In Topanmal Chhotamal Vs. M/s. Kundomal Gangaram
reported in AIR 1960 SC 388, the Supreme Court held that when an
ambiguous decree is passed, it is the duty of the executing court to
interpret the decree and for this purpose, the court is entitled to look
into the pleadings and the judgment. Similar observation was made in
Bhavan Vaja Vs. Solanki Hanuji Khodaji Mansang reported in AIR 1972
SC 1371, where the Apex Court made the following observation.
“19. It is true that an executing court cannot go behind the decree under
execution. But that does not mean that it has no duty to find out the true
effect of that decree. For construing a decree it can and in appropriate cases,
it ought to take into consideration the pleadings as well as the proceedings
leading upto the decree. In order to find out the meaning of the words
employed in a decree the Court, often has to ascertain the circumstances
under which those words came to be used. That is the plain duty of the
executing Court and if that Court fails to discharge that duty it has plainly
failed to exercise the jurisdiction vested in it. Evidently the execution court
in this case thought that its jurisdiction began and ended with merely
looking at the decree as it was finally drafted. Despite the fact that the
pleadings as well as the earlier judgments rendered by the Board as well as
by the appellate Court had been placed before it, the execution Court does
not appear to have considered those documents. If one reads the order of
that Court, it is clear that it failed to construe the decree though it purported
to have construed the decree. In its order there is no reference to the
documents to which we have made reference earlier. It appears to have been
unduly influenced by the words of the decree under execution. The appellate
Court fell into the same error. When the matter was taken up in revision to
the High Court, the High Court declined to go into the question of the
construction of the decree on the ground that a wrong construction of a
decree merely raises a question of law and it involves no question of
jurisdiction to bring the case within Section 115, Civil Procedure Code. As
seen earlier in this case the executing Court and the appellate Court had not
construed the decree at all. They had not even referred to the relevant
documents. They had merely gone by the words used in the decree under
execution. It is clear that they had failed to construe the decree. Their
omission to construe the decree is really an omission to exercise the
jurisdiction vested in them.”
THE GAUHATI HIGH COURT
(The High Court of Assam, Nagaland, Mizoram & Arunachal Pradesh)
CRP No. 440 of 2006
Illiasuddin Ahmed,
-Versus-
Md. Hachnian Ahmed,
S/O Late Mominuddin,
BEFORE
THE HON’BLE MR. JUSTICE HRISHIKESH ROY
Date of Hearing & Judgment :
20th January, 2015
Citation;AIR 2015 Gauhati 49
The petitioner was the plaintiff No.1 in the Title Suit
No.66/1992 and the case was filed for right, title and khas possession
of the plaintiff’s share in the ancestral property. The 3(three) co-
plaintiffs of the petitioner were his sisters. The principal defendants in
the suit was Md. Hachnain Ahmed and Mustt. Amina Khatoon, who are
the brother and mother respectively of the plaintiffs. The proforma
defendants are the legal heirs of the other siblings of the plaintiffs.
3.
The Title Suit was disposed of on the basis of joint
compromise application dated 01.12.1996 filed by the first plaintiff and
the first defendant during the Lok Adalat and the learned District Judge,
Morigaon, closed the case on 01.12.1996 with the following order:
“Both the parties are present. Learned counsel for the plaintiff is also
present. Two conciliators are also present. Dispute is settled on compromise
in the following terms and conditions:-
Total suit land – 25 bighas
1. 2. Each girl heir will get 1/12th share each out of 22 bighas i.e. 1B-4K
number of heirs being six.
3. Each son heir will get 1/6th share of the total land measuring 22 bighas
i.e. each male share will be 3B-3K.
4. Plaintiff including three sisters will get 9 bighas in total out of the land
in dispute.
5. After adjustment of the land measuring 5B-1K-1L standing in the name
of plaintiff No.1 (not included in the suit land), the plaintiff will get 5
bighas only from the total suit land measuring 25 bighas.
6.
