C.R. No.5876 of 2003 -1-
IN THE HIGH COURT FOR THE STATES OF PUNJAB
AND HARYANA AT CHANDIGARH
C.R. No.5876 of 2003
Date of Decision: 09.10.2009
Ram Kishore Vats .....Petitioner
Versus
Smt. Angoori Devi and another ...Respondents
Present: Mr. Gorakh Nath, Advocate
for the petitioner.
None for the respondent.
CORAM:HON’BLE MR. JUSTICE K. KANNAN
1. Whether Reporters of local papers may be allowed to see the
judgment ? Yes
2. To be referred to the Reporters or not ? Yes
3. Whether the judgment should be reported in the Digest?Yes
-.-
K. KANNAN J.(ORAL)
1. The civil revision is filed challenging the order passed
by the Executing Court in an application filed by the decree
holder under Order 21 Rule 32 CPC for attachment of the
properties of the judgment debtor on the ground that a decree for
specific performance which had been granted by the trial Court
had not been complied with. The relevant portion of the decree is
seen as under:
“Resultantly, I do hereby decree the present suit and
pass a decree for symbolic possession by way of
specific performance of the agreement Ex.PW5/A on
C.R. No.5876 of 2003 -2-payment of remaining sale consideration of Rs.2 lacs. I
do hereby pass a decree also for mandatory injunction
directing the defendant to get conveyance deed of the
house in question executed in his favour within a period
of 3 months from HUDA, at his own responsibility and
thereafter execute the sale deed in favour of the plaintiff
in terms of the agreement Ex.PW5/A on receipt of the
remaining sale consideration upto 31.12.2001. The suit
is decreed with costs. Decree sheet be prepared
accordingly and file be consigned to record room.”
2. The judgment debtor did not file any objection to the
application filed under Order 21 Rule 32 but contended that
HUDA, which was directed to execute a sale in favour of the
judgment debtor to enable him in turn to execute a sale, had
actually resumed the property for non-payment of installments
and therefore, it became impossible for him to comply with the
terms of the decree. The Executing Court found that the
judgment debtor never had the intention to satisfy the decree and
he willfully failed to obey the same despite an opportunity and
making also note of the fact that the judgment debtor had not
even filed his objections but still arguing about the inexecutability
of the decree directed the attachment of the property in House
No.426, Ward No.11, Panipat as per the averments filed by the
decree holder giving the description of the property that was
C.R. No.5876 of 2003 -3-
required to be attached. While concluding the order, the
Executing Court also directed the proof of ownership of the
judgment debtor in respect of the same to be given within a
period of 10 days.
3. The learned counsel appearing for the judgment debtor
challenges the order passed by the Executing Court under Article
227 impugning the order as one, which has been passed without
jurisdiction. The learned counsel would refer to the several
grounds through which he has urged to show as to how the order
is not maintainable. Even before referring to the several grounds
and objections which are made, it has to be observed that the
decree for specific performance and mandatory injunction that
had been granted by the Court of first instance does not appear to
have been challenged in any other forum. The whole edifice of
objections is built on an admitted premise that the decree,
operative portion of which I have already outlined above, has
become final. If the decree has become final, the action of the
decree holder to resort to the reliefs which are granted under
Order 21 Rule 32 cannot be denied. Order 21 Rule 32 (1)
provides as follows:-
“Where the decree against whom a decree for the
specific performance of a contract, or for restitution of
conjugal rights, or for an injunction, has been passed,
has made an opportunity of obeying the decree and has
C.R. No.5876 of 2003 -4-wilfully failed to obey it, the decree may be enforced in
the case of a decree for restitution of conjugal rights by
the attachment of his property or, in the case of a decree
for the specific performance of a contract, or for an
injunction by his detention in the civil prison, or by the
attachment of his property, or by both.”
