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Cites 3 docs
The Code Of Civil Procedure (Amendment) Act, 1956
Valliammai Achi vs Nagappa Chettiar & Ors on 23 January, 1967
Tirath Singh vs Bachittar Singh And Others on 15 September, 1955
Citedby 2 docs
Bagiyam vs Rangasamy on 23 February, 2010
T.M.Mahendran vs Muthuirulandi Thevar (Late) on 11 July, 2014

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Madras High Court
Antonysami vs Arulanandam Pillai And Anr. on 21 December, 1993
Equivalent citations: (1994) 1 MLJ 570
Author: Thanikkachalam



ORDER
 

Thanikkachalam, J.

1. This revision is directed against the order passed, in C.M.A. No. 26 of 1982, which in turn arose out of the order passed in E.P. No. 346 of 1981 in O.S. No. 35 of 1965. The petitioner herein is the legal representative of the plaintiff, who filed the suit O.S. No. 35 of 1965 for specific performance of the contract of sale. The suit was decreed in favour of the plaintiff. The plaintiff filed E.P. No. 346 of 1986 to execute the decree. In the decree, it is stated that the defendant do measure and demarcate the boundaries for 1 3 grounds and 491 sq.ft. in the property described hereunder on or before 23.9.1966, that the plaintiff do deposit into court on or before 23.9.1966 the balance of the sale price for 13 grounds and 491 sq.ft. on measurement and demarcation, and that on such measurement and demarcation and fixation of the price and on deposit, the defendant do execute the sale deed in respect of the suit site in favour of the plaintiff at her cost as alleged and in default the court do execute the sale deed on application of the plaintiff and the cost of such execution of the sale deed be recovered from the defendant. The plaintiff filed the present execution petition to execute the decree under Order 21, Rule 34, C.P.C. According to the defendant/judgment debtor the execution petition was filed after 12 years beyond the time stipulated in the decree and therefore the execution petition is liable to be dismissed. But according to the plaintiff/decree holder the land in question was not measured and demarcated the boundaries on or before 23.9.1966. It was actually demarcated in the year 1973. Therefore, if the time is calculated from the date of compliance, of the decree in the year 1973 then the execution petition is in time. This contention of the decree-holder was accepted by the execution court. Accordingly, order was passed in the execution petition. Aggrieved, the judgment-debtor preferred an appeal. The appellate court came to the conclusion that the execution petition was filed beyond 12 years from 23.9.1966. Hence, the execution petition is barred by limitation. In that view of the matter, the appellate court reversed the order passed by the execution court and dismissed the execution petition. It is against this order, the present revision petition has been preferred by the decree-holder.

2. Learned Counsel for the decree-holder/petitioner herein submitted as under:

The judgment-debtors were given time to measure and demarcate the land on or before 23.9.1966. This was not done by the judgment-debtors. According to the decree-holder, the judgment-debtor went to a foreign country and his brother was asked to demarcate and measure the land and accordingly the brother of the judgment-debtor measured and demarcated the land in the year 1973. After the lands were measured and demarcated in the year 1973 the present execution petition was filed on 19.4.1980. Therefore, the execution petition is not barred by limitation. Since the judgment-debtor failed to measure and demarcate the land as stipulated in the decree on or before 23.9.1966 the time for filing the execution petition should not be calculated from that time. The decree-holder has already deposited the balance of sale consideration before 23.9.1966, as against the order passed under Order 21, Rule 34 only a revision will lie and the first appeal filed by the judgment-debtor is not competent. The order passed under Order 21, Rule 34 accepting or refusing to accept the draft sale deed is amenable to an appeal as per the provisions of Order 43, Rule 1(i), of C.P.C. But in the present case, the order passed by the execution court does not relate to accepting or refusing to accept the draft sale deed. Therefore, the provisions contained in Order 43, Rule 1(i), C.P.C., will not be applicable to the facts of this case so as to enable the judgment-debtor to file an appeal before the first appellate court. Hence, according to the decree-holder the first appeal to court was not correct in reversing the order passed by the execution court.

