Delhi District Court
Vishal Budhiraja vs Vikas Budhiraja on 21 April, 2008
Ex No. M1 of 2007
IN THE COURT OF SHRI TARUN YOGESH : CIVIL JUDGE : DELHI
EXECUTION No. M1 OF 2007
IN THE MATTER OF:
VISHAL BUDHIRAJA
S/o late Shri Gopal Krishan Budhiraja
R/o B126/1, East of Kailash, New Delhi
Presently at ; 330, Old Lajpat Rai Market
Delhi 11006 ...APPLICANT /
JUDGEMENT DEBTOR
VERSUS
VIKAS BUDHIRAJA
Son of late Shri Gopal Krishan Budhiraja
R/o B126/1, East of Kailash New Delhi ....NONAPPLICANT /
DECREE HOLDER
ORDER
1 Vide this order I propose to decide an application under Sections 47 and 151 of the Code of Civil Procedure, 1908, filed by the applicant/ judgement debtorShri Vishal Budhiraja, praying for restoration of his possession in property bearing no. B126/1, East of Kailash,New Delhi 110065.
2 Facts of the case, which needs to be recapitulated for disposing off the present application are discussed as under.
3 Applicant/judgement debtor had filed a suit for possession and permanent injunction against his brother Sh. Vikas Budhiraja. This suit bearing no. 330/2003 titled "Vishal Budhiraja vs. Vikas Bidhiraja" was in respect of shop no.330, Old Lajpat Rai Market, Delhi110 006. During the Page 1 of 15 Ex No. M1 of 2007 pendency of the suit, parties agreed to resolve their dispute amicably and accordingly a compromise deed/application dated 24/11/2003 was filed under Order 23 Rule 3. As per the compromise deed marked ExC1, defendant (respondent) agreed to hand over half portion of shop no.330, Old Lajpat Rai Market, Delhi, shown in red colour in the site plan, to the plaintiff (applicant) and similarly plaintiff gave up his claim in respect of the west portion of the shop shown in blue colour in the site plan which was in the possession of defendant. In addition to this, plaintiff also gave up his claim and right in flat no. B126/1, East of Kailash, New Delhi110065 and agreed to vacate it within 7 days from the date of compromise. It was further agreed between the parties that plaintiff would continue to collect/accept rent from the tenant at the roof of half portion of the premises and defendant shall have no right of roof and plaintiff shall have no right in the basement.
4 In terms of this compromise decree dated 24/11/2003, defendant/ decree holder filed an execution petition bearing no.29/2004 in the court and got the decree executed and simultaneously plaintiff/judgement debtor was dispossessed from the residential house bearing no. B126/1, East of Kailash, New Delhi110065 on 20/12/2004.
5 In his application under Sections 47 and 151 of the CPC, applicant/ judgement debtor claims that at the time when his brother approached him for resolving the dispute and effecting the compromise, he was not in good mental condition and was under medical treatment on account of Schizoaffective disorder. Applicant/judgement debtor alleges that defendant / decree holder created a confusing situation and asked him to sign several papers on the pretext of easy settlement of the dispute. He has alleged that taking advantage of his disturbed mental status and confusing situations, decree holder got prepared the compromise deed and fraudulently obtained Page 2 of 15 Ex No. M1 of 2007 his signatures upon the compromise deed after which it was filed in the court and a compromise decree was passed. [Copy of Medical Certificate has been enclosed as Annexure A.] 6 Applicant has alleged that though the subject matter of his suit was limited to shop no.330, Old Lajpat Rai Market, Delhi 110006, but, the decree holder fraudulently and with malafide intention, without his knowledge inserted clause no. 2(d) pertaining to property bearing no.B 126/1, East of Kailash,New Delhi110065 in the compromise deed dated 24/11/2003 and got the decree in his favour. [Certified copy of the compromise deed dated 24/11/2003 has been enclosed as Annexure B].
7 Applicant claims that it is well settled law that a compromise decree has to be confined to the actual subject matter of the suit, and in present case, the suit compromised between the parties was confined to the shop bearing no.330, Old Lajpat Rai Market, Delhi110006 and the residential property bearing no. B126/1, East of Kailash was never the subject matter of the original suit. Applicant has alleged that respondent/decree holder played a fraud not only with him but also with the court by obtaining the possession of such property in execution of the compromise decree which was never the subject matter of the original suit.