4. Whenever there is a decree for specific performance and
the judgment debtor has an opportunity of obeying the decree and
he had wilfully failed to obey the same, the Court in decree for
specific performance has the power to direct detention of the
judgment debtor in civil prison, or by attachment of the property
or by both. There are three ingredients to the application of the
power, which this sub-section enumerates; one, there shall be a
decree for specific performance or injunction (the other reliefs are
not necessary in our case). In this case, there is a decree for
specific performance and injunction. Two, the judgment debtor
must have had an opportunity of obeying the decree. This
contemplates an appropriate notice through Court for execution of
the decree and the judgment debtor to know all the directions
under the decree. The third component is a willful failure to obey
the same. The failure may result on account of a particular
conduct that makes it either difficult or impossible for a judgment
debtor to perform. In my view, all the three circumstances exist.
If the decree directs that the judgment debtor shall make the
C.R. No.5876 of 2003 -5-
payment to HUDA in his capacity as original allottee and secure a
sale deed at his own risk, in order to enable the judgment debtor
to transfer his ownership to the decree holder, the judgment
debtor is bound to comply with the same by making the payment
to HUDA secure a sale deed and in turn, execute the sale in
favour of the plaintiff. It cannot be an argument that such decree
could not have been passed. If there was anything amiss in the
decree, the only remedy of the judgment debtor should have been
to challenge the decree in a higher forum. It is a trite of
proposition of law that an Executing Court cannot go behind the
decree. It is bound to carry out the terms in the decree. A trial
Court dealing with the suit for specific performance and
exercising powers under Section 20 of the Specific Relief Act
may have in appropriate circumstances denied the relief if the
relief was such, as although it shall be lawful to grant a relief, the
Court may still find that the discretionary relief cannot be granted
for any circumstances. If in this case, the Court has exercised its
discretion and granted the relief that included the liability on a
judgment debtor to do the particular act of payment of all the
installments due to HUDA for securing a conveyance to himself
at his own risk and then execute the sale deed in favour of the
decree holder, it was obligatory on the part of the defendant to
undertake the responsibility of securing such sale deed and
execute a conveyance in favour of the decree holder.
C.R. No.5876 of 2003 -6-
5. The argument in this case is that he did not have money
to pay to HUDA and therefore, the sale deed was not executed by
HUDA to him and therefore, in turn he could not execute the sale
deed in favour of the plaintiff. An inconvenience or inability,
which a judgment debtor may have, is itself no ground to say that
a decree holder cannot have the decree executed. It will lead to
absurd consequence for, even in a suit for recovery of money, if
an attempt at a coercive process is taken, a judgment debtor could
contend that his inconvenience for making the payment or he has
not the money to make the payment. It shall be beyond the
power of court that is bound to execute decree to go into the
realms of convenience or what is comfortable for a judgment
debtor. What the judgment debtor-revision petitioner seeks
before this Court is really re-writing the decree or to state that the
decree has become inexecutable. If the decree, in this case has
become inexecutable in any sense, it is by the conduct of the
judgment debtor himself. It shall be impermissible for a
judgment debtor to plead his own default or his misconduct as a
defence to make the decree unworkable. Learned counsel
appearing for the judgment debtor would contend that the remedy
of the decree holder was only to seek the Court itself to execute
the sale deed if he had defaulted from doing so. If the decree had
been that the sale was to be executed by the defendant to the
plaintiff in respect of the property, of which he was the owner,
C.R. No.5876 of 2003 -7-
such a procedure could have been adopted by the decree holder.
However, in this case, the decree assigns distinct duties for the
judgment debtor. One, to secure a conveyance in his own name
from the HUDA and in turn to execute a sale deed in favour of
the plaintiff. The Court could not have obtained to itself a sale
deed from HUDA for, a sale from HUDA would not have been
possible in favour of the Court as a representative or proxy for the
judgment debtor. The rights, which a judgment debtor would
obtain from HUDA on an allotment through terms of a contract
are invariably personal and without the defendant obtaining the
right of allotment by payment of the installments, it would not
have been possible for the Court to act on behalf of the defendant
and execute a sale in favour of the decree holder.
6. The other contention of the learned counsel was that
HUDA could have been directed to sale the property to the
decree-holder. That also shall not be possible for the same reason
as I have set out in the previous para that a right secured by an
allottee, which is a personal right, could not have been assigned
directly by HUDA. The plea of inexecutability of the decree is
also equally without substance for, the decree that directs sale of
the property for a judgment debtor on the performance of certain
acts is not wholly new to the scheme of the Specific Relief Act.
