Supreme Court: It is duty of trial court or Appellate court to see that decree shall agree with the judgement

To meet the above contentions, learned Attorney General has made an elaborate argument by drawing our attention to the decree prepared by the Registry. In fact, we also summoned the original decree drafted by the Registry. A judgment comprises three segments (i) the facts and the point at issue; (ii) the reasons for the decision and (iii) the final order containing the decision. Order XX CPC requires a judgment to contain all the issues and findings or decision thereon with the reasons therefor. The judgment has to state the relief allowed to a party. The preparation of decree follows the judgment. The decree shall agree with the judgment. The decree shall contain, inter alia, particulars of the claim and shall specify clearly the relief granted or other determination of the suit. The very obligation cast by the Code that the decree shall agree with the judgment spells out an obligation on the part of the author of the judgment to clearly indicate the relief or reliefs to which a party, in his opinion, has been found entitled to enable decree being framed in such a manner that it agrees with the judgment and specifies clearly the relief granted. The operative part of the judgment should be so clear and precise that in the event of an objection being laid, it should not be difficult to find out by a bare reading of the judgment and decree whether the latter agrees with the former and is in conformity therewith. The obligation is cast not only on the trial court but also on the appellate court. Order 41 Rule 31 CPC casts an obligation on the author of the appellate judgment to state the points for determination, the decision thereon, the reasons for the decision and when the decree appealed from is reversed or varied, the relief to which the appellant is entitled. {Para 27}

 IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 997, 998 and 1024 of 2007 and 6115 of 2008

Decided On: 08.10.2010

Omprakash Verma and Ors. Vs. State of Andhra Pradesh and Ors.

Hon'ble Judges/Coram:

P. Sathasivam and B.S. Chauhan, JJ.

Author: P. Sathasivam, J.

Citation:  MANU/SC/0823/2010.(2010) 13 SCC 158.

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Whether award of Lok Adalat must have all the characters of a decree to make it executable?

The minimum details of the property agreed to be conveyed ought to have been reflected in the award, so as to make the award executable. The respondent would raise a contention that the agreement to convey half share of the property owned by him is on a condition that the appellant would stay with him in a rented house.

4. To execute an award, it must have all the characters of a decree to enforce it. If the award is blank and only refers to the obligation without referring to the nature of the obligation to be performed, it become in-executable. The award passed by the Lok Adalat is based on the agreement between the parties. The officers, presiding over such Lok Adalat must apply their mind while passing the award to ensure that such award is executable. They must refer to Order 20 Rules 6 (1) and (9) of the Civil Procedure Code which refers to the contents of decree. Absolutely, no details are reflected in the award passed to execute the decree. In the absence of any details as referable above, the decree is in-executable. 

 IN THE HIGH COURT OF KERALA AT ERNAKULAM

M.A. (Exe.) No. 7 of 2013

Decided On: 13.06.2023

Vijaya K. Vs.  Muraleedharan K.G.

Hon'ble Judges/Coram:

A. Muhamed Mustaque and Sophy Thomas, JJ.

Author: A. Muhamed Mustaque, J.

Citation:  MANU/KE/1856/2023.

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Whether Family Court is empowered to lay down its own procedure in contentious matters?

