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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
Writ Petition No.113 of 2010,
Writ Petition No.1691 of 2010
And
Civil Revision Application No.76 of 2009
Writ Petition No.113 of 2010
1. Amol s/o Late Bhalchandra Joshi,
Aged about 22 years,
R/o 148, Mhalgi Nagar, Nagpur.
2. Smt. Shaileja w/o Shri Bhalchandra Joshi,
Aged about 65 years,ig
R/o Zenda Chowk, Mahal, Nagpur.
3. Shilpa Bhalchandra Joshi,
Aged about 23 years,
R/o Zenda Chowk, Mahal, Nagpur.
4. Suresh s/o Gajananrao Wakhare,
Aged about 48 years,
R/o Mehandibagh Road,
Maskasath, Itwari, Nagpur.
5. Smt. Naima Kishwar w/o Late Abdul Karim,
Aged about 59 years,
R/o 249-A, Kidwai Road,
Mominpura, Nagpur.
6. Naimul Karim Zahid,
Aged about 33 years,
Occupation - Business,
R/o 249-A, Kidwai Road,
Mominpura, Nagpur.
7. Mehroozul Karim Arif,
Aged about 31 years,
Occupation - Business,
Legal heirs of late Advocate
Abdul Karim s/o Mohd. Ibrahim,
demised on 26-12-1999,
R/o 249-A, Kidwai Road,
Mominpura, Nagpur.
8. Nashir Asam Makbul Ahmed Bakshi,
Aged about 56 years,
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Occupation - Service,
R/o Zafar Nagar,
Behind Police Line, Takli,
Nagpur.
9. Smt. Meena wd/o Gopal Saini,
Aged 56 years,
Occupation - Business,
R/o Loharpura,
Behind Petrol Pump,
Central Avenue, Nagpur.
10. Atul s/o Gopal Saini,
Aged 25 years,
Occupation - Not known,
R/o Loharpura,
Behind Petrol Pump,
Central Avenue, Nagpur.
11. Chetan Singh s/o Shatrughan Singh Rathod,
Aged about 30 years,
R/o Near Fruit Market,
Gokulpeth, Nagpur.
12. Sanjay Singh s/o Shatrughan Singh Rathod,
Aged about 26 years,
R/o Near Fruit Market,
Gokulpeth, Nagpur.
13. Tulsiram s/o Yeshwantrao Verulkar,
Aged about 48 years,
Occupation - Service,
R/o Ramaji's Wadi,
Near Model Mill Chowk,
Ganeshpeth, Nagpur. ... Petitioners
Versus
1. Deorao s/o Santoshrao Bhongade,
Aged about 58 years,
R/o 255, Near Lendra Park,
Ramdaspeth, Nagpur.
2. Vinayak s/o Santoshrao Bhongade,
Aged about 55 years,
R/o 255, Near Lendra Park,
Ramdaspeth, Nagpur.
3. Anandrao s/o Santoshrao Bhongade,
Aged about 52 years,
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R/o 255, Near Lendra Park,
Ramdaspeth, Nagpur.
4. Vithalrao s/o Santoshrao Bhongade,
Aged about 50 years,
R/o 255, Near Lendra Park,
Ramdaspeth,
Nagpur (Ori. J.Drs.).
5. Hifzul Kabir s/o Hifzul Karim,
Aged about 66 years,
Occupation - Business,
R/o 8, Lokhande Layout,
Lumbini Nagar,
Mankapur, Nagpur.
6. Syed Shafique Ahmed s/o Late
Syed Laiq Ahmed,
Aged - Adult,
Occupation - Business,
R/o Behind Corporation School,
New Colony, Plot No.161/A, Anant Nagar,
Nagpur.
7. Chandrasingh s/o Sompal Mathuria,
Aged about 59 years,
Occupation - Business,
R/o 39, Kalyan Nagar,
Hingana Road, Nagpur,
(Ori. Assignee/Decree Holder).
8. Smt. Bebitai w/o Late Ashok Raut,
Aged about 58 years,
R/o Mahal, Nagpur 440 032,
Near Shankar Mahale Chowk, Natraj Talkies
Road, Nagpur.
9. Ku. Sheetal d/o Late Ashok Raut,
Aged about 17 years, Minor.
10. Ku. Chanchal d/o Late Ashok Raut,
Aged about 15 years, Minor.
Respondents Nos.9 and 10,
Minors, through guardian mother
Smt. Bebitai Ashok Raut,
Respondent No.8, both R/o
Mahal, Nagpur (Legal Heirs of
Ori. Assignee/Decree Holder
Late Shri Ashok Raut) ... Respondents
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Writ Petition No.1691 of 2010
1. Deorao s/o Santoshrao Bhongade,
Aged about 58 years,
R/o 255, Near Lendra Park,
Ramdaspeth, Nagpur.
2. Vinayak s/o Santoshrao Bhongade,
Aged about 55 years,
R/o 255, Near Lendra Park,
Ramdaspeth, Nagpur.
3. Anandrao s/o Santoshrao Bhongade,
Aged about 52 years,
R/o 255, Near Lendra Park,
Ramdaspeth, Nagpur.
4. Vithalrao s/o Santoshrao Bhongade,
Aged about 50 years,
R/o 255, Near Lendra Park,
Ramdaspeth, Nagpur. ... Petitioners/
Ori. J. Drs.
Versus
1. Charansingh s/o Sompal Mathuria,
Aged about 59 years,
Occupation - Business,
R/o 39, Kalyan Nagar,
Hingna Road, Nagpur,
(Ori. Assignee/Decree Holder).
2. Smt. Bebitai w/o Late Ashok Raut,
Aged about 58 years,
R/o Mahal,
Nagpur 440 032.
3. Ku. Shettal d/o Late Ashok Raut,
Aged about 17 years, Minor.
4. Ku. Chanchal d/o Late Ashok Raut,
Aged about 15 years, Minor.
Petitioners No.3 & 4, minors, through
guardian mother Smt. Bebitai Ashok,
Raut, Petitioner No.2, both R/o
Mahal, Nagpur,
(Legal Heirs of Ori. Assignee/
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Decree Holder Late Shri Ashok Raut).
Assignors :
5. Amol s/o Late Bhalchandra Joshi,
Aged about 22 years,
R/o 148, Mhalgi Nagar, Nagpur.
6. Smt. Shaileja w/o Shri Bhanchandra Joshi,
Aged about 55 years,
R/o Zenda Chowk, Mahal, Nagpur.
7. Shilpa Bhalchandra Joshi,
Aged about 23 years,
R/o Zenda Chowk,
Mahal, Nagpur.
8. Suresh s/o Gajananrao Wakhare,
Aged about 48 years,
R/o Mehandibagh Road,
Maskasath, Itwari, Nagpur.
9. Smt. Naima Kishwar w/o Late
Abdul Karim,
Aged about 59 years,
R/o 249-A, Kidwai Road,
Mominpura,
Nagpur.
10. Naimul Karim Zahid,
Aged about 33 years,
Occupation - Business,
R/o 249-A,
Kidwai Road, Mominpura, Nagpur.
11. Mehroozul Karim Arif,
Aged about 31 years,
Occupation - Business,
Legal Heir of Late Advocate Abdul Karim
s/o Mohd. Ibrahim,
demised on 26/12/1999,
R/o 249-A, Kidwai Road,
Mominpura, Nagpur.
12. Nashir Asam Makbul Ahmed Bakshi,
Aged about 56 years,
Occupation - Service,
R/o Zafar Nagar, Behind Police Line Takli,
Nagpur.
13. Smt. Meena wd/o Gopal Saini,
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Aged 56 years,
Occupation - Business,
R/o Loharpura,
Behind Petrol Pump,
Central Avenue, Nagpur.
14. Atul s/o Gopal Saini,
Aged 25 years,
Occupation - Not known,
R/o Loharpura,
Behind Petrol Pump,
Central Avenue, Nagpur.
15. Ameet s/o Gopal Saini,
Aged 28 years,
Occupation - Not known,
R/o Loharpura,
Behind Petrol Pump,
Central Avenue, Nagpur.
16. Chetan Singh s/o Shatrughan Singh
Rathod,
Aged about 30 years,
R/o Near Fruit Market, Gokulpeth,
Nagpur.
17. Sanjay Singh s/o Shatrughan Singh
Rathod,
Aged about 26 years,
R/o Near Fruit Market, Gokulpeth,
Nagpur.
18. Tulsiram s/o Yeshwantrao Verulkar,
Aged about 48 years,
Occupation - Service,
R/o Ramaji's Wadi,
Near Model Mill Chowk,
Ganeshpeth, Nagpur.
19. Tulsiram s/o Yeshwantrao Verulkar,
Aged about 48 years,
Occupation - Service,
R/o Ramaji's Wadi,
Near Model Mill Chowk,
Ganeshpeth, Nagpur.
20. Hifzul Kabir s/o Hifzul Karim,
Aged about 66 years,
Occupation - Business,
R/o 8, Lokhande Layout,
Lumbini Nagar,
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Mankapur, Nagpur.
21. Syed Shafique Ahmad s/o Late
Syed Laiq Ahmad,
Aged - Adult,
Occupation - Business,
R/o Behind Corporation School,
New Colony, Nagpur. ... Respondents
Civil Revision Application No.76 of 2009
1. Charansingh s/o Sompal Mathuria,
Aged about 59 years,
Occupation - Business,
R/o 39, Kalyan Nagar, Hingna Road,
Nagpur.
(Ori. Assignee/Decree Holder).
2. Smt. Bebitai w/o Late Ashok Raut,
Aged about 58 years,
R/o Mahal, Nagpur 440 032.
3. Ku. Sheetal d/o Late Ashok Raut,
Aged about 17 years, Minor.
4. Ku. Chanchal d/o Late Ashok Raut,
Aged about 15 years, Minor.
Petitioners No.3 & 4, Minors, through
guardian mother Smt. Bebitai Ashok Raut,
Petitioner No.2, both R/o Mahal, Nagpur,
(Legal Heirs of Ori. Assignee/
Decree Holder Late Shri Ashok Raut) ... Applicants
Versus
1. Deorao s/o Santoshrao Bhongade,
Aged about 58 years,
R/o 255, Near Lendra Park,
Ramdaspeth, Nagpur.
2. Vinayak s/o Santoshrao Bhongade,
Aged about 55 years,
R/o 255, Near Lendra Park,
Ramdaspeth, Nagpur.
3. Anandrao s/o Santoshrao Bhongade,
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Aged about 52 years,
R/o 255, Near Lendra Park,
Ramdaspeth, Nagpur.
4. Vithalrao s/o Santoshrao Bhongade,
Aged about 50 years,
R/o 255, Near Lendra Park,
Ramdaspeth, Nagpur.
(Ori. J.Drs.)
Assignors
5. Amol s/o Late Bhalchandra Joshi,
Aged about 22 years,
R/o 148, Mhalgi Nagar, Nagpur.
6. Smt. Shaileja w/o Shri Bhalchandra Joshi,
Aged about 55 years,
R/o Zenda Chowk, Mahal, Nagpur.
7. Shilpa Bhalchandra Joshi,
Aged about 23 years,
R/o Zenda Chowk, Mahal,
Nagpur.