8 Applicant/judgement debtor states that he has filed a suit for declaration and permanent injunction, bearing no.99/2006 for declaring the compromise deed as null and void having been obtained fraudulently by the decree holder which is pending in the Court of Learned Civil Judge Shri Manish Markan. Another suit for partition of the property bearing no.B 126/1, East of Kailash, New Delhi110065 is said to be pending in the court of Ms. Shailender Kaur. Applicant submits that after being dispossessed from property bearing no. B126/1, East of Kailash, New Delhi110065, he Page 3 of 15 Ex No. M1 of 2007 has no residential accommodation and is compelled to sleep on road as it was the only residential accommodation. Upon these grounds, applicant has prayed for restoring back his possession in the property bearing no. B 126/1, East of Kailash, New Delhi110065.
9 In his reply to this application, nonapplicant/decree holder, Sh. Vikas Budhiraja has claimed that JD had already filed his objections in the execution proceedings which were dismissed by the court of Learned Civil Judge Sh. Sunil Chowdhary on 29/07/2005. Respondent has denied JD's allegation of creating confusion and playing fraud and claims that JD along with his counsel had appeared before the court at the time of settlement and put his signatures upon the order sheet in the presence of the court. He has also denied JD's allegation of having inserted clause no.2 (d) in the compromise deed dated 24/11/2003 fraudulently with malafide intention and claims that the compromise arrived between the parties is correct as per law. Respondent has termed applicant as a chronic litigant having filed a number of litigations against his real brother and prays for dismissing the application with heavy costs.
10 Before adverting myself to the facts of this case, I deem it proper to briefly refer to the provision of Section 47 of the CPC and its underlying principles. Section 47 (1) lays down: Questions to be determined by the court executing decree All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the court executing the decree and not by a separate suit.
Page 4 of 15 Ex No. M1 of 2007 11 As far as the question of nature and scope of Section 47 is concerned, it is no more res integra that scope of Section 47 is very wide and the Hon'ble Supreme Court in Desh Bandhu v. N.L. Anand, (1994) 1 SCC 131, while discussing the scope of Section 47, has held that, exclusive jurisdiction has been conferred on the executing court in respect of all matters relating to execution, discharge or satisfaction of a decree arising between parties or their representatives. Once the suit is decreed, this section requires that the executing court alone should determine all questions in execution proceedings and filing of a separate suit is barred.
Similarly in Prosunno Kumar v. Kali Das (1895) 19 Cal 683 (689) (PC) and Harnandrai v, Debidutt, (1973) 2 SCC 467, the Privy council and later on the Hon'ble Supreme Court had held that, the underlying object of this provision is to provide cheap and expeditious remedy for determination of certain questions in execution proceedings without recourse to a separate suit and to prevent needless and unnecessary litigation. Since Section 47 embraces all matters connected with the execution of a decree between the parties or their representatives, and covers all questions relating to the execution, discharge and satisfaction of the decree, it should be liberally construed so as to empower the court to determine all such questions, unless they clearly fall outside the the scope and purview of it.
12 Hon'ble Supreme Court has laid down the following conditions for the applicability of Section 47 in the reported case 'Ramanna V. Nallaparaju, AIR 1956 SC 87':
(i) The question must be one arising between the parties to the suit in which the decree is passed, or their representatives; and Page 5 of 15 Ex No. M1 of 2007
(ii) It must relate to the execution, discharge or satisfaction of the decree.
Both the above conditions must be satisfied cumulatively.
13 In the case at hand, the question involved in the application under Section 47 is one which has arisen between two brothers who were parties in the suit as the plaintiff and defendant. It is also not disputed that question involved in this application is one which has its origin and relates to the execution, discharge and satisfaction of the decree. Thus, these conditions having been met, present application is covered under the provision of Section 47 and hence is maintainable.
14 As far as the question regarding the powers of the executing court is concerned ,the Hon'ble Supreme Court has held that an executing court has plenary power to determine all questions relating to execution of a decree and Section 47 will cover all questions which arise before as well as after the decree has been executed and for that purpose the court can treat a suit as an execution application or an execution application as a suit in the interest of justice. [Refer to Shreevastava v. Veena, AIR 1967, SC 1193 ; Jugal Kishore v. Raw Cotton Co., AIR 1955 SC 376].
