Code of Civil Procedure, 1908:
Or. XXI r. 34 – Decree for execution of a sale document – Decree holder-respondents filed for execution petition of decree of specific performance of a sale deed – Court issued direction to execute the sale deed in favor of decree holder – Objections to the execution of sale deed of judgment debtor rejected – Draft sale deed submitted by the decree-holder was approved by the execution court – Revision petition filed by appellant/judgment debtor – Dismissed by the High Court – In appeal before this Court case of the appellant/judgment debtor that objection of appellant/judgment debtor to the draft sale deed were not taken as required u/Order XXI Rule 34 – On appeal, held: It is not required that the decree holder must directly deliver the draft sale deed to the judgment debtor – Procedure, is that the decree holder must make it available to the Court – Under Order XXI Rule 34, it becomes the duty of the court to thereupon cause the draft to be served upon the judgment debtor – There must be a notice inviting objections and the court may fix a time within which objections are to be filed – Judgment debtor may or may not object – Execution court to hand over the copy of the draft sale deed produced by the respondents within the stipulated period – Appellant would be free to file his objections to the draft sale deed and thereafter, after hearing the parties, a decision would be taken on the objections.
Or. XXI r. 34 – Decree for execution of a document – Held: Order XXI Rule 34 sub-rule (3) contemplates a situation where the judgment debtor objects – This is to be contained in writing within the time provided – The court is duty bound to make an order approving or altering the draft as it thinks fit – It is also important from the point of view of the role of the executing court which is to act in conformity with the decree – Though, it is indeed open to the executing court to construe the decree; it cannot go beyond the decree – Order XXI r. 34 cannot be diluted and any such departure from the provisions can have highly deleterious consequences not merely qua the parties but also persons who come to deal with those parties in future.
Allowing the appeal, the Court
HELD: 1.1 The present document is a sale, therefore, Order XXI Rule 34 CPC is attracted. It contemplates that if the judgment debtor neglects or refuses to obey the decree, the decree-holder is to prepare a draft of the document. In this case, the draft of the document is the draft sale deed. The draft of the sale deed must further be in accordance with the terms of the decree. It is to be delivered to the court. Thereupon, it is not required that the decree holder must directly deliver it to the judgment debtor. The procedure, therefore, is that the decree holder must make it available to the Court. Under Order XXI Rule 34, it becomes the duty of the court to thereupon cause the draft to be served upon the judgment debtor. There must be a notice inviting objections and the court may fix a time within which objections are to be filed. The judgment debtor may or may not object. [Para 10]9942-B-D]
1.2 It is well settled that the execution court cannot go beyond the decree. The decree must be executed as it is. Though, it is indeed open to the executing court to construe the decree; it cannot go beyond the decree. Therefore, when objections are filed pointing out in a given case that the proposed draft of the sale deed is not in conformity with the decree, it becomes the duty of the executing court to apply its mind and to make alterations in the draft, if needed, to make it in conformity with the decree. It will be thereafter that the decree holder is to deliver it to the court with the alterations if any made by the court, on proper stamp paper, if required and the execution of the document is effected by the court or the officer appointed. [Para 11] [942-F-G]
1.3 This is a case where the court did not invite objections of the appellant to the draft sale deed but the application of the respondents for appointment of the commissioner to execute the sale deed is allowed, no doubt, taking note of the order of the same date, rejecting the objections of the appellant to the execution of the decree. Objections on behalf of the appellant to the execution petition are not to be confused with his objections to the proposed sale deed. [Paras 12, 13][943-D-E]
1.4 Order XXI Rule 34 cannot be diluted and any such departure from the provisions can have highly deleterious consequences not merely qua the parties in question but also persons who come to deal with those parties in future. It can lead to further litigation. It is all of this which is sought to be avoided by bringing clarity and precision and execution must be in conformity with the adjudication contained in the decree. [Para 14][944-A-B]
1.5 The execution court Civil Judge (Senior Division) is directed to hand over the copy of the draft sale deed produced by the respondents for obtaining objections as required under Order XXI Rule 34, Code of Civil Procedure, 1908. The appellant will be free to file his objections to the draft sale deed within a period of three weeks thereafter. Thereafter, after hearing the parties, a decision will be taken on the objections. Appropriate order will be passed by the court so that the decree is executed as is provided in the decree. Needless to say, in case the sale deed which has been executed on the strength of the draft sale deed is found to be violative of the decree, it will necessarily be set aside, and thereafter, a fresh sale deed must be executed by the execution court. [Para 16][944-E-F; 945-A]
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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