Mustt. Aimoina Khatoon, wife of Mobinuddin Ali will get 1/8th share
i.e. total 3 bighas.
The remaining land including the share of the mother and three sisters
and two brothers (including main defendant) measuring 20 bighas will
remain in the share of Hachnain Ahmed, the main defendant.
Page 3 of 8
In this connection, it is to be noted that while settling the dispute, the land
measuring 5B-1K-1L standing in the name of the plaintiff which is not the
subject-matter of the suit land is also considered.
Now, after calculation, the plaintiff No.1 will get 5 bighas of land out of
total 25 bighas of the suit land. The land measuring 5B-1K-1L standing in
the name of plaintiff No.1 independently shall remain as his share in
addition to decreed suit land measuring 5 bighas.”
4.
Since the plaintiff No.1 was held entitled to 5 bighas from
the total suit land measuring 25 bighas, he filed an application on
08.03.2004 (Annexure-C) under Order XX Rule 6A, 9 and 12 of the
Code of Civil Procedure for drawing up a formal decree in pursuant to
the
District
Judge’s
order
dated
01.12.1996
in
the
Title
Suit
No.66(M)/1992. It may be noted that a separate plot measuring 5
bighas 1 katha 1 lecha, which was already in the plaintiff’s name, was
not part of the suit land measuring 25 bighas and thus the decretal land
measuring 5 bighas is to be curved out from the 25 bighas of the suit
land.
5.
As the decree holder’s application was kept pending without
consideration, the aggrieved party filed the WP(C) No.2760/2005, which
was disposed of on 08.04.2005 (Annexure-D) with the direction that the
learned
District
Judge,
Morigaon,
will
consider
the
petitioner’s
application within 3 days of receipt of the High Court order.
6.
Earlier an application under Section 47 of the CPC was filed
by the decree holder describing the cultivable land, homestead land and
the town land (Total 5 bighas) claimed by the plaintiff as his share of
the family property, in terms of the compromise order passed by the
District Judge on 01.12.1996. But the Title Execution Case No.1/2005
CRP 440/2006
Page 4 of 8
was dismissed by the learned District Judge on 08.12.2005 on the
ground that no executable decree is furnished and the Court cannot
execute the Section 47 CPC application. This judgment of the learned
District Judge is assailed in the Revision proceeding.
7.
The petitioner contends that he is entitled to the fruits of
the judgment passed on 01.12.1996 during the Lok Adalat proceeding
and since the plaintiff is found entitled to 5 bighas out of the total 25
bighas of the suit land, the concerned land must be identified for
drawing up the decree, by examining to the pleadings of the parties.
8.
The defendant No.1 as the judgment debtor admits that the
decree was passed for 5 bighas land, but Mr. Borbhuiya points out that
the precise land area was not specified by the District Judge, Morigaon,
in the order passed by him on 01.12.1996 while disposing of the Title
Suit No.66/1992. The counsel further submits that the joint petition was
filed only by the first plaintiff and the defendant No.1 and the other
parties in the suit were not signatories to the compromise petition.
9.
The proforma defendants are represented by the learned
counsel Mr. J. Islam and he submits that unless the precise land area
falling in the share of the plaintiff No.1 (decree holder) is identified, it
might create confusion amongst the legal heirs of the predecessor
Momin Uddin.
10.
In Topanmal Chhotamal Vs. M/s. Kundomal Gangaram
reported in AIR 1960 SC 388, the Supreme Court held that when an
ambiguous decree is passed, it is the duty of the executing court to
interpret the decree and for this purpose, the court is entitled to look
into the pleadings and the judgment. Similar observation was made in
Bhavan Vaja Vs. Solanki Hanuji Khodaji Mansang reported in AIR 1972
SC 1371, where the Apex Court made the following observation.
