The petitioners are judgment debtors in O.S.No.178 of 1998 on the file of the Sub-Court Namakkal. The suit is for specific performance of contract. The suit was decreed exparte on 12.08.2004 and the Court drafted the decree, directing the plaintiff to deposit a sum of Rs.1,25,000/- with the Court, within two months and within two months afterwards the defendants shall execute sale deed for Rs.2,25,000/- in favour of the plaintiff and in default the same be executed by the Court at the instance of the defendants and also a direction to the defendants to deliver the property to the plaintiff.
2. Earlier, the suit was decreed exparte and pursuant to the direction in the said exparte decree, the respondent/plaintiff deposited Rs.1,25,000/- on 29.11.1999 itself with the Court. Thereafter, the petitioners filed petition to set aside the exparte decree and the same was allowed. However, the above said amount continued to remain in the Court deposit. Again, since the petitioners/defendants were not present before the Court, on 12.8.2004 another exparte decree was passed. But the fact, i.e., the deposit of Rs.1,25,000/- remaining in the court deposit, was not brought to the knowledge of the Court at the time of passing exparte decree on 12.08.2004 and the decree was wrongly drafted directing the plaintiff to deposit Rs.1,25,000/- within two months.
3. The petitioners filed petition under Section 47 of C.P.C. with the allegations that since the plaintiff did not comply with the direction contained in the decree dated 12.08.2004, the decree could not be executed and hence the execution petition has to be dismissed.
4. The Court below at the admission stage itself rejected the petition by observing that since a sum of Rs.1,25,000/- was already in deposit as per the direction in the earlier exparte decree, there is no necessity to attach importance to the condition contained in the decree dated 12.08.2004 and it is not proper to contend that the carelessness and oversight on the part of the Court occurred at the time of drafting the subsequent decree, would not constitute ground to hold that the decree is inexecutable.
5. Learned counsel for the petitioners Mr.V. Raghavachari would strenuously contend that inasmuch as the respondent has consciously disobeyed the direction contained in the decree, he has to be non-suited for the relief of executing the decree and another ground is that the draft sale deed was not put to the knowledge of the petitioners and they were not afforded with the opportunity to project their objections on the contents of the sale deed and on this count also, the decree renders itself inexecutable.
6. Per contra, Mr.T.R. Rajaraman, learned learned counsel for the respondent would submit that since a sum of Rs.1,25,000/- was already in deposit which is payable to the petitioners as per the sale agreement, the condition in the decree dated 12.08.2004 need not be given credit to and the decree could not be termed to be unworkable.
7. The controversy lies within narrow campus. The plaintiff was ordered to deposit a sum of Rs.1,25,000/- which was already in deposit at his instance with the Court and and the condition crepted in the subsequent decree also only by inadvertence of the court and non-compliance of the same could not be held to be improper. It is settled that the executing court cannot go behind the decree and duty is cast on it is to execute the same as it stands and it can not vary the terms of the decree. But while the attention of the executing Court is focussed to the extent of inexecutablility of a decree at the admission stage, if the grounds adduced in the petition under Section 47 of C.P.C. are not tenable and reasonable, then there is no impediment for the executing Court to hold that the other portions of the decree are executable. It need not vary the terms of the decree nor introduce new directions to the decree.
8. The learned counsel for the petitioner would rely upon two unreported decisions of this Court. In C.R.P. (NPD) No.1960 of 2007 [S.A. Natarajan and another v. P.K. Thangamani and Others] this Court passed an order on 16.07.2007 in which it is observed that it is fit and proper that a direction be issued to the Court and number the Execution Application and make an enquiry by calling the petitioners as representatives of the judgment debtor as envisaged under Section 47 of C.P.C. In the order passed by this Court in C.R.P.(NPD) No. 1677 of 2003 [S. Anusuya v. Arumighu Renuka Parameshwari Devasthanam] on 23.11.2007, this Court has found that principles of natural justice require that an opportunity should be given to the petitioner to prove her case, based on the averments made in the affidavit filed in support of the petition on file and without numbering the same, the order passed by the learned Judge at threshold, which, in the considered opinion of the Court, is not correct.