15 It is also well established that an executing court can not go behind the decree and is bound to execute the decree as it is. An executing court can not question the correctness or otherwise of the decree and it is only in cases of inherent lack of jurisdiction on the part of the court passing the decree, that the executing court can refuse to execute the decree. An executing court can not go behind the decree, but an objection as to its validity can be raised in execution proceedings if such objection appears on the face of the record, however, if the objection requires examination or Page 6 of 15 Ex No. M1 of 2007 investigation of facts the executing court can not entertain such objection. [Reliance placed upon Vasudev Dhanjibhai Modi v. Rajabhai, (1970) 1 SCC 670 : Sabitri Dei v. Sarat Chandra, (1996) 3 SCC 301; Urban Improvement Trust v. Gokul Narain, (1996) 4 SCC 178.] 16 The judicial principles which cull out from the aforesaid discussion are that - an executing court can not go into question relating to correctness or validity of the decree, except where the decree is a nullity, nevertheless, it has to decide the question whether a particular property is or is not included in the decree [emphasis supplied]. With these observations in mind I shall venture to decide the present application.
17 In the present case, parties had executed a compromise deed/ application dated 24/11/2003 which was marked as ExC1 and the site plan filed along with the application under Order 23 Rule 3 was marked as EX C2. This application filed was duly supported by the affidavits of the plaintiff and the defendant and this court by its order dated 24/11/2003 recorded " Parties submit that matter has been compromised amicably. The terms of compromise are taken on record and same is EXC1, Site plan EXC2 ; Matter is accordingly disposed off as compromised. File be consigned to R/R. Statement of parties recorded separately. Sd/"
18 There after, on the basis of the order/judgement dated 24/11/2003 by which the matter had been disposed off as compromised, nonapplicant/ decree holder filed an execution petition on 30/07/2004 seeking warrants of possession against the plaintiff. Certified copy of the order dated 24/11/2003 along with the certified copies of application under Order 23 Rule 3 and the plaint were filed by the defendant on 30/07/2004 and later on 13/12/2004 he filed a copy of the site plan of property bearing no. B Page 7 of 15 Ex No. M1 of 2007 126/1, East of Kailash, New Delhi110065. Warrant of possession were issued and same were got executed. However, it is not evident from the order sheet as to when the warrant for possession were got executed. By the order dated 15/10/2004 warrant of possession was directed to be issued but it appears that nonapplicant / decree holder did not file PF and on 03/12/2004 he filed an application seeking another date for bailiff. His application was allowed and PF was filed on 03/12/2004. However, surprisingly, no bailiff's report disclosing the execution of warrant of possession is traceable on record. As regards the probable date of applicant's dispossession from the property it seems that the warrant of possession were got executed on 20/12/2004 because in his application under Sections 47 and 151 of the CPC, the applicant / judgement debtor has stated that he was dispossessed from the residential house bearing No. B126/1, East of Kailash on 20/12/2004 and his account seems plausible as in his applications under Section 151 filed along with his objection dated 23/12/2004, the applicant has stated about his dispossession.
19 The objections and applications under Section 151 filed on 23/12/2004 were put up before the court along with file on 14/01/2005. Objections were duly replied by the defendant/ decree holder on 18/03/2005 and matter was fixed for arguments on 03/06/2005. Thereafter, this case was transferred to the court of Sh. Sunil Chowdhary, Learned Civil Judge, and by its order dated 29/07/2005, the court held "it is submitted by the parties that the warrant of possession in respect of suit property has been executed and the relief claimed in the execution petition has satisfied. In view of the satisfaction of the execution petition objections filed by the opposite party not tenable. He is at liberty to seek remedy available to him as per law. Petition disposed off as satisfied. Petition be consigned to Record Room."
20 As the decree got executed before the filing of objections, so Page 8 of 15 Ex No. M1 of 2007 objections could not be decided and hence judgement debtor has filed the instant application seeking redressal of his grievance in accordance with the liberty granted to him by the court. In his application judgement debtor has also mentioned of having filed a suit for declaration and permanent injunction in the court of Learned Civil Judge and another suit for Partition before the Learned ADJ. Basically the execution of the judgement/order dated 24/11 2003 has been challenged on the following two grounds.
(1) DH had fraudulently and stealthily inserted clause 2 (d) in the compromise application, incorporating property bearing no. B126/1, East of Kailash, and (2) property bearing no. B126/1, East of Kailash was not a subject matter of the suit and hence was not covered by the decree.
21 During the course of his arguments, upon the issue of maintainability of this application, learned counsel for the judgement debtor submitted that his application under Sections 47 and 151 is maintainable even after the culmination of the execution proceedings and relied upon the following judgements in support of his contention : (1) Smt. Brahmwati and Anr v. Ramesh Chand and Anr AIR 1986 ALLAHABAD 297, wherein the Hon'ble Allahabad High Court while dealing with Section 47 of CPC, held: matters foreign to the subject matter of suit can not be enforced in execution in spite of compromise.
