Karnataka High Court
Shivashankargouda vs Bagalkot Udyog Ltd., on 24 April, 2019
Author: B.M.Shyam Prasad
Bench: B.M. Shyam Prasad
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 24TH DAY OF APRIL 2019
BEFORE
THE HON'BLE MR. JUSTICE B.M. SHYAM PRASAD
C.R.P. NO. 1113/2013
BETWEEN:
1. SRI. SHIVASHANKARGOUDA,
S/O TIMMANAGOUDA POLICEPATIL,
AGE: 56 YRS, OCC.: ADVOCACY &
AGRIL., R/O EXTENSION AREA,
BAGALKOT.
2. SRI NAGANAGOUDA S/O SHANKARGOUDA
NAGANAGOUDA, AGE: 54 YRS, OCC.: AGRIL,
R/O BILGI, DIST: BAGALKOT.
3. SRI. TIMMANNA S/O KUDLEPPA KAMA,
AGE: 62 YRS, OCC.: AGRIL,
R/O BILGI, NEAR TRAINING COLLEGE,
SHIRUR ROAD, BAGALKOT.
4. SRI PRABHURAJ S/O BASAVARAJ HUNNUR,
AGE: 31 YRS, OCC.: AGRICULTURE,
R/O 17TH CROSS, VIDYAGIRI,
BAGALKOT.
5. SRI. CHANDRAKANT S/O VEERABHADRAPPA
PATIL, AGE: 50 YRS, OCC.: AGRIL,
R/O ROOPLAND, DIST: BAGALKOT.
6. SRI. SHIVASHANKARGOUDA,
S/O LINGANAGOUDA PATIL,
AGE: 56 YRS, OCC.: AGRIL.,
R/O KHB COLONY, R/O BAGALKOT.
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7. SRI GURANAGOUDA S/O LINGANAGOUDA
PATIL, AGE: 61 YRS, OCC.: AGRIL.,
R/O KHB COLONY, R/O BAGALKOT.
8. SMT. VIMLA W/O MOHAN PATIL,
AGE: 56 YRS, OCC.: AGRIL,
R/O MAHAVEER ROAD,
BAGALKOT, DIST: BAGALKOT.
- PETITIONERS
(BY SRI. F.V. PATIL, ADVOCATE)
AND:
BAGALKOT UDYOG LTD., 14TH FLOOR,
AIR INDIA BUILDING, NARIMAN POINT,
MUMBAI, FACTORY AT BAGALKOT,
RETD. BY ITS AUTHORIZED REPRESENTATIVE,
SHRI R.K. MAHATMA, AGE: 52 YRS,
OCC.: ACCOUNTS OFFICER IN BAGALKOT
UDYOG LTD., (CEMENT FACTORY),
BAGALKOT.
- RESPONDENT
(BY SRI. S.B. HEBBALLI AND PRAMOD KHATAVI,
ADVOCATES)
THIS CIVIL REVISION PETITION IS FILED UNDER SECTION
115 OF CPC AGAINST THE ORDER DATED 20.08.2010 PASSED
IN E.P. NO. 53/2007 ON THE FILE OF THE LEARNED PRL. JR.
CIVIL JUDGE, BAGALKOT & ETC.
THIS CIVIL REVISION PETITION HAVING BEEN HEARD
AND RESERVED FOR PRONOUNCEMENT OF ORDER ON
12.04.2019 COMING ON FOR PRONOUNCEMENT OF ORDERS
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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ORDER
The petition was listed for admission on 29.3 2019 at the request of the counsel for the parties. The learned counsel, Sri. F. V Patil on behalf the petitioners and Sri. S B Hebbali, along with Shri Pramod V Kathavi, on behalf of the respondent, were heard, with their consent, for final disposal. This revision petition is filed calling in question the order dated 20.8.2010 in the Execution Petition in E.P. No. 53/2007 on the file of the Principal Junior Civil Judge, Bagalkot (for short, 'Executing Court') with a request for restoring the execution petition to the board of the Executing Court for fresh consideration.
