Karnataka High Court
Sri. Mohanlal V Jain S/O Vanechand Jain vs Sangapanar Hemanna S/O Late Basappa on 14 February, 2019
Author: B.V.Nagarathna
Bench: B.V. Nagarathna
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 14TH DAY OF FEBRUARY 2019
BEFORE
THE HON'BLE MRS. JUSTICE B.V. NAGARATHNA
WRIT PETITION No.107317/2018 (GM-CPC)
BETWEEN:
SRI. MOHANLAL V. JAIN,
S/O. VANECHAND JAIN,
AGE: 64 YEARS,
OCC: AGRICULTURE,
R/O: HUVINAHADAGALLI TOWN,
DIST: BALLARI. ... PETITIONER
(BY SRI N.P. VIVEKMEHTA, ADVOCATE)
AND:
1. SANGAPANAR HEMANNA,
S/O. LATE BASAPPA,
AGE: 61 YEARS,
OCC: AGRICULTURE.
2. SANGAPANAR PARAMESHWARAPPA,
S/O. LATE BASAPPA,
AGE: 48 YEARS,
OCC: AGRICULTURE.
3. SANGAPANAR SHASHIDHARA,
S/O. LATE BASAPPA,
AGE: 44 YEARS,
OCC: AGRICULTURE.
4. SANGAPANAR SURESHA,
S/O. LATE BASAPPA,
AGE: 41 YEARS,
OCC: AGRICULTURE.
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(RESPONDENTS ARE LR'S OF DECEASED
SMT. SANGAPPA NINGAMMA
W/O. SANGAPPA BASAPPA)
(RESPONDENTS ARE R/O. HONNUR VILLAGE,
POST: NAVALI, TQ: HADAGALLI,
DIST: BELLARY) ... RESPONDENTS
(BY SRI J.S. SHETTY, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
THE ORDER OF CIVIL JUDGE AND J.M.F.C. HUVINHADAGALLI
DATED 29.09.2018 PASSED ON I.A.NO.2 IN E.P.NO.9/2015
VIDE ANNXURE-F AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
Learned counsel for respondent Nos.1 to 4 has filed statement of objections after serving a copy of the same on learned counsel for petitioner. The same is taken on record.
2. Though this writ petition is listed for preliminary hearing 'B' group, with the consent of learned counsel on both sides, it is heard finally. -3-
3. Petitioner has assailed order dated 29.09.2018 passed on I.A.No.2 in E.P.No.9/2015 by the Civil Judge and J.M.F.C., Huvinhadagali. The said order has been passed on an application filed under Order XX Rule 11 read with Section 151 of the Code of Civil Procedure, 1908 (CPC). The operative portion of the order reads as under:
"I.A.No.II filed by the applicant U/O XX Rule 11 R/W Sec.151 CPC is hereby allowed with cost of Rs.500-00.
The Judgment debtors are hereby directed to pay the Compromise decreetal amount of Rs.3,00,000/- with rate of interest at 24% per annum from the date of 18.01.2006 to till today with an installment without any delay. Otherwise the Decree holder has liberty to take steps against the Judgment debtor.
Call on Balance of payment 10/10/2018."
4. Briefly stated, the facts are that the petitioner herein had filed O.S.No.69/2011 seeking the relief of specific performance of an agreement to sell dated 18.01.2006 against the respondents herein. The said suit -4- ended in a compromise and a compromise decree was passed on 16.10.2014 vide Annexure-A in the aforementioned suit. The relevant portion of the compromise decree reads as under:
1. This court doth ordered and decreed that, the defendants do pay the advance sale amount of Rs.3,00,000/- (Three lakh) rupees only with interest at 24 percent from the date 18.01.2006 up to 20-03-2015 to the plaintiff within the date 20-03-2015.
2. Further this court doth ordered and decreed that, the plaintiff is ordered to receive the amount of Rs.3,00,000/- (Three lakh) rupees only, with interest at 24 percent from the date 18-01-2006 till the date of 20-03-2015, if the defendants paid within the date 20-03-2015.
