Karnataka High Court
Mantri Developer Pvt Ltd vs Mr Mudit Saxena on 31 October, 2025
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
1
Reserved on : 20.08.2025
Pronounced on : 31.10.2025
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 31ST DAY OF OCTOBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION No. 17821 OF 2025 (GM-CPC)
C/W
WRIT PETITION No. 18348 OF 2025 (GM-CPC)
WRIT PETITION No. 19184 OF 2025 (GM-CPC)
IN WRIT PETITION No. 17821 OF 2025
BETWEEN:
MANTRI DEVELOPER PVT. LTD.,
REGISTERED UNDER COMPANIES ACT, 1956
OFFICE AT NO.41, VITTAL MALLYA ROAD
BENGALURU - 560 001
REP. BY ITS AUTHORISED SIGNATORY [CFO]
MR. GIRISH GUPTA H. S.,
... PETITIONER
(BY DR. VANDANA P. L., ADVOCATE)
Digitally signed
by RAKESH S
HARIHAR AND:
Location: High
Court of
Karnataka,
Dharwad Bench,
MR. SNIL PATHIYAM VEETIL
Dharwad MAJOR
R/AT ASWATHI KOTTILIL LANE
2
KANATTUKRA, KERALA
THRISSUR - 680 011.
... RESPONDENT
(BY SRI SRINIVAS V., ADVOCATE FOR C/R)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED
ORDER DATED 17/04/2025 PASSED ON IA NO. V IN EX.P. NO.
227/2024 VIDE ANNX-A PENDING ON THE FILE XVI ADDL. CITY
CIVIL AND SESSIONS JUDGE AT BANGALORE.
IN WRIT PETITION No. 18348 OF 2025
BETWEEN:
MANTRI DEVELOPER PVT. LTD.,
REGISTERED UNDER COMPANIES ACT
OFFICE AT C-5, NO.S/1, RICH HOMES
RICHMOND TOWN, RICHMOND ROAD
BENGALURU - 560 025
REP. BY ITS AUTHORISED SIGNATORY
MR. GIRISH GUPTA H. S.,
... PETITIONER
(BY DR. VANDANA P. L., ADVOCATE)
AND:
INDI VIVEKANANDA
MAJOR
OFFICE AT: IC UNIVERSAL LEGAL
5TH FLOOR, PHOENIX PINNACLE NO.46, ULSOOR ROAD
BENGALURU - 560 042.
... RESPONDENT
(BY SRI SRINIVAS V. ADVOCATE FOR C/R)
3
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OR ORDER
TO QUASH THE IMPUGNED ORDER DATED 17.04.2025 PASSED ON
I.A. NO.V IN EX. P. NO. 228/2024 VIDE ANNEXURE-A PENDING ON
THE FILE XVI ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,
BENGALURU.
IN WRIT PETITION No. 19184 OF 2025
BETWEEN:
MANTRI DEVELOPER PVT. LTD.,
REGISTERED UNDER COMPANIES ACT, 1956
OFFICE AT NO.41, VITTAL MALLYA ROAD
BENGALURU - 560 001
REP. BY ITS AUTHORISED SIGNATORY
MR. GIRISH GUPTA H. S.,
GENERAL MANAGER (OCCUPATION)
... PETITIONER
(BY DR. VANDANA P. L., ADVOCATE)
AND:
MR. MUDIT SAXENA
R/AT NO.308, 'C' BLOCK
SAROJ SYMPHONY APARTMENTS
NAGONDANAHALLI, WHITEFIELD
BENGALURU - 560 066.
... RESPONDENT
(BY SRI SRINIVAS V., ADVOCATE FOR C/R)
4
THIS WRIT PETITION IS FILED UNDER ARTICLES 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED
ORDER DATED 17.04.2025 PASSED ON I.A. NO.V IN EX.P. NO.
231/2024 VIDE ANNEXURE-A PENDING ON THE FILE OF XVI
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU.
THESE WRIT PETITIONS HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 20.08.2025, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:-
CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CAV ORDER
The petitioner, in the batch of these petitions, is common and
the respondents are different. The issue that is projected in these
petitions is also common. It is therefore these petitions are taken
up together and are considered by this common order.
