the first time in the revision and hence, no finding was
warranted to be recorded on the said score.
5. As far as the premature filing of the execution petition is
concerned, the learned Single Judge expressed his view as under:-
"The question whether the execution was premature or not is to
be decided with regard to the date at which the execution was
filed. If a suit is found to have been filed premature, it
cannot be decreed for the reason that the period has expired
during the pendency of the suit. Similar principle will not
apply to the execution. If the execution was premature when it
was filed, it is liable to be rejected and cannot be proceeded
with because it has prematured during the pendency of the case."
Being of this view, he allowed the revision and set aside the order passed
by the learned Civil Judge as a consequence of which the execution case
entailed in dismissal.
6. We have heard Mr. Dinesh Dwivedi, learned senior counsel for the
appellant, and Mr. S. K. Dubey, learned Senior counsel for the first
respondent.
7. Criticizing the impugned order passed in Civil Revision, Mr.
Dwivedi, learned senior counsel, has contended that when a suit is
premature on the date of its institution and the Court can grant relief to
the plaintiff if no manifest injustice or prejudice is caused to the party
proceeded against, there is no reason or justification for not applying the
said principle to an execution proceeding. It is urged by him that the
question of a suit being premature does not go to the root of the
jurisdiction of the Court, but the Court in its judicial discretion may
grant a decree or refuse to do so and, therefore, in the case at hand, when
the executing court had proceeded after the expiry of the stipulated period
in the decree, there was no warrant on the part of the revisional court to
interfere with the same, for the said order did not suffer from lack of
appropriate exercise of jurisdiction or exercise of jurisdiction that the
court did not possess. It is canvassed by him that if the petition filed
under Section 47 of the Code is scrutinized, it will clearly reveal that
objections have been raised in a routine manner to delay the execution
proceeding and such dilatory tactics by a judgment-debtor should, in all
circumstances, be deprecated and decried. In support of his contentions,
he has placed reliance on Vithalbhai (P) Ltd. v. Union Bank of India[1].
8. Mr. Dubey, learned senior counsel for the first respondent, per
contra, contended that the executing court could not have entertained the
application as it was filed prior to the expiration of the period. In
support of his stand, he has placed reliance on Lal Ram v. Hari Ram[2].
The next submission of Mr. Dubey is that as the execution was levied in a
premature manner before the expiry of the period, the decree lost its
potentiality of executability. Elaborating the said submission, it is
canvassed that the compromise decree could not have been taken up for the
purpose of execution and hence, the objection under Section 47 of the Code
should have been accepted by the executing court, but as it failed to do
so, the High Court, in exercise of the supervisory jurisdiction, has
rectified the jurisdictional error.
The learned senior counsel further urged that when the compromise decree
imposed mutual obligations on both sides some of which were conditional, no
execution could be ordered unless the party seeking execution not only
offered to perform his part but also satisfied the executing court that he
was in a position to do so. In essence, the proponement of Mr. Dubey is
that by levying the execution in a premature manner, the stipulations in
the compromise decree have been totally overlooked and the real
construction of the terms of the decree have been given an indecent burial.
To bolster the said submissions, he has commended us to the decisions in
Jai Narain Ram Lundia v. Kedar Nath Khetan[3] and Chen Shen Ling v. Nand
Kishore Jhajharia[4].
