{"id":219915,"date":"2009-10-09T00:00:00","date_gmt":"2009-10-08T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ram-kishore-vats-vs-smt-angoori-devi-and-another-on-9-october-2009"},"modified":"2017-11-18T09:08:14","modified_gmt":"2017-11-18T03:38:14","slug":"ram-kishore-vats-vs-smt-angoori-devi-and-another-on-9-october-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ram-kishore-vats-vs-smt-angoori-devi-and-another-on-9-october-2009","title":{"rendered":"Ram Kishore Vats vs Smt. Angoori Devi And Another on 9 October, 2009"},"content":{"rendered":"
Punjab-Haryana High Court<\/div>\n
Ram Kishore Vats vs Smt. Angoori Devi And Another on 9 October, 2009<\/div>\n
C.R. No.5876 of 2003                                    -1-\n\n     IN THE HIGH COURT FOR THE STATES OF PUNJAB\n             AND HARYANA AT CHANDIGARH\n\n                           C.R. No.5876 of 2003\n                           Date of Decision: 09.10.2009\n\n\nRam Kishore Vats                                .....Petitioner\n\n                             Versus\n\nSmt. Angoori Devi and another                    ...Respondents<\/pre>\n
Present: Mr. Gorakh Nath, Advocate
\n         for the petitioner.\n<\/p>\n
         None for the respondent.\n<\/p>\n
CORAM:HON’BLE MR. JUSTICE K. KANNAN<\/p>\n
1.  Whether Reporters of local papers may be allowed to see the
\n    judgment ? Yes\n<\/p>\n
2. To be referred to the Reporters or not ? Yes\n<\/p>\n
3. Whether the judgment should be reported in the Digest?Yes\n<\/p>\n
                               -.-\n<\/p>\n
K. KANNAN J.(ORAL)<\/p>\n
1.       The civil revision is filed challenging the order passed<\/p>\n
by the Executing Court in an application filed by the decree<\/p>\n
holder under Order 21 Rule 32 CPC for attachment of the<\/p>\n
properties of the judgment debtor on the ground that a decree for<\/p>\n
specific performance which had been granted by the trial Court<\/p>\n
had not been complied with. The relevant portion of the decree is<\/p>\n
seen as under:\n<\/p>\n
          “Resultantly, I do hereby decree the present suit and<\/p>\n
          pass a decree for symbolic possession by way of<\/p>\n
          specific performance of the agreement Ex.PW5\/A on
\n C.R. No.5876 of 2003                                      -2-<\/span><\/p>\n
          payment of remaining sale consideration of Rs.2 lacs. I<\/p>\n
          do hereby pass a decree also for mandatory injunction<\/p>\n
          directing the defendant to get conveyance deed of the<\/p>\n
          house in question executed in his favour within a period<\/p>\n
          of 3 months from HUDA, at his own responsibility and<\/p>\n
          thereafter execute the sale deed in favour of the plaintiff<\/p>\n
          in terms of the agreement Ex.PW5\/A on receipt of the<\/p>\n
          remaining sale consideration upto 31.12.2001. The suit<\/p>\n
          is decreed with costs.       Decree sheet be prepared<\/p>\n
          accordingly and file be consigned to record room.”<\/p>\n<\/blockquote>\n
2.       The judgment debtor did not file any objection to the<\/p>\n
application filed under Order 21 Rule 32 but contended that<\/p>\n
HUDA, which was directed to execute a sale in favour of the<\/p>\n
judgment debtor to enable him in turn to execute a sale, had<\/p>\n
actually resumed the property for non-payment of installments<\/p>\n
and therefore, it became impossible for him to comply with the<\/p>\n
terms of the decree.      The Executing Court found that the<\/p>\n
judgment debtor never had the intention to satisfy the decree and<\/p>\n
he willfully failed to obey the same despite an opportunity and<\/p>\n
making also note of the fact that the judgment debtor had not<\/p>\n
even filed his objections but still arguing about the inexecutability<\/p>\n
of the decree directed the attachment of the property in House<\/p>\n
No.426, Ward No.11, Panipat as per the averments filed by the<\/p>\n
decree holder giving the description of the property that was
\n C.R. No.5876 of 2003                                     -3-<\/span><\/p>\n
required to be attached.      While concluding the order, the<\/p>\n
Executing Court also directed the proof of ownership of the<\/p>\n
judgment debtor in respect of the same to be given within a<\/p>\n
period of 10 days.\n<\/p>\n
3.        The learned counsel appearing for the judgment debtor<\/p>\n
challenges the order passed by the Executing Court under Article<\/p>\n
227 impugning the order as one, which has been passed without<\/p>\n
jurisdiction.   The learned counsel would refer to the several<\/p>\n
grounds through which he has urged to show as to how the order<\/p>\n
