1. This petition under Article 227 of the Constitution of India. There is chequered history of this litigation, which started in the form of Regular Civil Suit No.314 of 1967. The respondents herein are the original plaintiffs and the petitioners are the original defendants. For the sake of convenience they shall be referred to in this order as plaintiffs and defendants.
2. The plaintiffs' suit for redemption of mortgage of the suit property was decreed in favour of the plaintiffs. This judgment was challenged by the defendant in an Appeal No.73 of 2004 before the District Court, Gandhinagar and vide its order dated 29.12.2005, the appeal of defendants was dismissed. One of the defendants on presenting the application for condonation of delay preferred Second Appeal being Civil Application No.13660 of 2008, Second Appeal (Stamp) No.257 of 2008 which was dismissed by this Court on 01.05.2009.
3. In the meantime, the plaintiffs filed Execution Petition No.16 of 2001 and Court appointed Court Commissioner. The objections were raised by one Kalabhai Joitabhai Patel, when the Court Commissioner visited the Suit property for taking possession. After recording the evidence on both the sides, the Court rejected such objection and directed the Court Commissioner to hand over the possession by order dated 15.05.2009. On 19th July, 2009, after recording the Panchnama, the plaintiffs (respondents herein) were handed over the possession of the property and report of entire procedure was submitted to the Court by the Court Commissioner on 23rd July, 2009.
4. By preferring the Civil Application No.4646 in Appeal from Order No.219 of 2000, this was challenged by heirs of Magandas Bechardas, which was dismissed by this Court.
5. Yet, one another application was moved by Kantaben daughter of Magandas Bechardas as an objector, which was also rejected by the Executing Court on 15.05.2009 and against such order an appeal was preferred being Appeal No.29 of 2009, which is pending. However, no stay has been granted by the Appellate Authority. As the plaintiffs by an application dated 30.07.2009 urged the Court to execute a document of redemption of mortgage and the Court passed an order dated 29.07.2011.
6. This is challenged in the present petition by the defendants raising various grounds.
Learned advocate Mr.J. G. Gadhavi appearing for the petitioners (original defendants) urged the Court that the Executing Court has disregarded the statutory provisions, while passing such an order. He could not have directed the execution of such document without availing an opportunity of hearing to the present petitioners. Moreover, unless the draft is approved by the petitioners, no such documents could have been directed to be executed. It is further urged that no notice has been served and Order-XXI Rule-34 has not been followed. This provision enjoins upon the decree holder to prepare a draft of the document, a copy of which shall have to be served to the judgment debtor requiring him to furnish objections, if any, and thereafter, on adjudicating such objection, the draft requires to be finalized.
7. Learned advocate Ms. Kalpana Brahmbhatt appearing for the respondents- original plaintiffs has forcefully argued that possession is already handed over to the present respondents. She pointed out at Exh.55 to drive her point home that the report to that effect, is already on record dated 23.07.2009, that the possession was handed over on 19.07.2009. All had been duly served, according to her and moreover, various rounds of litigations are over between the parties. Therefore, this Court in supervisory jurisdiction must not entertain the petition.
8. Undoubtedly, this petition is preferred urging challenge is materially illegal or perverse and injustice flows from such orders, there would be requirement of the Court to interfere, however such powers need invocation very surprisingly as held time and again. Although, the petitioners herein who are the original defendants (judgment debtors), have left no stones unturned to ensure that the fruits of decree passed in favour of the present respondents in a suit of the year 1967 are not allowed to be enjoyed by the respondents and they have raised various grounds to challenge the order impugned.
9. At the outset, challenge to the non issuance of the notice at the time of filing of execution petition requires rejection, because Order XXI Rule 22 provides that when an application for execution is made more than two years after the date of the decree, the Court executing the decree shall issue a notice to the person against whom execution is applied for requiring him to show cause, as to why the decree should not be executed against him. However, a proviso to this provision requires that no such notice shall be necessary if the application is made within two years from the date of the last order made against the party against whom execution is applied for. However, there is no complete fetter on issuance of such notice and discretion is left with the Court, if it deems necessary to so issue the notice. In the instant case, the Execution Petition was preferred within 2 years of the passing of decree and therefore, no notice was necessary in the first place and even otherwise a Court had not deemed it necessary to issue such notice. Again, learned advocate Ms. Brahmbhatt pointed out this Court from the record of the Executing Court as to how the decree has already been executed.
Second ground raised is of pendency of appeal being Appeal No.29 of 2009, is also hardly the ground for staying further proceedings of execution. As mentioned hereinabove, there are various rounds of litigation already entered into and including the second appeal preferred before this Court has been rejected. Any such objection therefore raised through the judgment-debtor, even if is pending, it would have no consequence as far as this execution petition is concerned.