2. When the execution petition was listed before the Adalat on 20.8 2010, the Decree Holder - the respondent - filed a Memo seeking dismissal of the execution petition on the ground that there was full satisfaction with the decree. The Adalat vide order dated 20.08.2010 accepted such Memo and dismissed the execution petition as being satisfied. The impugned order dated 20.8.2010 reads as follows:
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D. Hr present and submitted that in view of the intervention of the conciliator the matter has been settled amicably. Hence, D.Hr filed a memo seeking dismissal of the petition as fully satisfaction (sic). Hence, perused memo and same is accepted. Accordingly, we proceed to pass the following:
Order In view of the memo filed petitioner (sic), the petition is dismissed as fully satisfied.
3. The undisputed facts are as stated hereinafter. Sri Ramappa Fakirappa Talawar and his brothers were the owners of land in survey No. 169, 171, 180, 181 and 182 of Bagalkot Village. The aforesaid Sri. Ramappa Fakirappa Talawar and his brothers executed the registered Lease Deed dated 19.11.1952 in favour of the respondent. The lease was for an initial period of 30 years from 01.04.1953, and the said Sri Ramappa Fakirappa Talawar and his brothers also agreed for renewal of the lease. There was a dispute between Sri Ramappa Fakirappa Talawar/ his brothers and the respondent as regards the renewal of the lease for the period resulting in the respondent initiating suit in OS No. 20/1984 for specific performance of the contract requiring the aforesaid Sri Ramappa Fakirappa Talawar 5 and his brothers to execute a registered lease deed for the lands in survey No. 169, 171, 180, 181 and 182 of Bagalkot Village in favour of the respondent for another period of 30 years commencing from 1.4.19 83 and ending as on 31.3.2013. The suit in OS No. 20/1984 was decreed by the judgment and decree dated 10.06.1991. This judgment and decree, being reversed in the appeal in RA No. 35/1992, was restored in the second appeal by this Court in RSA No. 1137/1994.
Meanwhile, that is, during the pendency of this second appeal in RSA No. 1137/1994, the petitioners purchased the different portions of the aforesaid lands in survey No. 171, 180, 181 and 182 from Sri Ramappa Fakirappa Talawar and his brothers under the separate sale deeds dated 22.4.1996.
4. The respondent filed an execution petition in EP No. 53/2007 arraying the legal heirs of Sri Ramappa Fakirappa Talawar and his deceased brothers as well as the petitioners as Judgment Debtors. The petitioners were arrayed as Judgment Debtors No. 9 to 16. The Executing Court allowed the application filed by the respondent under Order V Rule 20 (A) of 6 the Code of Civil Procedure (for short, CPC) for substituted service of notice to the petitioners through paper publication in a kannada daily called, 'Vidyamana' with local circulation. The Executing Court on 27.07.2009, held that the service of notice of the petitioners was sufficient and placed the petitioners ex- parte because the petitioners did not appear before the Executing Court though the notice was published in the Kannada daily, 'Vidyamana'.
5. Thereafter, the respondent filed an application under Order XXVI Rules 9 and 10 of CPC for appointment of Court Commissioner to execute and register the Lease deed as decreed in OS No. 20/1984. The Executing Court allowed such application on 03.10.2009, and appointed Sri R. G Hulyaalkar, an Advocate, as the Court Commissioner. The respondent furnished a draft Lease Deed on 10.11 2009, and the office was called upon by the Executing Court to check the draft. The office put up a note stating that ''the properties of draft lease deed shown as per decree passed in OS No. 20/1984'. The Executing Court issued warrant to the Court Commissioner, but 7 the Court Commissioner could not execute the Commissioner's warrant because the concerned Sub- Registrar refused registration. The respondent filed an application for issuance of notice to the concerned Sub- Registrar for refusal to register the lease deed. The Executing Court directed issuance of notice to the Sub- Registrar to show cause as to why action should not be taken for disobedience, and thereafter the Executing Court vide a reasoned order dated 04.08.2010 directed the Court Commissioner to present the lease deed for renewal as per the decree passed in OS No. 20/1984. It is thereafter the subject Lease Deed dated 17.08.2010 is registered.