9. At the very outset, it may be stated that it is an admitted position
that the execution was levied prior to the expiration of the period
stipulated in the decree. The executing court, as is evident, has
addressed itself to all the objections that were raised in the application
and rejected the same. The principal objection relating to the
maintainability of the proceeding on the foundation that it was instituted
prematurely did not find favour with it. The learned Single Judge has
observed that if an execution is premature when it is filed, it is liable
to be rejected. Mr. Dwivedi has drawn an analogy between a premature suit
and premature execution by placing heavy reliance on the authority in
Vithalbhai (P) Ltd. (supra). In Vithalbhai (supra), while dealing with
the premature filing of a suit, a two-Judge Bench of this Court, after
referring to a number of decisions of various High Courts and this Court,
came to hold as follows:-
"The question of suit being premature does not go to the root of
jurisdiction of the court; the court entertaining such a suit
and passing decree therein is not acting without jurisdiction
but it is in the judicial discretion of the court to grant
decree or not. The court would examine whether any irreparable
prejudice was caused to the defendant on account of the suit
having been filed a little before the date on which the
plaintiff's entitlement to relief became due and whether by
granting the relief in such suit a manifest injustice would be
caused to the defendant. Taking into consideration the
explanation offered by the plaintiff for filing the suit before
the date of maturity of cause of action, the court may deny the
plaintiff his costs or may make such other order adjusting
equities and satisfying the ends of justice as it may deem fit
in its discretion. The conduct of the parties and unmerited
advantage to the plaintiff or disadvantage amounting to
prejudice to the defendant, if any, would be relevant factors."
After so stating, the Bench ruled that the plea as regards the
maintainability of the suit on the ground of its being premature
should be promptly raised and it will be equally the responsibility of
the Court to dispose of such a plea. Thereafter, it was observed as
follows:-
"However, the court shall not exercise its discretion in favour
of decreeing a premature suit in the following cases: (i) when
there is a mandatory bar created by a statute which disables the
plaintiff from filing the suit on or before a particular date or
the occurrence of a particular event; (ii) when the institution
of the suit before the lapse of a particular time or occurrence
of a particular event would have the effect of defeating a
public policy or public purpose; (iii) if such premature
institution renders the presentation itself patently void and
the invalidity is incurable such as when it goes to the root of
the court's jurisdiction; and (iv) where the lis is not confined
to parties alone and affects and involves persons other than
those arrayed as parties, such as in an election petition which
affects and involves the entire constituency. (See Samar Singh
v. Kedar Nath 13.) One more category of suits which may be
added to the above, is: where leave of the court or some
authority is mandatorily required to be obtained before the
institution of the suit and was not so obtained."
[Emphasis Supplied]
10. We have referred to the aforesaid dictum in extenso as we find that
the Bench has given emphasis on various aspects, namely, an issue getting
into the root of the jurisdiction of the Court; causing of irreparable and
manifest injustice; adjustment of equities; concept of statutory bar;
presentation that invites a void action and anything that affects the
rights of the other party; and obtaining of leave of the Court or authority
where it is a mandatory requirement, etc. On a perusal of the various
provisions relating to execution as enshrined under Order XXI of the Code,
we do not find anything which lays down that premature filing of an
execution would entail its rejection. The principles that have been laid
down for filing of a premature suit, in our considered opinion, do throw
certain light while dealing with an application for execution that is filed
prematurely and we are disposed to think that the same can safely be
applied to the case at hand.
11. Presently, we shall advert to the submission of Mr. Dubey that the
executing court could not have entertained the application as it was filed
before the expiration of the period. The learned senior counsel has relied
on the decision rendered in Lala Ram (supra). In the said case, an order
of acquittal passed -by the learned Magistrate was assailed before the High
Court by seeking leave under Section 417(3) of the Code of Criminal
Procedure, 1898 and the High Court granted leave as a consequence of which
the appeal came to be filed eventually. The High Court accepted the appeal
and convicted the accused. It was contended before this Court that the
appeal could not have been entertained by the High Court having been filed
beyond the expiry of sixty days in view of the language employed under
Section 417(4) of the Code. Emphasis was laid on the term "entertain".
Repelling the contention, this court held as follows: -
"The learned counsel also suggests that the word
"entertain" which occurs in Section 417 (4) means "to deal with
or hear" and in this connection he relies on the judgment of
this Court in Lakshmi Rattan Engineering Works v. Asst. Commr.,
Sales Tax, (1968) 1 SCR 505 = (AIR 1968 SC 488). It seems to us
that in this context "entertain" means "file or received by the
Court" and it has no reference to the actual hearing of the
application for leave to appeal; otherwise the result would be
that in many cases applications for leave to appeal would be
barred because the applications have not been put up for hearing
before the High Court within 60 days of the order of acquittal"
On a perusal of the aforesaid passage, it is vivid that the three-Judge
Bench interpreted the terms 'were entertained' in the context they were
used under the old Code and did not accept the submission 'to deal with or
hear'. Regard being had to the context, we have no shadow of doubt that
the said decision is distinguishable and not applicable to the obtaining
factual matrix.
