It is clear that a decree can be preliminary when
further proceedings have to be taken before the suit can be
completely disposed of.
The decree is final when the
adjudication completely disposes of the suit. The same decree
can be partly preliminary and partly final.
In the decree
mentioned above, it is partly preliminary as to the portion
where there are directions to make payment within particular
time. To that extent the decree is preliminary as Section 28 of
the Specific Relief Act, 1963 retains control with the Court
passing decree to extend the time or rescind the agreement.
Once the amount has been paid within time, nothing remains
to be done by the Court passing the decree and part of decree
which was final i.e. directions to defendant Nos.1 and 2 to
execute the sale deed, become enforceable.
BENCH AT AURANGABAD
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
CIVIL REVISION APPLICATION NO.17 OF 2014
Dr. Dilip Shankar Bade,
VERSUS
Amol Vishwanath Bade
A.I.S. CHEEMA, J.
DATED: 20th February, 2014.
Date of pronouncing judgment :
20/2/2014
Citation;2014(3) ALLMR 644
Heard learned counsel for the petitioner and
1.
learned counsel for respondent No.1 on caveat. The revision
2.
is being disposed of after hearing these parties finally.
This revision petition has been filed by the
petitioner claiming to be Opponent No.4 in Regular Darkhast
No.25/2009 pending before Civil Judge, Junior Division,
Pathardi.
According to the petitioner, he objected to the
execution of the Darkhast on the ground that the decree
passed under the Specific Relief Act, 1963 was preliminary
decree and so, the same was not executable unless final
decree proceedings are drawn up before the trial Court. The
executing Court heard the petitioner referring to him as
"alleged Judgment Debtor No.4" and after hearing the decree
holder also, has rejected the application of the present
petitioner.
3.
I have heard counsel for petitioner and counsel for
respondent No.1. According to learned counsel for petitioner,
performance
against
respondent
respondent No.1 Dattatraya had brought suit for specific
No.2
Dr.
Dilip
and
respondent No.3 Umrao (arrayed as defendant Nos.1 and 2 in
the suit - Regular Civil Suit No.170/1996) before Civil Judge,
Junior Division, Pathardi).
The suit came to be decreed on
8.3.2002 and the decree has been maintained even till Second
there
was
another
Appeal to High Court. Counsel for petitioner submitted that,
dispute
between
respondent
No.3
(Judgment Debtor No.2) and his wife Jayshree, the present
respondent No.4 (but who was not party to the Civil Suit No.
170/1996) in Family Court at Bandra having No.634/2000 and
compromise
took
place
between
them.
In
the
said
compromise, the respondent No.3, by way of permanent
alimony,
handed
over
suit
land
admeasuring
85
R
to
respondent No.4, and respondent No.3 executed sale deed
dated 27.4.2001 in favour of respondent No.4.
Respondent
No.4 in turn sold the suit land to petitioner on 29.12.2008.
The Second Appeal in the matter was disposed on 3.2.2012
and it is not disputed that the sale deed executed in favour of
petitioner on 29.12.2008 was lis pendens in Regular Civil Suit
No.170/1996. According to the learned counsel for petitioner,
in execution, this petitioner was arrayed as opponent No.4 and
thus, he filed the application objecting to the execution.
Learned counsel for petitioner submitted that, in
4.
the matter of Chanda (dead through L.Rs.) Vs. Rattni & anr.,
reported in 2007 (3) ALL MR 341 (SC), decree under Specific
Performance Act has been held to be preliminary and so,
according to the learned counsel, it is necessary to draw up a
Learned
final decree before it can be put to execution.
Procedure
ig
counsel submitted that, under Section 2(10) of Code of Civil
(hereinafter
referred
to
as
CPC
for
short),
petitioner cannot be said to be Judgment Debtor but still
claimed that the petitioner had raised the objections under
Section 47 of CPC as he had been arrayed in Darkhast as
Opponent No.4.
It was also argued that, the petitioner has
purchased 85 R land whereas suit property under the
concerned decree is 35 R and so also it would require division.
5.