6. The present controversy is because of the inclusion of clause 10 in this Lease Deed dated 17.08.2010. The leased deed dated 17.8.2010 is in vernacular, and clause 10 translates as follows:
The first party- company, may if it so desires, sub- lease its leasehold right in favour of any third party and the second party owners of the property shall have no objection. After the expiry of the aforesaid period of 30 years the first party shall deliver possession of the subject lands to the second party in terms of the 8 agreement. In the event the first party - company requires the lands for its own use, it would be entitled for the continuation of the lease for next 30 years under a registered lease deed on the same terms.
---
It is after the registration of this Lease Deed dated 17.8.2010, the Execution Petition in EP No. 53/ 2007 was closed as being satisfied by the impugned order. The petitioners impugned this order dated 20.8.2010 in WP No. 77106/2013. However, this writ petition was disposed of on the ground that it was not maintainable while reserving liberty to the petitioners to initiate appropriate proceedings. It is after this order in WP No. 77106/2013, the present petition is filed.
7. The respondent, in the meanwhile, has initiated suit in OS No. 67 of 2013 on the file of the Principal Civil Judge (Junior Division) Bagalkot inter alia for a decree of specific performance directing the petitioners to renew the lease for a further term of 30 years from 01.04.2013, and to do all necessary acts in order to execute and admit the 9 execution of the lease deed for the subject property in favour of the respondent on the same terms and conditions mentioned in the original lease deed dated 19.11.1952. The petitioners have been served with notice of this subsequent suit in OS No. 67/2013 ,and they have filed Written Statement contending, amongst others, that they were not served with the notice of the Execution Petition in EP No. 53/2017 and the respondent has fraudulently obtained the Lease Deed dated 17.8.2010 with the inclusion of the aforesaid clause 10 - a relief that was not granted by the court in the earlier suit in OS No. 20/1984. This suit in OS No. 67/2013 is pending adjudication.
8. As an interlude it will have to be mentioned that after the writ petition in WP No. 77106/2013 was disposed of as aforesaid with the liberty to the petitioners to initiate appropriate proceedings, this petition is filed accompanied by an application under section 5 of the Limitation Act. This Court rejected this application vide Order dated 21.9.2017, and 10 this Court's order dated 21.09.2017 was taken to the Hon'ble Supreme Court in SLP (C) No. 1080 of 2018. The Hon'ble Supreme Court has quashed the Order dated 21.9.2017 and remitted the matter for re-consideration on merits with liberty to the respondent to raise all contentions.
9. Sri. F V Patil, the learned counsel for the petitioners contended that the Clause 10 could not have been included in the Lease Deed dated 17.8.2010. The judgment and decree in the suit in OS No. 20/84 is specific inasmuch as it is declared that the respondent is entitled for a decree for specific performance of contract of getting executed a registered lease deed for a period of 30 years commencing from 1.4.1983 to 31.3.2013 on a yearly rent of Rs.700/- in respect of the suit lands bearing RS Nos.169, 171, 180, 181 and 188 situated at Bagalkot. The judgment and decree in the suit in OS No. 20/84 does not contemplate a renewal beyond the period of 30 years between 1.4.1983 and 31.3.2013, and as such, the Executing Court could not have traversed beyond the judgment and decree in OS No. 20/1984. The learned counsel, in response to the repeated 11 queries by this Court, very categorically stated that though it is contended that the Clause 10 is incorporated in the Lease Deed dated 17.08.2010 because the respondent was fraudulent not only in causing the inclusion of this Clause but also in ensuring that the petitioners were not served in the execution petition, insofar as the present revision petition, the petitioners would confine the canvas against the impugned order only to the following. Thus, the learned counsel for the petitioners presents his case within a narrow canvas, and the grounds urged are:
a. There is violation of mandatory provisions of Order XXI Rule 34 of CPC. This provision specifically stipulates that a Decree Holder must prepare a draft of the document in accordance with the terms of the decree and deliver the same to the court. But, the respondent - the Decree Holder in EP No. 53/2007 - violated this mandate in submitting a draft of the lease deed including Clause 10 which was never contemplated by the judgment and the decree in OS No. 20 of 1984, and the Executing Court was 'negligent and careless' in approving the draft of the lease deed without verifying whether the draft was in 12 accordance with the judgment and decree in OS No. 20 of 1984.