8. Suresh s/o Gajananrao Wakhre,
Aged about 48 years,
R/o Mehandibagh Road,
Maskasath, Itwari, Nagpur.
7. Smt. Naima Kishwar w/o Late Abdul
Karim,
Aged about 59 years,
R/o 249-A, Kidwai Road,
Mominpura, Nagpur.
8. Naimul Karim Zahid,
Aged about 33 years,
Occupation - Business,
R/o 249-A, Kidwai Road,
Mominpura, Nagpur.
9. Mehroozul Karim Arif,
Aged about 31 years,
Occupation - Business,
Legal Heirs of Late Advocate
Abdul Karim s/o Mohd. Ibrahim,
demised on 26/12/1999,
R/o 249-A, Kidwai Road,
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Mominpura, Nagpur.
10. Nashir Asam Makbul Ahmed Bakshi,
Aged about 56 years,
Occupation - Service,
R/o Zafar Nagar, Behind Police Line Takli,
Nagpur.
11. Smt. Meena wd/o Gopal Saini,
Aged 56 tears,
Occupation - Business,
R/o Loharpura,
Behind Petrol Pump,
Central Avenue,
Nagpur.
12. Atul s/o Gopal Saini,
Aged 25 years,
Occupation - Not known,
R/o Loharpura, Behind Petrol Pump,
Central Avenue, Nagpur.
13. Ameet s/o Gopal Saini,
Aged 28 years,
Occupation - Not known,
R/o Loharpura,
Behind Petrol Pump,
Central Avenue, Nagpur.
14. Chetan Singh s/o Shatrughan Singh Rathod,
Aged about 30 years,
R/o Near Fruit Market, Gokulpeth,
Nagpur.
15. Sanjay Singh s/o Shatrughan Singh Rathod,
Aged about 26 years,
R/o Near Fruit Market, Gokulpeth,
Nagpur.
16. Tulsiram s/o yeshwantrao Verulkar,
Aged about 48 years,
Occupation - Service,
R/o Ramaji's Wadi,
Near Model Mill Chowk,
Ganeshpeth, Nagpur.
17. Tulsiram s/o Yeshwantrao Verulkar,
Aged about 48 years,
Occupation - Service,
R/o Ramaji's Wadi, Near Model Mill Chowk,
Ganeshpeth, Nagpur.
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18. Hifzul Kabir s/o Hifzul Karim,
Aged about 66 years,
Occupation - Business,
R/o 8, Lokhande Layout,
Lumbini Nagar,
Mankapur, Nagpur.
19. Syed Shafique Ahmad s/o Late Syed
Laiq Ahmad,
Aged - Adult, Occupation - Business,
R/o Behind Corporation School,
New Colony, Nagpur. ... Respondents
Shri S.P. Kshirsagar, Advocate for Petitioners in WP No.113 of 2010.
Shri M.B. Naidu, Advocate for Petitioners in WP No.1691 of 2010.
Shri M.S. Gupta, Advocate for Applicants in CRA No.76 of 2009.
Shri Masood Shareef, with Shri Ejaz Ahmed, Advocates for
Respondent No.5 in WP No.113 of 2010 and Respondent No.18 in
CRA No.76 of 2009.
Shri M.B. Naidu, Advocate for Respondent Nos.1 to 4, and
Shri Mahesh Gupta, Advocate for Respondent Nos.7 to 10 in WP
No.113 of 2010.
Coram : R.K. Deshpande, J.
Date of Reserving the Judgment : 20-12-2010.
Date of Pronouncing the Judgment: 6-1-2011.
Judgment :
1. Rule, returnable forthwith. Heard finally by the consent of
the learned counsels appearing for the parties.
2. All these three matters challenge the common order passed
on 21-8-2009 by the learned 4th Joint Civil Judge, Senior Division,
Nagpur, dismissing the application Exhibit 1 in Special Darkhast No.118
of 1995 and allowing the applications Exhibits 1 and 6 filed in Special
Darkhast No.156 of 1995. The Executing Court has proceeded further in
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Special Darkhast No.156 of 1995 and the judgment-debtors in the said
Darkhast are directed to execute and register the sale-deed of the suit
property in favour of the applicant, after rejecting the objections at
Exhibits 19, 70 and 159, to the executability of decree raised by the
petitioners in all these three matters. The proceedings before the lower
Court are stayed.
3. The facts leading to the case are as under :
The property
ig in dispute (suit property) is the land
admeasuring about 18.07 acres, bearing Survey Nos.53 and 54 out of
Sheet No.291/74 and 292/75, having Khasra Nos.120/1 and 131 of
Mouza Dhaba, P.H. No.7, Ward No.67, Tahsil and District Nagpur. A
Special Civil Suit No.263 of 1985 was filed by 11 persons, who were the
plaintiffs, for specific performance of contract dated 10-2-1982 in
respect of the suit property, against one Santoshrao Bhongade, the
owner of the property, who was joined as the sole defendant in the said
suit. The names of 11 persons, who had filed the suit, are required to
be stated as under :
(1) Bhalchandra s/o Nageshwarrao Joshi.
(2) Suresh s/o Gajanan Wakhre.
(3) Bakaram s/o Doma Thote.
(4) Advocate Abdul Karim s/o Mohd. Ibrahim.
(5) Syd. Shafique Ahmad.
(6) Nashir Ajam s/o Makbul Ahmed Bakshi.
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(7) Gopal s/o Jhanaklal Saini.
(8) Shatrughan Singh Nathusingh Rathod.
(9) Vinaykumar s/o Balkrishna Dewale.
(10) Tulsiram s/o Yeshwantrao Virulkar.
(11) Hifzul Kabir s/o Hifzul Karim.
The Trial Court dismissed the said suit on 17-9-1991. The plaintiff Hifzul
Kabir and six others (at Sr.Nos.1 to 6 above) preferred First Appeal
No.790 of 1991 before this Court. During the pendency of the First
Appeal, Santoshrao Bhongade, the original defendant died, and hence
his legal representatives were brought on record. In this First Appeal, a
decree for specific performance of contract was passed by this Court on
26-4-1993. The operative part of the order is reproduced below :
” In the result, the appeal is allowed with costs. The
impugned judgment and decree are set aside. Thecross-objection is also dismissed. The decree be drawn up in
the following terms :
(a) The suit filed by the plaintiffs on behalf of themselves
and defendant Nos.2 to 5 for specific performance of thecontract for remaining area of 18.07 acres of the suit property
is hereby decreed with costs.
(b) The plaintiffs as well as defendant Nos.2 to 5 are
directed to deposit the balance consideration in Court after
adjusting Rs.10,000/- already paid within six weeks from
today.
(c) Upon deposit of the amount the defendant No.1(a) to
(d) are directed to execute and register the sale-deed within
a month after expiry of six weeks.
(d) On failure of the defendant No.1(a) to (d) to execute the
sale-deed as directed, the plaintiffs as well as defendant
Nos.2 to 5 shall obtain the sale-deed through Court.
(e) The plaintiffs as well as defendant Nos.2 to 5 be put in
possession of the suit property as well.”
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Plaintiff Hifzul Kabir deposited within time specified, the balance amount
of consideration of Rs.1,43,000/- on 7-6-1993 in CCD No.323, in the Trial
Court.
4. The legal representatives of the
original defendant
Santoshrao Bhongade preferred Special Leave Petition No.6637 of 1994
before the Apex Court. When the matter was heard before the Apex
Court on 15-9-1994, an order came to be passed by the Apex Court as
under :
” Counsel for both the parties are agreed that the matter
will be settled between the parties on the following basis.
An appropriate valuer shall be appointed to determine
the price of 18.07 acres of land, now in question in the suit,
as on 1st January, 1988. The price so determined shall bepaid by the respondents to the petitioners and the sale will be
completed according to law.
List the matter on 6.10.94. On that date counsel will
intimate the name of the valuer. It is open to the parties to
give the panel of three valuers in which case we will make the
selection.”
Thereafter the matter was listed on 6-10-1994, when the order was
passed by the Apex Court as under :
” Leave granted.
There shall be a decree for specific performance in
respect of the suit land (18.07 acres in extent) subject to the
condition that the plaintiff pays the price of the said land as
on January 1, 1988. It is directed that the price of the suit
land as on January 1, 1988 shall be determined by
Sri Golghate, Deputy Director, Town Planning, Nagpur Region,
Nagpur, to whose nomination both the counsel have agreed.
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The remuneration of Sri Golghate is tentatively fixed at
Rs.2,000/- which shall be paid by both the parties in equal
measure within 10 days. The price determined by
Sri Golghate shall be final and be binding upon both the
parties – subject, of course, to the orders of this Court.
The valuation shall be done as early as possible
preferably within four weeks from the date of receipt of the
order by Sri Golghate.
It is obvious that the amount already paid/deposited by
the plaintiff shall be taken credit of while paying the amount
determined as per the above direction.
List the matter after six weeks.”
5. It transpires from the record that the compromise petition
(Exhibit 115 dated 16-1-1995) between the petitioners and the
respondent Nos.1, 3, 5, 7, 8, 9 and 11 in the said Special Leave Petition
(Civil) No.8944 of 1993 was filed along with the joint affidavit (Exhibit
117 dated 8-1-1995) of the petitioners and the said respondents, in the
Special Leave Petition. In para 2 of the said compromise petition, a
reference was made to the deed of assignment said to have been
prepared fraudulently by the respondent No.2 therein, who was the
plaintiff Hifzul Kabir and without prejudice to the right to challenge the
said deed of assignment, the compromise petition was filed. It was
further stated that the petitioners in the said compromise petition had
agreed that necessary conveyance deed shall be made and executed in
favour of Ashok Manikrao Raut and Charansing Sompal Mathuria, in
order to complete the transaction of specific performance of the decree
passed.
6. In response to the order dated 6-10-1994, the valuer
determined the value of the property and the Apex Court fixed the price
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of the land at the rate of Rs.42,000/- per acre. The Apex Court
disposed
of the said Special Leave Petition by its order dated 22-3-1995, which is
reproduced below :
” This order is made in continuation of the orders dated
September 15, 1994 and October 6, 1994. Pursuant to the
order dated October 6, 1994, Sri Golghate, Deputy Director,
Town Planning, Nagpur Region, Nagpur has submitted hisvaluation report. After considering as many as eleven
instances of sales, the Deputy Director has valued the suit
land at Rs.36,000/- per acre as on January 1, 1988(i.e., Rs.90,000/- per Hect.). The suit land, it may be stated,
is of the extent of 18.07 acres as mentioned in the plaint
schedule.
After hearing the parties, we fix the valuation of the suit
land at Rs.42,000/- per acre. The decree shall be prepared
accordingly in terms of this order read with order dated
October 6, 1994.
From the report of the valuer, Sri Golghate, it appears
that valuation fees of Rs.2,000/- has not so far been paid tohim. We fix the fees of Sri Golghate at Rs.4,000/- (including
the said sum of Rs.2,000/- fixed earlier). The said amount
shall be paid by the respondents-plaintiffs within two weeks
from today and they shall be entitled to execute the decree
only on submission of the receipt from Sri Goghate withrespect to the said payment.
