How to Execute, the Decree of Specific Performance of a Contract
( By- Vandana Singh Katiyar & Vijay Kumar Katiyar)
Introduction -
Generally, most of the articles are based on a philosophical approach but this article reflects of subaltern approach. This article establishes a balance between theory and practice because there are several complications in the execution proceeding, this article has serious attempts to give solutions in respect of legal and practical complications in an easy manner.
I would like to discuss here various practical aspects in respect of the execution of the decree of specific performance. After getting the computer
number, the execution application moved before the court through the office with the
report of munsrim, After perusal, the application and records annexed therewith, the court must make an order to register the execution application and
issue notice to the judgment debtor & fix a date for objection. But it is
very difficult that how to write proper order due to this I am giving
model order which is as bellow-
“The application under Order 21 rule 34 CPC produced before the court, perused all
the records, the application has been registered as an Execution case, notice
would be issued to the opposite parties, step would be taken by both ways within seven days, let the original records be summoned, file be put up on
dated 16/10/2020 for the objection.”
Even though it is a general principle that in Execution cases sending a notice to the opposite party is not necessary. It means that without sending
notice Execution case may be decided, But there are some exceptions to the above general rule, these exceptions are prescribed under order 21 rule
22 CPC. Rule 22 CPC provides that notice to the opposite party is necessary
if it has been filed after two years from the passing of the decree or filed
against the legal representative of a party to the decree or filed under
section 44-A CPC or filed against the assignee or receiver where a party to
the decree has been adjudged to be insolvent.
It must be kept in mind that after getting the registration execution
file must be fed into CIS software by which the CNR number has been generated
and updation could be made in the future.
What would you do, when the file reproduced on the date fixed? First of all, you have to see, whether service is sufficient against JD (judgment debtor) or not?
If service is not sufficient then an order for a re-step should be made, if
notice has been sent by registered post and receipt has been filed, if 30
days have not expired from the sending of registry then the date would be fixed accordingly by which 30 days could be expired. If service is sufficient then you have to make an order and hold service is sufficient against JD. The model orders are as below-
“The case called out DH (Decree holder) present, after the perusal of the
record it appears that notice which has been sent to the JD not
served, notice 16c is annexed with the file. In this notice process server has
endorsed his report that the address is insufficient hence notice is to be
reissued by both ways, DH is directed to take a step within a week, and file put up
for objection on dated 25/10/2020.”
“The case
called out DH (Decree holder) present, after the perusal of the records
it appears that notice to JD has been sent by registered post, receipt
dated 10/10/2020 has filed, it 30 days has not been expired hence
file put up for waiting on dated 11/11/2020.”
“The case called out
DH (Decree holder) present, after the perusal of the records it appears
that notice which has been sent to the JD is annexed as paper number 15c
with the report of the process server, the report reveals that notice is personalty served hence service is being held sufficient against
JD.original record is already on record, file put up for objection on
dated 30/10/2020.”
If
in any execution case service is sufficient against JD, what will you do as a presiding officer or advocate? There are some situations where the possibility is there it may be JD appear or may not appear before the court. If JD appears before the court then in most cases he would file vakalatnama with the adjournment, in this case, you should allow the adjournment and must fix a short date. In another case, JD may be absent despite sufficient service, in this case, you should provide an opportunity to file an objection and fix a short date. the model order is as below-
“The case called out both parties are present,vakalatnama
filed by the JD, be keep on file, adjournment application moved by the
JD, the objection raised by the DH, in the interest of the justice adjournment allowed accordingly file put up for objection on dated 03/11/2020.”
“The case called out DH (Decree holder) present, JD
is absent despite service, the interest of the justice an opportunity
provides to the JD, file put up for objection on dated 03/11/2020.”
On the date of the next hearing JD files an objection under section 47 CPC
then the objection should be registered as a separate mics case and would be
decided first & after that Execution case should be decided
accordingly. In the case of Ex-parte decree JD may file an application under
order 9 rule 13 CPC it should be registered as a separate mics case and
would be decided first & after that execution case should be decided
accordingly.