b. The office of the Executing Court only verified the draft of the lease deed to ascertain whether the description of the property in the draft submitted by the respondent - the Decree Holder - tallied with the description of the property as mentioned in the decree. Thus, the execution, and registration, of the Lease Deed dated 20.8.2010 including Clause 10 is in violation of the mandatory provisions of the order XXI Rule 34 of CPC as well as a result of carelessness on the part of the Executing Court. c. It is settled law that if a document is executed and registered in violation of the mandatory provisions of order XXI Rule 34 of CPC, the document to the extent that it exceeds the judgment and decree cannot be sustained in law. The learned counsel relied upon decision of the High Court of Assam and Nagaland in Sashimohan Debnath and another Vs. Monomohan Debnath and others1 and the decision of a Division Bench of the High Court of Andhra Pradesh in P Venkanna Chetti and Another Vs. A Apparao 1 in MA (S) No. 13 of 1965 decided on 06.08.1969 13 Naidu2 in support of this proposition. The High Court of Assam and Nagaland has held that an Executing Court because of the phrase, 'as it thinks fit' is not conferred with the absolute power to pass any order it thinks fit regarding approving or altering the draft. The Executing Court is required to examine whether the draft is in conformity with the terms of the decree and the Executing Court cannot go beyond the decree.
d. It has been repeatedly held by the Courts that if carelessness on the part of a court results in injustice to any litigating party, a revision petition under section 115 of CPC would be maintainable, and such petition cannot be dismissed on technicalities. The learned counsel relied upon the decision of the High Court of Punjab and Haryana in Punjab Small Industries and Export Corporation Ltd vs. Sardul Singh3, and emphasized that it has been held that High Court cannot throw out a revision petition on the ground that it was not properly presented after the same has been admitted, entertained and listed for final
2 AIR 1959 AP 666 3 (1988) ILR Punjab and Haryana 1 14 hearing. When any illegality in the exercise of jurisdiction by a subordinate comes to its notice, the concerned High Court must exercise its revisional jurisdiction without being trammeled by technicalities. The learned counsel also relied upon decision of the Calcutta High Court in Arati Daw vs. Pradip Roy Chowdry and others4, and placed specific reliance upon on the extraction of a proposition enunciated in its earlier decision which reads as follows:
"The court sees the gross carelessness it is guilty of in drawing up of the sale proclamation. The court sees too the substantial injury the petitioner has sustained by reason of such inexcusable callousness, and the court is setting aside the sale suo moto, acting on the principle that no litigation shall suffer for the Courts mistake or carelessness. That the petition by the petitioner has brought to the light the court mistake or carelessness is an accident. Such mistake or carelessness might have been detected by the court in other ways too."
10. Sri. S B Hebballi, along with Shri Pramod V Kathavi, the learned counsel for the respondent, countered the arguments by the learned counsel for the petitioner contending: 4
AIR 2003 Cal 218 15 Firstly, that the petitioners have chosen to impugn the Executing Court's order dated 20.8.2010, which is only an order by the Adalat on a Memo filed by the respondent after the execution and registration of the Lease Deed dated 17.8.2010. The petitioners have not chosen to challenge the orders of the Executing Court either to place the petitioners ex-parte or approving the draft of the Lease Deed dated 17.08.2010 including Clause 10 or directing execution and registration of the Lease Deed. There is no jurisdictional error in the Executing Court/ Adalat ordering dismissal of the execution petition as being fully satisfied after the execution of the Lease Deed dated 17.08.2010, and therefore, a petition under section 115 CPC is not maintainable.
Secondly, the learned counsel relied upon the decision of the Hon'ble Supreme Court in Tek Singh vs. Shashi Verma and another5 to contend that it would not be permissible for the High Court, while exercising jurisdiction under section 115 of CPC, to correct errors of fact however gross 5 AIR 2019 SCC Online 168 16 or even errors of law unless the said errors have relation to the jurisdiction of the Court to try to dispute itself. Neither of the aforesaid circumstances are established by the petitioners, and therefore, the revision petition is not maintainable.
