Decree is not an actionable claim within meaning of Transfer of Property Act

 In the present case, the decree was transferred by auction on 1st February, 1922, when the Company was not dissolved. It has been held in Afzal v. Ram Kumar Bhudra 12 C. 610 : 6 Ind. Dec. (N.S.) 415; Dagdu v. Vanji 24 B. 502 : 2 Bom. L.R. 414 : 12 Ind. Dec. (N.S.) 866 and Govindarajulu Naidu v. Ranga Rao 62 Ind. Cas. 255 : 40 M.L.J. 124 : 13 L.W. 97 : (1921) M.W.N. 98 : 29 M.L.T. 99 and we see no reason to depart from the view adopted by these decisions--that a decree is not an actionable claim within the meaning of the Transfer of Property Act and, therefore, an assignment of a decree need not be in writing. It follows that the assignment was valid and complete. But for purposes of execution under the Civil Procedure Code, Order XXI, Rule 16 requires the transfer to be in writing. This writing has since been given by the original transfer or after he has ceased to be liquidator. There is nothing in the Companies Act or in the decisions on it which prohibits him from doing so or which compels us to regard it as void seeing that the original transfer was effected by him at a time when he was liquidator. Whatever looseness or irregularity there may be in such a procedure neither the Company nor its share-holders, complain of it and we do not see how a person in the position of a judgment-debtor should be allowed to do so.1

Madras High Court

Krishnaswami Naidu vs Karuppan Chettiar (Given Up) And ... on 30 November, 1927

Equivalent citations: 109 Ind Cas 563

Bench: Ramesam, Jackson

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Which mistake can be corrected by court u/s 152 of CPC?

 Section 152 provides that a clerical or arithmetical mistake in 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. The question, therefore, arises is whether omission of pendente lite interest to the decree by the trial Court was an accidental or clerical error. In the case of Dwaraka Das v. State of M.P. & Anr. , it was held that the omission in not granting the pendente lite interest could not be held to be accidental Commission or mistake and therefore, neither the trial Court nor the appellate Court has power to award pendente lite interest under Section 152 of the Code of Civil Procedure. This decision is squarely applicable to the present case. In the present case, neither the arbitrators nor the trial court awarded pendente lite interest to the decree holder. The executing court also refused to grant pendente lite interest to the decree holder and the same was upheld by the High Court in the revision petition filed against the order of the executing court. However, the position would be different where the judgment of a court provides for pendente lite interest and decree omits to mention such interest. Such a mistake could be corrected under Section 152 CPC. The correct position of law is that a decree cannot add or subtract any relief except what has been provided in the judgment. But this is not the case here. Mr. B. Kanta Rao, learned counsel appearing for the respondent then relied upon a decision of this Court in Janakiramma Iyer v. Nilakanta Iyer(1962) suppl. (1) SCR 206. In this case, the trial Court awarded mesne profit, however, in the decree it was written as net profit. On an application filed by the plaintiff for correction of the decree under Section 152 of the Code of Civil Procedure, the word 'net' was substituted by 'mesne'. This was the case of typographical mistake and, therefore, not applicable to the present case.1


Supreme Court of India

K. Rajamouli vs A.V.K.N. Swamy on 3 May, 2001

Equivalent citations: AIR 2001 SC 2316, 2001 (2) ARBLR 702 SC

Bench: V K Phukan

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Clerical mistake can be corrected by court as per s.152 of cpc

 In 2009 SAR civil 407 SC (Tilak Raj vs Baikunthi Devi (D) by Lrs, the Apex Court has held as follows:

'14. The aforesaid mistake was of clerical nature which could have been corrected by applying the provisions of Section 152 of the CPC. Counsel appearing for the respondents also during his submissions fairly accepted the aforesaid position. The remedy that was available to the appellant was to file an application seeking for amendment of the decree by way of correcting the clerical mistake in respect of Khasra Number. Since the mistake was clerical in nature and the appellant being not responsible for the said clerical mistake which had occurred due to wrong recording of Khasra Number in Khasra Girdawari, we find no reason as to why such a genuine and bona fide mistake cannot be allowed to be corrected by exercising the powers under Section 152 of the CPC. In K. Rajamouli vs A.V.K.N. Swamy (2001) 5 SCC 37 this Court held as follows: 'Section 152 provides that a clerical or arithmetical mistake in 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 .

15. Since the court exists to dispense justice, any mistake which is found to be clerical in nature should be allowed to be rectified by exercising inherent power vested in the court for sub-serving the cause of justice. The principle behind the provision is that no party should suffer due to bona fide mistake. Whatever is intended by the court while passing the order or decree must be properly reflected therein otherwise it would only be destructive of the principle of advancing the cause of justice. In such matters, the courts should not bind itself by the shackles of technicalities.'1

Madras High Court

(Order Of The Court Made By G.M. ... vs Unknown

K. MOHAN RAM.,J.,
AND
G.M. AKBAR ALI,J.,

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Supreme Court: Words "illegally" and "material irregularity" do not cover either errors of fact or law

 In Keshardeo v. Radha Kishen (Supra), the Supreme Court has also laid down the law in paragrapy 20 by approving the decision of the Nagpur High Court reported in Narayan Sonaji v. Sheshrao Vithoba MANU/NA/0110/1947 wherein it was said that the words "illegally" and "material irregularity" do not cover either errors of fact or law. They do not refer to the decision arrived at but to the manner in which it is reached. The errors contemplated relate to material defects of procedure and not to errors of either law or fact after the formalities which the law prescribed have been complied with.1