2. Facts adumbrated are as follows:
The petitioner is the judgment debtor before the Executing
Court in different execution petitions pending before the concerned
Court. The Execution Petition reaches the Executing Court on a
5
particular circumstance. The respondents, in all these cases, are
homebuyers. They approach the Real Estate Regulatory Authority
('RERA' for short) seeking certain relief. The RERA passes an order
granting certain benefits to the respondents on 30-06-2023 and
03-08-2023 respectively. In order to enforce the orders, the
respondents would approach the Civil Court seeking execution of
the said order by registering different execution petitions. Before
the Executing Court, the petitioner files an application invoking
Section 47 of the CPC to terminate the execution proceedings on
the score of lack of jurisdiction to execute the decree or the order
passed by RERA. The said applications comes to be rejected by the
concerned Court, which has led the petitioner to this Court, in all
these petitions.
3. Heard the learned senior counsel Sri M.S.Shyamsundar
appearing for petitioner and Sri Srinivas V, learned counsel
appearing for respondents in all these petitions.
4. The learned senior counsel Sri M.S.Shyamsundar
appearing for the petitioner would vehemently contend that the trial
6
Court has no jurisdiction to execute an order that is passed by
RERA through an execution petition preferred by the beneficiaries of
the order who call themselves decree holders. It is his contention
that Real Estate (Regulation and Development) Act, 2016 ('RERA
Act' for short) is a self contained code and has within itself
provisions for enforcement of an order. He would further contend
that Section 79 of the RERA Act bars any civil Court to have
jurisdiction to entertain any petition concerning RERA. The learned
counsel would also rely on Rule 26 of the Karnataka Real Estate
(Regulation and Development) Rules, 2017 ('RERA Rules' for short)
to contend that manner of implementation is also depicted under
the Rules and therefore, the civil Court did not have jurisdiction to
entertain execution proceedings of an order of RERA. The learned
senior counsel places reliance upon certain judgments of the Apex
Court, which would all bear consideration qua their relevance in the
course of the order.
5. Per-contra, the learned counsel representing the
respondents, in all these cases, would vehemently refute the
submissions of the learned senior counsel for the petitioner in
7
contending that the execution petition is undoubtedly maintainable,
as an order passed by RERA is a decree and a decree can be
executed by the competent civil Court of the jurisdiction. He would
seek to place reliance upon certain judgments of the coordinate
bench of this Court to buttress his submission that the execution
petition is maintainable.
6. I have given my anxious consideration to the submissions
made by the learned counsel for the respective parties and have
perused the material on record.
7. The afore-narrated facts are not in dispute. The issue lies
in a narrow compass of statutory interpretation. The issue is,
"Whether the order passed by the RERA or the RERA
Appellate Tribunal can be executed by a competent Civil
Court by filing an execution petition?"
8. To consider the said issue, it becomes necessary to notice
certain statutory provisions of the Act. Section 40 of the RERA Act
reads as follows:
8
"40. Recovery of interest or penalty or
compensation and enforcement of order, etc.--(1) If a
promoter or an allottee or a real estate agent, as the case
may be, fails to pay any interest or penalty or
compensation imposed on him, by the adjudicating officer
or the Regulatory Authority or the Appellate Authority, as
the case may be, under this Act or the rules and
regulations made thereunder, it shall be recoverable from
such promoter or allottee or real estate agent, in such
manner as may be prescribed as an arrears of land
revenue.
(2) If any adjudicating officer or the Regulatory Authority
or the Appellate Tribunal, as the case may be, issues any order
or directs any person to do any act, or refrain from doing any
act, which it is empowered to do under this Act or the rules or
regulations made thereunder, then in case of failure by any
person to comply with such order or direction, the same shall be
enforced, in such manner as may be prescribed."
(Emphasis supplied)
Section 40 deals with recovery of interest or penalty or
compensation and enforcement of an order, inter alia. Section
40(1) clearly indicates that, it is recoverable from such promoter or
an allottee or a real estate agent, in such manner as may be
prescribed as arrears of land revenue. Section 79 of the RERA Act
reads as follows:
"79. Bar of Jurisdiction.--No civil court shall have
jurisdiction to entertain any suit or proceeding in respect
of any matter which the Authority or the adjudicating
officer or the Appellate Tribunal is empowered by or under
this Act to determine and no injunction shall be granted by any
court or other authority in respect of any action taken or to be
9
taken in pursuance of any power conferred by or under this
Act."
