Thursday, 4 August 2016

Whether court can entertain premature execution application?

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 threeJudge
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.
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. 
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
Dated:March 30, 2012.
 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.Page 3
3
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 thePage 4
4
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.”Page 5
5
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 notPage 6
6
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 judgmentdebtor
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 India1
.
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 Ram2
. 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
1
(2005) 4 SCC 315
2
AIR 1970 SC 1093Page 7
7
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 Khetan3 and Chen Shen
Ling v. Nand Kishore Jhajharia4
.
3
AIR 1956 SC 359
4
AIR 1972 SC 726Page 8
8
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 littlePage 9
9
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 itselfPage 10
10
 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. ThePage 11
11
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: -Page 12
12
“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 threeJudge
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 others5
. In the said Case, the Court was
5
(1998) 1 SCC 732Page 13
13
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.”Page 14
14
After so stating, the Bench distinguished the decision rendered
in Anandilal Bhanwarlal v. Kasturi Devi Ganeriwala6 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 Representatives7
. In the said case, this
Court was interpreting Rule 90 of Order XXI of the Code of Civil
6
(1985) 1 SCC 442
7
(1971) 3 SCC 124Page 15
15
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, Kanpur8 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
8
AIR 1968 SC 488
9
(2000) 7 SCC 348Page 16
16
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 Others10
, while
10
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
(2001) 6 SCC 534
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 threeJudge
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.
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