Punjab-Haryana High Court
Kulwant Singh vs Jagir Singh And Others on 24 October, 2009
Author: Hemant Gupta
Bench: Hemant Gupta
Civil Revision No. 4648 of 2009 [1]
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Civil Revision No. 4648 of 2009
Date of Decision: 24.10.2009
Kulwant Singh ......Petitioner
Versus
Jagir Singh and others .......Respondents
CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA.
1. Whether Reporters of local papers may be allowed to see the
judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present: Shri A.K. Ahluwalia, Advocate, fro the petitioner.
None for the respondent.
HEMANT GUPTA, J. (Oral).
Challenge in the present petition is to the order dated 8.6.2009, passed by the learned Executing Court, whereby an application filed under Order 21 Rule 32 CPC, was dismissed.
The plaintiff filed a suit for specific performance of an agreement to sell dated 23.11.1981. The said suit was decreed on on 5.10.1991. The appeal of the defendant was dismissed by the learned first Appellate Court on 15.2.1993. Regular Second Appeal No. 1256 Civil Revision No. 4648 of 2009 [2] of 1996 was dismissed by this Court on 1.2.1994.
Thereafter, the petitioner and the other co-decree holders filed an application dated 1.7.1995 titled under Order 21 Rule 32 CPC to execute the decree and for registration of the sale deed in favour of the plaintiff on receipt of the balance sale consideration.
The Judgment Debtor filed objections to the said application. However, the Decree Holder was permitted to deposit the balance sale consideration of Rs.74,437.50p on 29.10.1996 and the said amount was deposited on 31.10.1996. The learned Executing Court dismissed the application under Order 21 Rule 32 CPC on 3.12.1997 for the reason that the condition in decree for deposit of the balance sale consideration within two months of the grant of decree, was not complied with. The said order was set aside by this Court on 5.5.2000 in Civil Revision No. 819 of 1998. Thereafter, the petitioner filed another application under Order 21 Rule 32 CPC on 1.12.2001. The Judgment Debtor filed reply to the said application. Opportunity to lead evidence was allowed by the Executing Court. However, the said application has been dismissed by the Executing Court vide the order impugned in the present revision petition on the ground that the petitioner has not sought execution of the decree in a format provided under Order 21 Rule 11 CPC.
Learned counsel for the petitioner has vehemently argued that though the application was titled to be the one under Order 21 Rule 32 CPC filed on 1.7.1995, but the said application substantially Civil Revision No. 4648 of 2009 [3] complies with the requirements contemplated under Order 21 Rule 11 CPC as it gives the particulars of the decree. The said application is verified in terms of the requirements of Order 21 Rule 11 CPC. Therefore, the said application satisfies the requirements of Order 21 Rule 11 CPC. It is contended that the cause title is not determinative for the jurisdiction or the nature of the application, but the entire application has to be read to determine the relief claimed. It is contended that if the entire application dated 1.7.1995 is read, it satisfies the ingredients of Order 21 Rule 11 CPC. Therefore, the execution could not have been dismissed for the reason that it is not in the tabular form.
Order 21 Rule 11(2) CPC contemplates that an application for execution of the decree shall be in writing and signed and verified by the applicant, which is required to contain in the tabular form, the following particulars:-
(a) the number of the suit;
(b) the names of the parties;
(c) the date of the decree;
(d) whether any, appeal has been preferred from the
decree;
(e) whether any, and (if any) what, payment or other
adjustment of the matter in controversy has been made between the parties subsequently to the decree;
(f) whether any, and (if any) what, previous applications have been made for the execution of the decree, the dates of such applications and their results;
(g) the amount with interest (if any) due upon the decree, Civil Revision No. 4648 of 2009 [4] or other relief granted thereby, together with particulars of any cross decree, whether passed before or after the date of the decree, sought to be executed;
(h) the amount of the costs (if any) awarded;
(i) the name of the person against whom execution of the
decree is sought and;
(j) the mode in which the assistance of the Court is
required."
A perusal of the application dated 1.7.1995 shows that it discloses suit number; the date of the decree; date and nature of decree as well as the particulars of appeal filed. Such application is signed and verified as well. Therefore, in fact, the application dated 1.7.1995 satisfies the requirements of Order 21 Rule 11(2) CPC, though it is titled as an application under Order 21 Rule 32 CPC.