Supreme Court of India

Keshardeo Chamria vs Radha Kissen Chamria And ... on 30 October, 1952

Equivalent citations: 1953 AIR 23, 1953 SCR 136

BENCH:

MAHAJAN, MEHR CHAND

DAS, SUDHI RANJAN

BOSE, VIVIAN

HASAN, GHULAM

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Judge has jurisdiction to correct his own error

Reference may also be made to the observations of Bose J. in his order of reference in Narayan Sonaji v. Sheshrao Vithoba(2) wherein it was said that the words "illegally" and "material irregularity" do not cover either errors of fact or law. They do not refer to the decision arrived at but to the manner in which it is reached. The errors contemplated relate to material defects of procedure and not to errors of either law or fact after the formalities which the law prescribes have been complied with. We are therefore of the opinion that in reversing the order of the executing court dated the 25th April, 1945, reviving the execution, the High Court exercised jurisdiction not conferred it by section 116 of the Code. It is plain that the order of the Subordinate Judge dated the 25th April, . 1945, was one that he had jurisdiction to make, that in making that order he neither acted in excess, of his jurisdiction

(I) (I949) T .R . 76 J. A. 131.

(2) A.I.R. 1948 Nag. 258.

nor did he assume jurisdiction which he did not possess. It could not be said that in the exercise of it he acted with material irregularity or committed any breach of the procedure laid down for reaching the result. All that happened was that he felt that be had committed an error, in dismissing the main execution while he was merely dealing with an adjournment application. It cannot be said that his omission in not taking into consideration what the decree- holder's pleader would have done had he been given the opportunity to make his submission amounts to material irregularity in the exercise of jurisdiction. This speculation was hardly relevant in the view of the case that he took. The Judge had jurisdiction to correct his own error without entering into 'a discussion of the grounds taken by the decree-holder or the objections raised by the judgment-debtors. We are satisfied therefore that the High Court acted in excess of its jurisdiction when it entertained an application in revision against the order of the Subordinate Judge dated the 25th April, 1945, and set it aside in exercise of that jurisdiction and remanded the case for further enquiry.

Supreme Court of India

Keshardeo Chamria vs Radha Kissen Chamria And ... on 30 October, 1952

Equivalent citations: 1953 AIR 23, 1953 SCR 136

Bench: Mahajan, M Chand

BENCH:

MAHAJAN, MEHR CHAND

DAS, SUDHI RANJAN

BOSE, VIVIAN

HASAN, GHULAM

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Revision is not maintainable against exparte order of police aid for execution of decree

Civil Procedure Code - Section 115 and Order 21, Rule 97--Revision--Ex-parte order passed in favour of decree holder for police help--Held, revision is not maintainable because (i) order is interlocutory and (ii) there is no jurisdictional error.

The order dated 15.12.92 was the order passed ex-parte in favour of the decree holder by which the Munsif held that police help should be given to the respondents

I am of the opinion that as against the impugned order, no revision will lie as the order will not be final between the parties and also being interlocutory in nature. The revision is also liable to be dismissed on the ground that no jurisdictional error was committed by the court below1994CivilCC491, 1994(2)WLC152, 1994(1)WLN243

IN THE HIGH COURT OF RAJASTHAN (JAIPUR BENCH)

S.B. Civil Revision Petition No. 257 of 1994

Decided On: 02.03.1994

Appellants: Babu Lal
Vs.
Respondent: Raj Kumar and Ors.

Hon'ble Judges/Coram:
S.C. Agrawal, C.J.

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Objection to execution of decree-How it should be decided by court?

 It would, therefore, be clear that an adjudication is required to be conducted under Order 21, Rule 98 before
removal of the obstruction caused by the object or the appellant and a finding is required to be recorded in that
behalf. The order is treated as a decree under Order 21, Rule 103 and it shall be subject to an appeal. Prior to
1976, the order was subject to suit under 1976 Amendment to C.P.C. that may be pending on the date of the
commencement of the amended provisions of C.P.C. was secured. Thereafter, under the amended Code, right
of suit under Order 21, Rule 63 of old Code has been taken away. The determination of the question of the
right, title or interest of the objector in the immovable property under execution needs to be adjudicated under
Order 21, Rule 98 which is an order and is a decree under Order 21, Rule 103 for the purpose of appeal subject
to the same conditions as to an appeal or otherwise as if it were a decree. Thus, the procedure prescribed is a
complete code in itself. Therefore, the executing Court is required to determine the question, when the
appellants had objected to the execution of the decree as against the appellants who were not parties to the
decree for specific performance.
Equivalent Citation: 1996IIAD(SC)330, AIR1996SC2050, JT1996(2)SC716, (1996)2MLJ29(SC), 1996(2)SCALE438 (1996)3SCC154,
[1996]2SCR763, 1996(1)UJ700(SC)
IN THE SUPREME COURT OF INDIA
Civil Appeal No. 3765 of 1996 (arising out of S.L.P.(C) No. 13688 of 1995)
Decided On: 16.02.1996
Appellants: Babulal
Vs.
Respondent: Raj Kumar and Others
Hon'ble Judges: K. Ramaswamy and G.B. Pattanaik, JJ.

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Adjudication' as per O21, R 97 and 98, C.P.C., does not require framing of issues

 Term 'adjudication' as used under Order 21, Rules 97 and 98, C.P.C., does not start and end with the framing of the issues but it requires appreciation of the case of the objector and the documents in support of such objections. In the present case the executing Court did apply its mind to the objections as well as the various orders which were passed intra parties and then came to the conclusion that the objections of the objector had no force and he was bound to deliver the possession in pursuance of the ejectment order being a person inducted by the original tenant Sunil Kumar.1

Punjab-Haryana High Court

Som Parkash vs Santosh Rani And Another on 24 July, 1996

Equivalent citations: AIR 1997 P H 130

Bench: R Anand

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Bombay HC allows hotels to remain open till 5 am for New Year's party

Mumbai: The Bombay High Court has extended the deadline for New Year's Eve parties and has allowed all establishments - hotels and restaurants- to remain open till 5 am.