(Emphasis supplied)
Section 79 bars jurisdiction of a civil Court to entertain any suit, in
respect of any matter which concerns the Authority or the
Adjudicating Officer or the Appellate Tribunal. In furtherance of the
Act, the RERA Rules are promulgated. Rule 26 of the RERA Rules is
germane to be noticed. It reads as follows:
"26. Manner of implementation of order, direction
or decisions of the adjudicating officer, the Authority or
the Appellate Tribunal.-- For the purpose of sub-section
(2) of Section 40, every order passed by the adjudicating
officer, regulatory authority or Appellate Tribunal, as the
case may be, under the Act or the rules and regulations
made thereunder, shall be enforced by the adjudicating
officer, regulatory authority or the Appellate Tribunal in
the same manner as if it were a decree or order made by
the principal civil court in a suit pending therein and it
shall be lawful for the adjudicating officer, regulatory authority
or Appellate Tribunal, as the case may be, in the event of its
inability to execute the order, send such order to the principal
civil court, to execute such order either within the local limits of
whose jurisdiction the real estate project is located or in the
principal civil court within the local limits of whose jurisdiction
the person against whom the order is being issued, actually and
voluntarily resides, or carries on business, or personally works
for gain."
(Emphasis supplied)
Rule 26 deals with manner of implementation of order, direction or
decisions of the Adjudicating Officer, the Authority or the Appellate
10
Tribunal. Therefore, the RERA Act and the RERA Rules framed
thereunder are undoubtedly a complete code by itself.
9.1. The Apex Court in the case of NEWTECH PROMOTERS
AND DEVELOPERS PRIVATE LIMITED v. STATE OF UTTAR
PRADESH AND OTHERS1, has held as follows:
"116. The further submission made by the learned
counsel for the appellants that Section 81 of the Act permits the
Authority to delegate such powers and functions to any member
of the Authority which are mainly administrative or clerical, and
cannot possibly encompass any of the core functions which are
to be discharged by the Authority, the judicial functions are non-
delegable, as these are the core functions of the Authority. The
submission may not hold good for the reason that the power
to be exercised by the Authority in deciding complaints
under Section 31 of the Act is quasi-judicial in nature
which is delegable provided there is a provision in the
statute. As already observed, Section 81 of the Act
empowers the Authority to delegate its power and
functions to any of its members, by general or special
order.
117. In the instant case, by exercising its power under
Section 81 of the Act, the Authority, by a special order dated 5-
12-2018 has delegated its power to the Single Member of the
Authority to exercise and decide complaints under Section 31 of
the Act and that being permissible in law, cannot be said to be
dehors the mandate of the Act. At the same time, the power to
be exercised by the adjudicating officer who has been appointed
by the Authority in consultation with the appropriate
Government under Section 71 of the Act, such powers are non-
1
(2021)18 SCC 1
11
delegable to any of its members or officers in exercise of power
under Section 81 of the Act.
118. That scheme of the Act, 2016 provides an in-
built mechanism and any order passed on a complaint by
the Authority under Section 31 is appealable before the
Tribunal under Section 43(5) and further in appeal to the
High Court under Section 58 of the Act on one or more
ground specified under Section 100 of the Civil Procedure
Code, 1908, if any manifest error is left by the Authority
either in computation or in the amount refundable to the
allottee/homebuyer, is open to be considered at the
appellate stage on the complaint made by the person
aggrieved.
119. In view of the remedial mechanism provided under
the scheme of the 2016 Act, in our considered view, the power
of delegation under Section 81 of the Act by the Authority to
one of its member for deciding applications/complaints under
Section 31 of the Act is not only well defined but expressly
permissible and that cannot be said to be dehors the mandate of
law.
.... .... ....
Question 5 : Whether the Authority has the power
to issue recovery certificates for recovery of the principal
amount under Section 40(1) of the Act?
137. To examine this question, it will be apposite to take
note of Section 40 that states regarding the recovery of interest
or penalty or compensation to be recovered as arrears of land
revenue, and reads as under:
"40. Recovery of interest or penalty or compensation and
enforcement of order, etc.--(1) If a promoter or an allottee or a
real estate agent, as the case may be, fails to pay any interest or
penalty or compensation imposed on him, by the adjudicating officer
or the Regulatory Authority or the Appellate Authority, as the case
may be, under this Act or the rules and regulations made thereunder,
it shall be recoverable from such promoter or allottee or real estate
agent, in such manner as may be prescribed as an arrears of land
revenue.