Hon'ble Supreme Court in Municipal Corporation of the City of Ahmedabad v. Ben Hiraben Manilal, (1983) 2 SCC 422, has considered the question of the jurisdiction even where the wrong provision is mentioned. It was held to the following effect:-
"....It is well settled that the exercise of a power, if there is indeed a power, will be referable to a jurisdiction, when the validity of the exercise of that power is in issue, which confers validity upon it and not to a jurisdiction under which it would be nugatory, though the section was not referred, and a different or a wrong section of different provision was mentioned. See in this connection the Civil Revision No. 4648 of 2009 [5] observations in Pitamber Vajirshet v. Dhondu Navlapa, ILR (1886) 12 Ban 486. See in this connection also the observations of this Court in the case of L. Hazari Mal Kuthiala v. ITO, Special Circle, Ambala Cantt., AIR 1961 SC 200. This point has again been reiterated by this Court in the case of Hukumchand Mills Ltd. v. State of M.P., AIR 1964 SC 1329, where it was observed that it was well settled that a wrong reference to the power under which action was taken by the Government would not per se vitiate that action if it could be justified under some other power under which Government could lawfully do that act. See also the observations of the Supreme Court in the case of Nani Gopal Biswas v. Municipality of Howarh."
Subsequently, a Constitution Bench of the Hon'ble Supreme Court in Union of India v. Tulsi Ram Patel, (1985) 3 SCC 501, held that the mention of a wrong provision or the omission to mention the provision which contains the source of power will not invalidate an order where the source of such power exists. It was held to the following effect:-
"It is also well settled that where a source of power exists, the exercise of such power is referable only to that source and not to some other source under which were that power exercised, the exercise of such power would be invalid and without jurisdiction. Similarly, Civil Revision No. 4648 of 2009 [6] if a source of power exists by reading together two provisions, whether statutory or constitutional, and the order refers to only one of them, the validity of the order should be uphedl by construing it as an order passed under both those provisions. Further, even the mention of a wrong provision or the omission to mention the provision which contains the source of power will not invalidate an order where the source of such power exists. (See Dr. Ram Manohar Lohia v. State of Bihar and Municipal Corporation of City Ahmedabad v. Ben Hiraben Mani Lal). The omission to mention in the impugned orders the relevant clause of the second proviso or the relevant service rule will not, therefore, have the effect of invalidating the orders and the orders must be read as having been made under the applicable clause of the second proviso to Article 311(2) read with the relevant service rule. It may be mentioned that in none of the matters before us has it been contended that the disciplinary authority which passed the impugned order was not competent to do so."
Similar is the view in N. Mani v. Sangeetha Theatre, (2004) 12 SCC 278 and T. Nagappa v. Y.R. Muralidhar, (2008)5 SCC 633. Therefore, the mere fact that the petitioner has titled his application for execution of the decree as the one under Order 21 Rule 32 CPC, will not make any difference. The application contains all the particulars, which are to be disclosed in an application under Order 21 Rule 11 CPC. The fact that such particulars are not in a tabular form, is wholly inconsequential Civil Revision No. 4648 of 2009 [7] as it is the substance which is material and not the form. Since all the particulars as required under Order 21 Rule 11 CPC are disclosed in an application dated 1.7.1995, therefore, such application could not have been dismissed by the Court for the reason that it is not in a tabular form.
Apart from the said fact, the Judgment Debtor has filed objections to the said application on 9.2.1996. There is no such objection that the petitioner has not sought execution in the prescribed format. Though the execution was dismissed, but the said order was set aside by this Court. Again in revision, there was no objection that the decree holder is not entitled to execute the decree as it is not in the requisite format. Even the second application dated 1.12.2001, though titled under Order 21 Rule 32 CPC again discloses the particulars of the suit as well as the nature of decree. The application contains the sequence of events in respect of an order passed by the Executing Court on 3.12.1997 and the fact that the said order has been set aside by this Court in a revision petition. The said application is, in fact, an application to seek the revival of the earlier application to seek execution of the decree, filed on 1.7.2009.
In view of the said fact, I am of the opinion that the order passed by the Executing Court on 8.6.2009 suffers from patent illegality and irregularity. Consequently, the impugned order is set aside. The matter is remitted back to the learned Executing Court for executing the decree, in accordance with law.
Civil Revision No. 4648 of 2009 [8]
Petitioner, through his counsel, is directed to appear before the learned Executing Court on 26.11.2009, for further proceedings, in accordance with law.
[ HEMANT GUPTA ] JUDGE 24-10-2009 ds