Case BriefsHigh Courts

Jammu & Kashmir High Court: Sindhu Sharma, J. allowed the revision petition on the grounds that the executing court had a duty to rectify the decree in order to execute it.

The petitioner filed a revision petition against the order dated 26.04.2018 passed by the learned Munsiff, Kathua which dismissed the execution petition filed by the petitioner. The Munsiff Court denied the execution petition on the grounds that it was misconceived and was accordingly dismissed as it was without any merit. The dispute regarding the Sale deed was that Khasra No.109 according to the statement of the Patwari was 08 Kanals, out of which, the petitioner had purchased only 02 Kanals & 15 Marlas of land and the stand of the defendants in the Trial Court was, they purchased only 04 Kanals of land out of this Khasra number. 

The first question for consideration was whether the revision was maintainable in view of the provisions of Section 115(1) of the CPC constituted vide Act No.6/2009 dated 20.03.2009. Since the order impugned could only be sustained if it was illegal and perverse and the present Court has jurisdiction under Section 104 of Constitution of Jammu & Kashmir to interfere in the interest of justice. 

It was held that the Executing Court while dismissing the execution petition has virtually nullified the judgment declaring Decree Holder as owner in possession of the suit land in respect of which the Decree Holder had applied for execution. Assuming that the application is not strictly in accordance with the mandate of Order 21 Rule 32 of the CPC, the Court ought to have directed the Decree Holder to seek appropriate relief, even otherwise, the Court should not have dismissed the application without giving liberty to the Decree Holder to file fresh application for execution seeking appropriate relief. 

 The Court also relied on the decision of the Supreme Court in Pratibha Singh v. Shanti Devi Prasad ,(2003) 2 SCC 330 wherein it was held that the Executing Court can correct the decree under Section 152 CPC so as to make the decree executable. It was further observed that a decree of a competent Court should not, as far as practicable, be allowed to be defeated on accord of accidental slip or emotions. Since the decree became final because the Judgment Debtor did not challenge it, the Executing Court had a duty to correct the decree under Section 152 of CPC so that it didn’t give rise to any disputes.

The Executing Court being a Trial Court was also directed to correct the decree before proceeding further, for which purpose, the Sale Deed registered in favour of the petitioner would be the main evidence and the Patwari could be summoned by the Court to demarcate the land of the petitioner. 

In view of the above noted facts, the petiton was allowed and the record of the Trial Court was remitted back.[Suram Singh v. Lal Chand , CR. No. 26 of 2018, decided on 05-09-2019]

Case BriefsHigh Courts

Bombay High Court at Goa: C.V. Bhadang, J., discharged the petitioner (proprietor of the defendant Company) of the notice served upon him in an execution case.

The respondent filed a civil suit against one Harshad Trading Company a company incorporated under the Companies Act. As per the suit title, the Company was not shown to be represented by any person. The suit was decreed ex-parte against the defendant company. Thereafter, the respondent filed an application for execution of the decree pursuant to which a notice was served on the petitioner. He filed for discharge on the ground that he was neither a Director nor an employee of the Company. It was contended that he was the proprietor of the Company, which are two separate entities. However, Executing Court dismissed the petitioner’s application.

The High Court noted that the decree was passed against  Harshada Trading Company alone. It was well settled:  “where the decree is against the Company, which is an independent entity, the decree cannot be executed against any individual, being a Director or a person responsible for the conduct of the business of the Company.”

On the factual score, the Court said, “It was for the respondent to point out as to what are the assets of the Company, against which the decree can be executed. Such details can be obtained by the decree-holder from the office of the Registrar of Companies (RoC). Without doing any such exercise, the respondent is trying to execute the decree against an individual and that too, without showing that the petitioner is in anyway related to the Company-Harshada Trading Company.”

In such view of the matter, the impugned order of the Executing Court was set aside and the petitioner was discharged. [Belarmina Gowda v. Ranjith Nath, 2019 SCC OnLine Bom 588, Order dated 04-04-2019]

Case BriefsHigh Courts

Himachal Pradesh High Court: The Bench of Sandeep Sharma, J. hearing a revision petition against an order of District Judge, held that an executing Court cannot go beyond the judgment passed by a Court in appeal.

In the present case, respondent’s land was acquired for construction of a road and he was awarded compensation for the same in terms of a judgment of this Court (in RFA Nos. 282 of 2000 and 44 of 2002). He filed an execution petition in District Court for execution of the order awarding compensation. The State – petitioner herein – filed an objection against the execution of the said petition, but the same was not accepted and the execution petition was allowed. Aggrieved thereby, the State filed the instant revision petition praying to set aside the impugned order and to make a fresh calculation of compensation.

The Court held that there was no illegality or infirmity in the impugned order passed by the District Judge. The calculation of compensation to be awarded to the respondent was in terms of the judgment delivered in RFAs referred to above. Therefore, the District Court, sitting as an executing Court, could not have gone beyond the judgment or decree passed in RFA.

However, in order to bring more clarity, the Court directed District Judge to pass a fresh order which shall be a speaking order, detailing the calculations based upon the verdict rendered by this court in the aforesaid RFAs, to remove any ambiguity.

The petition was disposed of in terms of the aforesaid directions.[State of Himachal Pradesh v. Sewak Ram, 2018 SCC OnLine HP 1851, decided on 20-12-2018]

Case BriefsHigh Courts

Madhya Pradesh High Court: Petitioner preferred this civil revision before a Single Judge Bench of Rajeev Kumar Shrivastava, J., under Section 115 of Civil Procedure Code, against the order passed by 3rd Civil Judge, Class-II, whereby the objection raised by the petitioner under Section 47 read with Section 151 was rejected.

Facts of the case were such that respondent had purchased a shop which is in question, from a person Khusro who is the power of attorney holder of late Jahan. It was alleged that petitioner occupied the shop and failed to pay rent to respondent to whom the shop actually belong by virtue of a sale deed. Petitioner had submitted that they have no relation with the respondent and all the construction done on the shop had been done by them. Trial Court affirmed eviction of petitioner from the shop in question. Later an execution case was filed which was objected under Section 47 read with Section 151 praying for stay of the execution proceedings but the same was denied. Hence, this revision. Petitioner contended that the executing Court should have allowed petitioner to give evidence in order to substantiate and prove his objection, therefore, the impugned order was bad in law and should be set aside.

High Court was of the view that this revision petition should be dismissed. On the basis of facts and circumstances of the case, it was found that decree of eviction was affirmed by the first appellate Court and second appellate Court. The objection raised were not sustainable due to the well-settled principle that Executing Court cannot go beyond the decree. Therefore, this revision petition was dismissed. [Mohasin Ulla Khan v. Nabila Rahil, 2018 SCC OnLine MP 949, Order dated 13-12-2018]