9. In AIR 1972 SC 726 : (1973) 3 SCC 376, 1972 (4) UJ 588 (SC) [Chen Shen Ling v. Nand Kishor Jhajharia] the Apex Court was pleased to hold that if the decree says that on payment being made, some definite and specific thing is to be given to the other side, the executing court cannot alter that and allow something else to be substituted for the thing ordered to be given and the non-compliance with the terms thereof by the appellant precludes him from executing that part of it against the respondent.
10. In AIR 1959 AP 666 [P. Venkanna Chetti and Anr. v. B. Apparao Naidu] the Andhra Pradesh High Court has held as follows:
"3. It is seen from Order XXI, Rule 34(3) that where the judgment-debtor objects to the draft and his objections are reduced to writing, the Court, has to make an order approving or altering the draft, as it thinks fit. This implies the considerations of the objections filed by the judgment-debtor. An order which does not take into account the objections raised on behalf of the judgment-debtor cannot be deemed to ba legal or valid one. The provisions requiring the Court in make an order approving or altering the draft which by necessary implication involves the consideration of the objections being a mandatory one, non-compliance with the provision vitiates the order."
11. In CDJ 2008 SC 2165 [Deepa Bargava & Another v. Mahesh Bhargava & Others] the Superme Court has held as under:
"17. ... ... The question as to whether the executing court had any jurisdiction to travel beyond the decree was not raised. The executing Court had no such jurisdiction. The High Court while exercising the revisional jurisdiction also had no jurisdiction to invoke the provision of Section 74 of the Contract Act which for all intent and purport amounts to modification of a valid decree passed by a competent court of law. The decision of the High court, therefore, was wholly without jurisdiction. Furthermore, the High Court did not hold that
Section 174 of the Contract Act will have application. It only remitted the matter to the executing court."
12. In (1996) 6 Supreme Court Cases 660 [United Bank of India v. Naresh Kumar and Others] the Apex Court has held that procedural defects which do not go to the root of the matter should not be permitted to defeat a just cause; that there is sufficient power in the courts, under the Code of Civil Procedure, to ensure that injustice is not done to any party who has a just case and that as far as possible a substantive right should not be allowed to be defeated on account of procedural irregularity which is curable.
13. The facts prevailing in this case are otherwise. As far as the competency of the executing court is concerned, it has to execute the decree as per its terms. But if a thing directed to be performed by a party to the suit was already done by him, subsequently also there can be no further identical performance in future by means of a direction by inadvertence, in a subsequent decree and if such practice is allowed, it would lead to havocs. In other words, it can be stated that by an error committed by the court by inadvertence, the party who has been consciously pursuing the suit proceedings should not suffer. It is reiterated that without altering the terms of the decree, the executing court can act so as to render real justice to the parties. In the case on hand, it is more reasonable to hold that the performance of deposit of Rs.1,25,000/- again in deference to the subsequent decree is not expected and even if such deposit is made, the deposit was necessarily to be refunded to the plaintiff alone and no useful purpose would be served in observing such formality and it would be an additional burden to the Court and the parties.
14. As for the ground raised presently by the petitioners that draft sale deed was not brought to their knowledge by the executing court is concerned, the petition under Section 47 of C.P.C. filed by them does not contain any allegations and it is for them to raise in a separate proceedings and it is with the discretion of the executing court to take the same on file.
15. It is pointed out by the learned counsel for the respondent that in the enquiry stage, since the petitioners remain absent and were set exparte, there was no occasion for the court to serve copy of the draft sale deed to them. However, the said point need not be taken up for discussion at this stage and it is left open to be agitated by the parties on a future occasion.
16. In such view of this matter, this court does not find any infirmity either legal or factual in the order passed by the executing Court which has rightly rejected the petition. The Order challenged before this Court is confirmed and the revision petition has to face dismissal.
17. In fine, the Civil Revision petition is dismissed. No costs. Connected M.P. is closed.