Paragraph numbers below are the court’s original numbering, recovered from the source text.
7. Per contra, Ms. Neelam Singh, learned counsel for the respondents, would point out that what has been agreed to be sold and what is further the subject matter of the decree was only 24 Kanals and 2 Marlas; it was part of 48 Kanals and 4 Marlas. The appellant and his brother were the persons who had right over the same. The appellant’s brother has already conveyed title and he has no right over the same. The appellant, by being called upon to execute the sale deed in respect of 24 Kanals and 2 Marlas, would not be prejudiced in any manner. She would point out that the respondents had produced the draft sale deed and it may have been the duty of the court to act in terms of Order XXI Rule 34. She further drew our attention to the proceeding at page 89 of the SLP paperbook (Annexure R1) to point out that the case was pending consideration before the court and it would have proceeded with the matter but for the stay granted by this Court. FINDINGS
8. As far as the case relating to the exact extent which was the subject matter of adjudication is concerned, we do not think that it will be open to the appellant to revisit the matter by pointing out that the respondents had not complied with the decree in not depositing the consideration as provided therein. An attempt to fix the extent which the appellant is duty bound to convey by the decree in excess of 24 Kanals and 2 Marlas cannot be countenanced. We would, therefore, hold that the property which is the subject matter of the decree is 24 Kanals and 2 Marlas. The said property would be comprised in Khewat No. 346 and it is a part of larger extent of 48 canals and 4 Marlas which, in turn, undoubtedly, is part of larger extent of 72 Kanals and 7 Marlas as referred to in the agreement. This is on the basis of the terms of the decree. It is, thereafter, that the respondents-decree holders filed execution proceedings.
9. Order XXI Rule 34 reads as follows: “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 for a negotiable instrument and the judgment-debtor neglects or refuses to obey the decree, the decree-holder 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 judgment-debtor 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 judgment-debtor object tot he 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 decree-holder shall deliver to the Court a copy of the draft with such alterations (if any) as the Court may have directed upon the proper stamp-paper 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 (or as the case may be), for A.B. in 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 authorised 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 decree-holder desires it to be registered, the Court may make such order as it thinks fit. RAJBIR v. SURAJ BHAN & ANR. [K. M. JOSEPH, J.] (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.”
10. The present is indeed a case where the decree in question provides for the execution of the document. The document is the document of sale as contemplated under the decree. Therefore, Order XXI Rule 34 is clearly attracted. It contemplates that 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. This is of considerable importance having regard to what may follow subsequently on the strength of the decree. It is also important from the point of view of the role of the executing court which is to act in conformity with the decree.
11. 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. There are other formalities contemplated in regard to registration, all of which take place only after the procedure which is contemplated in Order XXI Rule 34 sub-rule (1) to (4) is followed.
12. In the facts of this case, we may notice the order which is impugned by the appellant before the High Court. We notice from the order that the proposed sale deed is seen taken on file. Thereafter the court refers to the application filed for appointment of a local commissioner for the execution of the sale deed. The court refers to the decree bearing the date 04.01.2013. Thereafter, the court says that in the light of the present facts and circumstances the present application was allowed. The Civil Nazar of the Court was appointed as local commissioner who was directed to carry out the formalities for execution of the sale deed in accordance with the terms and conditions of the agreement after getting the approved draft sale deed from the court and report to this effect was to be submitted in the court well before 06.07.2019. This order is dated 30.05.2019. The sale deed came to be executed on 11.06.2019. Thus, this is a case where the court did not invite objections of the appellant to the draft sale deed but the application of the respondents for appointment of the commissioner to execute the sale deed is allowed, no doubt, taking note of the order of the same date, rejecting the objections of the appellant to the execution of the decree.
13. We must notice here that the objections on behalf of the appellant 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. Subsequent to the impugned order dated 30.05.2019, without objections being invited and considered, the sale deed dated 11.06.2019 came to be executed which was registered. Therefore, we are of the view that this approach of the court in the matter of executing the decree in question clearly contravenes the salutary provisions of Order XXI Rule 34.
14. The complain of the appellant is sought to be buttressed with reference to the difference in the survey numbers as noticed by us earlier. 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 RAJBIR v. SURAJ BHAN & ANR. [K. M. JOSEPH, J.] 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.
15. In this case, the court is presented with a fait accompli. This is for the reason that putting the cart before the horse, as it were, without giving an opportunity to file objections to the draft sale deed, the order impugned was passed. The sale deed itself has been executed in terms of the draft sale deed without objections being called for and considered. Learned counsel for respondents points out that the case is taken up now to consider the objections by the court. The only course which is available to us is to direct the objections of the appellant to the draft sale deed to be considered. It is, however, pointed out by Mr. Tarun Gupta, learned counsel for the appellant, that the copy of the draft sale deed has not yet been served on the appellant.
16. In such circumstances, we are inclined to pass the following order: The appeal is allowed. We set aside the impugned order. We direct that the execution court Civil Judge (Senior Division), Jhajjar shall hand over the copy of the draft sale deed produced by the respondents within a period of two weeks from the date of production of copy of this judgment before the execution court. The appellant will be free to file his objections to the draft sale deed within a period of three weeks thereafter. Thereafter, after hearing the parties, a decision will be taken on the objections. Learned counsel for the appellant would point out that appellant will in case the sale deed is found to fall foul of the decree, bear the expenses which has been incurred by the respondents towards registration. If the sale deed is found to not be in conformity with the decree, fresh proceedings will be taken. Appropriate order will be passed by the court so that the decree is executed as is provided in the decree. Needless to say, in case the sale deed which has been executed on the strength of the draft sale deed is found to be violative of the decree, it will necessarily be set aside, and thereafter, a fresh sale deed must be executed by the execution court. The entire process shall be completed within four months from the date copy of the judgment is produced before the court. Further proceedings based on the sale deed dated 11.06.2019 shall be kept in abeyance till a decision is taken by the Court. The appeal is allowed as above. The parties will bear their respective costs. Nidhi Jain and Anurag Bhaskar Appeal allowed. (Assisted by : Vrinda Singh, LCRA) RAJBIR v. SURAJ BHAN & ANR. [K. M. JOSEPH, J.]