3. Further this court doth ordered and decreed that, the defendants do execute the registered sale deed in respect of the suit schedule property in favour of the plaintiff at the costs of plaintiff, if the defendants failed to pay the amount of Rs.3,00,000/- (Three lakh) only with interest at 24 percent from the date of 18-01-2006 till the date 20-03-2015 and payable within the date 20-03-2015.-5-
4. Further this court Doth ordered and decreed that, the defendants do pay the full court fee paid by the plaintiff on the plaint in the suit of Rs.24824/-
(twenty four thousand eight hundred twenty four) only to the plaintiff.
Given under my hand and seal of the court this 16th day of October 2014.
Contending that the terms of the compromise had not been adhered to by the respondents herein, Execution Petition No.9/2015 was filed by the petitioner herein on 02.07.2015. During the pendency of the said petition, on 04.11.2017, an application was filed by the respondents- judgment debtors under Order XX Rule 11 read with Section 151 of the CPC seeking acceptance of amount of Rs.3,00,000/- with up-to-date interest in terms of the compromise decree by waiving the time limit for making the payment. The executing Court by the impugned order has allowed the said application in the aforesaid terms. Being aggrieved, decree holder has preferred this writ petition.
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5. I have heard learned counsel for petitioner and learned counsel for respondents and perused the material on record.
6. It is the contention of petitioner's counsel that the power under Order XX Rule 11 of the CPC can be exercised only by the Court. As per sub-rule (1) and under sub-rule (2) after the passing of any such decree the court may, on the application filed by the judgment debtor and with the consent of the decree holder, order that payment of the amount decreed shall be postponed or shall be made by instalments on such terms as to the payment of interest, the attachment of the property of the judgment debtor, or the taking of security from him, or otherwise, as it thinks fit.
7. It is contended that the expression 'Court' in the instant case refers to the Court which has adjudicated the suit and only that Court in the said proceeding can pass an order under Rule 11 of Order XX. That the executing Court which is exercising jurisdiction under -7- Order XXI of the CPC cannot alter the decree on the application of a judgment debtor in the execution proceeding. That in the instant case, the suit for specific performance ended in a compromise and that relief of specific performance was not granted and instead terms of compromise were drawn and under the said terms of compromise, the respondents-judgment debtors agreed that if they failed to pay an amount of Rs.3,00,000/- with interest at 24% from 18.01.2006 till 20.03.2015 on or before 20.03.2015, then the plaintiff could get the registered sale deed in respect of the suit property executed in his favour at his cost. That the compromise term entered into between the parties in the suit could not have been altered by the executing Court on the application by the judgment debtor as it had no jurisdiction to do so.
8. In the circumstances, placing reliance on a judgment of Hon'ble High Court of Andhra Pradesh in the case of Guna Yerrannaidu V/s Guna Venkanna -8- reported in AIR 2002 Andhra Pradesh 37 (Guna Yerrannaidu) and Jatti Krishnareddy V/s Bhadri Ramagopalaiah reported in AIR 1985 Andhra Pradesh 49 (Jatti Krishnareddy), it is contended that such a power does not exist in the executing Court. Therefore, the impugned order may be quashed.
9. Per contra, learned counsel for respondents submits that though the impugned order was passed on 10.10.2018, petitioner filed the writ petition only on 05.11.2018, which is highly belated. By then, the impugned order had been complied and the deposit had been made. Therefore, filing of the writ petition is hit by delay and laches. It is further contended that the petitioner is a money lender and, with an oblique purpose, a compromise was obtained by the petitioner and the terms of the compromise are harsh and therefore the respondents sought for alteration of the same. The executing Court has rightly intervened in the matter and granted time to pay or deposit the amount to the -9- petitioner. That there is no error in the order of the executing Court and hence the writ petition may be dismissed.