Giving the order, the HC said, "It is traditionally a night that people spend with friends and family till morning. There is no valid reason to clamp down on what little is left of the city's night life."

However keeping the security of the people in mind, it has asked the hotels and restaurants to make provisions for adequate security and safety both within and around the establishments. "If there is any untoward incident then petitioners as an association will be held responsible," the HC said to Indian Hotel and Restaurant Association (AHAR), which had filed a petition in the Bombay High Court seeking extension of the deadline till 5 am. The petitioner had asked why 5 star hotels were allowed to stay open till 3 am while others were not.

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Whether Court can convert objection filed in execution application into application U/O 21 R 97 of CPC?

Pointing out Rule 97 Order XXI, C.P. Code, it has been contended on behalf of the appellant that, separate application with necessary particulars and pleadings complaining about resistance or obstruction is required to be made before the Court, while in the present case, initially the objections were filed, and subsequently those objections were converted into the application under Rule 97 which is not at all permissible or contemplated in law because the application over and above necessary pleadings, must contain the relief clause which is wanting here. The contention cannot be accepted. Of course there is no specific provision in C.P. Code for the conversion of Appeal into Revision or vice versa; or from objection filed into the application, or from one application into another, and therefore, for imparting justice fully and finally, or the circumstances of the case so demand, it is open to the court vested with inherent discretionary powers u/sec. 151 C.P. Code to convert a particular application as the application under particular provision, or revision application to an appeal or vice versa or objections filed to the particular application if not specifically prohibited by any provision of any law. Once conversion is made, what is converted will assume all characteristics of the converted form, viz., Revision would assume characeristics of appeal or vice versa & likewise in other cases. There is nothing in law prohibiting the court from converting the objections filed in the execution petition into the application under Rule 97 for the purpose of resisting the obstruction to the possession of immovable property. Of course while filing the objections the relief sought may not have been stated specifically which at the time of filing the real application is pleaded in specific words, but once the conversion is permitted, the pleadings are to be liberally construed and not with a view to find fault with the same as justice is the paramount consideration and the same is not to be thwarted or foiled. The necessary relief under the rules of construction/interpretation can well be assumed because in the objections also impliedly if not expressly the relief is pleaded, may be generally, and the duty of the court is to read the same with necessary implication when conversion is allowed. If required, necessary amendment can be permitted. In the objection initially prayer to reject the appellant's application (Exh. 49) is made, stating that obstruction raised by the appellant are not tenable. Such prayer indirectly conveys the real prayer which ordinarily one would expect or is required to be pleaded. On objections being converted into the application under Rule 97, the same assumed the characteristics of the application envisaged by Rule 97. The discretion exercised is quite just and proper. 1

Gujarat High Court

John Mithalal Desai vs Dineshbhai K. Vora on 29 August, 1997

Equivalent citations: (1997) 3 GLR 279

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Under which circumstances xerox copy of cheque is admissible in evidence?

 The present Applicant Original accused has filed the aforesaid application for secondary evidence for accepting the xerox copy of the cheque. Therefore, the issue is whether the xerox copy of the cheque which has been accepted as a secondary evidence is justified or not.

The impugned order in

Revision Application No.28 of 2011 has reflected in detail, discussion about the facts. It is required to be mentioned that the complainant had given a notice Exhibit 54 to the accused to produce original cheque and also a notice under Section 66 of the Evidence Act. Thereafter, the original accused was directed to produce the same within 15 days. The Applicant accused declined to produce the same.

It is in this

background the complainant had produced the xerox copy, which is sought to be challenged that the court has considered the secondary evidence and the order passed by the learned Judicial Magistrate, Dahod, which has been confirmed in the impugned order passed in Criminal Revision Application No.28 of 2011 by the Sessions Court is erroneous.

As could be seen, there is a reference to the memo produced with an endorsement fund insufficient. The deposition of the Bank Officer has also been recorded. The order also refers to the provisions of Section 66 of the Evidence Act and it has been recorded that the xerox copy of the cheque was produced at mark 23/1 prepared by mechanical process. Further, as the original accused, with whom the cheque was lying, had declined to produce the xerox copy of the cheque, has been accepted as a secondary evidence in light of the statutory provision of Section 66 of the Evidence Act, clearly referring to this aspect. Therefore, even after giving the notice as required under the Evidence Act, the original is not produced by the party, the secondary evidence could be relied upon.1

Gujarat High Court

Omprakash Chaudhary, Prop Of ... vs Goverdhan Automobiles on 4 February, 2013

Bench: Rajesh H.Shukla

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Whether order dismissing a suit or dismissal of a suit as abated is decree?

A bare perusal of the definition of "decree" shows that the order dismissing a suit or dismissal of a suit as abated is not a decree since there is no formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final.