(2) If any adjudicating officer or the Regulatory Authority or the
Appellate Tribunal, as the case may be, issues any order or directs any
12
person to do any act, or refrain from doing any act, which it is
empowered to do under this Act or the rules or regulations made
thereunder, then in case of failure by any person to comply with such
order or direction, the same shall be enforced, in such manner as may
be prescribed."
138. The submission of the appellants/promoters is that
under Section 40(1) of the Act only the interest or penalty
imposed by the Authority can be recovered as arrears of land
revenue and no recovery certificate for the principal amount as
determined by the Authority can be issued. If we examine the
scheme of the Act, the power of Authority to direct the refund of
the principal amount is explicit in Section 18 and the interest
that is payable is on the principal amount in other words, there
is no interest in the absence of a principal amount being
determined by the competent authority. Further, the statute as
such is read to mean that the principal sum with interest has
become a composite amount quantified upon to be recovered as
arrears of land revenue under Section 40(1) of the Act.
139. It is settled principle of law that if the plain
interpretation does not fulfil the mandate and object of the Act,
this Court has to interpret the law in consonance with the spirit
and purpose of the statute. There is indeed a visible
inconsistency in the powers of the Authority regarding refund of
the amount received by the promoter and the provision of law in
Section 18 and the text of the provision by which such refund
can be referred under Section 40(1). While harmonising the
construction of the scheme of the Act with the right of recovery
as mandated in Section 40(1) of the Act keeping in mind the
intention of the legislature to provide for a speedy recovery of
the amount invested by the allottee along with the interest
incurred thereon is self-explanatory. However, if Section 40(1)
is strictly construed and it is understood to mean that only
penalty and interest on the principal amount are recoverable as
arrears of land revenue, it would defeat the basic purpose of the
Act.
140. Taking into consideration the scheme of the
Act what is to be returned to the allottee is his own life
savings with interest on computed/quantified by the
Authority becomes recoverable and such arrear becomes
enforceable in law. There appears some ambiguity in Section
13
40(1) of the Act that in our view, by harmonising the provision
with the purpose of the Act, is given effect to the provisions is
allowed to operate rather running either of them redundant,
noticing purport of the legislature and the abovestated principle
into consideration, we make it clear that the amount which
has been determined and refundable to the
allottees/homebuyers either by the Authority or the
adjudicating officer in terms of the order is recoverable
within the ambit of Section 40(1) of the Act."
(Emphasis supplied)
The Apex Court holds that the scheme of the RERA Act provides an
in-built mechanism for appealing any order passed on a complaint
by the Authority under Section 31 of the Act and orders passed by
the Authority or the Adjudicating Officer for payment of certain
amounts are enforceable and recoverable under Section 40(1) of
the Act.
9.2. Further, the High Court of Calcutta in the judgment
rendered in the case of DEEPAK MAWANDIA V. SHREE RSH
PROJECTS PVT LTD.,2 has held as follows:
"The cumulative effect of the aforementioned
provisions lead to an inescapable conclusion that the said
Act is a self-contained code containing an exhaustive
provision relating to a real estate project and the
obligations and liabilities of the promoter, allottee and
the real estate agent as well as their respective
2
FMAT 97 OF 2024 and connected cases decided on 07-02-2025
14
obligations. A complete mechanism is provided for
redressal of the grievances of the dispute not only to the
allottee but also of the promoter and the real estate
agent and therefore, equilibrium is created amongst the
respective rights of the parties. By virtue of Section 11(4)(f)
it is obligatory on the part of the promoter to execute a
registered conveyance deed of the apartment, plot and building
in favour of the allottee along with the undivided proportionate
title in the common areas to the association of the allottees or
the competent authority which is further reiterated under
Section 17 in the following:........"
(Emphasis supplied)
The Division Bench of the Calcutta High Court observes that the
RERA Act is a self contained code containing exhaustive provisions
for redressal of the grievances of disputes not only with respect to
the allottee, but also with respect to the promoter and real estate
agents.