Another hand if despite notice under
order 21 rule 22 CPC objection has not been filed by the JD the court
has preceded to the next stage of the execution and passed any order during
such stages such orders cannot be restored by the executing courts
because it would operate Res judicata, it must be kept in mind that the order which has been passed during such stages not appealable as an
interim order, it means that such order would be presumed to deem the decree under section 47 CPC, it also means that appeal can be invoked as
a final decree. In the case of Barkat Ali and another versus Badrinarayan AIR 2008 1272 Hon’ble Supreme Court recognized the above-mentioned fact.
In the case of Arjun Singh vs Mohinder Kumar and others, 1964 SC 993 Hon’ble Supreme Court observed that the scope of the principle of res judicata is not confined to
what is contained in section 11 CPC but it is of more general
application.
In the case of Satyadhan Ghoshal and others versus Smt Deorajin debi and another AIR 1960, SC 941 Hon’ble Supreme Court observed
that the principle of res judicata applies as between two stages in the
same proceeding. But the big challenge before us is how will make an order. the
model orders are as follows-
“ The case called out
both parties are present after perusal of the records it is quite clear
that objection or application has dismissed by this court hence decree the holder is directed to the furnished affidavit of this intent that execution
is not stayed by any Court or there is no appeal pending before any
Court file put up for further order on dated 7/11/2020.”
“The case called out decree-holder is present, JD is absent despite
service, after perusal of the file it is clear that several
opportunities have been given to the JD, hence the opportunity to JD has
closed and decree-holder is directed to a furnished affidavit of this
intent that the Execution case is not stayed by any courts or there is
no appeal pending against execution, file put up for further order
on dated 5/11/2020.”
File again put up before the court
on the date fixed, if compliance has been made by the DH in the respect
of the affidavit, then it should be assured by the court that original the record has been summoned or not if not summoned then make order in this
regard because original sale agreement required during execution &
registration of the sale deed, which is annexed with the original record. In this
stage three other important orders must be passed, the first deposition of the rest consideration amount, the second call report from the sub-registrar office
regarding stamps and registration fees, third give direction to DH for
file photocopy of the agreement to sell. After making the above order the letter should be sent to the sub-registrar attached with a photocopy of
the agreement to sell. model orders are as below-
“The
case called out decree-holder is present, JD is absent, after perusal
the file it is quite clear that DH has filed an affidavit by which it
appears that execution pending before this court not stayed by any court, hence DH is directed to deposit the rest consideration amount and
submit a photocopy of the agreement for sale immediately. the tender would be
passed accordingly. call report from sub-registrar office regarding with
stamp and registration fee, file put up for further order on dated
12/11/2020.”
Now file again put up before Court on
the date fixed, if the rest consideration amount has been deposited and a report in respect of the stamp and registration fee has been received to the court then what kind of order would be passed by the court. In this stage, Court shall pass the order and direct to the DH furnished draft of the sale deed in duplicate and the fixed short date model order is as below-
“ the case called out DH present, JD absent after perusal of the file
it is clear that the rest amount of the consideration has been deposited by
the DH and the stamp and registration fee report has already been got to
this Court hence DH is directed to furnished a draft of the sale deed in
twice, file put up for further order on dated 15/11/2020.”
