P VENKANNA CHETTI Vs. B APPARAO NAIDU

JUDGEMENT

(1.) This appeal is against the order of the Subordinate Judge of Visakhapatnam, accepting a draft of the sale deed filed by the respondent in the following circumstances.

(2.) The respondent obtained a decree against the appellant for specific performance of an agreement to sell certain properties. As the appellant failed to execute a sale deed pursuant to the direction of the Court in the decree, the respondent prepared a draft of the document and put it into Court as required by Order XXI, Rule 34 of the Civil Procedure Code. The Court had the draft served on the appellant together with a notice requiring his objections to be made within a particular time. The appellant seems to have filed objections to the draft. When the matter came on for hearing, the trial Court called upon the counsel for the appellant to point out the objectionable clauses and the draft was also handed over to him. Instead of carrying out this direction of the Court, he filed another draft sale deed. This conduct of the appellant seems to have infuriated the Subordinate Judge and without considering the objections raised by the appellant, he accepted the draft filed by the decree-holder and rejected the draft filed by the appellant. It is this order of the Subordinate Judge that is under appeal.

(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 consideration 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 be a 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. Hence the order should be set aside and the trial Court directed to consider the objections. As it was the conduct of the appellant that was responsible for the order of the Court, this is a fit case in which he should be directed to bear the costs of this application in the trial Court. In this Court the parties will bear their own costs.