Bombay High Court

Baba Hari Mohite And Ors. vs Dinkar Ramchandra Sapkal And Ors. on 29 September, 2006

Equivalent citations: 2007 (3) BomCR 835

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Limitation for restoration of execution application

Order 21 Rule 105 and 106 speak of restoration of execution application. Restoration application can be filed within thirty days. If we read Section 5 of the Limitation Act, it has no application to execution proceedings. Therefore, where restoration application is not filed within 30 days in execution proceedings, there is no provision to condone the delay. The learned judge of the Lower Court, therefore, to my mind, fell in error in allowing the application. The order patently suffers from illegality and also suffers from wrong exercise of jurisdiction. The revision is, therefore, allowed.1

Bombay High Court

Dattatraya S/O Raghunath Jog vs Radhabai W/O Laxmanrao Ghate on 29 January, 2007

Equivalent citations: 2008 (1) BomCR 718, 2007 (3) MhLj 425

C.L. Pangarkar, J.

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Whether Correction of decree is permissible as per S152 of CPC?

The same Bench again in Pratibha Singh & Ors. v. Shanti Devi Prasad & Anr. [AIR 2003 SC 643] held :

When the suit as to immovable property has been decreed and the property is not definitely identified, the defect in the court record caused by overlooking of provisions contained in Order 7 Rule 3 and Order 20 Rule 3 of the CPC is capable of being cured. After all a successful plaintiff should not be deprived of the fruits of decree. Resort can be had to Section 152 or Section 47 of the CPC depending on the facts and circumstances of each case -- which of the two provisions would be more appropriate, just and convenient to invoke. Being an inadvertent error, not affecting the merits of the case, it may be corrected under Section 152 of the CPC by the Court which passed the decree by supplying the omission.

Alternatively, the exact description of decretal property may be ascertained by the Executing Court as a question relating to execution, discharge or satisfaction of decree within the meaning of Section 47 CPC. A decree of a competent Court should not, as far as practicable, be allowed to be defeated on account of an accidental slip or omission. In the facts and circumstances of the present case we think it would be more appropriate to invoke Section 47 of the CPC. 1

Supreme Court of India

Niyamat Ali Molla vs Sonargon Housing Co-Operative ... on 12 October, 2007

Citation;AIR2008SC225, 2008(5)ALT3(SC), 2008 1 AWC(Supp)1069SC, (2008)1CALLT10(SC), 2008(1)CTC161, JT2007(12)SC367, 2008-1-LW106, (2008)1MLJ1268(SC), (2007)13SCC421, [2007]11SCR346

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Objection to execution of decree by proxy of JD-No detailed enquiry required

Civil - Delivery of possession - Objection thereof - Order 7 Rule 11 of Code of Civil Procedure ,1908 (CPC) - Trial Court decreed summary suit filed by Appellant under Section 6 of Specific Relief Act, 1963 - When decree was put to execution at time of delivery of possession, Respondent No. 2/ 'Objector' submitted her Petition for objection under Rule 97 of Order 21 of CPC before Executing Court which was rejected by it - However, Appellate Court set aside judgement and order under Appeal remanded case to executing Court for hearing and disposal thereof in accordance with scheme of Rule 97 to 103 of Order 21 of CPC - Hence, this Appeal - Whether objector had independent status - Held, At no point of time in process of progress of suit, Defendant Landlord had ever disclosed that objectors had entered suit plot and that Defendant being illegally dispossessed was not in physical possession of suit property and that present objector Defendant No. 2 was actually in possession - While entire story of objector's having entered, constructed and actually run shop had never been disclosed before Court - Entire story built by Objector was totally articulated - On contrary, according to Judgment Debtor who was his son in possession - Thus, objector's plea was based on falsehood and proved that she was imposter and was set up by Judgment Debtor only - Objector had no independent right, title and interest and no issue at all arose for enquiry - It would, therefore, be unjust and contrary to scheme of law to hold that full-fledged enquiry like in suit would be warranted - Objector's status that she claimed through Judgment Debtor was clear and was seen even without enquiry of any time for purpose of lifting veil - There was no cause of action existing in favour of Plaintiff or that it was barred - Provisions of Rule 11 of Order 7 of CPC were applicable - Objection Petition was ingeniously drafted - Ingenuity thereof being misplaced and exerted at wrong quarter and malicious and for wrong objective did not deserve to be acclaimed and invited blame of ingenuity which was employed to defeat cause of justice - Enquiry as expected to be conducted by District Judge did not have warrant of facts - District Court committed error in approaching to question which was actually involved and got misdirected mostly due to emphatic submissions of phobia of procedure and technicalities of law then real object and spirit thereof - Court set aside impugned order and restored order of trial Court objection to execution by Objector - Appeal allowed.

Where objector to delivery of possession of property has no independent right, title and interest no issue at all arise for enquiry."

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Appeal Against Order No. 23 of 2006

Decided On: 20.09.2006

Appellants: Jagdish s/o Motilal Joshi 

Vs.

Respondent: Chandrapal s/o Tulsiram Bhola and another

Hon'ble Judges/Coram:
A.H. Joshi, J.1

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Whether it is necessary to make full fledged enquiry if objector is claiming through judgment debtor?

I have already found that the non-applicants have not

claimed any independent right or title over the suit property and, 

therefore, their remaining in possession through Nanaji would not give

them any right to obstruct the decree which was passed. It would be

travesty of justice if a decree that was passed in the year 1953 is

allowed to be frustrated or contested at such late stage on frivolous

grounds. I respectfully concrete with the view taken by Brother

A.H. Joshi, J. in the case of Jagdish s/o Motilal

Joshi...Versus...Chandrapal s/o Tulsiram Bhola and another, reported

in 2007 (1) Mh.L.J. 402, of which paragraph No.18 reads thus :

"18. In the present case, it is seen on facts that on showing by the applicant, she has no independent right, title and interest and no issue at the arise for enquiry. It would, therefore, be unjust and contrary to the scheme of law to hold that notwithstanding what is the status of objector a full fledge enquiry like in a suit would be warranted. A contrary view would amount to permitting abuse of process of law. Objector's status that she claims through Judgment Debtor is clear and is seen even without enquiry of any time for the purpose of lifting veil."