On the date the fixed file is again put up before the court, now what shall be done by the court, even though the procedure has been described under order 21 rule
34 CPC, according to this provision draft of the sale deed would be
submitted by the DH and one copy of the draft shall send to the JD with
notice and shall invite objection in writing and after considering the
objection the court shall make such order approving or altering the
draft, as he thinks fit. The provisions contained under Order-21 Rule 34 CPC are mandatory in nature, Hon'ble Apex Court recently in the case of Rajbir vs Suraj Bhan and Another, Civil Appeal No. 1700 OF 2022 (Arising out of SLP (C) No. 19687 of 2019) 2022 Live law (SC) 255. held as under-
10. The present is indeed a case where the decree in question provides for the execution
of the document. The document is the document of sale as contemplated under the
decree. Therefore, Order XXI Rule 34 is clearly attracted. It contemplates that if the
judgment debtor neglects or refuses to obey the decree, the decree-holder is to prepare
a draft of the document. In this case, the draft of the document is the draft sale deed. The
draft of the sale deed must further be in accordance with the terms of the decree. It is to
be delivered to the court. Thereupon, it is not required that the decree-holder must directly
deliver it to the judgment debtor. The procedure, therefore, is that the decree-holder must
make it available to the Court. Under Order XXI Rule 34, it becomes the duty of the court
to thereupon cause the draft to be served upon the judgment debtor. There must be a
6
notice inviting objections and the court may fix a time within which objections are to be
filed. The judgment debtor may or may not object. Order XXI Rule 34 sub-rule (3)
contemplates a situation where the judgment debtor objects. This is to be contained in
writing within the time provided. The court is duty-bound to make an order approving or
altering the draft as it thinks fit. This is of considerable importance having regard to what
may follow subsequently on the strength of the decree. It is also important from the point
of view of the role of the executing court which is to act in conformity with the decree.
11. It is well settled that the execution court cannot go beyond the decree. The decree
must be executed as it is. Though, it is indeed open to the executing court to construe
the decree; it cannot go beyond the decree. Therefore, when objections are filed pointing
out in a given case that the proposed draft of the sale deed is not in conformity with the
decree, it becomes the duty of the executing court to apply its mind and to make
alterations in the draft, if needed, to make it in conformity with the decree. It will be
thereafter that the decree-holder is to deliver it to the court with the alterations if any
made by the court, on proper stamp paper, if required and the execution of the document
is effected by the court or the officer-appointed. There are other formalities contemplated
in regard to registration, all of which take place only after the procedure which is
contemplated in Order XXI Rule 34 sub-rule (1) to (4) is followed.
In light of the above provision, if JD is present
then the draft should be supplied, if not present then send a registered
notice annexed with a copy of the draft, one more important thing must be
kept in mind that munsrim/reader report must be called about the similarity between draft and agreement to sale, even though there is no a clear provision in the CPC but practically not possible without calling the report, it is the court duty also to satisfy himself that draft and
agreement to the sale are similar, such as the name of the parties, property
number, area of the property, the boundary of the property, etc. After that, the short date should be fixed for the objection disposal of the draft. Model
orders are as below-
“The case called out both
parties are present,18c draft of sale deed in twice has been submitted
by the DH, one copy of the draft has received by the JD, Reader/Munsrim is
directed to submit a report regarding with similarity of the draft and
agreement to sale, file put up for objection disposal 18c on dated
20/11/2020.”
“ The case called out DH present, JD absent
after perusal of the file, it is clear that the 18c draft of the sale deed in duplicate has been submitted by the DH, let the notice to the JD must be
sent with the copy of the draft, the step must be taken immediately. Reader/Munsrim is directed to submit a report regarding the similarity of the draft and agreement to sale, file put up for
objection disposal 18c on dated 20/11/2020.”
On
the date fixed file reproduce before the court DH is present and JD is also
present, file his objection in writing, then the copy of the objection
should be provided to the DH if the munsarim/reader provides his report
then the file would be re-fixed for the disposal of the draft, it must be
kept in the mind that munsarim/reader may submit his report on a separate page or may make an endorsement in the margin of the order sheet
and put his sign and date, the second thing is that where JD is not present
and notice which is sent to his served to him and munsarim/reader report
already received then the opportunity of the objection must be closed after holding the service against JD and the file would be re-fixed for the disposal of the draft. Model orders areas
below-
“The case called out both parties are present, JD submitted his objection and a copy of the objection would be provided to the DH. Munsarim/reader report has received, hence file put up on dated
22/11/2020 for the disposal of the draft.”