Sri Sanghi, learned counsel for the petitioner-appellant
states that after the order dated October 6, 1994, some of
the plaintiffs have entered into agreements with his client
(defendant) whereunder some of the plaintiffs have agreed to
pay a higher amount by way of consideration to thedefendant and that those agreements should not be held to
be affected by this order. Since the said agreements are
alleged to have been entered into subsequent to our order
dated October 6, 1994, we express no opinion on the
submission made by Sri Sanghi.
The amount of consideration payable according to this
order shall be deposited in the trial court within six weeks
from today. On the said amount being deposited, the sale
deed shall be executed by the defendant and on his default,
by the court – if not executed already – and the possession of::: Downloaded on – 09/06/2013 16:44:33 :::
16the land shall be delivered to the plaintiffs.
The amount deposited shall be allowed to be withdrawn
by the defendants.
No costs.”
It seems from the aforesaid order that the Apex Court was conscious of
the terms incorporated in the compromise petition and hence it has
been observed that since the said agreements were alleged to have
been entered into subsequent to the order dated 6-10-1994, no opinion
is expressed on it. The plaintiff Hifzul Kabir deposited the balance
amount of consideration of Rs.6,20,000/- at the rate of Rs.42,000/- per
acre on 8-5-1995, i.e. within the time stipulated by the Apex Court in the
order dated 22-3-1995. The plaintiff Hifzul Kabir also paid an amount of
Rs.4,000/- towards remuneration of the valuer Shri Golghate
(Exhibit 174).
7. On 15-4-1995, a Special Darkhast No.118 of 1995 was filed
under Order 21, Rules 11 and 16 of the Civil Procedure Code by
7 plaintiffs, namely (1) Bhalchandra s/o Nageshwarrao Joshi, (2) Suresh
s/o Gajanan Wakhre, (3) Shatrughan Singh Nathusingh Rathod,
(4) Tulsiram s/o Yeshwantrao Virulkar, (5) Advocate Abdul Karim s/o
Mohd. Ibrahim, (6) Nashir Ajam s/o Makbul Ahmed Bakshi and (7) Gopal
s/o Jhanaklal Saini claiming to be the assignors of the decree along with
one Ashokkumar Manikrao Raut and Charansing Sompal Mathuria, the
assignees of the decree. It was claimed that the decree be executed by
registration of sale-deed in favour of the assignees of the decree-
holders in respect of the suit property. The plaintiff Hifzul Kabir filed his
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objection (Exhibit 18) to Special Darkhast no.118 of 1995 on 5-10-1995.
The other plaintiff Syed Shafique also filed his independent objection
(Exhibit 28) in Special Darkhast No.118 of 1995 on 9-10-1996. The
judgment-debtors filed their reply (Exhibit 32) on 1-8-1997 to the
objection at Exhibit 28. On 4-10-2008, the assignors, assignee and
judgment-debtors in Special Darkhast no.118
of 1995 filed an
application (Exhibit 93) for recording satisfaction of the decree under
Order 21, Rules 1 and 2 of the Civil Procedure Code on the ground that
on 27-3-1995 the deed of assignment of decree at Exhibit 114 was
executed in favour of assignees Ashokkumar Manikrao Raut and
Charansing Sompal Mathuria and that the sale-deed dated 17-11-1995
(Exhibit 217) was also executed in favour of the said assignees by the
judgment-debtors. The applicants in Special Darkhast no.118 of 1995
also filed a pursis (Exhibit 99) for disposing of the execution proceedings
on the ground that the matter has been compromised between the
decree-holder Nos.1 to 7 and the judgment-debtors and hence they do
not want to proceed further with the execution proceedings.
8. The plaintiff Hifzul Kabir also filed another Special Darkhast
No.156 of 1995 on 12-6-1995, under order 21, Rule 11(2) read with
Order 21, Rule 16 of the Civil Procedure Code. The claim in Special
Darkhast No.156 of 1995 was on the basis of the deed of assignment
dated 27-4-1993 at Exhibit 178 said to have been executed by
10 plaintiffs in favour of Hifzul Kabir, who was the eleventh plaintiff in
Special Civil Suit No.163 of 1985. One of the plaintiffs, viz. Abdul Karim
objected to this Special Darkhast by filing his objection (Exhibit 19)
on 1-8-1995. On 18-9-1996, the reply was filed in Special Darkhast
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18
No.156 of 1995 by four other plaintiffs praying for dismissal of the said
Darkhast. On 15-12-2008, the non-applicant Nos.1, 5, 8 and 9 in Special
Darkhast No.156 of 1995 filed their reply at Exhibit 159 opposing the
said Darkhast.
9. In support of the claim in Special Darkhast No.118 of 1995,
four witnesses were examined, viz. (1) Nashir Ajam s/o Makbul Ahmed
Bakshi, one of the plaintiffs and assignors in Exhibit 114, (2) Tulsiram
Virulkar, one of the plaintiffs and assignors in Exhibit 114, (3)
Charansing Sompal Mathuria, one of the assignees and applicants in
Special Darkhast No.118 of 1995, and (4) Shrawankumar, the attesting
witness on Exhibit 114. In support of the claim in Special Darkhast
No.156 of 1995, the applicant Hifzul Kabir examined himself and also
examined one more original plaintiff Syed Shafique Ahmad, who was
one of the assignors in the deed of assignment at Exhibit 178. Both
these deeds of assignments at Exhibits 114 and 178 were unregistered
and were in respect of a decree for specific performance of contract of
immovable property, passed in Special Civil Suit No.263 of 1985.
10. The Executing Court decided both these Special Darkhast
Nos.118 of 1995 and 156 of 1995 by its common order dated 21-8-
2009. Special Darkhast No.118 of 1995, based upon the deed of
assignment dated 27-3-1995 at Exhibit 114 (hereinafter referred to as
“the Deed at Exhibit 114”), was dismissed by upholding the objections
at Exhibits 18 and 28. The Executing Court allowed Special Darkhast
No.156 of 1995 based upon the deed of assignment dated 17-4-1993 at
Exhibit 178 (hereinafter referred to as “the Deed at Exhibit 178”) and
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19
rejected the objections at Exhibits 19, 70 and 159 filed therein and
directed the judgment-debtors to execute and register the sale-deed of
the suit property in favour of the applicant in Special Darkhast No.156 of
1995 within a period of fifteen days. The operative part of this order is
reproduced below :
“1) Application at Exh.1 of SD No.118/95 is hereby
dismissed.
2) Objection at Exh.18 & 28 in SD No.118/95 are hereby
allowed.
3) Application at Exh.93 in SD No.118/95 is hereby
dismissed.
4) Pursis at Exh.99 in SD No.118/95 is not accepted.
5) Application at Exh.1 & 6 of SD No.156/95 is allowed.
6) Objection at Exh.19, 70 & 159 in SD No.156/95 at
hereby dismissed.
7) SD Application No.156/95 be proceeded further. J.Dr. in
SD No.156/95 is directed to execute and to register thesale-deed of suit property in favour of applicant of SD
No.156/95 within a period of 15 days from today.”
11. The Executing Court disbelieved the evidence of
Shrawankumar, the attesting witness, and Charansing Sompal Mathuria
led in support of the Deed at Exhibit 114 in Special Darkhast No.118 of
1995. The oral evidence of Nashir Ajam s/o Makbul Ahmed Bakshi in
support of Exhibit 114 has been held to be not supporting the assignees
in Special Darkhast No.118 of 1995. The oral evidence of Tulsiram s/o
Yeshwantrao Virulkar in support of Exhibit 114 was also considered and
his version, that he signed the blank paper was rejected. The evidence
of Syed Shafique Ahmad, one of the assignors in Exhibit 178, was relied
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20
upon along with the evidence of another plaintiff Nashir Ajam s/o Makbul
Ahmed Bakshi and that of Tulsiram s/o Yeshwantrao Virulkar to hold that
the deed at Exhibit 178 was proved. The finding is recorded that the
applicants in Special Darkhast no.118 of 1995 have failed to prove the
Deed at Exhibit 114. The Executing Court has further recorded the
finding that the Deed at Exhibit 114 was executed by 7 out of 11
decree-holders in favour of strangers, whereas the Deed at Exhibit 178
was executed by 10 decree-holders/plaintiffs in favour of Hifzul Kabir,
who was also one of the original plaintiffs. In respect of the plea that
the Deed at Exhibit 178 was fraudulent, the finding is recorded by the
Executing Court that the decree-holders and the judgment-debtors had
the knowledge of the Deed at Exhibit 178 in the year 1994-95 itself.
The argument that the Deed at Exhibit 178 was not produced before the
Apex Court and that it was suppressed, has been rejected and it has
been held that this was not the issue before the Apex Court. It was
further held that the applicants in Special Darkhast No.118 of 1995 and
the objectors in Special Darkhast No.156 of 1995 have failed to
establish that the Deed at Exhibit 178 was in any manner fraudulent.
12. On the question of withdrawal of the amount deposited and
its redeposit for getting the sale-deed executed and registered, the
Executing Court recorded the finding that it cannot be inferred that the
applicant in Special Darkhast no.156 of 1995 was not ready and willing
to perform the part of the agreement. It was held that the amount was
deposited within the time prescribed in the decree passed by this Court
and also within the time prescribed by the Apex Court to deposit the
enhanced amount of consideration. It was held that the said amount
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21
was withdrawn with the permission of the Court to redeposit the said
amount. It was held that the amount was redeposited as per the order
of the Court and hence there was no question of waiver of claim or
rejection of the Darkhast on the ground that the applicant in Special
Darkhast No.156 of 1995 was not ready and willing to perform his part
of the agreement. It was further the finding recorded that the
applicants in Special Darkhast No.118 of 1995 had failed to establish
that they had deposited the amount pursuant to the decree passed in
First Appeal No.790 of 1991 by this Court and as per the order dated 22-
3-1995 passed by the Apex Court.
ig It was further held that the
remuneration of Rs.4,000/- was paid to the valuer Shri Golghate by the
plaintiff Hifzul Kabir and hence he cannot be denied the execution of a
decree.
13. The Executing Court has further recorded the finding that
the assignee Hifzul Kabir, who was the applicant in Special Darkhast
No.156 of 1995, being one of the plaintiffs, was having pre-existing right
in the decree, the decree did not create any new right in his favour and
hence neither the decree nor the Deed at Exhibit 178 was required to be
registered under Section 17 of the Registration Act. As against this, so
far as the Deed at Exhibit 114 is concerned, it was held that the
assignees were strangers and had no pre-existing right in the suit
property and by the Deed at Exhibit 114, new rights were created in
their favour and hence it required registration under Section 17 of the
Registration Act. On the question of consideration for execution of the
Deed at Exhibit 178, the Executing Court did not record any finding.
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22
14. The plaintiffs, who were the applicants/assignors in Special
Darkhast No.118 of 1995, have preferred Writ Petition No.113 of 2010
and they are represented by Advocate Shri Kshirsagar, whereas the
assignees, who were the applicants in Special Darkhast No. 118 of
1995,
have filed Civil Revision Application No.76 of 2009 and they are
represented by Advocate Shri Gupta. Thus the interest of the
petitioners in Writ Petition No.113 of 2010 and the applicants in Civil
Revision Application No.76 of 2009 is common to challenge the order
passed by the Executing Court. The legal representatives of the
judgment-debtor Santoshrao Bhongade have preferred Writ Petition
No.1691 of 2010 claiming that both the Deeds at Exhibits 114 and 178
have not been proved and hence both the Special Darkhasts are
required to be dismissed.