12. In this context, we may refer with profit to the two-Judge Bench
decision in Martin & Harris Ltd. v. VIth Additional Distt. Judge and
others[5]. In the said Case, the Court was interpreting the language
employed in the proviso to Section 21(1) of the U.P. Urban Buildings
(Regulation of Letting, Rent and Eviction) Act, 1972. The proviso
stipulated that where the building was in occupation of a tenant before its
purchase by the landlord, such purchase being made after the commencement
of the Act, no application shall be entertained on the grounds mentioned in
Clause (a) of the said Section unless three years' period had lapsed since
the date of purchase. A contention was canvassed that filing of an
application before the expiry of the three years' period was barred by the
provision contained in the said proviso. Repelling the said submission,
the Bench opined thus: -
"It must be kept in view that the proviso nowhere lays down that
no application on the grounds mentioned in clause (a) of Section
21(1) could be "instituted" within a period of three years from
the date of purchase. On the contrary, the proviso lays down
that such application on the said grounds cannot be
"entertained" by the authority before the expiry of that period.
Consequently it is not possible to agree with the extreme
contention canvassed by the learned Senior Counsel for the
appellant that such an application could not have been filed at
all within the said period of three years."
After so stating, the Bench distinguished the decision rendered in
Anandilal Bhanwarlal v. Kasturi Devi Ganeriwala[6] which dealt with
"institution" and eventually came to hold as follows: -
"Thus the word "entertain" mentioned in the first proviso to
Section 21(1) in connection with grounds mentioned in clause (a)
would necessarily mean entertaining the ground for consideration
for the purpose of adjudication on merits and not at any stage
prior thereto as tried to be submitted by learned Senior
Counsel, Shri Rao, for the appellant. Neither at the stage at
which the application is filed in the office of the authority
nor at the stage when summons is issued to the tenant the
question of entertaining such application by the prescribed
authority would arise for consideration.
13. In this context, we may usefully refer to the decision in Hindusthan
Commercial Bank Ltd. v. Punnu Sahu (Dead) Through Legal Representatives[7].
In the said case, this Court was interpreting Rule 90 of Order XXI of the
Code of Civil Procedure as amended by the Allahabad High Court. The
amended proviso to Rule 90 stipulated the circumstances under which no
application to set aside the sale shall be entertained. It was contended
before this Court that the expression "entertain" found in the proviso
referred to the initiation of the proceedings and not to the stage when the
Court had taken up the application for consideration. This Court referred
to the earlier decision in Lakshmiratan Engineering Works Ltd. v. Asst.
Comm., Sales Tax, Kanpur[8] and opined that the expression "entertain"
conveys the meaning "adjudicate upon" or "proceed to consider on merits".
14. In State of Haryana v. Maruti Udyog Ltd. and Others [9], this Court
was dealing with Section 39 (5) of the Haryana General Sales Tax Act, 1973
which stipulated that no appeal shall be entertained unless it is filed
within sixty days from the date of the order appealed against and the
appellate authority was satisfied that the amount of tax assessed and the
penalty and interest, if any, recoverable from the persons had been paid.
The Bench interpreting the term "entertainment" of the appeal ruled that
when the first proviso to Section 39 (5) speaks of the "entertainment of
the appeal", it means that the appeal will not be admitted for
consideration unless there is satisfactory proof available of the making of
the deposit of admitted tax.
15. In view of the aforesaid authorities in the field, the submission
of Mr. Dubey that the executing court could not have entertained the
execution proceeding solely because it was instituted before the expiry of
the period stipulated in the compromised decree despite the factum that by
the time the Court adverted to the petition the said period was over, is
absolutely unacceptable.