10. The third ground raised by the learned advocate is in respect of possession of the suit property. However, in support of handing over of possession of the property, record unequivocally is clear that on 09.07.2009, the possession has been handed over by the Court Commissioner to the present respondents and a report to that effect has also been submitted on 23.07.2009. This report clearly indicates that the physical possession has been handed over to the respondents and such a report has not been challenged till the date. Resultantly, it is required to be held that no dispute with regard to handing over of the possession can be entertained at such a belated stage. Moreover, there is absolutely no substance in any of the contentions raised in respect of the possession.
11. The last and the vital aspect which calls for the interference from this Court, is the request made by the respondents- original plaintiffs for getting execution of a document in support of redemption of mortgage pursuant to the decreetal terms. It has been pointed by the learned advocate Mr.Gadhavi that the application of July, 2009 came to be decided in July, 2011. There is no reference of hearing the learned advocate for the petitioners and the submissions of learned advocate Ms. Brahmbhatt that petitioners herein would have no locus standi, cannot be accepted in vague of provisions of Order XXI Rule 34 of the Civil Procedure Code, which provides thus:
“34. Decree for execution of document, or endorsement of negotiable instrument.(1) Where a decree is for the execution of a document or for the endorsement of a negotiable instrument and the judgmentdebtor neglects or refuses to obey the decree, the decreeholder may prepare a draft of the document or endorsement in accordance with the terms of the decree and deliver the same to the Court.
(2) The Court shall thereupon cause the draft to be served on the judgmentdebtor together with a notice requiring his objections (if any) to be made within such time as the Court fixes in this behalf.
(3) Where the judgmentdebtor objects to the draft, his objections shall be stated in writing within such time, and the Court shall make such order approving or altering the draft, as it thinks fit.
(4) The decreeholder shall deliver to the Court a copy of the draft with such alterations (if any) as the Court may have directed upon the proper stamppaper if a stamp is required by the law for the time being in force; and the Judge or such officer as may be appointed in this behalf shall execute the document so delivered.
(5) The execution of a document or the endorsement of a negotiable instrument under this rule may be in the following form, namely: “C.D., Judge of the Court of (as the case may be), for A.B. In a suit by E.F. against A.B.”
and shall have the same effect as the execution of the document or the endorsement of the negotiable instrument by the party ordered to execute or endorse the same.
[(6)(a) Where the registration of the document is required under any law for the time being in force, the Court, or such officer of the Court as may be authorized in this behalf by the Court, shall cause the document to be registered in accordance with such law.
(b) Where the registration of the document is not so required, but the decreeholder desires it to be registered, the Court may make such order as it thinks fit.
(c) Where the Court makes any order for the registration of any document, it may make such order as it thinks fit as to the expenses of registration]”
12. This provision makes it very clear that if decree is for execution of document and the judgment- debtor refuses to abide by the decree, the decree holder requires to prepare a draft of the document and on receiving such draft, a Court shall cause to serve and the judgment-debtor to give with notice requiring his objection to be made within such time limit and on judgment-debtor objecting to such draft, the Court shall make an order either approving or altering a draft and decree holder then will be required to be delivered. A copy of such draft with alteration, as may be directed in the execution of such document then would be required to be done. In any event, document requiring registration, which is the cause herein the officer of the Court is authorized to cause such document to be registered in accordance with law.
13. It emerges from the record that after handing over of the peaceful possession of suit, registration of document is also part of satisfying the decree since the same is objected by the judgment debtor and therefore, it was necessary and inevitable for the judgment-creditor to have followed provision of Order XXI Rule 34 and it was incumbent upon the Court to circulate the draft inviting the objection, if there be any, this provision not having been complied with to that limited extent, the say of the judgment-debtor requires to be entertained in this petition.
14. Accordingly, this petition is allowed with the following directions:
(1) Upon receipt of this order, within 2 weeks, decree holder on preparing the draft of document for redemption of mortgage, shall deliver the same to the Executing Court.
(2) The Executing Court shall cause the draft to be served on the judgment debtor requiring them to file their objection, if any, within one week of service of the draft. However, no separate notice shall be given while furnishing the copy of the draft and the draft shall be received by the learned advocate appearing for the defendants (petitioners herein).
(3) Objections to the draft, as may be received in writing shall be scrutinized and approval or alteration shall be approved by the Court within a fortnight thereafter. The decree holder shall deliver to the Executing Court a copy of the draft with such alteration upon the proper stamp, if necessary, within a week thereafter.
(4) The Executing Court meanwhile may appoint an officer who shall execute the document so delivered and this officer authorized in this behalf by the Court shall cause only document to be registered in accordance with law. The expenses of such registration of the document shall be born by the judgment-debtor - present petitioner.
(5) Any other objection except as may be raised to the draft to be served to the petitioners.
(6) The petitioners herein shall not cause any further delay in execution of the decree.
15. With these directions, the present petition is disposed of setting aside the order dated 29th July, 2011.
(Ms. SONIA GOKANI, J.) MEHUL