10. The pivotal question now would be, whether an
rendered by RERA or its Appellate Tribunal may, in the
contemplation of law, be regarded as a decree within the
meaning ascribed to the expression under the CPC. Sub-
section (2) section 2 of the CPC defines a decree as a formal
expression of an adjudication made by a competent Civil
Court, conclusively determining the rights of the parties to
15
the lis. Order XXI of the code in turn, delineates the
procedure for execution of such decree. An order passed by
RERA however, cannot by any stretch of legal interpretation
be equated with a decree, so as to invite execution created
under the machinery of Order XXI. The Act itself prescribes
a distinct and self contained mode of enforcement - the
recovery be effected as, arrears of land revenue from the
defaulting promoter or allottee. It is settled principle of
procedure that recovery of land revenue cannot be pursued
through an execution petition before a civil Court, it lies
within the province of the jurisdictional Revenue Authority,
ordinarily the Tahsildar.
11. Jurisprudence is replete with various High Courts across
the country, which have examined this very question, albeit, often
in the context of orders issued by the Appellate Tribunal under the
Act. Those Authorities illuminate the settled position that the
machinery of civil execution has no application to orders passed by
the Tribunal, as the Act itself has its own efficacious remedy. It is
only when there is complete failure after all the efforts taken by the
16
aggrieved party to get it executed before the Tahsildar as arrears of
land revenue, the aggrieved can knock at the doors of the
executing Courts, but those would be only on exceptional
circumstances.
JUDICIAL INTERPRETATION:
11.1. The Allahabad High Court in the case of SUPERTECH
LIMITED v. SUBRAT SEN3, has held as follows:
".... .... ....
21. The 'decree' has been defined under Section
2(2) C.P.C. to mean a formal expression of an
adjudication which conclusive determines the rights of
the parties with regard to all or of any of the matters in
controversy in the suit.
Section 2(2) of the C.P.C. is as under:
"decree" means the formal expression of an adjudication
which, so far as regards the Court expressing it, conclusively
determines the rights of the parties with regard to all or any of
the matters in controversy in the suit and may be either
preliminary or final. It shall be deemed to include the
rejection of a plaint and the determination of any
question within section 144, but shall not include-
(a) any adjudication from which an appeal lies
as an appeal from an order, or
3
2018 SCC OnLine All 5629
17
(b) any order of dismissal for default.
Explanation-A decree is preliminary when further
proceedings have to be taken before the suit can be completely
disposed of. It is final when such adjudication completely
disposes of the suit. It may be partly preliminary and partly
final;
22. In the definition of the 'decree' three words are
important namely adjudication, court and suit. The use of
the said words conclusively show that adjudication by the
court in a suit only results in a decree. It is also
necessary to note that the suit commences with a plaint
and ends when a judgement and order is pronounced
which culminates into a decree. The decision or the order
of the Appellate Tribunal or that of R.E.R.A. do not
conform to any of the above requirements of a decree as
defined in Section 2(2) C.P.C.
23. The definition of a 'decree' contained in the
above provision brings-forth the three essential
conditions viz.
(i) the adjudication must be in a suit;
(ii) the suit must start with a plaint and end in a
decree; and
(iii) the adjudication must be formal and final by
the court.
24. The proceedings before the R.E.R.A. are not in
the nature of a suit instituted by filing a plaint rather on a
complaint. Accordingly, proceedings before the R.E.R.A.
cannot be termed as a suit. Thus the decision or order of
R.E.R.A. or by the Appellate Tribunal on an appeal arising
out of such proceedings would not be a decree within the
meaning of Section 2(2) C.P.C."
(Emphasis supplied)
18
The Allahabad High Court enunciates that the order passed by RERA
whether emanating from the Adjudicating Officer or the
Appellate Tribunal, does not partake the character of a
decree, within the meaning of Section 2(2) of the CPC and
therefore, cannot be executed through the procedural
avenue of Order XXI of the CPC. The reasoning in the said
judgment has accorded persuasive value in subsequent cases
before different High Courts.
11.2. The High Court of Madhya Pradesh in the case of
KHILLA COLONIZERS v. SUBHASH JAIN4, has held as follows:
"..... .... ....