15. Shri Kshirsagar and Shri Gupta, the learned counsels, have
advanced their arguments in support of the Deed at Exhibit 114 and to
challenge the findings in respect of the Deed at Exhibit 178 recorded by
the Executing Court. Relying upon the decision of the Apex Court
in S.P. Chengalvaraya Naidu (dead) by L.Rs. v. Jagannath (dead) by L.Rs.
and others, reported in AIR 1994 SC 853, the learned counsels have
strenuously urged that the Deed at Exhibit 178 was fraudulently
prepared by the plaintiff Hifzul Kabir and it was never brought to the
notice of the petitioners and the applicants till filing of Special Darkhast
no.156 of 1995 on 12-6-1995, although it was said to have been
executed on 27-4-1993, i.e. immediately on the next date of the
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23
decision in First Appeal No.790 of 1991. According to them, the Deed at
Exhibit 178 was not proved to be genuine, as it was suppressed by the
plaintiff Hifzul Kabir. According to them, the Deed at Exhibit 114 has
been signed on all pages by the assignors and it has been proved in
evidence.
16. It is their further submission that the sale-deed
dated 17-11-1995 at Exhibit 217 has been executed by the judgment-
debtors in favour of the assignees in the Deed at Exhibit 114, which has
satisfied the decree, and unless the proceedings are instituted to
challenge the sale-deed at Exhibit 217, no direction can be given to the
assignees in the Deed at Exhibit 114 to join the execution of the
sale-deed in Special Darkhast No.156 of 1995. They have further urged
that a decree for specific performance of contract, transfers an
immovable property, creating right, title and interest in favour of
decree-holders, so also the Deed at Exhibit 178 and hence either of
these two documents are required to be registered under
Section 17(1)(e) and (b) of the Registration Act and in the absence of it,
the same are inadmissible in evidence. Both the learned counsels have
agreed that on this count, a Deed at Exhibit 114, to which their clients
are parties, would also be inadmissible in evidence, as the same is an
unregistered document and assigns the rights under the decree in
respect of immovable property.
17. It is the further submission of the learned counsels that
there is no evidence on record to show that any consideration was paid
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24
for executing the Deed at Exhibit 178 and hence it would be illegal, void
and unenforceable document and the Executing Court ought to have
dismissed Special Darkhast no.156 of 1995. Shri Naidu, the learned
counsel for the original defendants/judgment-debtors and the
petitioners in Writ Petition No.1691 of 2010, has urged that on the basis
of the aforesaid argument, both the Deeds at Exhibits 114 and 178 are
inadmissible in evidence and the Executing Court ought to have,
therefore, dismissed both the Special Darkhast. It is the common
ground raised by all these three counsels that there was waiver of claim,
when Hifzul Kabir had withdrawn the amount deposited in the Court for
getting the sale-deed executed. Hence, on this count, Special Darkhast
No.156 of 1995 has to be dismissed.
18. Shri Sharif, the learned counsel appearing for the respondent
Hifzul Kabir in all these three matters, has supported the findings
recorded by the Executing Court in its order impugned in all these
matters. He has urged that the Executing Court has recorded the
specific finding that the Deed at Exhibit 178 has been duly proved and
the petitioners and the applicants in all these matters have failed to
establish that the Deed at Exhibit 178 was a fraudulent one. He submits
that the Executing Court, after taking into consideration the
documentary and oral evidence available on record, has recorded the
finding on a possible view of the matter that the Deed at Exhibit 178 is
proved and the petitioners and the applicants in all these matters have
failed to establish that the Deed at Exhibit 178 was fraudulent. On the
question of sale-deed at Exhibit 217 dated 17-11-1995, he has urged
that it is hit by doctrine of lis pendens under Section 52 of the Transfer
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25
of Property Act and the applicants in Special Darkhast no.118 of 1995
are bound to join the sale-deed to be executed and registered in Special
Darkhast no.156 of 1995. He has relied upon the notice dated 22-12-
1986 at Exhibit 176 issued under Section 52(2) of the Transfer of
Property Act read with Section 18 of the Registration Act by the
Registrar about pendency of Special Civil Suit No.263 of 1985. He has
further relied upon Exhibit 177, which
was the notice published in newspaper on 6-10-1991.
He submits that it is not necessary to challenge the sale-deed at Exhibit
217, as urged by the learned counsels for the petitioners and the
applicants.
19. Shri Sharif has further urged that Exhibit 178 is the deed of
conveyance of a decree for specific performance of a contract and it
does not amount to transfer of property attracting the provision of
Section 17(1)(e) of the Registration Act. He submits that the deed of
assignment itself does not create any right, title, interest in or charge on
the suit property, but it is merely creating a right to obtain another
document, which will, when executed, create any such right, title or
interest in an immovable property. For this proposition, he relied upon
the provision of Section 17(2)(v) of the Registration Act and the
provisions of Section 54 of the Transfer of Property Act. He further
submits that what is being sought to be assigned by the Deed at Exhibit
178, is the actionable claim, as contemplated by Section 130 read with
Section 3 of the Transfer of Property Act, which neither requires
registration of it, nor requires an evidence of payment of consideration.
He, therefore, submits that the Executing Court has rightly taken a view,
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26
which does not call for any interference either in writ jurisdiction or in
revisional jurisdiction.
20. Now coming to the question of proof of the Deeds at
Exhibits 114 and 178, the Executing Court has recorded the finding that
the Deed at Exhibit 114 has not been proved, whereas the Deed at
Exhibit 178 has been proved. The Deed at Exhibit 178 was attested by
Hifzul Kabir, the assignee, who has examined himself and one
another
Abdul Wahid, who was not available for examination, as was dead. The
Executing Court has held that one of the original plaintiffs Syed Shafique
Ahmad, who is the assignor in the Deed at Exhibit 178, has admitted his
signature on it and has also stated that 10 decree-holders/plaintiffs
have executed the Deed at Exhibit 178 and it is signed by the attesting
witnesses. The execution and the contents of the Deed at Exhibit 178
have been proved by the said witness. The Executing Court has also
considered the oral evidence of Nashir Ajam s/o Makbul Ahmed Bakshi,
examined by the applicants in Special Darkhast No.118 of 1995, who
has admitted the Deed at Exhibit 178. The Executing Court has further
held that Tulsiram s/o Yeshwantrao Virulkar, examined by the assignees
in the Deed at Exhibit 114, has admitted his signature on Exhibit 178
and his explanation that he signed the blank paper, has been rejected,
as it is not supported by any evidence. In respect of the Deed at Exhibit
114, the Executing Court has recorded the finding that the evidence of
Nashir Ajam s/o Makbul Ahmed Bakshi, examined by the assignees in
the Deed at Exhibit 114, does not support the case. The evidence of
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27
attesting witness Shrawankumar on the Deed at Exhibit 114, has been
disbelieved on the ground that there was variance and it was unsafe to
rely upon it. The evidence of Charansing Sompal Mathuria, the
assignee, has also been disbelieved to prove the genuineness of the
Deed at Exhibit 114. None of the learned counsels appearing for the
petitioners and the applicants in all these matters, could point out any
perversity in recording such findings by the Executing Court. It is not
urged that the findings are not based upon any evidence, nor they have
taken me through the evidence of the witnesses to point out any
discrepancy or variance in the substantial evidence of the witnesses or
that such findings are based upon wrong factual position. There is no
jurisdictional error brought to my notice in recording such findings. The
findings are based upon the evidence available on record and at any
rate it is a possible view of the matter, which does not call for any
interference.
21. On the plea of alleged fraudulent nature of the Deed at
Exhibit 178, the Executing Court has recorded the finding that the
decree-holders and the judgment-debtors had the knowledge of the
Deed at Exhibit 178 in the year 1994-95 itself. The argument that the
Deed at Exhibit 178 was not produced before the Supreme Court and it
was suppressed, has also been rejected on the ground that it was not an
issue before the Supreme Court. The compromise petition at Exhibit
115 dated 16-1-1995 filed before the Supreme Court shows that there is
reference not only to the Deed at Exhibit 178, but also the alleged
fraudulent nature of it. The police complaint dated 7-11-1994 at Exhibit
216 on record also substantiates the fact of knowledge. At any rate,
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this fact was pointed out by the parties to the Deed at Exhibit 114,
before the Supreme Court and the Supreme Court made it clear that no
opinion is expressed. It was, therefore, open for the parties to lead
evidence in execution proceedings to establish the alleged fraudulent
nature of the Deed at Exhibit 178. However, the rival parties have failed
to establish it.
22. The manner in which the proceedings are conducted by the
parties after the dismissal of Special Civil Suit No.263 of 1985 by the
Trial Court on 17-9-1991 gives an
ig impression that there was
some
understanding amongst all the plaintiffs/decree-holders about the
prosecution of the proceedings to its logical end. The intrinsic evidence
in the Deed at Exhibit 178 shows that it was executed in lieu of the
assignee (Hifzul Kabir) agreeing to deposit the entire decretal amount
on behalf of the decree-holders/assignors in the Court. The evidence of
the plaintiff Hifzul Kabir recorded in the execution proceedings shows
that the Deed at Exhibit 178 bears the signatures of some of the
plaintiffs, who have admitted the execution of the said deed. It is also
not in dispute that the plaintiff Hifzul Kabir deposited an amount of
Rs.1,43,000/- on 7-6-1993, i.e. within the time stipulated by this Court in
its judgment and decree passed on 26-4-1993 in First Appeal No.790 of
1991. There is also no challenge to the finding that the plaintiff Hifzul
Kabir deposited the balance amount of Rs.6,20,000/- on 3-6-1995 and it
is neither the case of the other decree-holders nor the assignees in the
Deed at Exhibit 114 that they had contributed for deposit of the said
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29
amount. If the plaintiff Hifzul Kabir had not deposited the entire
amount, then his claim for withdrawal of the said amount and for
redeposit of it would have been opposed by the other plaintiffs/decree-
holders or the judgment-debtors on the ground that they had deposited
this amount or any part thereof in the Court and the plaintiff Hifzul Kabir
had no right to withdraw the entire amount. On the contrary, reply to
Exhibit 66, the application for permission to withdraw, is silent and order
dated 23-9-1997 below Exhibit 66 shows no objection by the main
objectors. It is the plaintiff Hifzul Kabir, who had redeposited the
amount in the Court vide Exhibit 105 dated 27-3-2001 after getting
permission from the Court and it was not challenged. The Executing
Court has recorded the finding in Special
Darkhast No.156 of 1995 that the
assignors in the Deed at Exhibit 114 have failed to lead evidence to
prove their objection to the Deed at Exhibit 178 that it was fraudulent
in nature.
