Order XXI Rule 34 CPC Cannot Be Diluted; Execution Court Has Duty To Invite Objections From Judgment Debtor To Draft Document/Deed : Supreme Court

The Supreme Court observed that the provisions of Order XXI Rule 34 of the Code of Civil Procedure cannot be diluted and it has to invite objections from the judgment debtor to the draft deed/document submitted by the decree holder.

"The departure from the provisions can have highly deleterious consequences not merely qua the parties in question but also persons who come to deal with those parties in future. It can lead to further litigation.", the bench comprising Justices KM Joseph and Hrishikesh Roy observed.

In this case, a decree holder, in whose favour a decree of specific performance was passed, filed an execution petition. The court rejected the objections filed by the judgment debtor and issued a direction to execute the sale deed in favour of the decree holder after getting the draft sale deed approved from the Court. Pursuant to this order, the sale deed was executed.

Before the Apex Court, the appellant- Judgment debtor contended that the court did not invite objections of the appellant to the draft sale deed. It was contended that the Court was duty bound upon the draft sale deed being produced before it by the decree holder, to make it over to the judgment debtor and to consider the objections of the judgment debtor, and thereafter follow the procedure therein, and only thereupon, a sale deed as such could be executed.

The court noted the scheme of Order XXI Rule 34 as follows:

-If the judgment debtor neglects or refuses to obey the decree, the decree holder is to prepare a draft of the document. In this case, the draft of the document is the draft sale deed. The draft of the sale deed must further be in accordance with the terms of the decree. It is to be delivered to the court.

-Thereupon, it is not required that the decree holder must directly deliver it to the judgment debtor. The procedure, therefore, is that the decree holder must make it available to the Court. Under Order XXI Rule 34, it becomes the duty of the court to thereupon cause the draft to be served upon the judgment debtor. There must be a notice inviting objections and the court may fix a time within which objections are to be filed. The judgment debtor may or may not object.

-Order XXI Rule 34 sub-rule (3) contemplates a situation where the judgment debtor objects. This is to be contained in writing within the time provided. The court is duty bound to make an order approving or altering the draft as it thinks fit. 

The court observed that the objections on behalf of the Judgment debtor to the execution petition are not be confused with his objections to the proposed sale deed. That the appellant may have raised contentions to the effect that the decree itself is inexecutable and it was found meritless, would not absolve the court of its duty to proceed with the matter of considering the draft sale deed and the objections thereto under the provisions of Order XXI Rule 34, the court noted. The bench further observed:

It is well settled that the execution court cannot go beyond the decree. The decree must be executed as it is. Though, it is indeed open to the executing court to construe the decree; it cannot go beyond the decree. Therefore, when objections are filed pointing out in a given case that the proposed draft of the sale deed is not in conformity with the decree, it becomes the duty of the executing court to apply its mind and to make alterations in the draft, if needed, to make it in conformity with the decree. It will be thereafter that the decree holder is to deliver it to the court with the alterations if any made by the court, on proper stamp paper, if required and the execution of the document is effected by the court or the officer appointed.

In this case, the court noted that, the sale deed itself has been executed in terms of the draft sale deed without objections being called for and considered. While allowing the appeal, the bench directed the court to consider objections of the Judgment debtor to the draft sale deed. It observed: 

"While it is true that the court must be diligent in the matter of executing a decree passed after adjudication which spans a long period of time, it is also the duty of the court to execute the decree as it is and in accordance with law. Order XXI Rule 34 cannot be diluted and any such departure from the provisions can have highly deleterious consequences not merely qua the parties in question but also persons who come to deal with those parties in future. It can lead to further litigation. It is all of this which is sought to be avoided by bringing clarity and precision and execution must be in conformity with the adjudication contained in the decree"

Headnotes

Code of Civil Procedure, 1908 ; Order XXI Rule 34 - It is the duty of the court to cause the draft to be served upon the judgment debtor and to apply its mind and to make alterations in the draft, if needed, when objections are filed - It will be thereafter that the decree holder is to deliver it to the court with the alterations if any made by the court, on proper stamp paper, if required and the execution of the document is effected by the court or the officer appointed. (Para 10-11)

Code of Civil Procedure, 1908 ; Order XXI Rule 34 - Order XXI Rule 34 cannot be diluted and any such departure from the provisions can have highly deleterious consequences not merely qua the parties in question but also persons who come to deal with those parties in future. It can lead to further litigation. (Para 14)

Code of Civil Procedure, 1908 - While procedure is said to be the handmaiden of justice and substantial justice must prevail and the former may take the backseat, failure to follow the procedure laid down by law can result in grave miscarriage of justice to the judgment debtor and delay in the decree holder realising the fruits of the decree. (Para 1)

Code of Civil Procedure, 1908 ; Order XXI - Execution - While it is true that the court must be diligent in the matter of executing a decree passed after adjudication which spans a long period of time, it is also the duty of the court to execute the decree as it is and in accordance with law - Though, it is indeed open to the executing court to construe the decree; it cannot go beyond the decree. (Para 11,14)

Summary - Appeal against High Court judgment which upheld the procedure adopted by the Execution Court that did not invite objections under Order XXI Rule 34 from Judgment debtor to draft sale deed produced by Decree holder - Allowed - Clearly contravenes the salutary provisions of Order XXI Rule 34 - The objections of the appellant to the draft sale deed to be considered. 

Case details

Case: Rajbir vs Suraj Bhan | CA 1700/2022 | 28 Feb 2022

Citation: 2022 LiveLaw (SC) 255

Coram: Justices KM Joseph and Hrishikesh Roy

Counsel: Adv Tarun Gupta for appellant, Adv Neelam Singh for respondent