Bombay High Court

 Shri Dinkar s/o Bhagwantrao Khati v Prabhakar son of Nanaji Kale on 8 August, 2008

Bench: A. B. Chaudhari

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Procedure to be followed by DH when there is death of DH or death of JD in execution proceeding

It is clear, therefore, that if after the filing of an execution petition in time, the decree holder dies and his legal representatives do not come on record or the judgment debtor dies and his legal representatives are not brought on record, then there is no abatement of the execution petition. If there is no abatement, the position in the eye of law is that the execution petition remains pending on the file of the execution Court. If it remains pending and if no time limit is prescribed to bring the legal representatives on record in execution proceedings, it is open in case of death of the decree holder, for his legal 

representative to come on record at any time. The execution application cannot even be dismissed for default behind the back of the decree holder's legal representatives. In case of death of the judgment debtor, the decree holder could file an application to bring the legal representatives of the judgment debtor on record, at any time. Of course, in case of death of judgment-debtor, the Court can fix a reasonable time for the said purpose and if the decree holder does not file an application for the aforesaid purpose, the Court can dismiss the execution petition for default. But in any event the execution petition cannot be dismissed as abated. Alternatively, it is also open to the decree holder's legal representatives, to file a fresh execution petition in case of death of the decree holder; OR, in case of death of the judgment debtor, the decree holder can file a fresh execution petition impleading the legal representatives of the judgment debtor; such a fresh execution petition, if filed, is, in law, only a continuation of the pending execution petition - the one which was filed in time by the decree holder initially. This is the position under the Code of Civil Procedure."

IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR

CIVIL REVISION APPLICATION NO.1164/1999

 Shri Dinkar Bhagwantrao Khati  vs Prabhakar Nanaji Kale on 8 August, 2008

Bench: A. B. Chaudhari

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Limitation for claiming possession of property purchased in court Auction

A Court sale is a compulsory sale, conducted by or under orders of the Court. The title to the property sold does not vest in the purchaser immediately on the sale thereof unlike in the case of a private sale. The law requires that it does not become absolute until sometime after the sale; a period of at least 30 days must expire from the date of sale before the sale can become absolute. In that while, the sale is susceptible of being set aside at the instance of the judgment-debtor on the ground of irregularity in publication or conduct of the sale or on defalcation as regards deposit of money etc. as envisaged in Rules 89 and 90 of Order 21. Where no such application is made, as is the case here, the Court was required, as indeed it did, to make an order,confirming the sale and it is upon such confirmation that the sale becomes, and became, absolute in terms of Order 21 Rule 92. After the sale had become absolute, a certificate is required to be granted by the Court to purchaser, termed as 'certificate of sale' in Order 21 Rule 94. Such certificate bears the date as on which the sale became absolute. It is on the sale becoming absolute that the property sold vests in the purchaser. The vesting of the property is thus made to relate back to the date of sale as required under Section 65 CPC.

Order 21 Rule 95 providing for the procedure for delivery of property in occupation of the judgment-debtor etc, requires an application being made by the purchaser for delivery of possession of property in respect of which a certificate has been granted under Rule 94 of Order 21. There is nothing in Rule is to make it incumbent for the purchaser to file the certificate along with the application. On the sale becoming absolute, it is obligatory on the Court though; to issue the certificate. That may, for any reason get delayed. Whether there be failure to issue the certificate or dely of action on behalf of the Court or the inaction of the purchaser in completing the legal requirements and formalities, are factors which have no bearing on the limitation prescribed for the application under Article 134. the purchaser cannot seek to extend the limitation on the ground that the certificate has not been issued. It is true though that order for delivery of possession cannot be passed unless sale certificate stands issued. It is manifest therefore that the issue of sale certificate is not "sine qua non" of the application, since both these matters are with the same Court. The starting point of limitation for the application being the date when the sale becomes absolute i e. the date on which title passed, the evidence of title, in the form of sale certificate, due from the Court, could always be supplied later to the Court to satisfy the requirements of Order 21 Rule 95. See in this regard Babulal Vs. Annapurnabai - AIR 1953 Nagpur 215, which is a pointer. It therefore becomes clear that the title of the Court auction-purchaser becomes complete on the confirmation of the sale under Order 21, Rule 92, and by virtue of the thrust of Section 65 CPC, the property vests in the purchaser from the date of sale; the certificate of sale, by itself, not creating any title but merely evidence thereof. The sale certificate rather is a formal acknowledgement of a fact already accomplished, stating as to what stood sold. Such act of the Court is prestinely a ministerial one and not judicial. It is in the nature of a formalisation of the obvious. Such being the state of law on the subject, we fail to see how the High Court could have come to the conclusion that even though the Wale becomes absolute on confirmation under Order 21 Rule 92 CPC effectively passing title, the same can only be complete when evidenced by a sale certificate issued under Order 21 Rule 94, and that unless the sale certificate is issued, limitation cannot start for the purpose of an application under Order 21 Rule 95 CPC, vis-a-vis, Article 134 of the Limitation Act, 1963. The High Court, in our view erred in holding that it is only from the date when a sale certificate is issued, that the limitation starts running. Such view of the High Court would not only cause violence to the clear provisions of Article 134 of the Limitation Act but have the effect of unsettling the law already settled.1