(2) GopalKrishna Kammath v. Bhaskar Rao, AIR 1989, KERALA 251, wherein the Hon'ble Kerala High Court has held: (A) Civil P.C. (5 of 1908), S. 47 - Question as to excess execution property not covered by decree delivered to decree holder in execution of decree proper remedy for the judgement debtor to recover property delivered in excess of decree is by application under Section 47 and not by separate suit. [ AIR 1956 SC 87, Followed] (B) Civil P.C. (5 of 1908), S. 47 - Property not covered by decree Page 9 of 15 Ex No. M1 of 2007 delivered to decree holder in execution of decree -Application by judgement debtor to recover the said property under Section 47 - Held, application was maintainable Pendency of execution petition can not be a condition for maintainability of S. 47 application.[AIR 1967 SC 1193, Followed] (3) Abdul Ali v. Khirada Dutta and others, AIR 1993 GAUHATI 56, wherein the Hon'ble Gauhati High Court held: Civil P.C. (5 of 1908), S. 47 - Excessive execution of property - duty of court - application by judgement debtor under S. 47 for restoration of possession Rejection of - validity - Questions as to excessive execution can be decided under S. 47, and not by separate suit - Application under S.47 is maintainable.[AIR 1922 PC 279 ; AIR 1956 SC 87 ; AIR 1959 KER 401, Followed] 22 As far as the issue regarding the execution of matters foreign to the subject matter of the suit is concerned, it is no more res integra that after the amendment of the CPC in 1976, the earlier position has altered. It was a position prior to the Amendment Act of 1976, that a compromise decree could be passed only so far as it related to the suit, but, the Amendment Act, 1976, has specifically provided that whether or not the subject matter of the agreement, compromise or satisfaction is identical with the subject matter of the suit, if it is between the parties and the compromise is a lawful one, the court can pass such a decree. [Reliance placed upon Thimmappa v. Anantha, AIR 1986, Kant 1].
23 Order 23 Rule 3 clearly lays down "Where it is proved to the satisfaction of the court that the suit has been adjusted wholly or in part by any lawful agreement or compromise in writing and signed by the parties, or where.......... Court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith so far as it relates to the parties to the suit, whether or not the subject matter of the agreement, compromise or satisfaction is the same as the subject matter of the suit."
Page 10 of 15 Ex No. M1 of 2007 24 Thus, judgement debtor's objection that compromise decree must be confined to the actual subject matter of the suit, which in the present case is shop no.330, Old Lajpat Rai Market, Delhi110006 and residential property bearing no.B126/1, East of Kailash never being the subject matter of the original suit is not covered by the decree is without any legal force. In view of explicit provisions of Order 23 Rule 3, there is no escape from the fact that after the parties entered into an agreement and executed the compromise deed/application dated 24/11/2003, under Order 23 Rule 3 of the Code of Civil Procedure, property bearing no. B126/1, East of Kailash despite its not being the subject matter of the suit, became a part of the decree.
25 As far as JD's other objection regarding commission of fraud in preparing the compromise deed/application and his allegation about DH fraudulently and stealthily inserting clause 2(d) in the compromise application, incorporating property No. B126/1, East of Kailash,New Delhi 110065, in his favour, is concerned, the legal position in this regard is manifestly clear that an executing court can not decide question as whether the decree is fraudulent or collusive. Thus, this objection raised by the JD is not sustainable and fails to stir the court to exercise its indulgence in favour of the judgement debtor.
26 Now coming to the question regarding the execution of compromise decree. It has been held in a catena of cases that a compromise decree is executable in the same manner as an ordinary decree. However, if the decree gives effect to an unlawful compromise or is passed by the court having no jurisdiction to pass it, it is a nullity and its validity can be set up even in execution proceedings. The underlying principle being that a defect of jurisdiction strikes at the very authority of the court to pass a decree and such decree can not be cured even by the consent of parties.
Page 11 of 15 Ex No. M1 of 2007 27 In the present case, plaintiff had filed a suit for possession and permanent injunction in respect of shop no.330, Old Lajpat Rai Market, Delhi on the basis of the registered will, executed by his mother in his favour. Defendant on his part appeared to the summons and without filing any written statement entered into compromise with the plaintiff and executed and filed a joint Compromise deed/application dated 24/11/2003. Through this compromise application filed under Order 23 Rule 3 of the CPC, it was agreed that parties will divide the shop amongst themselves whereby defendant will hand over half portion of shop to the plaintiff and will himself occupy the other half. In addition, it was also agreed that plaintiff will relinquish his right in property bearing no. B126/1, East of Kailash which was in their joint possession and will vacate the flat within seven days from the date of compromise.
