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Execution Petition Filed Without Certified Copy Of Decree Maintainable: SC [Read Judgment]

Ashok Kini
15 July 2019 1:01 PM GMT
Execution Petition Filed Without Certified Copy Of Decree Maintainable: SC [Read Judgment]
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"The High Court was not right in holding that in the absence of a formal decree not being drawn or/and filed, the decree holder had no right to file the Execution petition on the strength of the consent order."
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The Supreme Court has answered some important questions on the execution of consent orders in a judgment delivered on Monday.

In this case [Sir Sobha Singh And Sons Pvt. Ltd. vs. Shashi Mohan Kapur (Deceased)], the Delhi High Court held that as the Trial Court did not draw up the formal decree after passing the consent order, the Execution Petition filed by the 'decree holder' is not maintainable. The High Court, however, granted liberty to the 'decree holder' to apply to the Trial Court under Section 152 of the Code for drawing up a decree in terms of the consent order.

In the appeal filed before the Supreme Court, the bench comprising Justice Abhay Manohar Sapre and Justice and Dinesh Maheshwari observed that it is not necessary to file a copy of the decree along with execution application unless the Court directs the decree holder to file a certified copy of the decree. In this regard, the bench observed:

"In our considered opinion, though Rule 6A (2) of Order 20 of the Code deals with the filing of the appeal without enclosing the copy of the decree along with the judgment and further provides the consequence of not drawing up the decree yet, in our opinion, the principle underlined in Rule 6A(2) can be made applicable also to filing of the execution application under Order 21 Rule 2 of the Code. 28. Order 20 Rule 7 deals with the date of decree.
It says that the decree shall bear date the day on which the judgment was pronounced and when the judge has satisfied himself that the decree has been drawn up in accordance with the judgment, he shall sign the decree.
Order 21 Rule 11(2) of the Code, which deals with the execution of the decree, provides that the decree holder is only required to give details of the judgment and the decree in the execution application along with other details [see clauses (a) to (j)].
Similarly, Order 21 Rule 11(3) of the Code makes it clear that the Court "may" require the decree holder to produce a certified copy of the decree. This clearly indicates that it is not necessary to file a copy of the decree along with execution application unless the Court directs the decree holder to file a certified copy of the decree."

Requirements to file an application for execution of decree

The Court further observed that as and when the decree holder files an application for execution of any decree, he is required to ensure compliance of three things.

First, the written application filed under Order 21 Rules 10 and 11 (2) of the Code must be duly signed and verified by the applicant or any person, who is acquainted with the facts of the case, to the satisfaction of the Court; Second, the application must contain the details, which are specified in clauses (a) to (j) of Rule 11(2) of the Code, which include mentioning of the date of the judgment and the decree; and Third, filing of the certified copy of the decree, if the Court requires the decree holder to file it under Order 21 Rule 11(3) of the Code.

Consent Order by itself does not Amount to Decree

However, the bench rejected the contention that the consent order is capable of being executable by virtue of Section 36 CPC and, therefore, the High Court was not right in holding that the decree was required to be drawn. It said:

The argument is not acceptable for more than one reason. True it is that there are some orders, which are in the nature of decree and thus capable of being executed as such but the question, which arises for consideration in this case, is whether the order passed under Order 23 Rule 3 of the Code is such an order. In our opinion, it is not.
First, the language of Order 23 Rule 3 of the Code does not admit passing of an order of the nature urged by the learned senior counsel for appellant; Second, the expression "the court shall order such agreement, compromise or satisfaction to be recorded and shall pass a decree in accordance therewith" occurring in Order 23 Rule 3 of the Code, in clear terms, suggests that it is necessary after recording the compromise in the order to further pass a decree in accordance therewith..
In other words, the expression "and shall pass a decree in accordance therewith" is a clear indication that after the compromise is recorded by the Court, it shall proceed to "pass a decree". So, the rule contemplates, first an order recording of the compromise and then simultaneously pass a decree in accordance with the order.
In the light of the clear language of Order 23 Rule 3 of the Code, it is not possible to accept the submission of learned senior counsel for the appellant that the order dated 01.06.2012 itself amounts to a decree and, therefore, it is not necessary for the Court to pass a decree. Had this been the intention, the legislature would not have used the expression "and shall pass a decree in accordance therewith" in Order 23 Rule 3 of the Code.

What is the effect of not filing the copy of the decree along with the execution application?

Another question was whether the execution application was maintainable in view of the fact that the decree holder did not file the certified copy of the decree along with the execution application for the reason that the same was not passed by the Court. The bench held:

In our view, even though the appellant did not file the certified copy of the decree along with the execution application for the reason that the same was not passed by the Court, yet the execution application filed by the appellant, in our view, was maintainable. Indeed, so long as the formal decree was not passed, the order dated 01.06.2012 was to be treated as a decree during the interregnum period by virtue of Order 20 Rule 6A (2) of the Code. In other words, notwithstanding the fact that the decree had not been passed, yet by virtue of principle underlined in Order 20 Rule 6A(2) of the Code, the order dated 01.06.2012 had the effect of a decree till the date of actual passing of the decree by the Court for the purposes of execution or for any other purpose. This empowered the Executing Court to entertain the execution application and decide the objections raised by the respondent on merits.

Application for drawing decree to be filed under Section 151 R/w Order 20 Rule 6A

In this case, the High Court directed the 'decree holder' to apply under Section 152 of the Code for drawing a decree. The bench observed that, though it was right to direct to apply to the Court for drawing a decree, but it should not have been under Section 152 of the Code.

Section 152 of the Code deals with the amendment of judgments, decrees or orders. It provides that any clerical or arithmetical mistakes in the judgments, decrees or orders or errors arising therein from any accidental slip or omission may at any time be corrected by the Court either of its own motion or on the application of any of the parties. Order 20 Rule 3 also provides that judgment can be altered or added either under Section 152 or in review.
In our opinion, in order to invoke the powers under Section 152 of the Code, two conditions must be present. First, there has to be a judgment or decree or an order, as the case may be, and second, the judgment or decree or order, as the case may be, must contain any clerical or arithmetical error for its rectification. In other words, Section 152 of the Code contemplates that the Court has passed the judgment, decree or the order and the same contains clerical or arithmetical error.
Any party to such judgment, decree or order, as the case may be, has a right to apply at any time under Section 152 of the Code to the concerned Court for rectification of any arithmetical or/and clerical error in the judgment, decree or the order, as the case may be.
In the case at hand, we find that the Court, which disposed of the suit, did not draw the decree but only passed the order. In such a situation, the decree holder was required to file an application under Section 151 read with Order 20 Rule 6A of the Code to the Court for drawing a decree in accordance with the order dated 01.06.2012.

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