Section 13 of the Specific Relief Act provides for rights of
purchaser or lessee against a person with no title or imperfect
C.R. No.5876 of 2003 -8-
title. Section 13(1)(b) refers to a situation where the concurrence
of other person is necessary for validating the title and they are
bound to concur at the request of the vendor, the purchaser may
compel him to procure such concurrence. It is precisely this type
of situation that enables the Court to give a direction to a vendor
to obtain such concurrence by a transaction. If the judgment
debtor has by his conduct not taken a sale deed from HUDA as in
this case, he has tried to show that he did not have money, this
objection cannot be done at the execution stage. This objection is
really in the nature of an objection to a decree, which ought not to
have been passed on the premise that the Court could not have
exercised its discretion to grant a decree. We have passed to a
stage when a decree has been passed by the Court on due
consideration of relevant facts and that decree has also become
final. If the decree is not assailed in a manner known to law, the
execution of such a decree cannot be stultified by inconvenience
or difficulties of a judgment debtor to comply with the same. The
only exceptional circumstance when an Executing Court shall not
execute the decree is when a decree is passed by Court without
jurisdiction or when the decree is null and void. The nullity of a
decree must arise from a jurisdictional fact of a Court executing a
decree which it had no competence to pass. A suit for specific
performance before a Court of competent jurisdiction is a decree
that is at all times enforceable. The judgment debtor shall not be
C.R. No.5876 of 2003 -9-
permitted to urge that the decree has become null and void only
by the difficulties that he had to undergo or the impossibility of
the judgment debtor to secure a conveyance from HUDA.
7. Yet another objection of the learned counsel appearing
for the petitioner is that the property has been attached even
without ascertaining the ownership relating to the property and
the Court has directed the proof of ownership to be given
subsequently. According to him, the proof of ownership must
have been demanded from the decree holder before attachment
was issued. There is a builtin safeguard provided under the rules
of Civil Procedure against illegal attachments. Attachment is a
process, which is duly advertised in the manner referred to by the
various provisions of the Civil Procedure Code. It enables a third
person who is affected by such attachment to intervene with a
claim and to seek for raising of attachment. The Court, before an
attachment order is issued, is to ensure to itself that there is
semblance of title of the person against whom the attachment is
issued. The Executing Court was well aware of what it was doing
and it has, therefore, taken the precaution of directing the decree
holder to submit the proof of the ownership of the judgment
debtor. Even without such a direction, the attachment could still
be sustained for what is attached invariably is the right, title and
interest of the judgment debtor and there is no warranty for title in
the matter of attachment. The contention before me by the
C.R. No.5876 of 2003 -10-
learned counsel was that the property is an ancestral property in
which his brothers have also a share. At least, the saving grace is
that the judgment debtor is not prepared to say that he is not in
any way interested in the property. The attachment will enure to
such interest as the judgment debtor has. The other contention of
the learned counsel was that the property, which is attached is a
residential house and it cannot be attached under the provisions of
Section 60 of the Civil Procedure Code. This objection is also
without merit for, there is no prohibition in law for attachment of
the residential house. All that the law prohibits is what obtains in
relation to buildings contemplated Section 60(c) that reads
“houses and other buildings (with the materials and the sites
thereof and the land immediately appurtenant thereto and
necessary for their enjoyment) belonging to [an agriculturist or a
labourer or a domestic servant] and occupied by him.” The non-
attachability of a property is invariably a question of fact that
shall depend on how a person states that the propery is not
capable of being attached. It is not brought out before the
Executing Court at any time that it is a residential house of an
agriculturist or a domestic servant as contemplated under Section
60(c). I have already observed that the order of the Executing
Court came to be passed when the defendant opted not to file his
objection to the application filed by the decree holder for action
under Order 21 Rule 32.
C.R. No.5876 of 2003 -11-
8. The order passed by the Executing Court is, under the
circumstances, perfectly justified and the civil revision is a
vexatious exercise. The civil revision petition is dismissed with
costs assessed at Rs.3,000/-.
(K. KANNAN)
JUDGE
October 09, 2009
Pankaj*