28 Since, property No. B126/1, East of Kailash, New Delhi110065 originally not a subject matter of the suit had been incorporated in the compromise deed/application dated 24/11/2003 which was made a part of the decree as Exh C1, so as per the provisions of Section 17(2)(vi) of the Registration Act, 1908, the decree/order required to be registered which has not been done. The relevant provisions of Registration Act, 1908 have been reproduced below for reference.
Section 17 Documents of which registration is compulsory Section 17 (2): Nothing in clause (b) and (c) of Section (1) applies to any decree (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; or Similarly, Section 49 deals with Effect of non registration of documents required to be registered. It lays down - No document Page 12 of 15 Ex No. M1 of 2007 required by section 17 or by any provision of the Transfer of Property Act, 1882 to be registered shall
(a) affect any immovable property comprised therein, or
(b) confer any power to adopt, or
(c) be received as evidence of any transaction affecting such property or conferring such power.
29 This is a strange case where the defendant has neither filed any Written Statement nor any counter claim and has got court's decree in his favour without shelling out a single penny. The situation gets more awkward as the defendant has unabashedly gone ahead and also got the decree executed without getting it registered. As per Section 49 of the Registration Act, a documents which requires compulsory registration and has not been registered does not affect any right in the immovable property and cannot be received in evidence of any transaction affecting such property or conferring such power. Since, the order/decree whereby, the Plaintiff/JD has relinquished his right in property bearing No.B126/1, East of Kailash, New Delhi110065 and the nonapplicant/decree holder had become entitled to possession was beyond the subject matter of the original suit and required compulsory registration, so in the absence of the registration the rights of parties in respect of the property bearing No. B 126/1, East of Kailash, New Delhi110065 remain unaffected. The order/ decree dated 24/11/2003 had not determined any preexisting right of the parties in property bearing No. B126/1, East of Kailash, New Delhi 110065, rather it had created a fresh right in the property and hence as per the provisions of Section 17(2)(vi) of the Registration Act, the same required compulsory registration and in the absence of registration it will have have no effect in the eyes of law.
Page 13 of 15 Ex No. M1 of 2007 30 I am supported in my view by the decision of the Hon'ble Supreme Court reported in the judgement Bhoop Singh Vs Ram Singh Major & Ors reported in JT 1995 (6) SC 534 wherein, learned Apex Court in para 18 sub para (2) while dealing with the legal position qua clause No.(vi) Sub Section 2, Section 17, held, "If the compromise decree were to create for the first time right, title or interest in immovable property of the value of Rs.100/ or upwards in favour of any party to the suit, the decree or order would require registration". Further in para 19 of the judgement, the Hon'ble Apex Court held that on the strength of the decree passed in the suit, the defendant in the suit could not sustain his case as put in his Written Statement for the reason that the decree having purported to create right or title in the Plaintiff for the first time that is not being a declaration of preexisting right, did require registration.
31 In the absence of the registration of the order/decree dated 24/11/2003, the possession of property bearing No. B126/1, East of Kailash, New Delhi110065 obtained by the nonapplicant/decree holder in execution proceedings on the basis of the unregistered decree and its retention cannot be termed as proper and valid. As the delivery of possession in execution proceedings amounted to putting into force/effect an unregistered decree, so retention of possession by non applicant/decree holder will amount to perpetuating the illegality committed by the non applicant. Something which cannot be done directly cannot be allowed to be done indirectly since the further retention of possession would result in the execution of an unregistered decree which is not permissible.
32 Through the execution proceedings, the non applicant has wrongly obtained the possession of the property bearing No.B126/1, East of Kailash, New Delhi110065, without getting the order/decree registered, so the execution of warrant of possession in absence of the registration of the Page 14 of 15 Ex No. M1 of 2007 order/decree is improper and hence the nonapplicant is under an obligation to hand over that portion of the property which was earlier in the possession of the applicant/judgement debtor.
33 Accordingly, the application under Section 47 r.w Section 151 CPC is allowed and the nonapplicant is directed to restore the applicant / Judgement Debtor in the property bearing No. B126/1, East of Kailash,New Delhi110065 within 30 days from the date of passing this order. The present miscellaneous file be consigned to Record Room.
ANNOUNCED IN OPEN COURT TARUN YOGESH
ON 21/4/2008 CIVIL JUDGE/DELHI
Page
15
of 15