3. The learned counsel for the appellant submits that the
Registry of this High Court has wrongly pointed out the
objection regarding maintainability of this appeal. The
proceedings of RERA are of a summary nature to which
the provisions of Code of Civil Procedure are not
applicable. The order of Appellate Tribunal may not be
termed as a 'decree' under Section 2(2) of the CPC and
therefore, the instant appeal would be maintainable
against the order passed by the Appellate Tribunal. He
also read the provision of Section 58 of RERA and submits that
it provides for an appeal against the decision or order of the
Appellate Tribunal but here does not use the word 'Second
Appeal' as used in Section 100 of the CPC. It only provides that
the appeal can be preferred on any of the grounds mentioned in
Section 100 of the CPC. but it does not mean that only Second
4
2021 SCC OnLine MP 6044
19
Appeal would lie. It is further argued by the counsel that for
filing a Second Appeal, the condition precedent is the decree
passed in appeal and that too by any Court Sub-ordinate to the
High Court. The Appellate Tribunal of RERA is not a Sub-
ordinate Court to the High Court and order passed by Appellate
Tribunal is not a decree, therefore, Second Appeal would not lie
against the said order. In support of his contention, he relied
upon the order passed by Bench of Allahabad High Court in the
case of Supertech Ltd. v. Subrat Sen, reported in 2018 SCC
OnLine All 5629 : AIR 2019 All 19. He prays for maintainability
of this appeal.
.... .... ....
10. As above noted, the learned counsel for the appellant
raised the argument that the order passed by the Appellate
Tribunal is not a decree, moreover he argued that the Appellant
Tribunal is not a Sub-ordinate Court to the High Court. He has
also produced the copy of order passed by Allahabad High Court
in the case of Supertech Ltd. (supra) wherein the Bench of
Allahabad High Court has considered the relevant provisions of
Court Fees Act, RERA as well as Code of Civil Procedure. The
Bench found that the order passed by the Appellate
Tribunal is not a 'decree' for the purposes of filing an
appeal under Section 58 of me RERA before the High
Court. Before reaching this conclusion, me Bench of
Allahabad High Court has also discussed the applicability
and scope of Section 57 of RERA wherein it is prescribed
that the order passed by the Appellate Tribunal shall be
executable as a 'decree'. After quoting the relevant provision,
the Bench has held as under:--
"26. A reading of the aforesaid provision itself
makes it clear that by creating a legal fiction, the order
of the Appellate Tribunal has been recognised to be a
decree only for limited purpose of execution but not for
the purposes of filing an appeal against it. It is settled
law that in applying legal fiction one should not travel
beyond the limits for which it has been created. In
Paramjeet Singh Patheja v. ICDS Ltd., (2006) 13 SCC
322 : JT (2006) 10 SC 41 : AIR 2007 SC 168 the
Supreme Court in paragraph 36 of the above decision
observed that a legal fiction must be limited to the
purpose for which it was created. Therefore, for the
20
purposes of appeal under Section 58 of the R.E.R.A. the
decision or order of the Appellate Tribunal would remain
to be an order simpliciter and would not be a decree
within the meaning of Section 2(2) of the CPC."
11. The Allahabad High Court further relied upon the
judgment passed by the Hon'ble Supreme Court in the case of
Diwan Brothers v. Central Bank of India, Bombay, reported in
(1976) 3 SCC 800 : AIR 1976 SC 1503, and has held as
under:--
"40. In Diwan Brothers v. Central Bank of India,
Bombay, (1976) 3 SCC 800 : AIR 1976 SC 1503 the
court was ceased with a matter of payment of court fees
in an appeal before the High Court arising from the
order of the Tribunal appointed under the Displaced
Persons (Debts Adjustment) Act, 1951. In the said case
also the question that fell for consideration was whether
or not the decision given by the Tribunal under me
aforesaid Act could be said to be a decree within the
meaning of Article 11 of Schedule II to the Act for the
purposes of payment of court fee.
41. The court observed that the Tribunal under
the Act cannot be called a court as there is clear
distinction between a Tribunal and the Court. The
proceedings before the Tribunal do not start with a
plaint and as such would not culminate into a decree.
42. The mere description of the decision of the
Tribunal to be a decree for the limited purpose would
not make the decision a decree within the meaning of
Section 2(2) of the CPC."
12. Now, it becomes undisputed that the order
passed by the Appellate Tribunal under RERA cannot be
termed as a 'decree' under Section 2(2) of the CPC even
though Section 57 of said Act makes the order passed by
the Appellate Tribunal executable as a 'decree'. The order
passed by the Bench of Allahabad of High Court is in
consonance with the law."
(Emphasis supplied)
21
11.3. The High Court of Allahabad again in the case of PSA
IMPEX PRIVATE LIMITED v. REAL ESTATE APPELLATE
TRIBUNAL LKO.,5 has held as follows:
".... .... ....