is not maintainable. Even before referring to the several grounds<\/p>\n
and objections which are made, it has to be observed that the<\/p>\n
decree for specific performance and mandatory injunction that<\/p>\n
had been granted by the Court of first instance does not appear to<\/p>\n
have been challenged in any other forum. The whole edifice of<\/p>\n
objections is built on an admitted premise that the decree,<\/p>\n
operative portion of which I have already outlined above, has<\/p>\n
become final. If the decree has become final, the action of the<\/p>\n
decree holder to resort to the reliefs which are granted under<\/p>\n
Order 21 Rule 32 cannot be denied.        Order 21 Rule 32 (1)<\/p>\n
provides as follows:-\n<\/p>\n
          “Where the decree against whom a decree for the<\/p>\n
          specific performance of a contract, or for restitution of<\/p>\n
          conjugal rights, or for an injunction, has been passed,<\/p>\n
          has made an opportunity of obeying the decree and has
\n C.R. No.5876 of 2003                                     -4-<\/span><\/p>\n
         wilfully failed to obey it, the decree may be enforced in<\/p>\n
         the case of a decree for restitution of conjugal rights by<\/p>\n
         the attachment of his property or, in the case of a decree<\/p>\n
         for the specific performance of a contract, or for an<\/p>\n
         injunction by his detention in the civil prison, or by the<\/p>\n
         attachment of his property, or by both.”\n<\/p><\/blockquote>\n
4.       Whenever there is a decree for specific performance and<\/p>\n
the judgment debtor has an opportunity of obeying the decree and<\/p>\n
he had wilfully failed to obey the same, the Court in decree for<\/p>\n
specific performance has the power to direct detention of the<\/p>\n
judgment debtor in civil prison, or by attachment of the property<\/p>\n
or by both. There are three ingredients to the application of the<\/p>\n
power, which this sub-section enumerates; one, there shall be a<\/p>\n
decree for specific performance or injunction (the other reliefs are<\/p>\n
not necessary in our case). In this case, there is a decree for<\/p>\n
specific performance and injunction. Two, the judgment debtor<\/p>\n
must have had an opportunity of obeying the decree.            This<\/p>\n
contemplates an appropriate notice through Court for execution of<\/p>\n
the decree and the judgment debtor to know all the directions<\/p>\n
under the decree. The third component is a willful failure to obey<\/p>\n
the same.   The failure may result on account of a particular<\/p>\n
conduct that makes it either difficult or impossible for a judgment<\/p>\n
debtor to perform. In my view, all the three circumstances exist.<\/p>\n
If the decree directs that the judgment debtor shall make the
\n C.R. No.5876 of 2003                                       -5-<\/span><\/p>\n
payment to HUDA in his capacity as original allottee and secure a<\/p>\n
sale deed at his own risk, in order to enable the judgment debtor<\/p>\n
to transfer his ownership to the decree holder, the judgment<\/p>\n
debtor is bound to comply with the same by making the payment<\/p>\n
to HUDA secure a sale deed and in turn, execute the sale in<\/p>\n
favour of the plaintiff. It cannot be an argument that such decree<\/p>\n
could not have been passed. If there was anything amiss in the<\/p>\n
decree, the only remedy of the judgment debtor should have been<\/p>\n
to challenge the decree in a higher forum.          It is a trite of<\/p>\n
proposition of law that an Executing Court cannot go behind the<\/p>\n
decree. It is bound to carry out the terms in the decree. A trial<\/p>\n
Court dealing with the suit for specific performance and<\/p>\n
exercising powers under Section 20 of the Specific Relief Act<\/p>\n
may have in appropriate circumstances denied the relief if the<\/p>\n
relief was such, as although it shall be lawful to grant a relief, the<\/p>\n
Court may still find that the discretionary relief cannot be granted<\/p>\n
for any circumstances. If in this case, the Court has exercised its<\/p>\n
discretion and granted the relief that included the liability on a<\/p>\n
judgment debtor to do the particular act of payment of all the<\/p>\n
installments due to HUDA for securing a conveyance to himself<\/p>\n
at his own risk and then execute the sale deed in favour of the<\/p>\n
decree holder, it was obligatory on the part of the defendant to<\/p>\n
undertake the responsibility of securing such sale deed and<\/p>\n
execute a conveyance in favour of the decree holder.