Supreme Court of India

Pattam Khader Khan vs Pattam Sardar Khan & Anr on 9 July, 1996

Equivalent citations: 1996 SCC (5) 48, JT 1996 (6) 201

BENCH:
PUNCHHI, M.M.
MANOHAR SUJATA V. (J)

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In execution proceeding, court can only sell part of property of JD which is sufficient to satisfy decretal amount

The provision contains some significant words. They are "necessary to satisfy the decree". Use of the said expression clearly indicates the legislative intent that no sale can be allowed beyond the decretal amount mentioned in the sale proclamation. (See Takkaseela Pedda Subba Reddi v Pujari Padmavathamma (AIR 1977 SC 1789). In all execution proceedings, Court has to first decide whether it is necessary to bring the entire property to sale or such portion thereof as may seem necessary to satisfy the decree. If the property is large and the decree to be satisfied is small the Court must bring only such portion of the property the proceeds of which would be sufficient to satisfy the claim of the decree holder. It is immaterial whether the property is one or several. Even if the property is one, if a separate portion could be sold without violating any provision of law only such portion of the property should be sold. This is not just a discretion but an obligation imposed on the Court. The sale held without examining this aspect and not in conformity with this mandatory requirement would be illegal and without jurisdiction.1

Supreme Court of India

Takaseela Pedda Subba Reddy vs Pujari Padmavathamma & Ors on 28 April, 1977

Equivalent citations: 1977 AIR 1789, 1977 SCR (3) 692

BENCH:

FAZALALI, SYED MURTAZA

BHAGWATI, P.N.

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Sexual harassment Act- Notification

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Sexual harassments Rules 2013

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Jd should file new suit to raise objection that minor was not properly represented

 From the above it is crystal clear that whether the decree was obtained validly or not is within the scope of Section 47 of the Civil Procedure Code which is only to consider the discharge or satisfaction of the decree by the executing court. This Court in the case of Bhagabat Sahu's case (supra) has held that if the judgment-debtors contend that they were not properly represented and were not thus parties to the decree, they cannot come under Section 47 of the Civil Procedure Code as if they were parties to the suit. This is a matter, therefore, which has to be decided by a separate suit.

8. Therefore, considering the above principle and law and the fact that the present petitioners are raising a question that the deities who are minors and other minors were not properly represented, this Court is of the view that they cannot raise those questions by filing a petition under Section 47 of the Civil Procedure Code. It is open to the parties to raise that question independently.1

Case Number : W.P.(C) NO.6482 OF 2006.

Appellant : Bidhu Bhusan Nayak And Ors.

Respondent : Sarojini Nayak And Ors.

Excerpt:[MR.JUSTICE N.R.PATIL ; MR.JUSTICE H.G.RAMESH, J.J.]

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Distinction when minors are not adequately represented and when they are adequately represented

Order 32, Rule 3 C.P.C. requires that where the defendant is a minor, the court, on being satisfied of the fact of minority, is to appoint a proper person to be guardian for the suit for such minor. This provision was obviously applicable to the facts of this case. The court had done its duty in ensuring that the minor children of the original defendant were appropriately represented by their natural guardian. If the final decree proceeding had been allowed to continue without the legal representatives of the defendant being represented, possibly it would be a clear case of the decision being a nullity. It is open to a guardian representing the interests of the minors after he or she is aware of the scope of the litigation while acting prudently not to contest the lis. This would be certainly a matter of prudent management of the minors' interests and, therefore, a matter within the competence of the guardian. Once the defendants are appropriately impleaded and represented, the duty under Rule 2 of Order 33, C. P. C. would come to an end and the proceeding before the court must be taken to have been duly constituted. A distinction must be drawn between a case where the minors are not adequately represented from the commencement and the proceeding at its inception, therefore, is a nullity and a case where the minors are adequately represented and there is a duly constituted proceeding where the guardian acts for some time and then omits to take steps.1

Orissa High Court

Bhagabat Sahu vs Parbati Samal And Ors. on 16 March, 1982

Equivalent citations: AIR 1982 Ori 186

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DH can make successive application for possession in execution proceeding

It is now well settled that although an application for removal of obstruction is required to be taken within thirty days, there is nothing to prevent the decree-holder from making a successive application for possession and in case such an application is resisted, the limitation for filing the application for removal of the obstructions starts from the date of the second obstruction and not from the date of the initial obstruction. This position is sufficiently clarified in Subhan Bi v. Abdul Samad, 1978 Mah LJ 519.1

Citation;1978MhLJ519

IN THE HIGH COURT OF BOMBAY

Civil Revn. Appln. No. 361 of 1968

Decided On: 01.03.1978

Appellants: Subhan Bi Sheikh Noor and another

Vs.

Respondent: Abdul Samad Haji Abdul Raheman and others

Hon'ble Judges/Coram:
B.A. Masodkar and M.D. Kambli, JJ.