10. By way of reply, learned counsel for petitioner contended that having regard to the judgments of Andhra Pradesh High Court referred to above, it was always open to the respondents to seek alteration of the time for deposit of the amount even after passing the compromise decree with the consent of the petitioner and a subsequent compromise could have been arrived at before the Court, which passed the compromise decree. But, the said opportunity of seeking such an alteration within thirty days from the date of the compromise decree has not been availed of by the respondents and the exercise of jurisdiction by the executing Court was wholly erroneous as it was not vested in it. The impugned order ought to be quashed.
11. The detailed narration of facts and contentions would not call for a reiteration except highlighting the fact
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that the petitioner herein had filed a suit seeking the relief of specific performance of an agreement to sell dated 18.01.2006, which had been executed by the mother of the respondents. The said suit ended in a compromise decree, the terms of which are extracted above. As there was no compliance with the terms of the compromise arrived at between the parties, petitioner filed E.P.No.9/2015. The compromise decree was passed on 16.10.2014. The execution petition was filed on 02.07.2015. Thereafter on 04.11.2017, an application was filed under Order XX Rule 11 read with Section 151 of the CPC seeking permission to deposit the amount of Rs.3,00,000/- with up-to-date interest by condoning the delay in making the same. By the impugned order, the said application has been allowed. The operative portion of the order is extracted as above. While allowing the said application the executing Court has, no doubt, extracted Order XX Rule 11(1) of the CPC, but has failed to note the purport of the said provision. On the other hand, sub-rule (2) of Rule 11 has also not been considered. The executing
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Court has proceeded on the basis that if the application filed by the respondents herein is not allowed, then it would affect them as the suit property is a source of their livelihood and therefore has allowed the said application. Order XX of the CPC deals with judgment and decree. Order XX Rule 11 of the CPC reads as under:
11. Decree may direct payment by instalments (1) Where and in so far as a decree is for the payment of money, the court may for any sufficient reason incorporate in the decree, after hearing such of the parties who had appeared personally or by pleader at the last hearing, before judgment, an Order that payment of the amount decreed shall be postponed or shall be made by instalments, with or without interest, notwithstanding anything contained in the contract under which the money is payable.
(2) Order, after decree, for payment by instalments--After the passing of any such decree the court may, on the application of the judgment debtor and with the consent of the decree holder, Order that payment of the amount decreed shall be postponed or shall be made by instalments on such terms as to the payment of interest, the
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attachment of the property of the judgment debtor, or the taking of security from him, or otherwise, as it thinks fit.
12. The object and purpose of sub-rule (1) is to enable the judgment debtor to satisfy the decree which is for payment of money through instalments or that the payment shall be postponed, with or without any interest. This is on the premise that the judgment debtor is to suffer a decree for the payment of money and only a reprieve is given to such a judgment debtor vis-à-vis the payment of the amount by instalments or to be postponed with or without any interest. The same can be incorporated in the decree after hearing the parties to the suit at the last hearing. Sub-rule (2) states that after passing of any such decree the court may, on the application of the judgment debtor and with the consent of the decree holder, order that payment of the amount decreed shall be postponed or shall be made by instalments on such terms as to the payment of interest, the attachment of the property of the judgment debtor, or the taking of security from him, or
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otherwise, as it thinks fit. The said power can be exercised by the Court which passes the decree after passing of the decree on an application of the judgment debtor. The same does not imply that the expression 'Court' would take within its scope the "executing Court" as well as sub-rule (2) has same meaning namely the 'Court' which has passed the decree while adjudicating the suit, whether prior to the decree or subsequent to passing of the decree and thereafter granting to the judgment debtor for making payment of decreetal amount in instalments, with or without interest or postponing the payment or grant of any other relief as contemplated in sub-rule (2) of Rule 11. Therefore, the expression 'Court' would not take within its scope the executing Court. This is because no executing Court can re-write a decree passed, after trial of a suit or other proceeding. The duty of the executing Court is only to execute the decree subject to other objections that may be raised in the execution of the decree such as contained in Section 47 of the CPC. Otherwise the decree, as passed
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by the Court trying the suit or adjudicating the suit, would have to be simply executed by the executing Court.