“19. It is true that an executing court cannot go behind the decree under
execution. But that does not mean that it has no duty to find out the true
effect of that decree. For construing a decree it can and in appropriate cases,
it ought to take into consideration the pleadings as well as the proceedings
leading upto the decree. In order to find out the meaning of the words
employed in a decree the Court, often has to ascertain the circumstances
under which those words came to be used. That is the plain duty of the
executing Court and if that Court fails to discharge that duty it has plainly
failed to exercise the jurisdiction vested in it. Evidently the execution court
in this case thought that its jurisdiction began and ended with merely
looking at the decree as it was finally drafted. Despite the fact that the
pleadings as well as the earlier judgments rendered by the Board as well as
by the appellate Court had been placed before it, the execution Court does
not appear to have considered those documents. If one reads the order of
that Court, it is clear that it failed to construe the decree though it purported
to have construed the decree. In its order there is no reference to the
documents to which we have made reference earlier. It appears to have been
unduly influenced by the words of the decree under execution. The appellate
Court fell into the same error. When the matter was taken up in revision to
the High Court, the High Court declined to go into the question of the
construction of the decree on the ground that a wrong construction of a
decree merely raises a question of law and it involves no question of
jurisdiction to bring the case within Section 115, Civil Procedure Code. As
seen earlier in this case the executing Court and the appellate Court had not
construed the decree at all. They had not even referred to the relevant
documents. They had merely gone by the words used in the decree under
execution. It is clear that they had failed to construe the decree. Their
omission to construe the decree is really an omission to exercise the
jurisdiction vested in them.”
11.
In this case, there is no dispute amongst the parties that a
compromise decree was passed by the District Judge by declaring that
the plaintiff No.1 is entitled to 5 bighas from the suit land totaling 25
bighas. But of course, the precise land description was not reflected in
the Court’s order. Under Order XX Rule 6A, the decree must be drawn
up expeditiously within 15 days from the date of the judgment and Rule
9 specifies that the decree should contain the description of the
immovable property to be recovered. In this case, the petitioner’s
application for drawing up the decree is kept pending without disposal
since 08.03.2004 and despite the Court’s direction given in the WP(C)
No.2760/2005, order is not yet passed on the said application.
12.
Under Section 47 of the CPC, all questions arising between
the parties in the suit in which the decree was passed are to be
determined by the executing Court. Therefore, the formal decree should
have been drawn up by passing necessary order on the decree holder’s
application filed under Order XX Rule 6A, 9 and 12 of the CPC. Only
thereafter steps should have been taken for execution. It is apparent
that without identifying the precise boundary of the 5 bighas land to
devolve on the first plaintiff, it would be difficult to execute the decree.
13.
But in the Court’s compromise order the land boundary was
not specified in the Title Suit No.66/1992. Therefore under the ratio of
Topanmal Chhotamal (supra) and Bhavan Vaja (supra), the learned
Court should have taken steps to effectively construe the ambiguous
decree by examining the pleadings in the suit. However no such
exercise was undertaken and therefore the Court below failed to
exercise due jurisdiction in the instant case.
14.
In the above circumstances, the impugned judgment dated
08.12.2005 in the Title Execution Case No.1/2005 rendered by the
learned District Judge, Morigaon, is set aside and quashed. The matter
CRP 440/2006
Page 7 of 8
is remanded back to the learned Court for drawing up a formal decree
by considering the decree holder’s application filed under Order XX Rule
6A, 9 and 12 of the CPC. While construing the decree, the Court should
bear in mind the ratio of the decisions in Topanmal Chhotamal (supra)
and Bhavan Vaja (supra). Hearing should be given to all the parties as
some of them were not signatories to the joint compromise petition.
Only after formal decree is drawn up, steps for execution should be
taken in accordance with law. It is ordered accordingly. To avoid
unnecessary delay, the learned counsel for the parties have assured
that their respective clients will appear before the District Court,
Morigaon, on 23.02.2015. Therefore, fresh summons need not be
issued to the parties. With this order, the case is disposed of without
any cost.
15.
The Registry will urgently communicate this order to the
learned District Judge, Morigaon for further action.
JUDGE
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