“The case called
out DH present JD absent, the notice which has been sent, served
personally, to him, hence the opportunity to file an objection is being closed.
Munsarim/reader report is already received file put up for the disposal
of the draft 18c on dated 23/11/2020.”
Another next date file has reproduced before the court if both
parties are present and the objection has been filed, after perusal of the objection
it appears that there is a requirement to altering in the draft, then the court can make an order if found there is no need to alteration in the
draft and objection are baseless, Munsarim/reader report is on record and the court is himself satisfy with the similarity of the draft and sale agreement. It is necessary to discuss here if the rest
consideration amount has been submitted by the DH and the copy of the
tender on record and report of the sub-register also on record then The court can make an order and confirm the draft and also make a direction to the
DH that he would submit sale deed duly stamped paper in the light of the
report of the sub-registrar lastly file would be re-fixed accordingly.
If the JD is not present and there is no objection on behalf of JD
Munsarim/ reader reports on record, the rest consideration amount has been
already deposited by the DH, the tender is on record and the report of the sub-registrar on record and the Court is himself satisfy that draft and
agreement to the sale are similar there is no need for any alteration, then The court can confirm the draft and direct the DH to file a duly stamped
sale deed and lastly make a short date. model orders are as below-
“The case called out both parties present, the file listed today for the disposal of the draft 18C.
Disposal of 18C - The draft 18C has been submitted by the DH in light of the court order, 23C objection has been filed on behalf of JD.
Heard and peruse the record after the perusal of the records it is
clear that the rest amount of the consideration has been deposited by the
DH, the tender is on record as paper number 19c, report of the sub-registrar the office is on record as a paper number 16c, Reader/Musarim report is on
record, it denotes that draft and agreement to the sale are similar there
is no difference between both, Court is also satisfied that there is no
difference between draft and agreement to sale, it means that draft and
agreement to the sale are similar, the court also peruse the objection23C, the objection is baseless and immaterial, hence court is of opinion that
draft 18C is subject to confirmation, hereby draft 18c confirmed, let the
DH is directed to file a sale deed duly stamped in the light of the report
of the sub-register. file put up for further order on dated 23/11/2020.”
“The case called out DH is present JD is absent his opportunity to
objection already closed, after perusal of the records it appears that the rest amount of the consideration has been deposited by the DH, tender is
on record as a paper 17C, it is also clear that the report of the sub-registrar office is on record as a paper 13C, after perusal of the
Munsarim/ reader report it is clear that there is no difference between
draft and agreement to sale, Court is also satisfied that there is no
difference between draft and agreement sale, it means that draft and
agreement to the sale are similar and there is no objection on behalf of JD,
hens it is the opinion of the court that draft is subject to the
confirmation, hereby draft 18c confirm.DH is directed to file duly
stamped sale deed in the light of the sub-register report, file put up for
further order on dated 23/11/2020.”
on the date the fixed
file is again put up before the court, if a duly stamped sale deed has been filed by
the DH, then reports of munsarim/reader should be called in this regard
that the duly stamped sale deed and confirmed draft are similar. If a report is received in this regard and the court is also satisfied that both documents are similar, then the court can make an order for producing three copies of the duly
stamped sale deed, one is original and another two in photocopy, in all
three copies photos of the DH should be paste and signed by DH a
PO/authorized person on each page. If the registration is necessary of
that document then the court should authorize any one of his employees and
issue an authority letter and verify his sample signature. It must be kept
in the mind, that clear-cut orders should be made such as reader ram
Singh is directed that he is authorized on the behalf of the court for
the registration and execution of the sale deed and also make an order to
the DH for registration fee and necessary document of the property such
as khasara, khatauni, and revenue map practical map of the property with boundaries, etc. model orders are as follows-
“The case
called out DH present JD absent, duly stamped sale deed filed by the DH, munsarim/reader report endorsed on the margin of order sheet, a perusal of the records it appears that duly stamped sale deed and the confirmed draft is similar, the court is also satisfied that both are
similar, in the open court on each page of the sale deed thrice,
Sri Gopal Ji reader of this court is authorized for the registration of
sale deed on behalf of the court, registration can be made at any working the day before the date fixed, authority letter with a verified sample signature
be issued, DH is directed to bear all expenses in respect
registration, the reader can bring the original agreement to the sale deed also with the duly stamped sale deed. File put for further order on dated
25/11/2020.”
