1. Heard learned counsel for parties and perused the record.
2. The short question up for consideration in both these writ petitions is regarding the scope of adjudication by Executing Court.
3. Facts in brief giving rise to the present dispute may be summarized as under.
4. One Smt. Avadh Bihari, wife of Late Budhu was owner of half of share in plot no. 413 (Aa) area 9 bigha, 6 biswa and 4 dhur and plot no. 398 (Kha) area 5 biswa. She was in possession, use and occupation of plots in dispute to the extent of her share during her lifetime. She transferred half share out of 1/2 share of plot no. 413 (Aa) and 398 (Kha) in favour of Sri Satish Chand, Girish Chand and Lal Chand sons of Late Ram Achal. Remaining share of disputed old plots no. 413 (Aa) and 398 (Kha) was transferred in favour of Arvind Kumar, the then minor son of Sri Narendra Dev under guardianship of respondent no. 3 vide registered sale deed dated 9.8.1967. Pursuant to the above transfers, mutation of transferees' names was carried out.
5. During consolidation operation in village, respondent no. 3, the guardian of Arvind Kuamr, the then minor son, entered into an agreement to sell on 28.5.1982 in regard to the property in dispute with the father of petitioners. When the sale deed was not executed, petitioner's father Late Ram Lakhan Misra, filed Original Suit No. 150 of 1985 on 18.7.1985 in the Court of Civil Judge (Senior Division) Faizabad for specific performance of contract i.e. agreement to sell dated 28.5.1982. The suit was contested by respondents 3 and 4. It was decided vide judgment dated 25.3.1987. The Trial Court decreed the suit partly directing for refund of money already paid but dismissing so far enforcement of agreement dated 28.5.1982 is concerned.
6. Petitioner's father filed Civil Appeal No. 102 of 1987 which was allowed on 21.2.1991 decreeing the suit with cost in its entirety directing for execution of sale deed pursuant to agreement dated 28.5.1982.
7. Second Appeal No. 198 of 1991 was filed by respondents 3 and 4 wherein initially an interim order was passed on 13.5.1991 but later on the appeal was dismissed on 21.7.2003 for want of prosecution. Restoration application filed by respondents 3 and 4 was dismissed on 25.3.2004. Further a recall application field by respondents 3 and 4 was also rejected on 5.4.2004.
8. Thereafter matter was taken to Apex Court against the dismissal of appeal and rejection of recall orders dated 21.7.2003, 25.3.2004 and 5.4.2004. S.L.P. (Civil) CC 4439 of 2004 was dismissed by Apex Court on 7.7.2004 with the following order:
"The Special Leave Petition is dismissed on the ground of delay as well as on merits."
9. Thereafter a review petition was also filed before Apex Court. The same was also dismissed on 2.8.2005.
10. The judgment of lower Appellate Court therefore attained finality entitling the decree holder to get the execution thereof.
11. The execution proceedings, thereafter, were initiated wherein an objection was raised on behalf of respondents 3 and 4 that number of plots mentioned in agreement to sell dated 25.8.2005 have undergone change in consolidation proceeding and, therefore, decree is unexecutable.
12. There was a clause in the agreement that in case there is any change in the plot numbers due to consolidation proceeding, the altered land made available shall be governed by the said agreement. The Executing Court held that this part of agreement relates to a future transaction and is not permissible rendering the agreement void to this extent and therefore after change of plots in consolidation proceeding, the execution cannot take place. The revision filed by decree holder has been dismissed. In the meantime, since the original decree holder Ram Lakhan has died, petitioners have been substituted as decree holders and are pursuing the matter.
13. The short question up for consideration is whether it was open to Executing Court to observe that agreement, which was directed to be enforced in suit, allowed in its entirety in Civil Appeal No. 102 of 1987 by lower Appellate Court vide judgment dated 21.2.1991 and which has become final up to the Apex Court, was inexecutable on the ground that some part of agreement is void and therefore inexecutable. In my view the Courts below are not justified in holding so in execution proceedings. The agreement in its entirety was up for consideration before the Court in Civil Appeal No. 102 of 1987 when the suit for specific performance was contested by the parties and without any reservation, Court has found that the said agreement is liable to be executed. It cannot be presumed that some part of agreement has not been approved by the Court and direction are effective in respect to only some selected part of agreement. The Court has referred to the agreement dated 28.5.1982 observing that it has to be enforced by execution of sale deed.
14. Once the entire agreement has been found enforceable, it was not permissible and possible for Executing Court to adjudicate again the validity of same agreement since the Executing Court cannot go beyond the decree. It has no jurisdiction to adjudicate upon the merits of agreement, enforcement whereof has already been adjudicated and directed in the decree under execution.
15. In Ramaswamy Aiyangar Vs. Kailasa Thevar AIR 1951 SC 189, it was held as under:
"The duty of an executing Court is to give effect to the terms of the decree. It has no power to go beyond its terms. Though it has power to interpret the decree, it cannot make a new decree for the parties under the guise of interpretation"
16. In Rajasthan Financial Corporation Vs. Man Industrial Corporation Limited (2003) 7 SCC 522, it was held that an Executing Court cannot go beyond the decree and the Executing Court must take the decree according to its tenor. In State Bank of India v M/s. Indexport Registered and others (1992) 3 SCC 159, the same view was referred to and followed earlier.
17. This Court has also already expressed the same view in Civil Misc. Writ Petition No. 41007 of 2011 (Arshad Merajh and another Vs. Ashok Leyland Finance Limited and 0thers) decided on 25.7.2011 wherein confirming the order passed by Executing Court, this Court observed as under:
"... application raising objection against the validity of award itself has been rejected by Execution Court on the ground that the award cannot be challenged in execution proceeding. I find no error in the view taken by Court. The Execution Court cannot go beyond decree."
(emphasis added)
18. Learned counsel appearing for respondents could not make any submission so as to pursue this Court to take a different view in the matter.
19. The impugned judgment dated 19.1.2006 (Annexure 2 to Writ Petition No. 5245 (MS) of 2009 passed by respondent no. 2 in execution case no. 56 of 1991 insofar as it has held that part of agreement covers a future transaction and, therefore, void, cannot be sustained and is hereby set aside. The revisional order, impugned in Writ Petition No. 5245 (MS) of 2009 is also set aside.
20. The Executing Court is directed to execute the agreement dated 28.5.1982 in its entirety.
21. Accordingly, writ petition no. 5245 (MS) of 2009 stands allowed.
22. Writ petition no. 5761 (MS) of 2009 has been filed by the judgment-debtor. In view of the above discussion, it has to be dismissed and is, accordingly, dismissed.
23. No costs.
Dt. 17.7.2012 PS