Sobha Singh and Sons Pvt. Ltd. vs Shashi Mohan Kapur (Deceased) Thr. L.R.

Words & Expressions – “and shall pass a decree in accordance therewith” – Meaning of – Discussed – Code of Civil Procedure, 1908 – Or. XXIII, r.3.

Code of Civil Procedure, 1908 – Or.XX, r.6A(2) – Non-filing of the certified copy of the decree, as the decree was not passed by the Court, along with the execution application – Effect of – Held: Notwithstanding the fact that the decree was not passed, yet by virtue of principle underlined in Or.XX, r.6A(2), the consent order dated 01.06.2012 had the effect of a decree till the date of actual passing of the decree by the Court for the purposes of execution or for any other purpose.

Code of Civil Procedure, 1908 – s.152 – Conditions for invoking power under – Discussed.

Code of Civil Procedure, 1908 – s.151 r/w Or.XX, r.6A – Held: In the present case, the Court which disposed of the suit, did not draw the decree but only passed the consent order – In such a case, the decree holder was required to file application u/s.151 r/w Or.XX, r.6A to the Court for drawing a decree in accordance with the consent order dated. 01.06.2012.

Allowing the appeal, the Court

HELD: 1.1 The High Court was not right in holding that in the absence of a formal decree not being drawn or/and filed, the appellant (decree holder) had no right to file the Execution petition on the strength of the consent order dated 01.06.2012. This finding of the High Court is not legally sustainable. [Para 24] [960-D]

1.2 Order 20 Rule 6 of the Code deals with contents of decree and provides that the decree shall agree with the judgment, it shall contain the number of the suit, the names and descriptions of the parties, their registered addresses and particulars of claim, relief granted or any other determination made in the suit, amount of costs incurred in the suit, and by whom or out of what property and in what proportions, the cost to be paid. Rule 6A deals with the preparation of decree. It says that every endeavor shall be made to ensure that the decree is drawn up as expeditiously as possible and, in any case, within fifteen days from the date on which the judgment is pronounced. Rule 6A (2) of Order 20 of the Code says that an appeal may be preferred against the decree without filing a copy of the decree and in such a case the copy made available to the party by the Court shall for the purposes of Rule 1 of Order 41 be treated as the decree but as soon as the decree is drawn, the judgment shall cease to have the effect of a decree for the purposes of execution or for any other purpose. Though Rule 6A (2) of Order

20 of the Code deals with the filing of the appeal without enclosing the copy of the decree along with the judgment and further provides the consequence of not drawing up the decree yet, the principle underlined in Rule 6A(2) can be made applicable also to filing of the execution application under Order 21 Rule 2 of the Code. Order 20 Rule 7 deals with the date of decree. It says that the decree shall bear date the day on which the judgment was pronounced and when the judge has satisfied himself that the decree has been drawn up in accordance with the judgment, he shall sign the decree. [Paras 26-28] [963-A-E]

1.3 Order 21 Rule 11(2) of the Code, which deals with the execution of the decree, provides that the decree holder is only required to give details of the judgment and the decree in the execution application along with other details [see clauses (a) to (j). Similarly, Order 21 Rule 11(3) of the Code makes it clear that the Court “may” require the decree holder to produce a certified copy of the decree. This clearly indicates that it is not necessary to file a copy of the decree along with execution application unless the Court directs the decree holder to file a certified copy of the decree. As and when the decree holder files an application for execution of any decree, he is required to ensure compliance of three things. First, the written application filed under Order 21 Rules 10 and 11 (2) of the Code must be duly signed and verified by the applicant or any person, who is acquainted with the facts of the case, to the satisfaction of the Court; Second, the application must contain the details, which are specified in clauses (a) to (j) of Rule 11(2) of the Code, which include mentioning of the date of the judgment and the decree; and Third, filing of the certified copy of the decree, if the Court requires the decree holder to file it under Order 21 Rule 11(3) of the Code. According to the appellant, the order dated 01.06.2012 itself is capable of being executable by virtue of Section 36 of the Code and, therefore, the High Court was not right in holding that the decree was required to be drawn. The argument is not acceptable for more than one reason. [Paras 29-34] [963-F-H; 964-A-E]

1.4 First, the language of Order 23 Rule 3 of the Code does not admit passing of an order of the nature urged by the appellant; Second, the expression “the court shall order such agreement, compromise or satisfaction to be recorded and shall pass a decree in accordance therewith” occurring in Order 23 Rule 3 of the Code, in clear terms, suggests that it is necessary after recording the compromise in the order to further pass a decree in accordance therewith. In other words, the expression “and shall pass a decree in accordance therewith” is a clear indication that after the compromise is recorded by the Court, it shall proceed to “pass a decree”. So, the rule contemplates, first an order recording of the compromise and then simultaneously pass a decree in accordance with the order. In the light of the clear language of Order 23 Rule 3 of the Code, it is not possible to accept the submission of the appellant that the order dated 01.06.2012 itself amounts to a decree and, therefore, it is not necessary for the Court to pass a decree. Had this been the intention, the legislature would not have used the expression “and shall pass a decree in accordance therewith” in Order 23 Rule 3 of the Code. [Paras 35-37][964-E-H; 965-A]