  Learned counsel for the review petitioner contended that by virtue of Section 10(3) of the Act, the Family Courts are empowered to lay down its own procedure and therefore, insistence on meticulous adherence to the provisions of the CPC may be against the spirit of the legislation. We are unable to accept this argument for the following reasons. Section 10 of the Act deals with in generality the procedure to be followed in the Family Courts. It is to be remembered that a Family Court, as per the statute, is an entity having both civil and criminal jurisdictions. Disputes pertaining to family falling within Section 7 of the Act, whether it be a civil action or a criminal case, stands exclusively transferred to a Family Court by operation of Section 8 of the Act. Going by the provisions in the Act, it cannot be said that Family Courts are either purely Civil Courts or purely Criminal Courts. Actually, powers of a Civil Court and that of a Criminal Court have been conferred by the statute on the Family Courts. Sub-section (1) of Section 10 of the Act vividly indicates that subject to other provisions in the Act and Rules, the provisions in the CPC and of any other law for the time being in force, shall apply to suits or proceedings other than the proceedings under Chapter IX of the Code of Criminal Procedure (in short, Cr.P.C.) before a Family Court. It is also explicitly stated that a Family Court shall be deemed to be a Civil Court and shall have all the powers of such Court. Sub-section (2) of the said Section makes it clear that the provisions in the Cr.P.C. shall apply to the proceedings before the Family Court falling under Chapter IX of that Code. These provisions in Section 10 of the Act certainly pertain to matters in which the parties put up a contest before the Court. Intent and purport of establishment of Family Courts are relevant for interpreting Sub-section (3) of Section 10 of the Act. Preamble to the Act shows that it is intended for the establishment of Family Courts with a view to promote conciliation in, and secure speedy settlement of disputes relating to marriage and family affairs. Section 9 of the Act mandates that the Family Court shall make an endeavour to settle the dispute in the first instance. If we keep in mind the object of the Act and the functions of the Courts established thereunder, there will be no difficulty in appreciating Section 10(3) of the Act. The said Sub-section makes it clear that a Family Court need not be detained by the provisions in Sub-section (1) or (2) of Section 10 of the Act in laying down its own procedure with a view to arrive at a settlement in respect of the subject matter of the suit or proceeding or at the truth of the fact alleged by one party and denied by another. This sweeping power is exercisable only when the Family Court makes an endeavour to settle the disputes between the parties in a suit or proceeding. That is, the power given to Family Court is to achieve the avowed object of the Act. Based on this provision, it cannot be contended that the Family Courts are not bound to follow the respective procedural laws, depending on the nature of the jurisdiction exercised, to adjudicate a contested suit or proceeding. Therefore, it cannot be contended that the procedure under CPC and other relevant Rules are totally inapplicable in a proceeding before the Family Court. Freedom under Section 10(3) of the Act can only be availed for effectuating a settlement between the parties, which is the sacred object of the Act and it cannot be used in contested proceedings.{Para 10}

 IN THE HIGH COURT OF KERALA AT ERNAKULAM

R.P. No. 507 of 2014 (R) in O.P. (FC) 4076/2013

Decided On: 03.07.2015

Sindhu P.K. Vs.  Sunil Kumar P.A. and Ors.

Hon'ble Judges/Coram:

V.K. Mohanan and A. Hariprasad, JJ.

Author: A. Hariprasad, J.

Citation: MANU/KE/0865/2015.

Read full Judgment here: Click here.

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How Family Court dealing with matters of civil nature should draft a decree if there is compromise between the parties?

The expression "suit" in Order XXIII Rule 3 CPC will have to be read as "suit or proceeding" in the context of a Family Court. Order XXIII Rule 3 CPC unequivocally states that the decree shall be in accordance with the compromise or agreement. The only inquiry contemplated by the Court when the parties compromise a matter is regarding the lawfulness of the compromise or agreement. If that is found to be in the affirmative, the Court has no option, but to record the same and pass a decree in tune with the compromise or agreement. Nothing in Order XXIII Rule 3 CPC prohibits a Court from preparing a judgment in terms of the compromise or agreement. If for any reason, the Court could not pronounce a judgment incorporating all the terms and conditions in the compromise or agreement, it is incumbent on the Court to make the compromise or agreement itself a part of the decree. In this case, the Judge concerned failed to do so. Dismissal of the suit or proceeding in its entirety by the Family Court, as seen from the judgment extracted above, was nothing but an illegality. It is to be remembered that in the absence of any challenge against the legality of the terms of compromise, none of the parties could have filed an appeal against the decree, which should have been passed in the proceedings, because of the interdict in Section 96(3) CPC. Therefore, care should have been taken by the trial Judge to record the compromise and pass a decree in terms of the compromise. The Court should not have ignored the terms and conditions arrived at by the parties. Basis of any compromise decree is a lawful contract or adjustment of rights and obligations between the parties, which the Courts are bound to respect. And if they are found to be lawful, the Courts are bound to record the same and pass a decree in accordance therewith. It will be the highest impropriety on the part of a Court to substitute the terms of the agreement or compromise by its own reasons and pass a decree against the terms arrived at by the parties.

