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.1defendant 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 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.
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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