Sample of authority letter-
In the court of civil judge (J.D.) Lucknow.
Execution case-23/2019
Rameshwar Singh vs Deenanath
CERTIFICATE
this
is to certify that Sri Gopal Ji reader of civil judge (j.d.) Lucknow,
on behalf of this court is to authorized for the registration and Execution of sale deed in the execution case no- 23/2019 named Rameshwar
Singh vs Deenanath, hereinafter his signature is verified accordingly.
Name full sign initial
1-Gopal ji ---------- --------
2- Gopal ji ---------- --------
3- Gopal ji --------- --------
xyz
Civil judge(j.d.)
Lucknow
On the date, the fixed court found that the sale deed has duly registered and executed, with endorsement already made by the reader in the margin of the order sheet. Now the question before the court that what will do in that situation? There may be two or three situations that occurred.
First, if
DH is already in possession of the property in dispute, in this case, if
DH is not interested in the recovery of cost, then the court should pass a final
order with full satisfaction but while you are passing a final order
then the order of returning the original sale deed and original agreement to the sale should be passed, it will save the time of the court if DH is
interested to the recovery of cost than in the respect of cost separate mics the file should be open and execution case should be consigned to record
room as full satisfaction and original deeds should be returned by an
order.
Second, if he does not have the disputed property. In this situation, the court is empowered to make an order for recovery of possession and issue a writ to that effect, to the court amin. Court amin is authorized for this, see the rules- 529,530 and 534 of General rule civil. (rule made by the up
Allahabad high court) judges of other states please see your own state rules. If the property is undivided then the writ of deemed possession may be issued. Model orders are as below-
“ The case called out DH present JD absent, after perusal of the file
it appears that the sale deed has duly registered and executed, on behalf of
DH 26c application moved by which it appears that he is already in
possession and not interested in the recovery of cost, DH also prayed in his
application for returning of original deeds, in above fact and
circumstances court is of opinion that this execution case liable to
decided as full satisfaction.
Order
This
Execution is to be disposed of as full satisfaction, the office is to direct
to returned original deeds, a photocopy of the deeds should be put in the
file in the same number, let the file consigned to the record room
accordingly.”
“The case called out DH is present and JD absent, after the perusal of the file it appears that the sale deed has been executed and registered as well, after perusal of the file it is clear that DH has not got possession yet, file denotes that entire court fee has already deposited by the DH, in the above facts and circumstances court is of opinion that writ in respect of granting possession over disputed property, be issued, DH is directed to take a step within two days, court amin is directed that after making him to get possession, submit a report accordingly, file put up for amin report on dated 28/11/2020.”
“The case called out DH is present and JD absent, after the perusal of the file it appears that the sale deed has been executed and registered as well, after perusal of the file it is clear that DH has not got possession yet, file denotes that entire court fee has already deposited by the DH, in the above facts and circumstances court is of opinion that writ in respect of granting possession over disputed property, be issued, DH is directed to take a step within two days, court amin is directed that after making him to get possession, submit a report accordingly, file put up for amin report on dated 28/11/2020.”