Learned
counsel
for
respondent
No.1
has
submitted that the petitioner was purchaser during pendency
of the dispute. According to him, although respondent No.3
created third party interest by first transferring the property
to his wife and then she transferring the same to petitioner,
still the original defendant kept litigating in the appeals. The
learned counsel submitted that the decree cannot be said to
be preliminary because the decree directed the plaintiff-
decree holder to deposit the money within three months and
the amount was accordingly deposited and so, it is final decree
and the same is executable. According to the learned counsel,
the judgment in the matter of "Chanda" (supra) will not help
the petitioner as the object is only to protract the litigation so
as to deprive the decree holder of fruits of the decree.
He
placed reliance on Section 2(2) of the CPC to submit that the
decree can be partly preliminary and partly final and the
portion which is final, is executable.
According to him, the
petitioner is third party purchaser lis pendens and cannot be
heard in execution.
He submitted that, the petitioner was
arrayed as opponent only because his name has got entered in
7/12 extract. Petitioner has filed another suit also in which his
application to stay execution has been rejected.
6.
There is no dispute regarding the fact that, the
petitioner is third party purchaser during the pendency of
litigation. Section 2(10) of CPC defines Judgment Debtor as
under :
"10. "Judgment debtor" means any
person against whom a decree has been
passed or an order capable of execution
has been made."
7.
It is clear that the petitioner is not judgment
debtor as the decree passed was not against him. The decree
holder wrongly arrayed the present petitioner in the execution
application as one of the opponents.
8.
Section 47 of the CPC reads as under :
[2]
47. Questions to be determined by the Court
executing decree:- (1) All questions arising
between the parties to the suit in which the decree
was passed, or their representatives, and relating
to the execution, discharge or satisfaction of the
decree, shall be determined by the Court executing
the decree and not by a separate suit.
(3) Where a question arises as to whether any
person is or is not the representative of a party,
such question shall, for the purposes of this
section, be determined by the Court.
Explanation I. For the purposes of this section, a
plaintiff whose suit has been dismissed and a
defendant against whom a suit has been dismissed
are parties to the suit.
Explanation II. (a) For the purposes of this section,
a purchaser of property at a sale in execution of a
decree shall be deemed to be a party to the suit in
which the decree is passed; and
(b) all questions relating to the delivery of
possession of such property to such purchaser or
his representative shall be deemed to be questions
relating to the execution, discharge or satisfaction
of the decree within the meaning of this section.
9.
It is apparent that the questions raised in the
execution proceedings by the petitioner are not questions
arising between the parties to the suit or representatives of
the parties or purchaser of property in execution of decree.
Thus, questions being raised by the petitioner need not really
be decided by the Executing Court. Learned counsel for the
petitioner admitted that the petitioner was not even a
purchaser from the original defendants - judgment debtors to
the suit. Not that the same would make any difference as far
as Section 47 of CPC is concerned. Thus, the application filed
by the judgment debtor objecting to the execution of the
decree should have been rejected on this count. Keeping in
view Section 47 of CPC, petitioner could not have been
10.
arrayed as party to the execution.
Even on merits of the contention raised by the
petitioner, the rejection of his application does not call for
interference. The petitioner has heavily relied on the case of
"Chanda". In that matter, the suit was decreed exparte. In
the decree, one of the direction was that the defendants are to
execute the proposed sale deed on payment of the balance
price and get it registered within a period of two months. The
money was not deposited in two months and when plaintiff
moved for execution and permission to deposit the balance
sale price in Court, the same was objected to.
Judgment
debtors moved application under Section 28 of the Specific
Relief Act, 1963 to rescind the agrement of sale. Trial Court
rescinded the contract. It was held that the plaintiff had failed
to deposit the balance sale consideration within the time
allowed by the Court and the execution application of plaintiff
In this context, provisions of Section 28
revision petition.
The High Court dismissed the
- appellant was dismissed.
were examined by the Hon'ble the Supreme Court and in para
8, observations were as under :
"8.
The present section corresponds to
Section 35(c) of the Specific Relief Act, 1877
(hereinafter referred to as the 'repealed Act')
under which it was open to the Vendor or
lessor in the circumstances mentioned in that
Section to bring a separate suit for rescission;
but this Section goes further and gives to the
Vendor or lessor the right to seek rescission
in the same suit, when after the suit for
specific performance is decreed the plaintiff
fails to pay the purchase money within the
period fixed.