Thirdly, the petitioners, if they have to succeed in their challenge to the inclusion of Clause 10 in the Lease Deed, will have to necessarily demonstrate sufficient cause for the non-participation in the proceedings before the Executing Court and also illegality in the Executing Court approving the draft of the Lease Deed or directing its execution and registration. The petitioners have not placed any material ex-facie to demonstrate sufficient cause for their non-participation or illegality in the orders of the Executing Court either in approving the draft of the Lease Deed or directing its execution and registration; as such, the challenge would be on questions of facts which will have to be determined after necessary enquiry. Such enquiry, is pending consideration in OS No. 67/2013, and therefore, there should be no interference in this petition. 17 Fourthly, it is settled law that even in India, the lease, which creates a tenancy for a term of years, may confer on the lessee, an option of renewal; if the lease deed does not state by whom the option of renewal is to be exercised, lessee can exercise the option. Further, if the lease deed does not state the terms of renewal, the new lease will be for the same period under the same terms as the original lease in respect of all the essential conditions thereof. Furthermore, there is no legal presumption against the right of perpetual renewal, but there is strict proof upon a person claiming a right of renewal and the right of renewal is a question of fact to be decided in the peculiar facts and circumstances of each case. The learned counsel relied upon the decision of the Hon'ble Supreme Court of India in State of Uttar Pradesh and others versus Lalji Tandon reported in AIR 2004 SC 32 in support of this proposition. These circumstances are established in the present case, and therefore, the respondent was justified in submitting the draft lease deed including Clause 10 and the 18 petitioners cannot contend that the terms of the Lease Deed are beyond the terms of the decree.
Lastly, the question whether the respondent would be entitled for a new renewal after 31.3.2013, because the renewal of the lease between 1.4.1983 and 31.3.2013 was on the same conditions as was contained in the original lease deed dated 02.11.1952, is a question of fact. The respondent is asserting the right for renewal for the next 30 years from 31.03.2013 because the renewal for the period between 01.04.1983 and 31.03.2013 was subject to the same terms and conditions as contained in the original Lease Deed dated 02.11.1952. Therefore, the Executing Court cannot be said to be either careless or negligent in approving execution and registration of the Lease Deed. The necessary questions in these regards are pending consideration in the suit in OS No. 67/2013. Therefore, it would not be appropriate to dilate on these questions in the present proceedings.
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11. Sri. F V Patil, the learned counsel for the petitioners, in the rejoinder submission contended that the Clause 10 in the Lease Deed dated 17.08.2010 is materially different from the clause in that regard in the original Lease Deed dated 02.11.1952. The original Lease Deed did not contemplate either the right to sub lease or renewal of lease for the 2nd term of 30 years after the first term of 30 years. Further, the argument that the respondent was entitled for renewal of the lease for the period between 01.04.1983 and 31.3.2013 on the same terms as are contained in the original lease deed even insofar as renewal, was not canvassed by the respondent in the suit in OS No. 20/1984 obviously because it was never the respondent's case. Therefore, the judgment and decree in OS No. 20/1984 was categorical in decreeing renewal only for the period between 1.04.1983 and 31.03 2013.
12. The present contentions in this regard are an afterthought and are an effort to stall adjudication of the petitioners' specific case that there is an obvious, and an indisputable, negligence and carelessness in the Executing Court approving the draft 20 with Clause 10 incorporating those terms which were never part of even the original Lease Deed. As gross negligence and carelessness on the part of the Executing Court cannot be denied, this Court will have to exercise jurisdiction under section 115 of CPC and restore the execution petition for fresh adjudication from the stage of approval of the draft as contemplated under order XXI Rule 34 of CPC.
