Procedure is said to be the handmaiden of justice

The Appellant along with his brother agreed to sell a certain property to the Respondents. Thereupon, the Respondents instituted a suit for specific performance. It was contended that one brother had already conveyed his part of the property in conformity with the agreement, however, the Appellant had sold the property to a person who was arrayed as second Defendant in the suit. The Respondents succeeded and a decree of possession by way of specific performance was passed in favour of the Respondents. The Appellant was directed to get the sale deed executed and registered in favour of the Respondents and the Respondents were directed to deposit the remaining part of sale consideration within one month from the date of the judgment. The Respondents applied for execution. The Appellant filed his objections stating that the decree cannot be executed because of the own act and conduct of the decree holders as they had only deposited an amount of Rs. 34,41,100/- as against a total amount of Rs.62,65,469/- which is deficient and there is no provision in the decree for later submission of the balance sale consideration or part payments of the same.

The objections of the Appellant were rejected and the Respondents produced a draft sale deed. The property which was agreed to be sold and which is the subject matter of the decree, was Khewat 346, whereas the sale deed is relatable to Khewat 448. A commissioner was appointed to carry out the formalities for execution of the sale deed in accordance with the terms and conditions of the agreement. Thereafter the sale deed came to be executed. The order appointing the commissioner to carry out formalities and execute the sale deed was under challenge.

The Division Bench held that Order XXI Rule 34 is attracted as the decree in question provides for the execution of the document which is a document of sale. If the judgment debtor neglects or refuses to obey the decree, the decree holder is to prepare a draft of the 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 and it becomes the duty of the court to serve the draft upon the judgment debtor. There must be a notice inviting objections. The court is duty bound to make an order approving or altering the draft as it thinks fit.

The executing court must act in conformity with the decree and cannot go beyond it. Therefore, when objections are filed pointing out 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. Thereafter 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.

However, in the present case, without objections being invited and considered, the sale deed came to be executed and registered which the Division Bench held was in contravention to the provisions of Order XXI Rule 34. It further held that 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 as 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.

Thus, the Apex Court, allowed the appeal and directed the execution court to hand over the copy of the draft sale deed produced by the Respondents and gave liberty to the Appellant to file his objections to the draft sale deed. It further directed that 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.

By - Lakshmi Raman