16. The next limb of proponement of Mr. Dubey is that the decree had lost
its potentiality of executability having been filed on a premature date. On
a first flush, the aforesaid submission looks quite attractive but on a
deeper probe and keener scrutiny, it melts into insignificance. In
Dhurandhar Prasad Singh v. Jai Prakash University and Others[10], while
dealing with the power of the executing court under Section 47 of the Code
of Civil Procedure, a two-Judge Bench has expressed thus:-
"The exercise of powers under Section 47 of the Code is
microscopic and lies in a very narrow inspection hole. Thus it is
plain that executing court can allow objection under Section 47 of
the Code to the executability of the decree if it is found that
the same is void ab initio and a nullity, apart from the ground
that the decree is not capable of execution under law either
because the same was passed in ignorance of such a provision of
law or the law was promulgated making a decree inexecutable after
its passing "
17. Tested on the anvil of the aforesaid principle, it is difficult to
accept the stand that the decree had become inexecutable, and, accordingly,
we repel the same.
18. The learned senior counsel for the respondent has further propounded
that the executing court could not have passed any order on the application
for execution as it was filed prior to the expiry of the period.
Pyramiding the said submission, it is urged by him that such advertence in
an execution proceeding frustrates the construction of the terms of the
decree. Mr. Dubey has drawn immense inspiration from the verdict in Chen
Shen Ling (supra). On a careful perusal of the aforesaid decision, it is
plain and patent that the three-Judge Bench had dealt with the
consideration of the terms of the decree and eventually, placing reliance
on the decision in Jai Narain Ram Lundia (supra), expressed the view that
no execution can be ordered unless the party seeking execution not only
offered to perform his part but, also when objection was taken, satisfied
the executing court that he was in a position to do so. Be it noted, in
the case Jai Narain Ram Lundia (supra), this Court has adverted to the
reciprocal application, their inter-linking and the indivisibility of the
terms of the decree and opined that the executing court cannot go behind
the decree and it cannot defeat the directions in the decree. In both the
decisions, the issue pertained to the nature of order to be passed by the
executing court or the type of direction to be issued by it. The ratio
enunciated therein does not remotely deal with the filing of an execution
petition in respect of a compromise decree prior to the expiry of the date
as stipulated in the terms and conditions of the decree. Hence, we have no
scintilla of doubt that the said authorities do not support the stand so
vehemently put forth by Mr. Dubey, learned senior counsel for the first
respondent.
19. In view of our aforesaid premised reasons, we arrive at the
irresistible conclusion that the executing court did not commit any error
by entertaining the execution petition. The learned Single Judge in civil
revision has annulled the said order without any justification. While so
doing, he had not dealt with other objections raised by the Judgment-debtor
on the ground that they are raised for the first time. On a query being
made, Mr Dwivedi, learned senior counsel for the petitioner, fairly stated
that the said objections were raised in a different manner in the objection
filed under Section 47 of the Code and the revisional court should have
been well advised to deal with the same on merits. Regard being had to the
aforesaid analysis, we set aside the order passed in civil revision and
remit the matter to the High Court to deal with the objections on merits.
As it is an old matter, we request the learned Chief Justice of the High
Court of Allahabad to nominate a learned Judge to dispose of the civil
revision within a period of six months. It is hereby made clear that the
parties shall not seek unnecessary adjournment before the revisional court
and should cooperate so that the revision shall be disposed of within the
timeframe.
20. Consequently, the appeals are allowed to the extent indicated
hereinabove leaving the parties to bear their respective costs.
......................................J.
[Deepak Verma]
......................................J.
[Dipak Misra]
New Delhi;
March 30, 2012.
-----------------------
[1]
[2] (2005) 4 SCC 315
[3]
[4] AIR 1970 SC 1093
[5]
[6] AIR 1956 SC 359
[7]
[8] AIR 1972 SC 726
[9]
[10] (1998) 1 SCC 732
[11]
[12] (1985) 1 SCC 442
[13]
[14] (1971) 3 SCC 124
[15]
[16] AIR 1968 SC 488
[17]
[18] (2000) 7 SCC 348
[19]
[20] (2001) 6 SCC 534