13. In the light of the rival submissions, the question that arises for consideration as:
"Whether, in the facts and circumstances of this case, this Court can exercise jurisdiction under section 115 of CPC, to examine whether the Executing Court has overreached the decree in OS No. 20/1984, which is affirmed by this Court in RSA No. 1137/1994 in approving the draft of the Lease Deed dated 17.8.2010 incorporating Clause 10 and permitting its execution and registration"
14. It is settled law that a High Court shall exercise the power of revision under section 115 of CPC subject to the conditions stipulated therein, i.e., for a High Court to intervene under Section 115 of CPC, a Court subordinate to it must have (a) exercised 21 jurisdiction not vested in it by law, or (b) failed to exercise jurisdiction vested in it by law, or (c) acted in exercise of its jurisdiction 'illegally' or 'with material irregularity. If any of these three conditions are found in the order of a subordinate court, and if such order (made in favour of the person applying for the order) would finally dispose of the proceedings/suit, the High Court may vary or reverse an order under Section 115 of CPC. It is also settled that the expressions 'illegally' and 'with material irregularity' neither refer to errors of fact or of law nor the decision taken by such Court, but refer to the manner in which such decision is taken. In fact, these settled propositions are emphasised by the Hon'ble Supreme Court in the recent decision in Tek Singh vs. Shashi Verma supra by reference to its earlier decision in DLF Housing and Construction Company Private Limited v. Sarup Singh in which it was held, "The words "illegally" and "with material irregularity"
as used in this clause do not cover either errors of fact or of law; they do not refer to the decision arrived at but merely to the manner in which it is reached. The errors contemplated by this clause may, in our view 22 relate either to breach of some provision of law or to material defects of procedure affecting the ultimate decision, and not to errors either of fact or of law, after the prescribed formalities have been complied with."
15. The petitioners, initially, filed writ petition in WP No. 77106/2013 for the relief sought for herein, but this writ petition is disposed of with liberty to the petitioners to initiate appropriate proceedings. It is after the disposal of the writ petition in WP No. 77106/2013, the present revision petition is filed. Therefore, the learned counsel for the parties have not canvassed the ground of maintainability of the revision petition relying on Proviso to section 115 (1) of CPC. Similarly, the learned counsel for the parties are also not crossing swords, as it were, on the grounds under section 115 (1) (a) or (b) of CPC. The learned counsel for the parties cross swords as regards the exercise of jurisdiction upon under section 115 (1) (c) of CPC. The learned counsel contends that the Executing Court, in approving the draft for the Lease 23 Deed dated 17.08.2010 with Clause 10, with material irregularity.
16. The learned counsel for the petitioner contends that the Executing Court has acted with material irregularity in exercise of its jurisdiction inasmuch asserting that it has traversed beyond the decree in OS No. 20/1984 in incorporating Clause 10 in the Lease Deed dated 17.08.2010, which is materially different from the clause in that regard in the original Lease Deed dated 02.11.1952, and that this material irregularity is because the respondent - the Decree Holder before the Executing Court - has acted in breach of the mandatory provisions of Order XXI Rule 34 of CPC and the Executing Court was careless in approving the draft for the Lease Deed only after verification of the description of the property as found in the draft and the decree in OS No. 20/1984.
17. The petitioners case in this regard is premised on the assertion that the provisions of order XXI rule 34 of CPC 24 enjoins a Decree Holder to prepare a draft of the document or endorsement in accordance with the terms of the decree and deliver the same to the court. The respondent - the Decree Holder has acted in breach of this obligation in submitting a draft including Clause 10 which is materially different from the terms of the decree in OS No. 20/1984. The difference in the language in Clause 10 of the Lease Deed dated 17.08.2010 and the decree in OS No. 20/1984, as well as the relevant clause in the original Lease Deed dated 02.11.1952, is obvious, and on comparison of these, it would be rather indisputable that the Executing Court has traversed beyond the decree. Therefore, there is material irregularity in the exercise of jurisdiction by the Executing Court, and this Court should intervene and pass necessary orders in favour of the petitioner in exercise of jurisdiction under section 115 of CPC without being trammeled by technicalities, such as there being no challenge to the orders approving the draft or permitting registration of the Release Deed. 25
18. On the other hand, it is contended on behalf of the respondent that there is neither illegality or material irregularity in the Executing Court/ Lok Adalat closing the Execution Petition as being satisfied after the execution and registration of the Lease Deed dated 17.08.2010. As there is no illegality or material irregularity in the Executing Court closing the execution proceedings, the revision petition is not maintainable. Further, both the question of the respondent - the Decree Holder being in breach of the provisions of order XXI rule 34 of CPC or the Executing Court being careless are beyond the pale of dispute as there is no challenge to the Executing Court's orders in this regard, and without challenge to such orders, these questions cannot be gone into in this revision petition. The right to seek renewal of the lease for another term of 30 years, flows not only from Clause 10 of the Lease Deed dated 17.08.2010 but also from the clause in that regard in the original Lease Deed, and as such, Clause 10 is rightly permitted to be included in the Lease Deed dated 17.08.2010 by the Executing Court. In any event, the 26 aforesaid questions relating to compliance with the provisions of order XXI rule 34 of CPC and the right to seek extension for a further period of 30 years are questions of fact and law which are sub judice in OS No. 67/2013.