19. The Family Court, after recording the compromise, should have passed a judgment incorporating all the terms of the compromise without doing any violence to the intent and purport of the compromise or to the intention of parties for arriving at a settlement while reproducing the same in the judgment or it should have passed a judgment in terms of the compromise by incorporating the same as part of the decree. In that event, there will be no conflict between the provisions in Order XX Rule 6 and Order XXIII Rule 3 CPC. We are sure for the above reasons that the Family Court in this case could only have passed a decree in terms of the compromise and not in terms of the perfunctory judgment quoted above.

 IN THE HIGH COURT OF KERALA AT ERNAKULAM

R.P. No. 507 of 2014 (R) in O.P. (FC) 4076/2013

Decided On: 03.07.2015

Sindhu P.K. Vs.  Sunil Kumar P.A. and Ors.

Hon'ble Judges/Coram:

V.K. Mohanan and A. Hariprasad, JJ.

Author: A. Hariprasad, J.

Citation: MANU/KE/0865/2015.

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Whether order passed in an inquiry under O 22 R 5 of CPC is a decree?

 In the present case, an application under Order XXII of the C.P.C. has been dismissed on the ground that the adoption deed was not executed in accordance with the Hindu Adoptions and Maintenance Act, 1956. The adjudication made by the trial court, in my opinion, does not amount to a decree as contemplated under Section 2(2) of the C.P.C. nor does it finally determine the question as to who is the legal representative of the deceased under Order XXII, Rule 5 of the C.P.C. In any case, an enquiry under Order XXII, Rule 5 of the C.P.C. is only summary in nature and is not an appealable order. The question whether a person could be permitted to be brought on the record as a legal representative of the deceased is only for the purpose of continuing with the proceedings that had already begun and any adjudication, arrived in the course of such enquiry under Order XXII, Rule 5 of the C.P.C. is not an adjudication contemplated under Section 2(2) of the C.P.C. Consequently, an order passed under Order XXII, Rule 5 of the C.P.C., being summary in nature, could not amount to a decree, as contemplated under Section 2(2) of the C.P.C. {Para 7}

IN THE HIGH COURT OF ALLAHABAD

Decided On: 11.01.2007

Ashwani Kumar Vs. Vidya and Ors.

Hon'ble Judges/Coram:

Tarun Agarwala, J.

Citation : AIR 2007 All 105, MANU/UP/0285/2007.

Read full Judgment here: Click here

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Whether Order dismissing a suit for non payment of costs is a decree and whether the same court can recall said order?

The Apex Court has clearly held that dismissal of the suit for non-prosecution is not a decree as specified by Section 2(2) of the C.P.C. There is no difficulty in holding that an order dismissing a suit for non-payment of costs is essentially an order dismissing the suit for non-prosecution. Therefore, in my humble opinion, the order dismissing the suit for non-payment of costs is not a decree. {Para 22}

23. Coming to the third question, I am of the considered opinion that in view of the law laid down by the Apex Court and the discussion in relation to questions 1 and 2 above that in case a suit is dismissed or defence is struck off in terms of Section 35B, only on account of non-payment of costs, the aggrieved party can apply to the Court under Section 151, C.P.C. for recalling the orders, if it can show sufficient cause for non-payment of the costs imposed. Every Court has the power to recall or review its orders. In the absence of any express provision in this behalf, the power can also be derived from Section 151, C.P.C. The Madhya Pradesh High Court rightly held that Order 9 Rule 9, C.P.C. would not be applicable in such a case. This, however, does not mean that the party is left without remedy. The Court has the inherent power to recall its earlier order.

IN THE HIGH COURT OF HIMACHAL PRADESH

Decided On: 27.06.2008

Piaro Devi Vs. Anant Ram and Ors.

Hon'ble Judges/Coram:

Deepak Gupta, J.

Citation: MANU/HP/0122/2008,AIR 2008 HP 107

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Supreme Court: Ouster Of Civil Court's Jurisdiction Won't Have Retrospective Effect To Annul A Decree Validly Passed By Civil Court

 It is settled law that ouster of jurisdiction of civil court can be expressed or implied, but it cannot have retrospective effect annulling a decree validly passed by the civil court. Therefore, we do not find any error of law on the part of the High Court in confirming the concurrent judgment and decrees of the Trial Court and the first Appellate Court. Hence, this appeal is dismissed, without any order as to costs.

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 3936 OF 2013;

ANANTA CHANDRAKANT BHONSULE (D)BY LRS & ANR.