\n C.R. No.5876 of 2003                                       -6-<\/span><\/p>\n
5.        The argument in this case is that he did not have money<\/p>\n
to pay to HUDA and therefore, the sale deed was not executed by<\/p>\n
HUDA to him and therefore, in turn he could not execute the sale<\/p>\n
deed in favour of the plaintiff. An inconvenience or inability,<\/p>\n
which a judgment debtor may have, is itself no ground to say that<\/p>\n
a decree holder cannot have the decree executed. It will lead to<\/p>\n
absurd consequence for, even in a suit for recovery of money, if<\/p>\n
an attempt at a coercive process is taken, a judgment debtor could<\/p>\n
contend that his inconvenience for making the payment or he has<\/p>\n
not the money to make the payment.           It shall be beyond the<\/p>\n
power of court that is bound to execute decree to go into the<\/p>\n
realms of convenience or what is comfortable for a judgment<\/p>\n
debtor.   What the judgment debtor-revision petitioner seeks<\/p>\n
before this Court is really re-writing the decree or to state that the<\/p>\n
decree has become inexecutable. If the decree, in this case has<\/p>\n
become inexecutable in any sense, it is by the conduct of the<\/p>\n
judgment debtor himself.        It shall be impermissible for a<\/p>\n
judgment debtor to plead his own default or his misconduct as a<\/p>\n
defence to make the decree unworkable.             Learned counsel<\/p>\n
appearing for the judgment debtor would contend that the remedy<\/p>\n
of the decree holder was only to seek the Court itself to execute<\/p>\n
the sale deed if he had defaulted from doing so. If the decree had<\/p>\n
been that the sale was to be executed by the defendant to the<\/p>\n
plaintiff in respect of the property, of which he was the owner,
\n C.R. No.5876 of 2003                                     -7-<\/span><\/p>\n
such a procedure could have been adopted by the decree holder.<\/p>\n
However, in this case, the decree assigns distinct duties for the<\/p>\n
judgment debtor. One, to secure a conveyance in his own name<\/p>\n
from the HUDA and in turn to execute a sale deed in favour of<\/p>\n
the plaintiff. The Court could not have obtained to itself a sale<\/p>\n
deed from HUDA for, a sale from HUDA would not have been<\/p>\n
possible in favour of the Court as a representative or proxy for the<\/p>\n
judgment debtor. The rights, which a judgment debtor would<\/p>\n
obtain from HUDA on an allotment through terms of a contract<\/p>\n
are invariably personal and without the defendant obtaining the<\/p>\n
right of allotment by payment of the installments, it would not<\/p>\n
have been possible for the Court to act on behalf of the defendant<\/p>\n
and execute a sale in favour of the decree holder.<\/p>\n
6.       The other contention of the learned counsel was that<\/p>\n
HUDA could have been directed to sale the property to the<\/p>\n
decree-holder. That also shall not be possible for the same reason<\/p>\n
as I have set out in the previous para that a right secured by an<\/p>\n
allottee, which is a personal right, could not have been assigned<\/p>\n
directly by HUDA. The plea of inexecutability of the decree is<\/p>\n
also equally without substance for, the decree that directs sale of<\/p>\n
the property for a judgment debtor on the performance of certain<\/p>\n
acts is not wholly new to the scheme of the Specific Relief Act.<\/p>\n
Section 13 of the Specific Relief Act provides for rights of<\/p>\n
purchaser or lessee against a person with no title or imperfect
\n C.R. No.5876 of 2003                                     -8-<\/span><\/p>\n
title. Section 13(1)(b) refers to a situation where the concurrence<\/p>\n
of other person is necessary for validating the title and they are<\/p>\n
bound to concur at the request of the vendor, the purchaser may<\/p>\n
compel him to procure such concurrence. It is precisely this type<\/p>\n
of situation that enables the Court to give a direction to a vendor<\/p>\n
to obtain such concurrence by a transaction. If the judgment<\/p>\n
debtor has by his conduct not taken a sale deed from HUDA as in<\/p>\n
this case, he has tried to show that he did not have money, this<\/p>\n
objection cannot be done at the execution stage. This objection is<\/p>\n
really in the nature of an objection to a decree, which ought not to<\/p>\n
have been passed on the premise that the Court could not have<\/p>\n
exercised its discretion to grant a decree. We have passed to a<\/p>\n
stage when a decree has been passed by the Court on due<\/p>\n
consideration of relevant facts and that decree has also become<\/p>\n
final. If the decree is not assailed in a manner known to law, the<\/p>\n
execution of such a decree cannot be stultified by inconvenience<\/p>\n
or difficulties of a judgment debtor to comply with the same. The<\/p>\n
only exceptional circumstance when an Executing Court shall not<\/p>\n