19. The Hon'ble Supreme Court in its decision in Rameshwar Das Gupta v. State of Uttar Pradesh6,has held as follows:
"It is a well-settled legal position that an executing Court cannot travel beyond the order or decree under execution. It gets jurisdiction only to execute the order in accordance with the procedure laid down under Order 21 CPC. In view of the fact that it is a money claim, what is to be computed is the arrears in the salary, gratuity and pension after computation of his promotional benefits in accordance with the service law. That having been done and the court having decided the entitlement of the decree holder in a sum of Rs. 197,000 and odd, the question that arises is whether the executing court could step out and grant decree for the interest which was not part of the decree for execution on the ground of delay in 6 (1996) 5 SCC 728 27 payment or for unreasonable stand taken in execution? In our view, the executing court has exceeded its jurisdiction and the order is one without jurisdiction and is thereby a void order. It is true that the High Court normally exercises its revisional jurisdiction under section 115 CPC but once it is held that the executing court has exceeded its jurisdiction, it is but the duty of the High Court to correct the same. Therefore we do not find any illegality in the order passed by the High Court in interfering with an setting aside the order directing payment of interest.
This enunciation would be in reiteration of the earlier decisions of the Hon'ble Supreme Court in Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman and others7 and Darshan Singh v. State of Punjab8 insofar as the proposition that an Executing Court cannot go beyond the decree by a competent court. In the light of the aforesaid proposition, it will have to be held that, if it is shown that an Executing Court has traversed beyond the decree, there would be a jurisdictional error. Further, if it is shown that an Executing 7 1970) 1 SCC Page 670 8 (2007) 14 SCC Page 262 28 Court has not complied with the provisions of order XXI of CPC resulting in an impermissible or an illegal order, the executing court will have acted with material irregularity in exercise of its jurisdiction i.e., to execute the order/decree in its terms in accordance with the procedure contemplated under the provisions of Order XXI of CPC. The High Court, in exercise of its jurisdiction under section 115 of CPC, ought to intervene and correct such jurisdictional error lest there be miscarriage of justice. If errors in this regard are not corrected, the judgment debtors, as in the present case, perhaps could be told, in a subsequent or collateral proceedings that, because they did not challenge the orders of the executing court they sciens et prudens shall be bound by orders of the executing court or that their objections to the orders of the executing court is barred on the ground of constructive resjudicata or the like.
20. Therefore, it will have to follow that, once the cause for the revision petition is shown to be on the ground that the 29 orders of an executing courts are erroneous, either because there is a jurisdictional error in the sense that the executing court has acted beyond the decree or with any material irregularity because it has not complied with provisions of Order XXI of CPC, the High Court will have to intervene in its revisional jurisdiction and pass appropriate orders as may be found necessary in the facts and circumstances of a given case.
21. In the present case the import of the petitioners' contentions is that there is an obvious overreach on the part of the Executing Court in approving the draft for the Lease Deed dated 17.08.2010 incorporating Clause 10, and permitting execution and registration thereof, and no further enquiry is required in this regard. But, the respondent contends that the question whether there is such an overreach by the Executing Court is an amalgam of the different questions of facts, including the respondent's right to seek renewal for further term of 30 years from 31.03.2013 30 as per the conditions of the original Lease Deed dated 02.11.1952. This amalgam of different questions of facts will require detailed adjudication, and such adjudication is already pending consideration in the suit in OS No. 67/2013. In other words, while there is an effort on the part of the petitioners to present incorporation of Clause 10 in the Lease Deed dated 17.08.2010 within a narrow canvas of non- compliance with provisions of order XXI Rule 34 (1) of CPC and being beyond the decree in OS No. 67/1984 asserting that this defense is distinct from the defense taken in the written statement in OS No. 20/2013 involving questions of fraud and others; the respondent presents the dispute as an intertwined dispute involving different questions of facts which requires adjudication after a trial. Thus, the petitioner seeks adjudication of the permissibility of incorporation of clause 10 in the lease deed dated 20.8.2010 in the present proceedings emanating from the execution case on two grounds as aforesaid, and the respondent seeks adjudication 31 of even these questions as part of the intertwined questions pending consideration in the suit in OS No. 20/2013.