The present section, therefore, seeks to
provide complete relief to both the parties in
terms of a decree for specific performance in
the same suit without requiring one of the
parties to initiate separate proceedings. The
object is to avoid multiplicity of suits.
Likewise under the present provision where
the purchaser or lessee has paid the money,
he is entitled in the suit for specific
performance to the reliefs as indicated in sub-
section (3) like, partition, possession etc. A
suit for specific performance does not come to
an end on passing of a decree and the Court
which has passed the decree for specific
performance retains the control over the
decree even after the decree has been
passed."
11.
For such reasons, the Hon'ble Supreme Court held
that the Court passing decree of specific performance retains
control over the decree even after the decree had been passed
and in that context, the observations of the Supreme Court
were that the decree of specific performance has been
12.
described as a preliminary decree.
Order XX of the CPC provides for passing of
preliminary decree in administration suits (Rule 13) and suits
for dissolution of partnership (Rule 15). In suit for partition
under Rule 18(1), final decree can be passed as regards estate
assessed to the payment of revenue while under Rule 18(2)
preliminary decree is required to be passed as regards other
immovable or movable property.
Even in matters for which
Order XX provides for drawing of preliminary decree (like say
house property) Court can, where it is convenient without
further inquiry, pass even final decree directly. This can be
gathered from wordings of Order XX Rule 18(2) CPC itself.
Order XX Rule 14(l) in pre-emption suit provides that where
Court decrees a claim to pre-emption and purchase money has
not been paid, the decree shall specify a day, on or before
which the purchase money shall be so paid and for direction to
deliver possession on payment of purchase money with costs,
if any, in specified time.
Clause (b) even provides for
contingent decree of dismissal if purchase money and costs (if
any) are not paid. Order XX Rule 12-A in decree for specific
performance of contract requires Court decree to specify
period within which payment shall be made by purchaser. It
does not specify that necessarily preliminary decree should be
passed. What is material is to see what exactly is the decree
passed.
13.
In the present matter, while passing the judgment,
directions regarding decree were as under :
ORDER
The suit stands decreed.
(2) The defendant Nos.1 and 2 do execute the
sale deed in favour of plaintiff within three
months from the date of decree, on getting
the amount deposited by the plaintiff in the
Court- of Rs.4000/-.
In the case, the
defendant Nos.1 and 2 did not comply the
sale deed, the plaintiff is at liberty to get it
executed through the Court and in that
case the cost of the completion of the sale
deed shall be saddled on the defendant No.
1 and 2.
(1) In the circumstances of the suit, parties are
left to bear their own costs.
(5)
14.
Defendant No.1 and 2 are hereby
permanently restrained from alienating or
transferring the suit property admeasuring
35 R portion of the land Gat No.73 as
described in para 1 of suit plaint situated at
village Mali Baboolgaon Taluka Pathardi.
(4) (3) Decree be drawn up accordingly."
There is no dispute regarding the fact that, after
above judgment and decree dated 8.3.2002, within period of
three months the decree holder did deposit the amount
specified. Learned counsel for petitioner is insisting that even
if the amount was deposited, still formal proceedings for final
decree were necessary.
15.
Section 2(2) of CPC reads as under :
"(2) "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
(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."
16.
It is clear that a decree can be preliminary when
further proceedings have to be taken before the suit can be
completely disposed of.
The decree is final when the
adjudication completely disposes of the suit. The same decree
can be partly preliminary and partly final.
In the decree
mentioned above, it is partly preliminary as to the portion
where there are directions to make payment within particular
time. To that extent the decree is preliminary as Section 28 of
the Specific Relief Act, 1963 retains control with the Court
passing decree to extend the time or rescind the agreement.
Once the amount has been paid within time, nothing remains
to be done by the Court passing the decree and part of decree
which was final i.e. directions to defendant Nos.1 and 2 to
There is thus no substance in the revision petition
17.
execute the sale deed, become enforceable.
brought by the petitioner. The same is rejected with costs.
(A.I.S. CHEEMA, J.)
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