Vs TRIVIKRAM ATMARAM KORJUENKAR (D) BY LRS. & ANR.

Coram: V. RAMASUBRAMANIAN; J., PANKAJ MITHAL; J.

Dated: FEBRUARY 09, 2023

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Whether dismissal of stay application in execution application will operate as res judicata in subsequent proceedings?

  An application for stay of execution does not have any trapping of a decree as is contained in Order XXI Rules 101 & 103 of the Code. The said provision reads as under:

“101. Question to be determined.-All questions (including questions relating to right, title or interest in the property) arising between the parties to a proceeding on an application under rule 97 or rule 99 or their representatives, and relevant to the adjudication of the application, shall be determined by the Court dealing with the application, and not by a separate suit and for this purpose, the Court shall, notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions.

xx xx xx

103. Orders to be treated as decrees. – Where any application has been adjudicated upon under rule 98 or rule 100, the order made thereon shall have the same force and be subject to the same conditions as to an appeal or otherwise as if it were a decree.”{Para 21}

22. The only effect of filing of an application for stay of the execution would be that the appellant can be said to be aware of the fact that there is a decree for foreclosure passed against him which has not been stayed by virtue of the order of the Court. There is no determination of the claim as is contemplated in terms of Order XXI Rule 97 or Rule 99 of the Code having force of decree. The declining of stay of execution will not operate as res judicata only because Section 11 Explanation VII of the Code is applicable to the execution as well.

Reportable

Supreme Court of India

Narayan Deorao Javle (Deceased ) ... vs Krishna on 17 August, 2021

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Whether the court frame issues on vague pleadings?

The proceedings in a civil suit are governed by the procedure laid down in the CPC and which provides for pleadings by the adversarial parties, framing of issues on the substantial questions of law and facts arising thereon, evidence being confined to the issues and findings in the judgment and decree in the suit being confined to the issues framed. A suit is not entitled to succeed or liable to be dismissed on a reasoning which has no foundation in pleadings and/or on which no issue has been struck. In Maria Margarida Sequeira Fernandes Vs. Erasmo Jack De Sequeira MANU/SC/0225/2012 : (2012) 5 SCC 370 it was held that if pleadings do not give sufficient details, they will not raise an issue and the Court can reject the claim or pass a decree on admission. It was further held that on vague pleadings, no issue arises. 

IN THE HIGH COURT OF DELHI

RSA No. 394/2015

Decided On: 29.04.2020

Gopi Chand  Vs.  Geeta Devi and Ors.

Hon'ble Judges/Coram:

Rajiv Sahai Endlaw, J.

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Whether the court can pass two separate decrees in one eviction suit filed by the landlord?

 Before I proceed to examine the ground of reasonable and bona fide requirement of the landlord, as pressed into service before the Court below, it would be essential to examine as to whether the Court can pass two separate decrees in one suit filed by the landlord, This question arises since I have already taken the view that the ground of tenant having acquired alternative and vacant possession of the premises suitable for residence can be invoked only with regard to the portion on the first and second floor of the suit premises, which are residential premises. In other words, the ground of reasonable and bona fide requirements, though common with regard to the entire suit premises, the decree of eviction on the ground of tenant having acquired suitable residence is restricted only with regard to the first and second floor of the suit premises. If this Court were to reject the ground of reasonable and bona fide requirement of the landlord, then the decree for possession could be confined only with regard to the portions on the first and second floor of the suit premises. But, if the landlord were to succeed in establishing the ground of reasonable and bona fide requirement, then, in that case, the landlord would become entitled to a decree for possession of the entire suit premises, including the ground floor portion, provided, however, the issue of comparative hardship is also decided in favour of the landlord. In the circumstances, there is a possibility of two separate decrees being passed in respect of the suit premises, although the suit is between common parties, in one suit.