22. An executing court, in an execution proceedings for execution of a document pursuant to a decree for execution of a document, must necessarily ensure that the contents of the proposed document conform to the decree because it cannot allow a document that would beyond the decree; and it is for this reason the provisions of order XXI Rule 34 of CPC stipulate that the Decree Holder may prepare a draft of the document in accordance with the terms of the decree and a copy of such draft be served on the judgement debtor with notice to file objections, if any, to the draft. If the judgement debtor objects to the draft submitted by the Decree Holder, the executing court must pass order either approving or altering the draft. This scheme under the provisions of order XXI Rule 34 of CPC enjoins upon the Decree Holder the obligation to submit a draft in accordance with the terms of the decree and the executing court to ensure that the 32 document executed is within the bounds of the decree. Neither the Decree Holder can submit a draft which is in variance from the decree nor the executing court can approve a draft and permits execution and registration without examining whether the draft is indeed in accordance with the decree merely because the judgement debtors have remained ex-parte. As already considered if errors creep in the document either because the Decree Holder has submitted a document which is not in accordance with the decree or the executing court has not verified the same, there could be miscarriage of justice.
23. However, a perusal of the order sheet in the Execution Petition establishes that, when called upon by the Executing Court to verify whether the draft was in accordance with the decree, the office only put up a note stating that the description of the property tallied with the description of the property as found in the decree. There is no verification beyond this, and as such, the question whether the draft of 33 the Lease Deed dated 17.08.2010 would be beyond the decree in OS No. 67/1984 is not examined by the Executing Court and this would be in breach of the obligation to examine whether the draft furnished is according to the decree before approving the draft for execution and registration, and this obligation is integral to the scheme under order XXI Rule 34 of CPC. Therefore, this Court is of the considered view that the Executing Court, even in the peculiar facts and circumstances of the present case, must examine the question whether it was traversing beyond the judgment and decree in OS No. 20/1984 in approving the draft as submitted by the respondent and permitting execution and registration thereof. Further, this question, which relates to compliance with the statutory provisions, would be a narrower question than the questions that are pending adjudication in the subsequent suit in OS No. 67/2013 and as such stand delineated from such other questions. Therefore, the pendency of the suit in OS No. 67/2013 would not impede such consideration by the Executing Court.
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24. In the light of the aforesaid discussion, the question formulated for consideration is answered holding that, in the peculiar facts and circumstances of this case, it would be appropriate for this Court, in exercise of its jurisdiction under section 115 CPC, to set aside the impugned order dated 20.08.2010 in EP No. 53/2007 on the file of the Principal Junior Civil Judge, Bagalkot and restore this Execution Petition to the board of the Executing Court and call upon the Executing Court to decide on the question whether the incorporation of Clause 10 in the Lease Deed dated 17.08.2010 would be beyond the judgment and decree in OS No. 20/1984 as confirmed by this Court in RSA No. 1137/1994.
Therefore, the following order:
(a) The revision petition is allowed, and the order dated 20.08.2010 in the Execution Petition in EP No. 53/2007 on the file of the Principal Junior Civil Judge, Bagalkot is 35 set aside and the Execution petition is restored to the board of the Executing Court
(b) The Executing Court shall, after opportunities to both the petitioners and respondent, decide on the question whether the incorporation of Clause 10 in the Lease Deed dated 17.08.2010 would be beyond the judgment and decree in OS No. 20/1984 as confirmed by this Court in RSA No. 1137/1994;
(c) The Petitioners and the respondent shall, without further notice of the first date of hearing, appear before the Executing Court on 06.06.2019,
(c) The Executing Court shall dispose of the execution petition in EP No. 53/2007 in the light of the aforesaid direction of this Court as expeditiously as possible but within an outer limit of 6 months from 06.06.2019, and
(e) No costs.
SD JUDGE bvv