3. On the other hand, learned Counsel appearing for the respondent/judgment-debtor submitted as under:

In the decree it is clearly stated that the judgment-deblor should measure and demaracte the land on or before 23.9.1966 and the plaintiff should deposit into court on or before 23.9.1966 the balance of sale price on such measurement and demarcation. The demarcation and measurement was not done on or before 23.9.1966, as stipulated in the decree, the decree-holder ought to have filed an execution petition within 12 years from that date. Even if the demarcation was done in the year 1973 that would not help the decree-holder to calculate the period of 12 years from 1973 onwards. The petition was filed by the decree-holder under Order 21, Rule 34, C.P.C. along with the draft sale deed and that execution petition was allowed and ordered. Therefore, against the order passed on the petition filed under Order 21, Rule 34, only an appeal will lie before the first appellate authority as contemplated under Order 43, Rule 1(i), C.P.C. Hence, no revision will lie. It is not correct on the part of the decree-holder to state that the impugned order was not passed under Order 21, Rule 34, C.P.C. It was therefore, submitted that the execution petition was filed beyond 12 years from the stipulated date of 23.9.1966. Hence, the execution petition is liable to be dismissed. For all these reasons it was pleaded that since the order passed by the first appellate court is in order, no interference is called for.

4. I have heard the rival submissions.

5. The fact remains that the petitioner herein is the decree-holder and he filed an execution petition to execute the decree obtained in a suit for specific performance of a contract for sale. According to the decree passed in the suit, O.S. No. 35 of 1965, the defendant should measure and demarcate the boundaries for 13 grounds and 491 sq.ft. in the property described in the schedule on or before 23.9.1966 and the plaintiff should deposit into court on or before 23.9.1966 the balance of sale consideration for 13 grounds and 491 sq.ft. on such measurement and demarcation. According to the decree-holder he deposited the balance of sale consideration before 23.9.1966, but the judgment-debtor failed to measure and demarcate the lands on or before 23.9.1966. According to the decree-holder the judgment-debtor measured and demarcated the lands in the year 1973 and thereafter within 12 years Iron the year 1973, i.e. on 19.4.1985 the decree-holder filed the execution petition.

6. The learned Counsel appearing for the decree-holder submitted that E.P. No. 346 of 1981 was filed for executing a decree for specific performance of the contract. The relevant provision in Order 21, Rule 34, of C.P.C., Clause 1 provided that the decree-holder should file a draft sale deed along with the execution petition. If the judgment-debtor has any objection to the terms of the draft sale deed and if the order is passed on the objections, then the order is appealable under Order 43, Rule 1(i) of C.P.C. Order 43, Rule 1(i) specifically provides an appeal against an order passed with regard to the terms of the draft sale deed. But in the present case, according to the learned Counsel for the decree-holder there is no reference to the draft sale deed in the counter affidavit filed by the respondent and the counter affidavit raises objection only to the main execution petition. Therefore, according to the decree-holder the order passed by the execution court is not appealable. The decree-holder submitted that the appellate court has no jurisdiction to entertain this appeal, and the order passed by the appellate court is liable to be set aside under Section 115 of C.P.C. Therefore, according to the decree-holder the order passed by the appellate court is a nullity.

7. It remains to be seen that the execution petition was filed under Order 21, Rule 34, C.P.C., praying to direct the defendant-judgment-debtor to execute a sale deed as per the draft sale deed produced in the court and in default to cause the execution of the sale deed by the court itself since the entire sale consideration had already been deposited in court. Order 21, Rule 34, says that where the execution petition is for the execution of a decree or for the endorsement of a negotiable Instrument and the judgment-debtor neglects or refuses to obey the decree, the decree-holder may prepare a draft of the document or endorsement in accordance with the terms of the decree and deliver the same to the court. According to the provisions contained in Order 43, Rule 1(i), on an order passed on the objection to the draft of a document or of an endorsement an appeal will lie. In the present case, the execution petition was filed with a draft sale deed under Order 21, Rule 34(i), Civil Procedure Code. The judgment-debtor raised an objection with regard to the draft sale deed filed by the decree-holder. On such objection, an order was passed by the execution court. Therefore, only an appeal will lie against the order passed by the execution court. Further, the point of jurisdiction must be raised in the initial stage. That was act done in this case. Hence, the contention put forward by the petitioner herein viz., that the appellate court has no jurisdiction to entertain the appeal cannot be accepted. According to the decree-holder the execution petition is within time. But according to the judgment-debtor the execution petition is barred by limitation. The judgment-debtor submitted that the period of limitation should run from 23.9.1966 and not from the year 1973. The decree passed in O.S. No. 35 of 1965 dated 23.7.1966 is as under:

(1) The defendant do measure and demarcate the boundaries for 13 grounds and 491 sq.ft in the property described hereunder on or before 23.9.1966.

(2) That the plaintiff do deposit into court on or before 23.9.1966 the balance of the sale price for 13 grounds and 491 sq.ft on measurement and demarcation.