21. To get assistance on the above said issue, I had requested Mr. S. C. Dharmadhikari, Advocate to assist this Court, who, in turn, expressed his willingness and gave able assistance at a short notice. Mr. Dharmadhikari, besides referring to the provisions of the Rent Act, placed reliance on the observation made by the Patna High Court in para 25 of its judgment in the case of Padam Singh Jain v. M/s. Chandra Bros., He has referred to Section 13 of the Rent Act to contend that sub-section (1) postulates that landlord shall be entitled to recover possession of any premises on the grounds referred to in the said sub-section. He submits that the expression "any premises" mentioned in the said sub-section itself indicates that the landlord can institute a suit for possession in respect of the entire premises or portion thereof on one or more grounds provided for in law. He has buttressed this submission with reference to the definition of "premises" contained in sub-section (8) of Section 5 of the Bombay Rent Act. Sub-section (8) of Section 5 of the Act defines "premises" to mean any building or part of a building let or given on licence separately, other than a farm building, including the garden, grounds, garages and out-houses, if any, appurtenant to such building or part of a building. Relying on this definition, Mr. Dharmadhikari contends that from the scheme of the provisions of the Bombay Rent Act it is possible to hold that the landlord can maintain suit for recovery of possession in respect of the entire premises or portion thereof. According to him, the Court may decree the suit only with regard to portion of the building on one ground and the other portion on the other ground, though, between the common parties in one suit and direct delivery of possession to the landlord accordingly. It is also possible that, the Court, if satisfied that, the landlord is entitled to recovery of possession of only one portion of the suit premises, may decree the suit only with regard to that portion and not for the entire suit premises. Such a situation is contemplated on a conjoint reading of sub-section (1) and sub-section (2) of Section 13 which empowers the Court to pass a decree in respect of a portion of the suit premises. I find force in the above said submissions advanced by the learned Counsel. Besides the scheme of the provisions of the Bombay Rent Act, the learned counsel has rightly placed reliance on the provisions of Order II of the Code of Civil Procedure. Rule 1 thereof provides that "every suit shall as far as practicable be framed so as to afford ground for final decision upon the subjects in dispute and to prevent further litigation concerning them." Rule 3 of Order II provides that "a person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted." With regard to the claim for recovery of an Immovable property, reference can be made to Rule 4 of Order II, which enables joining of causes of action and the manner therefore. In other words, it is contended that, sub-section (1) of Section 13 of the Bombay Rent Act provides for different grounds and each ground asserted in the plaint would give rise to a separate cause of action, and, therefore, all the causes of action can be joined together for setting up the claim for recovery of the demised premises. The learned counsel also relied on Rule 9 of Order XX for decree for recovery of immovable property. No other provision has been brought to my notice to persuade me to take a contra view.

22. On examining the above said provisions, there can be no doubt that the Rent Court can pass more than one decree for recovery of possession of the suit premises in one suit filed between common parties, when the grounds for recovery of possession are different, giving rise to separate causes of action. If the Court is satisfied that the landlord has established two separate grounds for recovery of possession of the suit premises, in such a situation, one decree can be passed founded on two separate grounds and causes of action. But, when the Court is satisfied that the landlord has established only one ground with regard to one portion of the suit premises and another ground with regard to another portion of the suit premises, in such a situation two separate decrees are inevitable in respect of the two portions of the suit premises in one suit between common parties.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 6286 of 1987

Decided On: 27.06.2001

Shankar Bhairoba Vadangekar Vs. Ganpati Appa Gatare

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Whether executing court can take into account change of law during the pendency of execution proceeding?

The first point having answered against the petitioner and in favour of respondent Nos. 4 and 5, it is really not necessary to go into legality and validity of the decree under execution. Assuming for the sake of argument that the decree is a legal and valid decree obtained and the same can be validly executed by initiating execution proceedings, but during the pendency of execution proceeding statute having been amended with retrospective effect the decree has become unexecutable. The decree even if legal, cannot be allowed to be executed in view of the retrospective amendment to the Bombay Rent Act. The executing Court can always take into account such change in law during the pendency of the execution proceedings so long as judgment debtor is in possession of the property which is a subject matter of decree. All questions, which can be gone into in a suit can also be gone into in the said proceedings. It is open to an obstructionist in proceedings started under Order 21 Rule 97 to raise a contention that decree being a nullity is not liable to be executed. This is so despite the fact that he cannot establish his independent right to possession. Matter can be investigated under Order 21 Rule 101, Mani Nariman v. Phiroz 1991 M.L.J. 376.