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Executing court can even decide issue of tenancy in execution proceeding

The legal position can be summarized as follows :

Under Rule 101 read with Rule 99 of Order XXI of the Civil P.C., all questions including the question of tenancy under the Bombay Rent Act can be decided by the executing Court, subject however to the conditions, as mentioned in Rule 101 itself, that those questions must arise between the parties to a proceeding on the application and must be relevant to the adjudication of the application :

If on the determination of such question or questions, it becomes necessary to order that possession of immovable property should be given from the landlord to the tenant, the executing Court has the jurisdiction to pass that executing Court has the jurisdiction to pass that order under Rule 100 (a) ;

The bar contained under Section 41(2) of the Presidency Small Cause Courts Act or the bar that may be implied by Sec. 28 of the Bombay REnt Act, does not apply to the field covered by Rule 101 of Order XXI of the Code ;

Bombay High Court

Nusserwanji E. Poonegar And Ors. vs Shirinbai F. Bhesania And Ors. on 12 January, 1984

Equivalent citations: AIR 1984 Bom 357

Bench: Jahagirdar

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Breach of an undertaking given to Court amounts to breach of injunction

Breach of an injuction or breach of any undertak- ing given to a Court by a person in civil proceedings on the faith of which the Court sanctions a particular course of action is misconduct amounting to contempt. The remedy in such circumstances may be in the form of a direction to the contemnor to purge the contempt or a sen- tence of imprisonment or time or all of them. When a court accepts an undertaking given by one of the parties and passes an order based on such undertaking, the order amounts in substance to an injunction restraining that party from acting in breach thereof. The breach of an undertaking given to the Court by or on behalf of a party to a civil proceeding is, therefore, regarded as tantamount to a breach of injunction although the remedies were not always identical. For the purpose of enforcing an undertaking that undertaking is treated as an order so that an undertaking, if broken, would involve the same consequences on the persons breaking that undertaking as would their disobedience to an order for an injunction. 

In the light of this Court's finding in the instant case, that there was a breach of the undertaking mere impo- sition of imprisonment or fine will not meet the ends of justice. There will have to be an order to purge the con- tempt by directing the first respondent-contemnor to deliver vacant possession immediately and issuing necessary further and consequential directions for enforcing the same. 

Supreme Court of India

Noorali Babul Thanewala vs K.M.M. Shetty And Ors on 20 December, 1989

Equivalent citations: 1990 AIR 464 SC, 1989 SCR Supl. (2) 561

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Decree passed in favour of party who was dead and against a party who was dead, is nullity.

As rightly pointed out by learned counsel for the appellants and fairly agreed to by learned senior counsel for the respondent, the decree passed by the High Court in favour of a party who was dead and against a party who was dead, is obviously a nullity. It is conceded that the legal representatives of neither of the parties were brought on record in the second appeal and the second appeal stood abated. On this short ground this appeal is liable to be allowed and the decision of the High Court set aside.

Supreme Court of India

Kishun @ Ram Kishun (Dead) Thru. ... vs Bihari (D) By Lrs on 5 August, 2005

Author: P Balasubramanyan

Bench: R Lahoti, C Thakker, P Balasubramanyan

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Executing court has no jurisdiction to widen scope or to add to decree while executing it

As will be evident from the decree extracted hereinabove, the Respondent No. 1 was entitled to regularization of her services with effect from 06.7.1988, with other consequential relief and was also entitled to receive her salary through crossed cheques. The Executing Court was required to execute the decree as made and it had no jurisdiction to widen its scope or to add to it unless a specific question was raised relating to discharge or satisfaction of the decree as envisaged in Section 47 of the Code of Civil Procedure. In our view, the Executing Court appears to have been misled by the application filed on behalf of the decree-holder Respondent No. 1 on 25.01.1999 indicating that her suit had been decreed by the Court with a direction upon the School authorities to make payment to her by cheque of her dues as per Government Scale (emphasis added). The words "as per Government scale" do not find place in the decree as passed by the Trial Court and this has resulted in the anomaly with which we are faced in these proceedings. The Executing court was required to act within the bounds of the decree and not travel beyond it or to widen its scope without invocation of the provisions of Section 47 of the Code of Civil Procedure.

Supreme Court of India

Vedic Girls Senior Secondary ... vs Smt. Rajwanti & Ors on 8 March, 2007

Citation;2007(5) MH L J SC 384

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Distinction between decree passed by Court having no jurisdiction and decree of court which is illegal

A distinction exists between a decree passed by a Court having no jurisdiction and consequently being a nullity and not executable and a decree of the Court which is merely illegal or not passed in accordance with the procedure laid down by law. A decree suffering from illegality or irregularity of procedure, cannot be termed inexecutable by the executing Court; the remedy of a person aggrieved by such a decree is to have it set aside in a duly constituted legal proceedings or by a superior Court failing which he must obey the command of the decree. A decree passed by a Court of competent jurisdiction cannot be denuded of its efficacy by any collateral attack or in incidental proceedings.

Supreme Court of India

Rafique Bibi (D) By Lrs. vs Sayed Waliuddin (D) By Lrs. And ... on 28 August, 2003

Equivalent citations: AIR 2003 SC 3789, JT 2003 Suppl 1 SC 160

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Whether finding of civil court is binding on criminal court?

As between the civil and the criminal proceedings we are of the opinion that the criminal matters should 

be given precedence. There is some difference of opinion in the High Courts of India on this point. No hard and fast rule ban. be laid down but we do not consider that the possibility of conflicting decisions in the civil and criminal courts is a relevant consideration. The law envisages such an eventuality when it expressly refrains from making the decision of one court binding on the other, or even relevant, except for certain limited purposes, such as sentence or damages. The only relevant consideration here is the likelihood of embarrassment. Another factor which weighs with us is that a civil suit often drags on for years and it is undesirable that a criminal prosecution should wait till everybody concerned has forgotten all about the crime. The public interests demand that criminal justice should be swift and sure; that the guilty should be punished while the events are still fresh in the public mind and that the innocent should be absolved as early as is consistent with a fair and impartial trial. Another reason is that it is undesirable to let things glide till memories have grown too dim to trust. This,however, is not a hard and fast rule. Special considerations obtaining in any particular case might make some other course more expedient and just.