13. In the instant case, the executing Court has exercised jurisdiction of a Court which has adjudicated the suit and which suit has ended in a compromise between the parties. The executing Court, though may be the same Court which has a jurisdiction to try such suits, cannot exercise the jurisdiction as if it is in the process of adjudication of a suit. It is needless to observe that the executing Court exercises its jurisdiction after passing of a decree in a suit or any other proceedings and therefore cannot confer upon itself the powers of a trial Court or a Court which has passed the decree.
14. In this regard, reliance could be placed on the decision of the Andhra Pradesh High Court in the case of Guna Yerrannaidu (supra), wherein at Paragraphs 8 and 9, it has been observed that at the time of passing of decree, no doubt, a direction for payment of the decreetal amount in instalments can be incorporated. But, at the
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stage of execution, there is no specific power empowering the executing Court to make an order of payment by instalments. Therefore, the Parliament has not conferred any such power on the executing Court. Hence, the intention of the Parliament is that at the stage of execution such a power ought not to be conferred. The object is to ensure speedy recovery of the decreetal amount by invoking different modes of execution contemplated in Order XXI of the CPC. Thus, the executing Court has no power to grant instalments since it would amount to an interference with the decree at the stage of execution which is impermissible in law.
15. In the case of Jatti Krishnareddy (supra), the Andhra Pradesh High Court noted that the Court that passed the decree is different from the Court that had passed the impugned order in the execution proceedings. The executing Court was not invested with any such power as contemplated in Order XX Rule 11(2) of the CPC. The Andhra Pradesh High Court has also distinguished the
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judgment of the Hon'ble Supreme Court in the case of Moti Lal Banker (dead) by his legal representative V/s Maharaj Kumar Mahmood Hasan Khan reported in AIR 1968 SC 1087, which had been relied upon by learned counsel for respondents, to observe that in Moti Lal Banker the question as to the power of the executing Court to pass an order directing payment of decreetal amount by instalments did not arise for consideration. It was a case where the execution of the decree was postponed pursuant to a compromise entered into between the parties in the course of the execution proceedings. Further, while interpreting the provisions of Section 12 of the Hyderabad Money-Lenders Act, it has been observed that "the only Court that has got power to grant instalments under Order XX Rule 11(2) of CPC, is the Court which has passed the decree. The executing Court is not invested with any such power. Further, any such application to be filed before the Court which has passed the decree seeking grant of instalments must be within a period of thirty days from the date of the decree
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permitting him to pay the decreetal amount by instalments as provided in Article 126 of the Limitation Act, 1963. If a judgment debtor is permitted to move the executing Court at any stage of the execution proceedings to permit him to pay the decreetal amount by instalments or by condoning the delay in paying the amount as stipulated in the decree then the purport of the decree would be defeated.
16. In the instant case the facts are very pertinent. In a suit for specific performance of an agreement to sell the parties entered into a compromise and a compromise decree was drawn stipulating certain terms and conditions. If the defendants failed to comply with the condition or payment of Rs.3,00,000/- with up-to-date interest by 20.03.2015, the plaintiff was entitled to get the sale deed registered in his name. The consequence of non-payment of the amount is serious and therefore the defendants in the suit in order to avoid a serious consequence of losing the suit schedule property ought to have taken steps for payment of the amount in time or sought for alteration of
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the stringent condition with the consent of the plaintiff/petitioner herein. Not having done so at the appropriate point of time in the suit, by seeking an amendment of a compromise decree in an execution petition that too after lapse of two and a half years after filing of such petition was improper. The executing Court ought not to have allowed the application filed by the respondents herein. In the circumstances, the impugned order is quashed.
Writ petition is allowed in the aforesaid terms.
Sd/-
JUDGE CLK