23. The question whether the deed of assignment at Exhibit 178
was fraudulent or not, is a question of fact, which is required to be
decided in the facts and circumstances of each case and on
appreciation of evidence available on record. Although this fact was
brought to the notice of the Supreme Court, when order was passed on
22-3-1995, no opinion was expressed on it and hence the questions of
genuineness and validity of the Deeds at Exhibits 114 and 178 being
those falling under Section 47 of the Civil Procedure Code, it was open
to be agitated in execution proceedings. The judgment of the Apex
Court in S.P. Chengalvaraya Naidu (dead) by L.Rs. v. Jagannath (dead) by
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L.Rs. and others, reported in AIR 1994 SC 853, turns upon the facts of
that case, wherein it was held that the preliminary decree was obtained
by playing fraud on the Court. I have already held that the findings
recorded by the Executing Court are that the parties to the Deed at
Exhibit 114 have failed to establish that the Deed at Exhibit 178 was
fraudulent, which does not call for any interference. In view of this, the
said judgment is of, therefore, no help to the petitioners and the
applicants.
24. Now, turning to the question whether a decree for specific
performance and the Deed at Exhibit 178 amount to transfer of property
to attract the requirement of compulsory registration, the provisions of
the Transfer of Property Act will have to be seen first. The provisions
of
the Transfer of Property Act contemplate various modes of transfer of
properties, like transfer by sale, mortgage, lease, exchange, gifts, etc.
The said provisions also deal with the transfer of an actionable claim,
apportionment, creation of charge over the property, etc. The
semblance is to the provisions of Section 54 of the Transfer of Property
Act, dealing with the sale of immovable property, the same being
relevant is reproduced below :
” “Sale” defined.– “Sale” is a transfer of ownership in
exchange for a price paid or promised or part-paid and part-
promised.
Sale how made.–Such transfer, in the case of tangible
immovable property of the value of one hundred rupees and
upwards, or in the case of a reversion or other intangible::: Downloaded on – 09/06/2013 16:44:34 :::
31thing, can be made only by a registered instrument.
In the case of tangible immovable property of a value
less than one hundred rupees, such transfer may be made
either by a registered instrument or by delivery of theproperty.
Delivery of tangible immovable property takes place
when the seller places the buyer, or such person as he
directs, in possession of the property.
Contract for sale.–A contract for the sale of
immovable property is a contract that a sale of such property
shall take place on terms settled between the parties.
It does not, of itself, create any interest in or charge on
such property.”
25. Section 54, reproduced above, makes out a clear distinction
between a “Sale” and a “Contract for Sale” in respect of an immovable
property. The sale is complete upon execution of the sale-deed and in
case of an immovable property exceeding the value of one hundred
rupees, the ownership or title to such property validly passes on to the
purchaser, only upon registration of such sale-deed, which attracts
stamp duty as conveyance under Item 20 of Schedule I of the Stamp
Act. Merely because purchase money is paid and possession is
obtained, that by itself will not pass on a valid title upon the purchaser.
As against this, a contract for sale by itself does not create any interest
in or charge on the immovable property agreed to be sold. It is not the
same as “sale” and the title to the immovable property remains with
the vendor. A “contract for sale” is complete upon execution of the
document, i.e. the agreement to sale. It is, however, not required to be
compulsorily registered to seek its enforcement in the Court of law, in
view of the proviso to Section 49 of the Registration Act, even if the
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32
property agreed to be sold is of the value exceeding one hundred
rupees. A registered sale-deed of immovable property, by itself is the
conclusive evidence of the ownership or the title in respect of the
property purchased. However, a contract for sale of immovable
property, merely provides a right to seek specific performance of
contract, which the Court may or may not grant. If such a decree for
specific performance is not granted, the matter ends there and the
vendor is free to deal with the property in any manner, without any let,
hindrance, claim, etc. from the purchaser in a contract for sale.
26.
The question is, when a decree for specific performance of
contract is passed, does it extinguish the contract for sale, which is the
subject matter of suit ? The answer is found in the following passage in
para 25 of the judgment of the Apex Court in Hungerford Investment
Trust Ltd. (In Voluntary Liquidation) v. Haridas Mundhra and others,
reported in AIR 1972 SC 1826 :
” We have already indicated that the contract between
the parties was not extinguished by the passing of the
decree, that it subsisted notwithstanding the decree. It was
an implied term of the contract and, therefore, of the decree
passed thereon that the parties would perform the contract
within a reasonable time. To put it in other words, as the
contract subsisted despite the decree and as the decree did
not abrogate or modify any of the express or implied terms ofthe contract, it must be presumed that the parties to the
decree had the obligation to complete the contract within a
reasonable time.”
The aforesaid decision has been followed by the Apex Court in its
subsequent judgment in Kumar Dhirendra Mullick and others v. Tivoli
Park Apartments (P) Ltd., reported in (2005) 9 SCC 262, and a law laid
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down is stated in para 27 as under :
” In the case of Hungerford Investment Trust Ltd. v.
Haridas Mundhra it has been held that when the court passes
the decree for specific performance, the contract between
the parties is not extinguished. That the decree for specific
performance is in the nature of preliminary decree and the
suit is deemed to be pending even after the decree. Hence,
the court retains control over the entire matter even afterthe decree. Since the court retains control over the matter,
despite the decree, it is open to the court to order rescission
of the agreement, when it is found that the decree-holder is
not ready and willing to abide by his obligations under the
decree.”
27.
In the light of the aforesaid judgments of the Apex Court, it
has to be held that the contract between the parties is not extinguished,
upon passing of a decree and it subsists notwithstanding the decree.
Passing of the decree does not abrogate or modify any of the express or
implied terms of the contract. The parties to the contract continue to
bear their rights and obligations to complete the contract in
accordance
with the terms and conditions of the contract. It does not confer an
indefeasible right upon the decree-holder to get the property
straightaway in his own name. The decree for specific performance of
contract is in the nature of a preliminary decree and the Court passing
the decree continues to retain its control over the entire matter and the
suit is deemed to be pending, even after such a decree. Such decree is
subject to the further process, upto the stage of execution of the sale-
deed and its registration. The Court continues to monitor the further
process and may either direct the execution of the sale-deed by the
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34
vendor or the execution of the sale-deed through the process of Court
or even to refuse the execution of the sale-deed, if it is found that the
decree-holder is not ready and willing to abide by his obligations, which
are traceable either to the contract for sale or to the terms of such
decree. In a given case, the Court may also order rescission of the
agreement, to do equity. Thus, the grant of specific performance and
its execution is an equitable relief and he who seeks equity can be put
on the terms to ensure that the equity is done to the opposite party.
Merely because a decree for specific performance is passed, it cannot
be presumed that a decree-holder is bound to get the sale-deed
executed in his favour.
28. Thus, a decree for specific performance passed on the basis
of an agreement to sale or a contract for sale, merely recognizes a
claim for specific performance of contract, which is capable of being
specifically enforced at the instance of a decree-holder. It does not
elevate the status of a decree-holder, subsisting prior to passing of such
a decree, to that of the owner of the property in question. It does not
create any right, title, interest in or charge on the immovable property
in favour of a decree-holder. Even in respect of such a decree, the sale
would be complete only upon the execution of the sale-deed in favour of
the decree-holder either by the vendor/judgment-debtor or through the
process of the Court. It is only upon the registration of such sale-deed
upon payment of stamp duty under Item 20 of Schedule I of the Stamp
Act, that any right, title and interest in such property shall validly pass
on to the decree-holder, who is the purchaser of the suit property.
Hence, mere passing a decree for specific performance of contract does
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35
not result in the transfer of property.
29. The argument based upon the provisions of
Section 17(1)(b)(e) and Section 17(2)(v) of the Registration Act in
respect of registration of a decree for specific performance of contract,
is required to be dealt with. The said provisions, being relevant, are
reproduced below :
“17. Documents of which registration is compulsory.–
(1) The following documents shall be registered, if the
property to which they relate is situate in a district in which,
and if they have been executed on or after the date on which,
Act XVI of 1964, or the Indian Registration Act, 1866, or theIndian Registration Act, 1871, or the Indian Registration Act,
1877, or this Act came or comes into force, namely,–
(b) other non-testamentary instruments which
purport or operate to create, declare, assign, limit or
extinguish, whether in present or in future, any right, title orinterest, whether vested or contingent, of the value of one
hundred rupees and upwards, to or in immovable property.
(c) non-testamentary instruments which
acknowledge the receipt or payment of any consideration on
account of the creation, declaration, assignment, limitation or
extinction of any such right, title or interest; and
(d) leases of immovable property from year to year,
or for any term exceeding one year, or reserving a yearly
rent;
(e) Non-testamentary instruments transferring or
assigning any decree or order of a Court or any award whensuch decree or order or award purports or operates to create,
declare, assign, limit or extinguish, whether in present or in
future, any right, title or interest, whether vested or
contingent, of the value of one hundred rupees and upwards,
to or in immovable property.”
(2) Nothing in clauses (b) and (c) of sub-section (1)
applies to–
(v) any document other than the documents
specified in sub-section(1-A) not itself creating, declaring,::: Downloaded on – 09/06/2013 16:44:34 :::
36assigning, limiting or extinguishing any right, title or interest
of the value of one hundred rupees and upwards to or inimmovable property, but merely creating a right to obtain
another document, which will, when executed, create,
declare, assign, limit or extinguish any such right, title orinterest.
(vi) any decree or order of a Court except a decree or
order expressed to be made on a compromise and comprising
immovable property other than that which is the subject-
matter of the suit or proceeding.”
Relying upon the provisions of Section 17(1)(b) and Section 17(1)(e) of
the Registration Act, Shri Kshirsagar, Shri Gupta and Shri Naidu, the
learned counsels appearing for the applicants in Special Darkhast
No.118 of 1995 and the judgment-debtors, have urged that a decree for
specific performance of contract is covered by Section 17(1)(e) of the
Registration Act and the Deed at Exhibit 178 is covered by Section 17(1)
(b) of the Registration Act.
30. Section 17(1)(e) deals with an assignment of a decree of a
Court, when such decree purports or operates to create, declare, assign,
limit or extinguish, whether in present or in future any right, title or
interest, whether vested or contingent of the value of one hundred
rupees and upwards, to or in immovable property. What is
contemplated by this provision is that the decree passed itself, should
purport or operate to create, declare, assign, limit or extinguish,
whether in present or in future any right, title or interest, whether
vested or contingent of the value of one hundred rupees and upwards,
to or in immovable property. As pointed out earlier, the decree for
specific performance of contract by itself, does not create right, title or
interest in or charge on the immovable property in favour of a decree-
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37
holder. Hence, the provision of Section 17(1)(e) is not at all attracted.
Though the Executing Court was right in holding that neither the decree
nor the Deed at Exhibit 178 required registration, it committed an error
in holding that the Deed at Exhibit 114 was required to be registered.
31. Relying upon the judgment of the Apex Court in Bhoop Singh
v. Ram Singh Major and others, reported in AIR 1996 SC 196, it is urged
that a compromise decree is held to be compulsorily registrable under
the provisions of Section 17(2)(vi) of the Registration Act and by the
same analogy a decree for specific performance of contract is also
compulsorily registrable. The law laid down by the Apex Court is
contained in paras 16 and 17 of the judgment, which are reproduced
below :
“16. We have to view the reach of Clause (vi), which is an
exception to sub-section (1), bearing all the aforesaid inmind. We would think that the exception engrafted is meant
to cover that decree or order of a Court, including decree or
order expressed to be made on a compromise, which
declares the pre-existing right and does not by itself create
new right, title or interest in praesenti in immovable propertyof the value of Rs.100/- or upwards. Any other view would
find the mischief of avoidance of registration, which requires
payment of stamp duty, embeded in the decree or order.”