29. Apart from the above, the case of the respondents/obstructionists even otherwise stands on a higher footing. The objection filed by them under Order 21 Rule 97 of the Code of Civil Procedure were rightly adjudicated upon by the executing Court. The Apex Court in the case of Ashan Devi v. Phulwasi Devi, 2003(9) Scale 783 while interpreting Order 21 Rule 97 of the Code observed that Legislature purposely amended Order 21 to enable third parties to seek adjudication of their rights in execution proceedings themselves with a view to curtail the prolongation of litigation and arrest delay caused in execution of decrees. No separate suit is required to be filed. Proceedings under Order 21 Rule 97 of the Code are required to be tried as suit. In this view of the legal possession, no fault can be found with the impugned judgment and decree passed by the lower appellate Court.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 4323 of 1999

Decided On: 29.06.2004

Gordhandas Lalchnd  Vs.  Kubchand Tirthdas Tailor and Ors.

Hon'ble Judges/Coram:

V.C. Daga, J.

Citation: 2005(1) MHLJ 396

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Whether executing court can decide the issue that decree was obtained by fraud in obstructionist notice at the instance of third party?

 On plain reading of the aforesaid provisions, as amended after 1976, it is not open to contend, that the question relating to decree obtained by fraud cannot be gone Into by the Executing Court at the instance of the third party who is neither a judgment debtor nor claiming through the judgment debtor. Rule 101, as it presently stands, clearly bars a separate suit; and. Instead, postulates that all questions arising between the parties shall be determined by the Court dealing with the application filed under Rule 97 or Rule 99. There is no dispute that the present proceedings are arising out of the obstructionist notice taken out by the petitioner under Rule 97 to remove obstruction. Therefore, in such proceedings the issue regarding the decree having been obtained by fraud can surely be adjudicated by the Executing Court at the instance of a stranger to the decree.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 3838 of 1989

Decided On: 05.03.2001

 Ahmed Abdul Aziz Bengali  Vs.  Mohammed Hanif M. Mulla and Ors.

Hon'ble Judges/Coram:

A.M. Khanwilkar, J.

Citation: 2001 ( 3 ) ALLMR 720

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Whether legal representative of deceased person can waive objection that decree is nullity?

It is true that a decree passed against a dead man is a nullity because it cannot be allowed to operate against his legal representatives when they were never brought on record to defend the case. As pointed out by the Supreme Court in the case of N. Jayaram Reddi (supra), while the law treaties such a decree as a nullity qua the legal representatives of the deceased defendant there is nothing to prevent them from deciding that they will not treat the decree as a nullity, but will abide by it as it stands, or as it may be modified thereafter on appeal. If the legal representatives adopt that alternative course of action, the Supreme Court proceeded, it cannot be possibly said that their option to be governed by the decree is against the law or any concept of public policy, or purpose or the public morality. It is, thus, a matter entirely at the discretion of the legal representatives of deceased party against whom a decree has been passed to decide whether they will raise the objection that the decree has become a nullity at the appropriate time during course of hearing or abandon all these technical objections and fight the litigation on merit. When no objection to that effect is raised and the case is fought on merit, according to the Apex Court, there is no scope to argue subsequently that the decree was a nullity.

IN THE HIGH COURT OF CALCUTTA

C.O. No. 1102 of 2004

Decided On: 11.10.2004

Phool Chand Halwai  Vs. UCO Bank and Ors.

Hon'ble Judges/Coram:

B. Bhattacharya, J.

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Whether obstructionist can take defence that decree which is to be executed is nullity?

 Prior to the amendment of 1976 it was open to an obstructionist like the respondents Nos. 5 and 6 to file a separate suit and contend that the decree under execution is a nullity and is not liable to be executed as against him. After the said amendment, such a contention is no longer open by filing a separate suit but is required to be raised, entertained and decided in the execution proceedings and this is the purport of Rule 101 of the Code of Civil Procedure. Rule 101 provides as under:--

"All questions (including questions relating to right, title or interest in the property) arising between the parties to a proceeding on an application under Rule 97 or Rule 99 or their representatives, and relevant to the adjudication of the application, shall be determined by the Court dealing with the application and not by a separate suit and for this purpose, the Court shall, notwithstanding anything to the contrary contained in any other law for the time being in force be deemed to have jurisdiction to decide such questions."