File
again put up before the court, there is the possibility that possession may be delivered to the DH if the answer is yes, DH is not interested in the recovery of cost then the file should be consigned to the record room and original deeds should be returned to the DH. If DH is interested in recovery cost, in this case, a separate misc file should be opened and the execution file should be consigned to the record room accordingly, this
disposal would be treated as full satisfaction of a decree. Other hand situation may be different it means that due to obstruction of the JD
possession could not deliver and the court amin has sought the help of the police personnel, in that situation what would you do? As well as I know there is a trend prevalent in the whole of Uttar Pradesh and other states of India. Most of the presiding officers call expenditure reports through the superintendent of police on a requirement basis after getting that report reissued writ. In my opinion this wrong trend, this trend is illegal also and causes a delay too, it imposed an unnecessary financial burden upon DH. In civil cases most of the decree holders have been paid sufficient court fees, there is no provision in any law to pay expenses in respect of police personnel. In civil cases court discharge its duty under sovereign power therefore it is the duty of the court to make execute the decree which is passed by the competent court, there is no need to pay the expenses of the police personnel. In the case of Gopal and ors. Vs Amar jeet Singh 2019 (2) c.c.c. 693 hon’ble Allhabad high court –
observed that the court has the power to seek police help for enforcement of its decree. Therefore, in absence of any specific legal provision enabling the police to raise a bill in the court for the supply of police help to enforce the court decree, requiring the decree-holder to sustain the expenses for police help would not be appropriate, it would cause injustice. in Uttar Pradesh General rule of civil rule 534 empowered to court amin to get police help, but the letter of request must be forwarded by the PO of the court concerned, based on the above case law writ should be reissued by the court and fix a short date. In the case of Rahul S. Shah vs Jinedra Kumar Gandhi and other, SLP No7965-7966 of 2020 Judgment dated 22.04.2021 S.C. Hon'ble Supreme Court held that "15. The Executing Court may on the satisfaction of the fact that it is not possible to execute the decree without police assistance, direct the concerned Police Station to provide police assistance to such officials who are working towards the execution of the decree. Further, in case an offence against the public servant while discharging his duties is brought to the knowledge of the Court, the same must be dealt with stringently in accordance with the law. Model orders are as follows-
“ The case called out DH present
JD absent, after the perusal of the file it appears that DH has not got
possession over property in dispute,amin reports denotes that there is
requirement of police aid, decree-holder already deposited appropriately
court fees, the court is discharging his duty under sovereign power, In the case of Gopal and ors. Vs Amar jeet Singh 2019 (2) c.c.c. 693 & Rahul S. Shah vs Jinedra Kumar Gandhi and other, SLP No7965-7966 of 2020 Judgment dated 22.04.2021. Hon’ble Allhabad high court & Apex Court –
observed that the court has the power to seek police help for enforcement
of its decree. Therefore, in absence of any specific legal provision
enabling the police to raise a bill in the court for the supply of police
help to enforce the court decree, requiring the decree holder to sustain
the expenses for police help would not be appropriate, it would be caused injustice. in the above facts and circumstances, the court is of opinion that writ
be issued again, court amin is authorized to get police aid and make
execution and submit a report file put up for amin report on dated
30/11/2020.”
The file has been put up on the date fixed and it appears
from the record, possession has been delivered to the DH and court amin has
submitted his report, Dakhalnama is on record, DH is satisfied and he is
not interested in the recovery of the cost then the court shall decide the
Execution case as full satisfaction and file should be consigned
accordingly and original deeds should be returned. Another hand if DH is
interested in the cost then in respect of cost separate misc should open
and the Execution case would be consigned to the record room, original sale deed
and original sale agreement shall be returned to the decree-holder. model
orders are as follows-
“The case called out DH
present JD absent, I have perused the record, amin report is on record, it denotes that possession has been delivered to the DH, Dakhalnama/amin the report is on record. DH is not interested in the recovery of cost, DH has
no objection hence decree is fully satisfied, original sale deed and the original agreement to sale should be returned to the decree-holder, photocopy of both deeds must be put on the same number, let the file be
consigned to record room, in the respect of cost misc case be register, the office is directed to separate misc file and put the misc file on dated
05/12/2020.”
Conclusion-
I have described all expected stages of the decree of Execution in the respect of the Decree of the specific performance of the contract, I hope it would be very helpful to our Indian legal professionals, I'll await your response. @@@
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