“17. It would, therefore, be the duty of the Court to
examine in each case whether the parties have pre-existing
right to the immovable property, or whether under the orderor decree of the Court one party having right, title or interest
therein agreed or suffered to extinguish the same and
created right, title or interest in prasenti in immovable
property of the value of Rs.100/- or upwards in favour of
other party for the first time, either by compromise or
pretended consent. If latter be the position, the document is
compulsorily registrable.”
The decision is on clause (vi) of Section 17(2) of the Registration Act,
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38
which deals with any decree or order of a Court, which is exempted from
registration under clauses (b) and (c) of Section 17(1) of the said Act. It
has been held that the exception engrafted therein is meant to cover
that decree or order expressed to be made on compromise, which
declares the pre-existing right and does not by itself create new right,
title or interest in praesenti in immovable property of the value
exceeding one hundred rupees. The Executing Court has recorded the
finding that Hifzul Kabir was one of the plaintiffs and was having pre-
existing right in the decree. Assuming this finding to be correct, the
exemption under clause (vi) of Section 17(2) of the said Act would
apply. Be that as it may, a decree for specific performance of contract,
as has already been held, neither extinguishes right, title or interest in
the immovable property, nor creates right, title or interest in immovable
property and hence it is not compulsorily registrable under clauses (b)
and (c) of Section 17(1) of the said Act. Hence, the said judgment is of
no help to the petitioners and the applicants.
32. The next judgment relied upon by the learned counsels for
the petitioners and the applicants is reported in Raychand Jivaji v.
Basappa Virappa Bellary, reported in AIR 1941 Bombay 71. It is urged
that a decree creating charge over an immovable property of the value
exceeding one hundred rupees, is required to be compulsorily registered
under clause (e) of Section 17(1) of the Registration Act. It is a decision
rendered by the Division Bench in Letters Patent Appeal concurring with
the view taken by the learned Single Judge. The view taken by the
learned Single Judge is also reported and the relevant portion is
contained in column 1 of page 72, which is reproduced below :
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39
” It is contended on behalf of the appellant that this view is
wrong. Section 17(1)(e), Registration Act, provides that non-
testamentary instrument transferring or assigning any decree
or order of a Court or any award when such decree or order or
award purports or operates to create, declare, assign, limit or
extinguish, whether in present or in fuure, any right, title or
interest whether vested or contingent, of the value of one
hundred rupees and upwards to or in immovable property
shall be registered. By the charge the property mentioned in
the decree is made a security for the payment of the money
to the decree-holder. Although by this charge no right in rem
is created, nevertheless, the right created is something more
than a mere personal obligation. It is a right to payment out
of the property specified, and for the purposes of S.17(1)(e)
there is, in my opinion, a very little difference between a
charge and a simple mortgage. It was held in 1 Bom 267 that
where a mortgagee obtained a decree against his mortgagor
for the payment of the mortgage moneys and in default for
the sale of the mortgaged property, and his heirs afterwards
executed an assignment of the decree, for valuable
consideration, to the plaintiff who proceeded to execute the
decree by sale of the mortgaged property, the assignment
was a document compulsorily registrable under the
Registration Act. This view was followed in 11 Bom LR 356. A
different view has been taken by the Calcutta and Allahabad
High Courts in 23 Cal 450 and 13 ALL 89 in which it was held
that such an assignment did not require registration on the
ground that the assignment is not of any interest in
immovable property but of the decree itself, and the decree,
though it be a decree upon a mortgage bond, can in no sense
be regarded as immovable property, and further on the
ground that the assignment does not of itself create an
interest in immovable property. Neither the Bombay ruling
nor the Allahabad and Calcutta rulings are directly in point so
far as the present appeal is concerned, since they relate to
assignments of mortgage decrees and not to assignment of a
decree creating a charge, but the principle of the Bombay
decision applies, in my opinion, to the present case. The view
taken by the Calcutta High Court in 23 Cal 450 that the deed
of assignment does not in itself operate to create any right,
title or interest and that all that it assigns is the decree, is
clearly in conflict with the view which the Bombay High Court
took in 1 Bom 267. The assignment of a decree which
creates a charge on the property is, in my opinion, clearly an
assignment coming with the purview of S.17(1)(e). There is
nothing in the language of that section which can support the
contention urged on behalf of the appellant, that only
assignments of decrees which are simultaneous with the
making of the decrees are covered by that section, and that
where the decree had already created the interest long
before the assignment was made, the assignment would not
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40
be governed by cl. (e). The language of the clause is wide
enough to cover all decrees whether made prior to the
assignment or simultaneously with the assignment. The view
taken by the learned trial Judge is therefore, in my opinion,
correct.”
The Division Bench expressed its views in column 1 of page 74 as
under :
” This provision by which transfers and assignments of
decrees are made compulsorily registrable was added by anamending Act in 1929. There was formerly a conflict of
authority as to whether an assignment of a decree creating
or declaring rights to or in immovable property exceedingRs.100 in value was compulsorily registrable under S.17(1)
(b). The Calcutta and Allahabad High Courts said registration
was not necessary because the assignment was not of anyimmovable property but of the decree itself and the
assignment did not of itself create an interest in the property.
This High Court took a different view in 1 Bom 267 and 11
Bom LR 356. But we are concerned not with S.17(1)(b) but
with the new provision in S.17(1)(e), which I have just read,
and it is now quite clear that all that has to be considered iswhether the decree or order or award as the case may be
creates or declares, etc., a right to or in immovable propertyof a value exceeding Rs.100. If it does, the assignment of it
is compulsorily registrable. In 1 Bom 267 the facts were that
a mortgagee had obtained a decree against his mortgagorsfor the payment of the mortgage moneys and in default for
the sale of the mortgaged property, and his heir executed an
assignment of the decree to the plaintiff who proceeded to
execute it by sale of the mortgaged property. It was held
that the assignment was a document of which the
registration was compulsory. No judgment appears to have
been delivered by this Court which merely expressedconcurrence in the decision of the lower Courts. But in the
report a passage is cited from the judgment of the District
Judge, which was the Court of first appeal.
The deed of sale, under which this decree was
transferred from Damodar to Gopal, purported to
assign to Gopal certain interest in immovable
property; for it gave to him the liberty to sell by
auction, by executing the decree against it, the
defendant’s house; and this liberty to sell was
certainly an interest in immovable property and the::: Downloaded on – 09/06/2013 16:44:34 :::
41decision of the Subordinate Judge was, I think, right,
and must therefore be confirmed.
We must take it, I think, that this Court in dismissing
the appeal concurred in this reasoning. It is a very old case,but it does not appear to have been dissented from, and on
the contrary it was followed in 11 Bom LR 356, as I have said.
Apart from these Bombay cases there are several other
authorities for the view that a charge is a right to or in
immovable property within the meaning of the Registration
Act. One of these cases was cited by the learned counsel forthe appellant himself, 28 ALL 655. In his judgment in that
case Richards J., said (page 659) ”
It would appear that the provisions as to
registration contained in the Registration andTransfer of Property Acts apply to charges (when
created by acts of parties) just as much as to
mortgages….
In 58 Cal 136 it was held by Rankin C.J. That a mere
charge on immovable property is within cl.(1)(b) of S.17,Registration Act, because, as he said, it is a right in
immovable property – a right to have it brought to sale to
realize a sum of money to be paid to the chargee. The
decision in this case was reversed in 58 IA 323, but, on
another point, unconnected with the question of registration.
Then there is a very recent decision of the Calcutta HighCourt in 43 CWN 858, in which the Court was concerned with
a decree for arrears of rent which created a charge onimmovable property. It was held that because it created a
charge it came within the terms of S.17, Registration Act. Mr.
Desai referred us to 35 Cal 837, in which the question was
whether a decree by which immovable property was
hypothecated was void because there was no duly registeredinstrument as required by S.17. The Court disallowed the
argument but that was done by reason of a provision which
was then contained in the Act by which decrees were
exempted from the rule as to compulsory registration of
documents. We think there can be no doubt that N.J. Wadia J.
was right in holding that this deed of assignment required
registration.”
It has been held that all that has to be considered is that whether the
decree or order or award, as the case may be, creates or declares, etc.,
a right to or in immovable property of the value exceeding one hundred
rupees. If it does, the assignment of it is compulsorily registrable. I
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42
have already taken a view that the decree for specific performance of
contract does not by itself create right, title or interest in or charge on
the immovable property and hence it is in conformity with the view
expressed in the aforesaid judgment.
33. Shri Kshirsagar, the learned counsel, then relied upon the
judgment of the Andhra Pradesh High Court in K. Bhaskaram and
another v. Mohammad Moulana (Died) and others, reported in AIR 2005
AP 524. It is the decision rendered by the learned Single Judge. A suit
for specific performance of contract was decreed by the Trial Court and
was also confirmed in appeal. The execution petition was filed and it
was signed by all the decree-holders. During the pendency of the
proceedings, an application was filed under Order 21, Rules 15 and 16
of the Code of Civil Procedure to direct the judgment-debtors to execute
and register the sale-deed relating to the suit schedule property in
favour of the plaintiff No.4/decree-holder No.4. The question was
whether the assignment of decree in respect of immovable property
requires registration. The relevant observations are contained in paras
13 and 18 of the judgment, which are reproduced below :
“13. In the instant case, admittedly, the transfer of the
decree by way of assignment by the decree-holder Nos.3 and5 to 8 in favour of the decree-holder No.4 requires
registration under Section 17 of the Registration Act. If the
said decree was transferred by a registered instrument by the
other decree-holders in favour of the decree holder No.4,
then under the first proviso to Rule 16, Order 21, C.P.C., the
decree-holder No.4 shall file an application giving a notice to
the other decree-holders who have transferred their right of
decree by way of assignment as well as the
judgment-debtors-appellants herein. Admittedly, no such
notice has been issued to the transferors as well as the
judgment-debtors about the so-called assignment of the::: Downloaded on – 09/06/2013 16:44:34 :::
43decree.”
“18. …In the instant case, it is the case of the decree-
holder No.4 that he has got the assignment of decree in
immovable property from other decree-holders andadmittedly, such transfer of decree by way of assignment,
transferring the right in respect of the immovable property,
requires registration and therefore, the said judgment also
supports the contention of the learned counsel appearing for
the appellants-judgment-debtors.”
It is thus apparent that the parties before the Court admitted the
position that the transfer of decree by way of assignment requires
registration. In fact, there is no adjudication whether the decree for
specific performance of contract transfers any right, title and interest in
the immovable property of the value exceeding one hundred rupees.
The Court proceeds on the concession given on the point of law, which
cannot be said to lay down any ratio. Even if it is the ratio of the
judgment, I am unable to agree with it, for the reason that I have
already taken a view that the assignment of a decree for specific
performance of contract does not amount to transfer of property and
hence the judgment will not help the learned counsel for the petitioners.