The bracketed portion of the above Rule would show that the question relating to right, title or interest in the property are some of the questions which are required to be determined in the execution proceedings. This is apparent from the words "all questions including". Hence, what follows after the said phrase is merely illustrative and not exhaustive. Hence, the question whether the decree under execution is a valid decree or a nullity would fall under phrase "all questions" arising between the parties to the proceeding of an application under Rule 97 and the said question would be required under the above rule to be decided by the executing Court. Hence, the provisions of rules 97 to 101 of Order 21, if properly construed cannot be held to mean that once a decree is put in execution, it can only be resisted by an obstructionist who has an independent right to possess. Such a construction would do violence to the term "Holder of a decree for possession". Such a phrase in my view, cannot include a holder of an invalid decree for possession. If this be so, the decree holder has to first establish that the decree which he has put in execution is a valid decree for possession. Consequently, it follows that it will be open to an obstructionist to raise a contention that the said decree being a nullity is not liable to be executed and this is despite the fact that he may be trying to establish his independent right to possession.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 1491 of 1984

Decided On: 05.10.1990

Mani Nariman Daruwala Vs.  Phiroz M. Bhatena 

Hon'ble Judges/Coram:

A.C. Agarwal, J.

Citation: AIR 1991 Bom 328

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Whether it is duty of executing court to interpret decree while executing it?

 On the other hand the learned counsel for the petitioner was justified in relying on judgment of the Hon'ble Supreme Court in the case of Meenakshi Saxena. vs. ECGC Ltd. (supra) wherein it has been held that although the executing Court cannot go beyond the decree, but it is the bounden duty of the executing Court to interpret the decree in the process of giving true effect to the decree. In the facts of the present case, a true effect to the decree can be granted only when the executing Court takes up the question of handing over of possession to the petitioner of the entire suit land admeasuring 5149 sq.ft. in the facts and circumstances of the present case.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Writ Petition No. 1468 of 2017

Decided On: 04.03.2019

 Abdul Shahid Vs.  Rameshwaridevi

Hon'ble Judges/Coram:

Manish Pitale, J.

Citation: 2019(4) MHLJ 857

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Whether dismissal of appeal due to rejection of application for condonation of delay is decree?

 The question was considered in extenso by a Full Bench of the Kerala High Court in Thambi v. Mathew MANU/KE/0010/1988 . Therein, after referring to the relevant decisions on the question it was held that an appeal presented out of time was nevertheless an appeal in the eye of law for all purposes and an order dismissing the appeal was a decree that could be the subject of a second appeal. It was also held that Rule 3A of Order XLI introduced by Amendment Act 104 of 1976 to the Code, did not in any way affect that principle. An appeal registered under Rule 9 of Order XLI of the Code had to be disposed of according to law and a dismissal of an appeal for the reason of delay in its presentation, after the dismissal of an application for condoning the delay, is in substance and effect a confirmation of the decree appealed against. Thus, the position that emerges on a survey of the authorities is that an appeal filed along with an application for condoning the delay in filing that appeal when dismissed on the refusal to condone the delay is nevertheless a decision in the appeal.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 5550 of 2004

Decided On: 04.11.2004

Shyam Sundar Sarma Vs. Pannalal Jaiswal and Ors.

Hon'ble Judges/Coram:

R.C. Lahoti, C.J., G.P. Mathur and P.K. Balasubramanyan, JJ.

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Whether order of return of plaint is decree?

By order dated 3rd March, 2014, the learned Judge of the City Civil Court decided preliminary issue of jurisdiction against the plaintiffs i.e. present appellants and ordered that the plaint be returned to the plaintiffs for presentation before appropriate Court. Against the said order, present Appeal from Order is filed.

2. The learned counsel for the respondent objected the maintainability of Appeal against the said order and contended that though by the said order plaint is returned, it not to be construed as order passed under Order VII Rule 10 of the Code of Civil Procedure (for short called as, "Code"), but it is in fact an order of rejection of the plaint under Order VII Rule 11 of the Code or alternatively under Order XIV Rule 2 of the Code and hence the First Appeal lies against this order and not an Appeal from Order.

3. The order of return of plaint under Order VII Rule 10 of the Code, if passed then not a First Appeal under Order XLI, but an Appeal against Order under Order XLIII is to be filed. Return of plaint is not a decree though reasons in brief are required to be recorded in the said order.