(3) That on such measurement and demarcation and fixation of the price and on deposit the defendant do execute the sale deed in respect of the suit house-sites in favour of the plaintiff at her costs as agreed and in default the court do execute the sale deed on application of the plaintiff and the cost of the execution of such sale deed be recovered from the defendant.

(4) That the defendant do pay to the plaintiff the sum of Rs. 1,423 being costs of this suit and do bear his own costs of Rs. 507.50.

The plaintiff deposited the balance of sale price before 23.9.1966. In the present case, the demarcation and measurement was not done on or before 23.9.1966 within the time fixed for measurement and demarcation and when the measurement and demarcation was not done within the lime stipulated in the decree, the decree-holder ought to have applied to the court for execution of t he decree and for suitable direction to the defendant to make demarcation. The decree-holder cannot wait till the judgment-debtor measures and demarcates the land in the year 1973. Therefore, the period of limitation for filing the execution petition would start from 23.9.1966 and not from the year 1973 when the demarcation was done.

8. Learned Counsel appearing for the decree-holder submitted that the decree is not drafted in accordance with the judgment. The counsel for the decree-holder submitted that in the judgment it is slated that the time limit upto 23.9.1966 is given only for depositing the amount and not for demarcating the land. Further only after measurement and demarcation of the land and after fixation of price and on deposit the defendant was directed to execute the sale deed. Therefore, there is no time limit for measurement and demarcation. But in the decree it is stated that measurement and demarcation should be done within two months period i.e. on or before 23.9.1966. Therefore, it was submitted that decree was not drafted in accordance with the judgment. A plain reading of paragraph 11 of the judgment in O.S. No. 35 of 1965 would go to show that the measurement and demarcation should be done within two months period and the balance of sale consideration should also be paid or deposited within the same two months period. Therefore, it is not correct on the part of the judgment-debtor to slate that there is no time-limit prescribed for measurement and demarcation and two months time was given only for depositing the balance of sale price after such measurement and demarcation was done.

9. According to the learned Counsel for the decree-holder the decree was not drafted in accordance with the judgment and therefore this mistake should be corrected under Section 151 or Section 152 of C.P.C., by this Court. A decree can be corrected only by a court which passed that decree. This revisional court cannot correct the decree passed in the suit C.S. No. 35 of 1965. Further, the execution court cannot go behind the decree. Learned Counsel appearing for the judgment-debtor relied upon the following decisions in order to support his contention, that execution of the decree in the present case is not subject to any condition precedent Umayal Achi and Anr. v. Ramanathan Chettiar and Yeshwant Deo Rao v. Lalchand Ramchand . On the other hand, learned Counsel for the decree-holder in order to support his contention that decree is executable after measurement and demarcation was done by the judgment-debtors, relied on the following decisions, viz. Vidyanath Aiyar v. Subramania Pattar I.L.R. 36 Mad. 104, Krishnayya v. Parvatarani Bhosayya (1954) 1 M.L.J. 462, Rameshmar Singh v. Homesmar Singh A.I.R. 1921 P.C. 31 and Sitaramamurthy v. Thamma Lakshminarayanamurthi . I have gone through all these decisions carefully. All these decisions laid down a principle that if the execution of the decree is depending upon an event to be happened then the decree became executable only if such event took place, otherwise the decree is executable from the date of passing the decree. In the instant case, the trial court directed the judgment-debtor to measure and demarcate the land on or before 23.9.1966. If the decree-holder failed to measure and demarcate the land on or before 23.9.1966, the decree-holder need not wait till the judgment-debtor measures and demarcates the land. When the judgment-debtor failed to perform the condition imposed upon him within the particular date, the decree-holder ought to have filed an execution petition to compel the judgment-debtor to perform his part of the obligation imposed by the court. In the present case, where the judgment-debtor failed to perform his part of the obligation on or before 23.9.1966 the limitation to file execution petition would start from that date. There is no condition in the decree t hat the judgment-debtor can measure and demarcate the land as and when she pleases and the decree-holder can approach the execution court after such measurement and demarcation are done. Therefore, the execution petition filed on 19.4.1980 is beyond 12 years period from 2 9.1966 and hence, it is liable to be dismissed as time barred. In that view of the matter, I hold that there is no infirmity in the order passed by the appellate court in reversing the order passed by the execution court in E.P. No. 346 of 1981. Accordingly, this revision is dismissed. There will be no order as to costs.