1.5 The Executing Court was right in rejecting the objections raised by the respondent in his applications and, therefore, find no good ground to interfere in those findings of the Executing Court. All the objections raised by the respondent were frivolous and were raised only with a view to avoid execution of the compromise decree. None of the objections raised by the respondent could be gone into after consent order had been passed. In any event, none of the objections raised by the respondent had any substance on merits and were, therefore, rightly rejected by the Executing Court. The respondent having taken time twice to vacate the suit house and yet not adhering to the undertaking given, this Court cannot countenance such conduct of the respondent. It is reprehensible. [Paras 39-41] [965-B-F]

1.6 Even though the appellant did not file the certified copy of the decree along with the execution application for the reason that the same was not passed by the Court, yet the execution application filed by the appellant was maintainable. Indeed, so long as the formal decree was not passed, the order dated 01.06.2012 was to be treated as a decree during the interregnum period by virtue of Order 20 Rule 6A (2) of the Code. In other words, notwithstanding the fact that the decree had not been passed, yet by virtue of principle underlined in Order 20 Rule 6A(2) of the Code, the order dated 01.06.2012 had the effect of a decree till the date of actual passing of the decree by the Court for the purposes of execution or for any other purpose. This empowered the Executing Court to entertain the execution application and decide the objections raised by the respondent on merits. [Paras 42] [965-G-H; 966-A-B]

1.7 Further, though the High Court was right in directing the appellant to apply to the Court for drawing a decree, but was not right in directing to apply under Section 152 of the Code. Section 152 of the Code deals with the amendment of judgments, decrees or orders. It provides that any clerical or arithmetical mistakes in the judgments, decrees or orders or errors arising therein from any accidental slip or omission may at any time be corrected by the Court either of its own motion or on the application of any of the parties. Order 20 Rule 3 also provides that judgment can be altered or added either under Section 152 or in review. In order to invoke the powers under Section 152 of the Code, two conditions must be present. First, there has to be a judgment or decree or an order, as the case may be, and second, the judgment or decree or order, as the case may be, must contain any clerical or arithmetical error for its rectification. In other words, Section 152 of the Code contemplates that the Court has passed the judgment, decree or the order and the same contains clerical or arithmetical error. Any party to such judgment, decree or order, as the case may be, has a right to apply at any time under Section 152 of the Code to the concerned Court for rectification of any arithmetical or/and clerical error in the judgment, decree or the order, as the case may be. [Paras 44-47] [966-D-G]

1.8 In the case at hand, the Court which disposed of the suit, did not draw the decree but only passed the order. In such a situation, the decree holder was required to file an application under Section 151 read with Order 20 Rule 6A of the Code to the Court for drawing a decree in accordance with the order dated 01.06.2012. Indeed, in the concluding para of the order dated 01.06.2018 that the Court has already directed to ensure compliance of the formalities. It would have been, therefore, proper in such circumstances for the Court to simultaneously draw a decree the same day itself or in any event within 15 days as provided in Order 20 Rule 6A. This being a procedural matter, even if it was not done, yet the same could be done by the Court at the instance of the appellant (decree holder) applying for drawing up a decree after filing of the execution application. [Paras 48, 49] [966-G-H; 967-A-C]

1.9 Though it is found that it is a fit case for imposition of cost but cost of Rs.5 Lakhs is excessive. Having regard to all facts and circumstances of the case, it is just and proper to impose a compensatory cost of Rs. 50,000/- on the respondent under Section 35-A of the Code.[Paras 50, 51] [967-C-E]

1.10 The High Court was not right in holding that the execution petition itself is not maintainable. The High Court though was right in directing the appellant to apply to the concerned Court for drawing up a decree but the High Court was not right in directing the appellant to apply it under Section 152 of the Code. The execution petition filed by the appellant is maintainable and was, therefore, rightly allowed by the Executing Court by rejecting the objections raised by the respondent except with two modifications indicated above. The appellant is hereby granted two weeks’ time to apply under Section 151 read with Order 20 Rule 6(A) of the Code to the concerned Court with a prayer for passing a decree in accordance with the order dated 01.06.2012 passed under Order 23 Rule 3 of the Code. In the peculiar circumstance of this case, it is expected that the Court concerned passes and draws the decree without any delay and, in any case, within one week of moving of the application by the appellant. Such act of passing and drawing up the decree being formal in nature, no objection or dispute in that regard is to be entertained by any Court. Once the decree is drawn and its details are specified in the execution application as provided under Order

21 Rule 11 (2)(c) and the certified copy of the decree is filed, if required by the Court, in terms of Order 21 Rule 11(3) of the Code, the order of the Executing Court dated 22.10.2018 with the above modification regarding payment of costs amount will be given effect to against the respondent. The respondent is, however, granted one month’s time to vacate the suit house after completion of the procedural formalities by the concerned Court after making payment of all arrears of rent till the date of delivery of possession of suit house to the appellant. [Paras 52-55] [967-F-H; 968-A-D]