78. In Messers Supertek Ltd. v. Subrata Sen,
Second Appeal (Def) 341 of 2018, decided on 01.10.2018
by a Co-ordinate Bench of this Court was deciding a
Reference under Section 5 of the Court Fee Act.
79. The Court has observed that the proceedings
before the Real Estate Regulatory Authority are summary
in nature to which the Code of Civil Procedure is not
applicable. The order of the Appellate Tribunal is not a
"decree" under Section 2(2) of the C.P.C. This court
considered the objects of Real Estate (Development and
Regulation) Act and observed that it is a special
Legislation which provides for the regulation and
promotion of Real Estate by promoting sale of Real Estate
in an efficient and transparent manner. It proposes to
protect the interest of the purchaser of the real estate and to
provide a speedy adjudicating mechanism of the disputes in
matters connected therewith. In substance while promoting real
estate, it endeavours to protect and safeguard the interest of
the investors in real estate. It is, therefore, a kind of beneficial
Legislation for the protection of the investor/purchaser of the
real estate. The Appellate Tribunal is not a Court
subordinate to the High Court and the order of the
Appellate Tribunals is not a "decree" as defined under
Section 2(2) of the C.P.C. which means "a formal
expression of an adjudication which conclusively
determines the rights of the parties with regard to all or
any of the matters in controversy in the suit".
80. The Court observed that in the definition of
decree as given under the C.P.C., three words are
5
2021 SCC OnLine All 215
22
important namely; adjudication, court and suit. The suit
commences with the plaint and ends when the judgement
or order is pronounced which culminates into a decree,
the order of the Tribunal does not conform to any of the
above requirements of a decree as it is rendered on a
complaint and is not the result of adjudication in a suit.
The proceeding before Real Estate Regulatory Authority is
not in the nature of a suit instituted by filing a plaint.
Real Estate Regulatory Authority derives jurisdiction on
the complaint. Proceedings before it are not governed by
strict Rules of Evidence as in a civil Suit. The order
passed by Real Estate Regulatory Authority or by the
Appellate Tribunal on Appeal arising out of such
proceedings maybe executable as a decree of a civil court
but the Appellate Tribunal will have all the powers of the
civil court only in respect of execution of its orders.
Sometimes, it may also send its orders to a civil court having
local jurisdiction for execution in case the person or the property
of the Promoter or builder or real estate agent is situated within
the local jurisdiction of that Civil Court.
81. The Supreme Court has observed in Paramjit Singh
Patheja v. I.C.D.S. Ltd., JT (2006) 10 SC 41, in paragraph 36
that a legal fiction must be limited to the purpose for which it
was created. In applying a legal fiction, one should not travel
beyond the limits for which it has been created. Therefore the
order of the Tribunal can only be considered to be a decree to
facilitate its execution. It is otherwise similar to Income Tax
Appeals filed under Section 260 of the Income Tax Act, which
are not to be characterised as Second Appeal even if they are
arising out of an Appellate order.
82. This Court in Messers Supertek Ltd. (supra),
was considering whether orders passed by the Tribunal
could be said to be a "decree" and found that unlike
regular Civil Court's adjudicating civil suits, the decision
on a complaint by an allottee against a Promoter or a real
estate agent cannot be said to be arising out of a plaint in
a Suit, wherefore the order of the Tribunal cannot be
termed to be a "decree"."
(Emphasis supplied)
23
The said judgment is affirmed by the Apex Court in a judgment in
the case of PSA IMPEX PRIVATE LIMITED v. REAL ESTATE
REGULATORY AUTHORITY AND ANOTHER reported in 2024
SCC OnLine SC 4664.
11.4. The High Court of Rajasthan in the case of TREHAN
APNA GHAR BUILDWELL PRIVATE LIMITED V. MUNISH
RANJAN SAHAY6, has held as follows:
".... .... ....
8. The RERA Act, 2016 has been promulgated by
legislatures to establish Real Estate Regulatory Authority
for regulation in promotion of real estate sector and to
ensure sale of plot, apartment or building, as the case
may be, or sale of real estate project, in an efficient and
transparent manner and to protect the interest of
consumers in real estate sector and to establish an
adjudicating mechanism for speedy dispute redressal and
also to establish the Appellate Tribunal to hear appeals
from the decisions, directions or orders of the Rea! Estate
Regulatory Authority and the adjudicating officer and for
matters connected therewith or incidental thereto.