34. What is next contended is that if the decree does not create
any such right, title or interest in an immovable property, then it is the
Deed at Exhibit 178, which creates right, title or interest in an
immovable property in favour of the assignee and the same is,
therefore, covered by Section 17(1)(b), reproduced above. This
argument also cannot be accepted. What has been conveyed by
executing the Deed at Exhibit 178, is the claim for specific performance
of contract in terms of the decree by the decree-holders/assignors in
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44
favour of the assignee. Clause 2(A) of this Deed at Exhibit 178 is
reproduced below :
“(2) AND WHEREAS, the Ten Assignors abovenamed have
agreed to assign the above decree in First Appeal No.790 of
1991 in favour of the Assignee for purposes of completing
their part of the transaction by depositing in the Trial Court,
the balance sale consideration of Rs.1,43,000/-. Consts ofstamps and Registration Fees within the time stipulated by
the decree for the reason that the Assignors are today not in
a position even to collectively arrange the sum of
Rs.1,30,000/- (Rupees One Lakh Thirty Thousands Only)
representing their 10/11th share of the balance saleconsideration besides an identical share of expenses to be
deposited on account of costs of stamps and registration fees
for effective compliance of the terms of the decree aforesaidwithin the time limited thereby – NOW THIS DEED
WITNESSES :-
(A) That in pursuance of the above solemn agreement and
in consideration of the assurance and undertaking by the
Assignee to fulfill each and every obligation cast upon the
Assignors by the Judgment and Decree aforesaid, the
assignors/Party No.1 do hereby and hereunder transfer,
assign and abdicate in favour of the Assignee all their rights,title, interest and benefits accruing to them under the decree
Dt.26/04/1993 in First Appeal No.790 of 1991 of the HighCourt of Judicature at Bombay, Nagpur Bench, Nagpur and all
benefits and advantages thereof including the right to
execute the same in any manner prescribed by law to have
the same executed by the Assignee and for his benefit
absolutely.”
All the plaintiffs are the parties to the Deed of Assignment at Exhibit
178. Out of 11 plaintiffs, 10 plaintiffs are the assignors and one plaintiff,
viz. Hifzul Kabir, is the assignee. It is the decree for specific
performance of contract for sale dated 10-2-1982 in respect of an
immovable property of the value more than one hundred rupees passed
in Special Civil Suit No.263 of 1985 on 26-4-1993, which has been
assigned by the Deed at Exhibit 178. If the decree itself does not create
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45
or purport to create any right, title or interest in or charge on the
immovable property, then the question of conveying such right, title or
interest in or charge on the immovable property by executing the deed
of assignment, does not arise. Hence the provision of Section 17(1)(b)
of the Registration Act is also not attracted.
35. Shri Sharif, the learned counsel appearing for the
respondent Hifzul Kabir, has urged that the Deed at Exhibit 178 is
covered by Section 17(2)(v) of the Registration Act, as it creates a right
to obtain another document, which will, when executed, create, declare,
assign, limit or extinguish any such right, title or interest. He has relied
upon the decision of the learned Single judge of this Court in Padma Nair
v. Deputy Collector, Valuation and Stamp Duty and another, reported in
1994 Mh.L.J. 497. The question involved therein was whether the
document in question was an agreement for sale of immovable property
or it is a conveyance of immovable property. It was held that the
document was an agreement to sale, which does not by itself create any
interest in or charge on such property. It has been held that an
agreement for sale is merely a document creating a right to obtain
another document of sale on fulfillment of the terms and conditions
specified therein. According to Shri Sharif, the decree for specific
performance of contract has been passed on the basis of an agreement
to sale dated 10-2-1982, which gives the plaintiffs/decree-holders a right
to obtain another document, i.e. the sale-deed. He, therefore, submits
that if this is the decree passed, then the Deed at Exhibit 178 gives a
right to obtain another document, i.e. the sale-deed, pursuant to the
decree for specific performance passed by the Court. Since the
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46
argument is based upon the decision of this Court and the correctness
of the said decision has not been challenged, I am neither required to
express any opinion on it, nor am I expressing opinion on it, in view of
what I have already held.
36. Now coming to the question as to whether the assignment
of a decree for specific performance of contract amounts to transfer of
an actionable claim, the definition of “actionable claim” given in Section
3 of the Transfer of Property Act needs to be seen. The same is,
therefore, reproduced below :
” “actionable claim” means a claim to any debt, other than a
debt secured by mortgage of immovable property or by
hypothecation or pledge of movable property, or to any
beneficial interest in movable property not in the possession,
either actual or constructive, of the claimant, which the Civil
Courts recognise as affording grounds for relief, whether suchdebt or beneficial interest be existent, accruing, conditional
or contingent.”
The “actionable claim” has been defined to mean (1) a claim to any
debt, other than a debt secured by mortgage of immovable property or
by hypothecation or pledge of movable property, or (2) a claim to
any
beneficial interest in movable property not in possession, actual or
constructive, of the claimant, which the Civil Courts recognise as
affording grounds for relief, whether such debt or beneficial interest be
existent, accruing, conditional or contingent.
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47
37. In this respect, the judgment in Shah Mulji Deoji v. Union of
India, representing E.I. Rly., Administration and G.I.P. Rly. Administration,
reported in AIR 1957 Nagpur 31, needs to be seen. It was a case of a
difference of opinion between the two Hon’ble Judges of this Court,
which was referred to a third Judge. The relevant observations in the
said judgment, contained in para 90 thereof, are reproduced below :
“… This Chapter was remodelled and the sections were
rearranged and modified by Act II of 1900. The definition of“actionable claim” contained in S. 130 was transferred to S. 3
which runs as follows :–
“‘Actionable claim’ means a claim to any debt, other
than a debt secured by mortgage of immoveable property or
by hypothecation or pledge of moveable property, or to anybeneficial interest in moveable property not in the
possession, either actual or constructive of the claimant,
which the Civil Courts recognize as affording grounds for
relief, whether such debt or beneficial interest be existent,
accruing, conditional or contingent.”
Actionable claim thus under this definition included claims
recognized by Civil Courts as affording grounds for reliefeither,
(a) as to unsecured debts, or
(b) as to beneficial interests in moveable property not
in possession, actual or constructive, whether
present or future, conditional or contingent.
It cannot be disputed that the rights under a contract are
beneficial interest in moveable properties. They are certainly
not things in possession and a right to the benefit of an
obligation under a contract can only be and are enforced byan action at law. Right to benefit of a contract therefore falls
within the definition of “actionable claim”.”
Section 130 of the Transfer of Property Act deals with the mode of
transfer of an actionable claim. The same has also been considered in
the said judgment and the relevant portion is contained in para 93
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48
thereof, which is reproduced below :
” Section 130 of the Transfer of Property Act describes
the mode of assignment of an actionable claim. It will be
seen that the provisions of this section differ in certain
respects from the provisions of the English law regarding
statutory assignments under the Judicature Act of 1873 or the
Law of Property Act of 1925. The assignment under S. 130 of
the Transfer of Property Act need not be absolute; theassignment can be by way of security also. See Mulraj
Khatau v. Vishwanath, ILR 37 Bom 198 (PC) (Z43).
No consideration is required for the assignment. The
assignment is to be effected by execution of an instrument inwriting signed by the transferor or his authorized agent and is
complete and effectual upon the execution of such an
instrument. No notice to the debtor is required to completethe assignment.
The assignee gets all the rights and remedies of the
assignor, whether by way of damages or otherwise. The
assignee can sue in his own name. It is not necessary for him
to join the transferor as a party to the suit nor to obtain his
consent to such a suit. The proviso is intended only for the
protection of the debtor who, without the knowledge of the
assignment, discharges his obligation to the original creditor.
Such a discharge of obligation without notice is a valid
discharge as against the assignee.”
A decree for specific performance of contract in respect of immovable
property is in the nature of a debt, which is a movable property. It is a
“chose in action”, providing not a right to ownership of corporeal
property, but it is the beneficial interest to obtain right to ownership of
incorporeal property. Black’s Law Dictionary defines it “as a known
legal expression used to describe all personal property, which can be
claimed or enforced by action and not by taking physical possession. It
includes rights under a contract and rights of action arising from breach
of contract.” It creates beneficial interest in the movable property
which can be enforced by action of law. A claimant is entitled to knock
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49
the door of the Court and the Court would recognize the claim for
granting relief. It is heritable and assignable by executing a deed of
conveyance. It is not a right to sue but something more than that and
something less than the right of ownership of immovable property. It
does not require any consideration, which is apparent from the
provisions of Section 130 of the Transfer of Property Act itself. Apart
from that, the judgment reproduced above also holds that no
consideration is required for assignment. The assignment is to be
effected by executing an instrument in writing signed by the transferee
or his authorized agent and it is complete and effectual upon the
execution of such an instrument.
38. A deed of assignment is a contract between the parties.
Take a case where an unregistered deed of assignment of a decree for
specific performance of contract for sale is executed upon certain terms
and conditions. The assignor subsequently detracts from the terms of
such deed either by filing separate proceedings for execution of such
decree or by opposing the claim of the assignee to get such decree
executed in his favour on the basis of such deed. In such situation, the
only remedy available to the assignee is to ask for specific performance
of the deed of assignment and such a claim is enforceable by filing a
suit, in terms of the proviso to Section 49 of the Registration Act against
the assignor, even though the deed of assignment is not registered.
Thus, a deed of assignment of a decree for specific performance of
contract, merely gives a cause of action to a claim for specific
performance of contract of assignment and nothing more. The Deed at
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50
Exhibit 178 conforms to all such requirements and hence it can be
characterised as the transfer of an actionable claim and the absence of
evidence regarding consideration cannot be a ground to hold that the
deed of conveyance is not enforceable. The argument of the learned
counsels appearing for the petitioners and the applicants that the deed
of conveyance is liable to be declared as void for want of consideration,
is, therefore, rejected and it is held that no consideration is required to
be shown to transfer/assignment of a decree for specific performance of
contract, which is an actionable claim.
39.
The next question is whether the respondent Hifzul Kabir is
entitled to seek specific performance of contract on the basis of the
Deed at Exhibit 178. It is not in dispute that he was one of the plaintiffs,
in whose favour a decree has been passed. By this Deed at Exhibit 178,
all the ten plaintiffs have assigned the rights under the decree in favour
of the respondent Hifzul Kabir. Under Section 15(b) of the Specific Relief
Act, the specific performance of a contract may be obtained by the
representative-in-interest or the principal, of any party thereto. The
Apex Court has in its judgment in Shyam Singh v. Daryao Singh (dead)
by L.Rs. and others, reported in AIR 2004 SC 348, has held that the
expression “any party thereto” or “their representative-in-interest”
includes transferees and assignees from contracting party in whose
favour a right exists. It has been held that the implied prohibition
against assignment of a transfer of a right cannot be inferred unless
words or expression in the document clearly indicate such prohibition.
In the document, which deed at Exhibit 178, there is no such prohibition
and, therefore, the assignee being representative-in-interest, as defined
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51
in Section 15(b) of the Specific Relief Act, is entitled to seek the
enforcement of a decree under order 21, Rule 16 of the Civil Procedure
Code. Hence, the respondent Hifzul Kabir has right to seek the
enforcement of contract by filing the execution proceedings.