IN THE HIGH COURT OF BOMBAY

Appeal From Order No. 415 of 2014 and Civil Application No. 469 of 2014

Decided On: 30.01.2015

 Chandra Prem Shah Vs. K. Raheja Universal Pvt. Ltd. and Ors.

Hon'ble Judges/Coram:

Mridula Bhatkar, J.

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Whether Civil court can execute order passed in writ petition?

In my opinion, the present execution proceedings are misconceived and have been filed on concealment of facts, and are accordingly liable to be dismissed for the following reasons:

"(i) A final judgment in a writ petition is not a decree or order which is capable of execution proceedings under CPC. Such a judgment is enforced by invoking the contempt jurisdiction of this Court.

(ii) Execution proceedings under CPC are with respect to decrees or orders passed in proceedings governed by CPC i.e. suits.

(iii) Final judgments of writ petitions, if not complied with, cannot be treated as decrees for seeking the execution in execution proceedings by applying CPC. I may note that it is not as if that the present execution proceedings seek execution of costs which are imposed by the Court as per a final judgment, and which costs can be taken as money decree for the purpose of execution. Section 141, CPC is clear that CPC does not apply to writ petitions under Article 226 of the Constitution of India."

IN THE HIGH COURT OF DELHI

Ex. P. No. 85 of 2016

Decided On: 26.05.2016

 Shambhu Nath Das Vs. Director of Education and Ors.

Hon'ble Judges/Coram:

Valmiki J. Mehta, J.

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Whether appeal lies against a mere finding if such finding does not amount to decree?

There is a basic distinction between the right of
suit and the right of appeal. There is an inherent right in
every person to bring a suit of at civil nature, but the
right of appeal inheres in no one and therefore an appeal
for its maintainability must have the clear authority of
law. The various provisions in the C.P.C. show that under
the Code, an appeal lies only as against a decree or as
against an order passed under rates from which an appeal is
expressly allowed by Order 43, Rule 1. No appeal can lie
against a mere finding for the simple reason that the Codes
does not provide for any such appeal. Therefore, the first
appeal filed by. defendants 2 and 3 in the High Court was
not maintainable as it was directed against a mere finding
recorded by the trial court. 

SUPREME COURT OF INDIA

GANGA BAI  Vs.  VIJAY KUMAR & ORS.

DATE OF JUDGMENT 09/04/1974

BENCH:
CHANDRACHUD, Y.V.
BEG, M. HAMEEDULLAH
CITATION:
1974 AIR 1126 1974 SCR (3) 882,1974 SCC (2) 393

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Whether suit dismissed on ground of res judicata will be decree even if it was passed without framing of issue?

 In terms of Section 2(2) of the Code, in case, the court adjudicating the case, conclusively determines the rights of the parties with regard to any one or more or all of the matters in controversy in the suit, the requirement of decree is satisfied. Such determination can be preliminary or final. Rejection of a plaint is deemed to be a decree Under Section 2(2) of the Code. Only two orders are excluded-(i) any adjudication from which an appeal lies as an appeal from an order and (ii) any order of dismissal for default. Order XLIII of the Code has provided for appeals from orders. The impugned order does not come under Order XLIII. The order has conclusively determined the rights of the parties with regard to one of the matters in controversy in the suit, viz., Res Judicata. True, it is not an order passed on framing an issue. But at the same time, there is adjudication on the controversy as to whether the suit is barred by Res Judicata in the sense there is a judicial determination of the controversy after referring to the materials on record and after hearing both sides.

15. The impugned order dismissing the suit on the ground of Res Judicata does not cease to be a decree on account of a procedural irregularity of non-framing an issue. The court ought to treat the decree as if the same has been passed after framing the issue and on adjudication thereof, in such circumstances. What is to be seen is the effect and not the process. Even if there is a procedural irregularity in the process of passing such order, if the order passed is a decree under law, no revision lies Under Section 115 of the Code in view of the specific bar under Sub-section (2) thereof. It is only appealable Under Section 96 read with Order XLI of the Code.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 4543 of 2016 

Decided On: 13.04.2016

 Rishabh Chand Jain  Vs.  Ginesh Chandra Jain

Hon'ble Judges/Coram:

Kurian Joseph and Rohinton Fali Nariman, JJ.

Citation: 2017(1) MHLJ 16 SC

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