9. The Appellate Tribunal established under the RERA Act,
2016 is judicial form and creature of a special statute. It is well
known principle of law that the Tribunal established
under any special Act cannot be called a Court like Civil
Court as* there is a clear distinction between the
Tribunal and the Court.
6
2022 SCC OnLine Raj 3257
24
10. The term decree" is not defined under the of the
Act of 2016 and nor it is defined under any other statue
including General Clauses Act, 1897 and for that the
Court has to consider definition of decree as defined
under Section 2(2) of the Act of 1908. As per Section 2(2)
of the Act of 1908, the decree means a formal expression
of an adjudication which, so far as regards the Court
expressing it, conclusively determines rights of parties
with regard to all or any of the matters in controversy in
the suit and may be either preliminary or final. Though,
the definition also includes rejection of plaint and order
passed under Section 144 but here this Court is not
concerned with that aspects of decree.
11. According to procedure prescribed under the
RERA Act, provision of the Civil Procedure Code, 1908 are
not strictly applicable. Further proceedings under the
RERA Act are initiated either suo moto or on
complaint/representation. Such proceedings under the
RERA Act may not be treated in the nature of civil suit
instituted before Civil Court by way of filing a plaint
which ultimately after adjudication on merits culminates
into passing a decree. Further it may be notices that
adjudicating officer, the RERA Authority or the Appellate
Tribunal may pass any order or decision on the dispute or
appeal brought before them which may be either may be
of an interim or final nature. Although under Section 58 of
the RERA Act, the order or decision of Appellate Tribunal has not
been termed as decree, however, by virtue of section 57 of the
RERA Act, the order or decision passed under the RERA Act is
executable and enforceable as a decree of Civil Court. Even if, it
is assumed for a moment that final order or decision either
passed by the adjudicating officer, RERA Authority or Appellate
Tribunal under the RERA Act, if determines the rights of parties
and partake a character of decree then also, the issue before
this Court for consideration is about to consider the category
and nature of appeal preferred before the High Court against
the order or decision of Appellate Tribunal under the RERA Act,
hence, a elaborate discussion about the aspect that the final
order or decision under RERA Act falls within category of decree
or not, is not required to be made, to decide the issue involved
herein.
25
.... .... ....
21. This Court finds support from the judgment
passed by Allahabad High Court in case of Supertech Ltd.
v. Subrat Sen [AIR 2019 All 191, which has been followed
and affirmed by Madhya Pradesh High Court in case of
Khilla Colonizers Pvt. Ltd. v. Subhash Jain, [AIR 2021 MP
165]."
(Emphasis supplied)
All the judgments of different High Courts in one singular voice
holds that the order of the Adjudicating Officer, the Authority or the
Appellate Tribunal under the Act is not a decree, as obtaining 2(2)
of the CPC.
12. On a coalesce of the judgments noted above, what
would unmistakably emerge is, the order of the Adjudicating
Officer or the order of the Appellate Tribunal, constituted
under the Act, does not assume the mantle of a decree,
within the contemplation of Section 2(2) of the CPC.
Therefore, such an order/orders cannot traverse the path of
execution delineated under Order XXI of the CPC. The
Courts have, in the afore-quoted judgments have illuminated
that the proceedings before the RERA are not conceived in
26
the mould of a civil suit, though the Act provides the
procedure to be followed, as if it is a civil Court and
therefore, cannot culminate in a decree in the classical
sense. In that light, the applications so filed by the petitioner
invoking Section 47 of the CPC to hold that the concerned Executing
Court did not have jurisdiction was in tune with law. The order
rejecting those applications and holding that the Court has
jurisdiction to entertain the execution petition runs foul of law,
therefore requires appropriate interference, which would lead to the
obliteration of the proceedings, leaving open all the remedies
available in law.
13. For the aforesaid reasons, the following:
ORDER
(i) Writ Petitions are allowed.
(ii) Impugned order dated 17-04-2025 passed on I.A.No.V in Execution Petition Nos.227 of 2024, 228 of 2024 and 231 of 2024 pending on the file of XVI Addl. City Civil and Sessions Judge, Bangalore stands quashed.
27(iii) It is needless to observe that the respondents would be at liberty to avail of such remedy as is available in law.
Sd/-
(M.NAGAPRASANNA) JUDGE bkp CT:SS