40. On the question of execution of sale-deed dated 17-11-1995
at Exhibit 217 by the judgment-debtors in favour of assignees in the
Deed at Exhibit 114, the Executing Court has recorded the finding that
the same is hit by the doctrine of lis pendens. The undisputed factual
position is that the notice under Section 52(2) of the Transfer of
Property Act read with Section 18 of the Registration Act about
pendency of Special Civil Suit No.263 of 1985 was issued on 22-12-1986
(Exhibit 176). Similarly, the public notice in newspaper was also given
on 6-10-1991 (Exhibit 177). On both these dates, Special Civil Suit
No.263 of 1985 was pending. When the sale-deed dated 17-11-1995 at
Exhibit 217 was executed, Special Darkhast Nos.118 and 156 of 1995
were pending. I have already taken a view that the proceedings of
Special Civil Suit No.263 of 1985 continue to remain pending even after
passing of a preliminary decree for specific performance of contract.
Any alienation of the suit property pending the decision of the suit was
obviously hit by the provisions of Section 52 of the Transfer of Property
Act and hence it was not necessary for the plaintiff Hifzul Kabir to file a
fresh civil suit for getting a declaration that the sale-deed dated 17-11-
1995 at Exhibit 217 be set aside or cancelled or that it is not binding
upon him. In this respect, para 42 of the judgment of the Apex Court in
Durga Prasad and another v. Deep Chand and others, reported in AIR
1954 SC 75, is relevant and the same is reproduced below :
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” In our opinion, the proper form of decree is to direct
specific performance of the contract between the vendor and
the plaintiff and direct the subsequent transferee to join inthe conveyance so as to pass on the title which resides in him
to the plaintiff. He does not join in any special covenants
made between the plaintiff and his vendor; all he does is to
pass on his title to the plaintiff. This was the course followed
by the Calcutta High Court in – ‘Kafiladdin v. Samiraddin‘,
A.I.R. 1931 Cal 67 (C) and appears to be the English practice.
See Fry on Specific Performance, 6th Edn. Page 90,
paragraph 207; also – ‘Potter v. Sanders’,
(1846) 67 ER 1057 (D). We direct accordingly.”
In view of above, it has to be held that the transferee of the property
during the pendency of the proceedings for execution of a decree for
specific performance of contract, can be directed to join the execution
and registration of sale-deed in respect of the property, which is the
subject matter of execution and it is not necessary for the decree-holder
or his assignee to file a separate suit for challenging such sale-deed.
The purchaser of the property in the registered sale-deed at Exhibit 217
being the subsequent transferee, can be directed by the Executing
Court in Special Darkhast No.156 of 1995 to join the execution and the
registration of the sale-deed. The argument that the doctrine of lis
pendens does not apply to the proceedings of execution of a decree
passed in the suit for specific performance of contract, is, therefore,
rejected.
41. The question is whether by executing the sale-deed at
Exhibit 217 the judgment-debtors can intervene or defeat the right of
assignee in the Deed at Exhibit 178 by making adjustment with the
other decree-holders. The Supreme Court, in its judgment in Dhani Ram
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Gupta and others v. Lala Sri Ram and another, reported in AIR 1980 SC
157, has dealt with this aspect of the matter. The Supreme Court has
confirmed the view taken by the Calcutta High Court reported in
(1899) ILR 26 Cal 250. The relevant quotation from the judgment of the
Calcutta High Court, as it appears in para 4 of the judgment of the Apex
Court, is reproduced below :
” “…If, however, there is an assignment pending
proceedings in execution taken by the decree-holder, I seenothing in the Code which debars the Code from recognising
the transferee as the person to go on with the execution. The
recognition of the Court is no doubt necessary before he canexecute the decree, but it is the written assignment and not
the recognition which makes him the transferee in law. The
omission of the transferee, if it was an omission, to make aformal application for execution, was merely an error of
procedure and does not affect the merits of the case……It is
argued for the respondent that the transferee’s title was not
complete as express notice of the transfer had not been
given to the judgment-debtor. As already observed, the
transfer, as between transferor and the transferee, is affectedby the written assignment. If the judgment-debtor had no
notice of the transfer and being otherwise unaware of it paidthe money to the decree-holder, the payment was, of course,
a good payment, and he cannot again be held liable to the
transferee” …”
The Supreme Court has clearly expressed its agreement with the
aforesaid observations made by the Calcutta High Court. In view of this,
it has to be held that if there is an assignment pending proceeding in
execution, taken by the decree-holder, there is nothing in the code,
which debars the code from recognising the transferee as the person to
go on with execution. The judgment-debtor cannot defeat the right of
assignee, by making adjustment with other decree-holders. The
transfer of property by executing the sale-deed at Exhibit 217 in this
case was made during the pendency of the execution proceedings, of
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which the judgment-debtor had the notice. Hence, any such adjustment
out of Court cannot defeat the right of the assignee in the Deed at
Exhibit 178.
42. Now, lastly coming to the question of plea of waiver,
Shri Sharif, the learned counsel, has relied upon the judgment of the
Supreme Court in M/s. Motilal Padampat Sugar Mills Co. Ltd. v. The State
of Uttar Pradesh and others, reported in AIR 1979 SC 621. In para 5 of
the said judgment, the Supreme Court has held that in the first place, it
is elementary that waiver is a question of fact and it must be properly
pleaded and proved. No plea of waiver can be allowed to be raised
unless it is pleaded and the factual foundation for it, is laid down in the
pleadings. In para 6 of the said judgment, it has been held that waiver
means the abandonment of right and it may be either express or
implied from the conduct, but its basic requirement is that it must be
“an intentional act with knowledge”. There can be no waiver unless the
person, who is said to have waived, is fully informed as to his right and
with full knowledge of such right, he intentionally abandons it. For a
waiver to be effectual, it is essential that the person granting it should
be fully informed as to his rights. In another judgment of the Supreme
Court in Provash Chandra Dalui and another v. Biswanath Banerjee and
another, reported in AIR 1989 SC 1834, a distinction has been made
between the waiver and estoppel, and para 21 of the said
judgment
being relevant, the same is, therefore, reproduced below :
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” The essential element of waiver is that there must be a
voluntary and intentional relinquishment of a known right orsuch conduct as warrants the inference of the relinquishment
of such right. It means the forsaking the assertion of a right
at the proper opportunity. The first respondent filed suit atthe proper opportunity after the land was transferred to him,
and no covenant to treat the appellants as Thika tenants
could be shown to have run with the land. Waiver is distinct
from estoppel in that in waiver the essential element is actual
intent to abandon or surrender right, while in estoppel such
intent is immaterial. The necessary condition is thedetriment of the other party by the conduct of the one
estopped. An estoppel may result though the party estopped
did not intend to lose any existing right. Thus voluntary
choice is the essence of waiver for which there must have
existed an opportunity for a choice between therelinquishment and the conferment of the right in question.
Nothing of the kind could be proved in this case to estopp the
first respondent.”
43. The plaintiff Hifzul Kabir filed an application Exhibit 66 in the
Trial Court for permission to withdraw the amount of Rs.7,63,000/-
deposited by him. The contents of the said application are reproduced
below :
“Application for permission to withdraw the amount of
Rs.7,63,000/- deposited by Decree Holder Hifzul Kabir.
The decree-holder Hifzul kabir begs to state and apply as
under :-
1. That it is a matter of record that the decree holder
Hifzul Kabir had deposited the following amounts in the CCD
of this Hon’ble Court :-
Rs.1,43,000.00 - CCD No.324 of 7.6.1993
Rs.2,00,000.00 - CCD No.286 of 8.5.1995
Rs.3,20,000.00 - CCD No.287 of 8.5.1995
Rs.1,00,000.00 - CCD No.288 of 8.5.1995
---------------------
Rs.7,63,000.00 - Total
2. The proceedings in the above execution application are
inordinately delayed in view of the fact that some strangers
by playing fraud commenced execution proceedings in their
name styling themselves as decree holders, being S.D.
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No.118 of 1995 in another Court. At any rate both the
proceeding are now before one and the same court.
3. The amount deposited by the decree holder Hifzul Kabir
is his personal amount deposited by him in CCD and the hugeamount is lying in deposit without interest. Since the present
execution proceeding shall take quite sometime for being
finally disposed of, it is necessary in the interests of justice as
also expedient in the facts and circumstances of the case to
permit the decree holder Hifzul Kabir and the said amount be
paid to him by means of a cheque in his name. The decreeholder shall deposit whatever amount that may be directed
by this Hon’ble Court upon the conclusion of the present
execution proceedings, so that he could utilize the said
amount in his other businesses.
Prayer : It is, therefore, humbly and respectfully prayed
that the said amount of Rs.7,63,000/- be refunded
to the decree holder Hifzul Kabir, in the interest ofjustice.
Decree holder
Nagpur
11th August 1997Counsel for D.Hrs.”
The aforesaid contents were not denied. The Trial Court passed an
order below Exhibit 66 on 23-9-1997 as under :
“Read the application and reply by main contesting parties
J.Dr.(a) to J.Dr.(d). Heard arguments. Shri Jain, the learned
counsel for main objector has no objection to withdraw the
amount. The entire amount is deposited by D.Hr. Hifzul Kabir.
Matter is not likely to be decided in near future and hence, Iallow D.H. Hifzul Kabir to withdraw Rs.7,63,000/-. This
withdrawal of amount shall be on his risk. In view of the
order of Hon’ble Supreme Court, Nazir to comply.”
Subsequently Hifzul Kabir filed an application Exhibit 105 on 27-3-2001
for grant of permission to deposit the said amount. The Executing
Court passed an order on 6-2-2009 holding that it is just and desirable
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to permit the applicant to redeposit the amount without prejudice to the
rights of the non-applicants, if any, in the background of the case. It is
not disputed that the entire amount was deposited by Hifzul Kabir
within the time stipulated in the decree passed by this Court and the
order passed by the Apex Court on 22-3-1995. The withdrawal of the
amount was not with an intention to waive his rights, which is apparent
from the contents of the application itself and there was always
readiness and willingness on his part to redeposit the said amount.
There is neither any pleading nor any evidence to establish that there
was waiver on the part of the plaintiff Hifzul Kabir while withdrawing the
amount. Hence, the contention raised is, therefore, rejected.
44. For the reasons stated above, Writ Petition Nos.113 of 2010,
1691 of 2010 and Civil Revision Application No.76 of 2009 are all
dismissed. Rule is discharged. No order as to costs.
45. At this stage, Shri Gupta, the learned counsel appearing for
the applicants in Civil Revision Application No.76 of 2009, prays for
continuation of interim order passed by this Court for a further period of
two months so as to enable the applicants to prosecute their further
remedies as are available in law.
46. Shri Sharif, the learned counsel appearing for the
respondent No.5 in Writ Petition No.113 of 2010 and respondent No.18
in Civil Revision Application No.76 of 2009, opposes the prayer and
submits that the matter has been pending since long.
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47. In view of the fact that the interim order is operating till this
date, the same shall continue for a further period of four weeks, after
expiry of the said period, it shall stand automatically vacated without
reference to the Court.
Judge.
Pdl.
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