execute the decree is when a decree is passed by Court without<\/p>\n
jurisdiction or when the decree is null and void. The nullity of a<\/p>\n
decree must arise from a jurisdictional fact of a Court executing a<\/p>\n
decree which it had no competence to pass. A suit for specific<\/p>\n
performance before a Court of competent jurisdiction is a decree<\/p>\n
that is at all times enforceable. The judgment debtor shall not be
\n C.R. No.5876 of 2003                                      -9-<\/span><\/p>\n
permitted to urge that the decree has become null and void only<\/p>\n
by the difficulties that he had to undergo or the impossibility of<\/p>\n
the judgment debtor to secure a conveyance from HUDA.<\/p>\n
7.       Yet another objection of the learned counsel appearing<\/p>\n
for the petitioner is that the property has been attached even<\/p>\n
without ascertaining the ownership relating to the property and<\/p>\n
the Court has directed the proof of ownership to be given<\/p>\n
subsequently. According to him, the proof of ownership must<\/p>\n
have been demanded from the decree holder before attachment<\/p>\n
was issued. There is a builtin safeguard provided under the rules<\/p>\n
of Civil Procedure against illegal attachments. Attachment is a<\/p>\n
process, which is duly advertised in the manner referred to by the<\/p>\n
various provisions of the Civil Procedure Code. It enables a third<\/p>\n
person who is affected by such attachment to intervene with a<\/p>\n
claim and to seek for raising of attachment. The Court, before an<\/p>\n
attachment order is issued, is to ensure to itself that there is<\/p>\n
semblance of title of the person against whom the attachment is<\/p>\n
issued. The Executing Court was well aware of what it was doing<\/p>\n
and it has, therefore, taken the precaution of directing the decree<\/p>\n
holder to submit the proof of the ownership of the judgment<\/p>\n
debtor. Even without such a direction, the attachment could still<\/p>\n
be sustained for what is attached invariably is the right, title and<\/p>\n
interest of the judgment debtor and there is no warranty for title in<\/p>\n
the matter of attachment.      The contention before me by the
\n C.R. No.5876 of 2003                                     -10-<\/span><\/p>\n
learned counsel was that the property is an ancestral property in<\/p>\n
which his brothers have also a share. At least, the saving grace is<\/p>\n
that the judgment debtor is not prepared to say that he is not in<\/p>\n
any way interested in the property. The attachment will enure to<\/p>\n
such interest as the judgment debtor has. The other contention of<\/p>\n
the learned counsel was that the property, which is attached is a<\/p>\n
residential house and it cannot be attached under the provisions of<\/p>\n
Section 60 of the Civil Procedure Code. This objection is also<\/p>\n
without merit for, there is no prohibition in law for attachment of<\/p>\n
the residential house. All that the law prohibits is what obtains in<\/p>\n
relation to buildings contemplated Section 60(c) that reads<\/p>\n
“houses and other buildings (with the materials and the sites<\/p>\n
thereof and the land immediately appurtenant thereto and<\/p>\n
necessary for their enjoyment) belonging to [an agriculturist or a<\/p>\n
labourer or a domestic servant] and occupied by him.” The non-<\/p>\n
attachability of a property is invariably a question of fact that<\/p>\n
shall depend on how a person states that the propery is not<\/p>\n
capable of being attached.     It is not brought out before the<\/p>\n
Executing Court at any time that it is a residential house of an<\/p>\n
agriculturist or a domestic servant as contemplated under Section<\/p>\n
60(c). I have already observed that the order of the Executing<\/p>\n
Court came to be passed when the defendant opted not to file his<\/p>\n
objection to the application filed by the decree holder for action<\/p>\n
under Order 21 Rule 32.\n<\/p>\n
 C.R. No.5876 of 2003                                   -11-<\/span><\/p>\n
8.       The order passed by the Executing Court is, under the<\/p>\n
circumstances, perfectly justified and the civil revision is a<\/p>\n
vexatious exercise. The civil revision petition is dismissed with<\/p>\n
costs assessed at Rs.3,000\/-.\n<\/p>\n<\/p>\n
                                              (K. KANNAN)
\n                                                JUDGE
\nOctober 09, 2009
\nPankaj*\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Punjab-Haryana High Court Ram Kishore Vats vs Smt. Angoori Devi And Another on 9 October, 2009 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. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,28],"tags":[],"class_list":["post-219915","post","type-post","status-publish","format-standard","hentry","category-high-court","category-punjab-haryana-high-court"],"yoast_head":"\nRam Kishore Vats vs Smt. 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