Supreme Court of India

M. S. Sheriff vs The State Of Madras And Others on 18 March, 1954

Equivalent citations: 1954 AIR 397, 1954 SCR 1229

Bench: Bose, Vivian

BENCH:
BOSE, VIVIAN
MAHAJAN, MEHAR CHAND (CJ)
MUKHERJEA, B.K.
DAS, SUDHI RANJAN
HASAN, GHULAM

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Valuation for Land Acquisition with reference to THE RIGHT TO FAIR COMPENSATION AND TRANSPARENCY IN LAND ACQUISITION, REHABILITATION AND RESETTLEMENT ACT 2013

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Whether Suit can be treated as an execution petition?

This appeal was taken up separately as in course of hearing terms of settlement were mooted. We indicated to the counsel for the respondents that even if there be some force in the plea that a separate suit did not lie (though the argument advanced by Mr. Govindan Nair for the appellant in support of the stand that a separate suit for the reliefs claimed lay was forceful), the suit could as a measure of ex debito justice be treated as an execution petition. There is good authority for converting an execution application in to a suit and there could, in our opinion, be no valid objection to the counter process of converting a suit in to an execution proceeding, particularly when an ill advised widow would on account of some procedural error be likely to be deprived of the fruits of an order of maintenance. Respondents' counsel has also fairly conceded this position. We direct that the suit be treated as an execution application. 1

Supreme Court of India

Smt. Nandarani Mazumdar vs Indian Airlines And Ors. on 1 September, 1983

Equivalent citations: AIR 1983 SC 1201, 1983 (31) BLJR 677, 1983 (2) SCALE 173

Bench: A N Sen, P Bhagwati, R Misra

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Woman who has performed remarriage is entitled to receive compensation for accidental death of her first husband

MUMBAI: Just because a woman has remarried does not disentitle her from receivingcompensation for the accidental death of her first husband, the Bombay high court has ruled. Six years after a Vile Parle resident Sandeep Purandare died when a dumper hit his bike on the Western Express Highway, a division bench of Justice S C Dharmadhikari and Justice R Y Ganoo ordered that 20 per cent of the compensation amount of over Rs 67 lakh will go to his widow Sunita (name changed), who has since remarried and looks after the couple's child. 

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Divorce by mutual consent-Divorce deed executed before Notary is not legal and valid

Bombay high court clarified, surprised that a family court judge had accepted it as valid. 

In a peculiar case that came up in the Bombay high court as an appeal against an order passed by the Bandra family court in October, an educated Mumbai couple were under the belief that their marriage was lawfully dissolved two-and-half years ago by an alleged 'divorce deed'. Their marriage, solemnized in 2007, had run into trouble with differences cropping up between them. On advice, they prepared a 'deed of divorce' which a notary—an advocate licensed by the state to authenticate legal documents—signed in 2011. 

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Wife can recover maintenance from estate of deceased Husband

The language of Section 37 does not warrant the conclusion that there is extinguishment of the decree for alimony upon the death of the judgment debtor husband. 

The Special Marriage Act is a statute of 1954 made by the Indian Parliament after independence. There is no ambiguity in Section 37 for the interpretation of which it is necessary to go beyond the provision itself. It is one of the settled principles of interpretation that the Court should lean in favour of sustaining a decree and should not permit the benefits under a decree

to be lost unless there be Act, any special reason for it. In incorporating a provision like Section 37 in the Act, Parliament intended to protect the wife at the time of divorce by providing for payment of maintenance. If the husband has left behind an estate at the time of his death there can be no justification for the view that the decree is wiped out and the heirs would succeed to the property without the liability of satisfying' the decree. [523 A-C] 1:3. There is no doubt that matrimonial Proceedings abate on the death of either spouse and legal representatives cannot be brought on record and the proceedings cannot be continued any further and where maintenance has been made a charge on the husband's estate, the death of the husband would not at all effect the decree and notwithstanding such death, the estate can be proceeded against for realisation of the maintenance dues for post death period. But, there is no rationality in the contention that where the matrimonial proceedings have terminated during the lifetime of the husband and a decree has emerged such a decree for maintence or alimony gets extinguished with the death of the husband when any other decree even though not charged on the husband's property would not get so extinguished. A decrees against the husband is executable against the estate of the husband in the hands of the heirs and' there is no personal liability. In law a maintenance decree would not make any difference. The decree indicates that maintenance was payable during the life time of the widow. To make such a decree contingent upon the life of the husband is contrary to the terms and the spirit of the decree. Therefore, the assets left behind by Mitra are liable to be proceeded against in the hands of his legal heirs for satisfaction of the decree for maintenance. 

Supreme Court of India

Mrs. Aruna Basu Mullick vs Mrs. Dorothea Mitra on 2 August, 1983

Equivalent citations: 1983 AIR 916SC; 1983 SCR (3) 516

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Executing court can not permit JD to pay decretal amount by instalments

Citation: AIR1985AP49

IN THE HIGH COURT OF ANDHRA PRADESH

Civil Revn. Petn. No. 465 of 1983

Decided On: 17.06.1983

Appellants: Jatti Krishnareddy
Vs.
Respondent: Bhadri Ramagopalaiah

Hon'ble Judges: Lakshmana Rao, J.

Civil - Execution Court - Sections 47 and 151 and Orders 20 Rule11 of Code of Civil Procedure, 1908 and Article 126 of Schedule to Limitation Act, 1963 - whether Execution Court has power to direct payment of decretal amount of installments - petition filed under Section 47 for direction to pa ..... 126 of the Limitation Act will be defeated and it will be open to any judgment debtor to move the executing Court at any stage of the execution proceedings to permit him to pay the decretal amount by instalments which is contrary to the provisions of O.20, R.11, C.P.C.

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