SUKHDEORAM Vs. SULEMAN MIAN

JUDGEMENT

(1.) This application has been filed on behalf of the plaintiff decree holder against the order dated 22.7.1988 by the court below rejected the prayer of the petitioner to execute the sale deed on the ground that no execution case has been initiated In order to appreciate the points raised in this application certain facts may have to be kept in mind. It is said that the exparte decree for specific performance directing defendants to execute sale deed with respect to the property in suit was passed on 9-3-1978 That exparte decree was sought to be set aside on an application under Order IX, Rule 13 of the Code of Civil Procedure. That application was filed in the court below praying to direct the judgment-debtor to execute sale deed in terms of the decree passed in Title suit No 22 of 1977. An order was passed on that application directing the petitioner to deposit cost for special messenger. That was deposited and thereafter a notice was sent to the judgment debtor opposite party on 23.4.1988 asking him to execute sale deed by 20th May, 1988. That was not done. The petitioner again approached the Court and the court by its order dated 20.5.1988 directed the petitioner to file registration of sale deed. A registered notice was also sent to the judgment debtor to execute sale deed. This also did not yield any result Thereafter an application was filed in the trial court praying to execute the sale deed as envisaged under Order XXI, Rule 34 of the Code As stated earlier the prayer was refused on the ground that the decree has not been put into execution.

(2.) Learned counsel in support of this application contended that the court below failed to exercise its jurisdiction. It is said that Order XXI Rule 34 of the Code itself provides as to how a decree for specific performance has to be executed. He says, under this Rule a duty is cast on the court below to execute the sale deed if the judgment debtor refuses or neglects to do so. It is said that necessary formalities were performed and as such the court below should execute the decree itself.

(3.) Mr. Nazmul Hoda, on the other hand, contends that the decree has to be put into execution first as provided under Order X read with sub-rule (2) of Rule 11 of Order XXI of the Code. He also says that the mode of execution of decree is also provided under Rule 13 onwards of the Code. In that connection learned counsel says that Rule 34 deals with the decree for execution of document of endorsement of negotiable instruments. He says that the executing Court can exercise powers under Rule 34 only when application as envisaged under Rule 10 read with Rule 11 (2) has been filed. I think that the argument of learned counsel is correct. Every decree has to be put into execution and unless the decree is put into execution in the manner prescribed, the same cannot be executed. The manner prescribed for making application for execution of decree for specific performance has been mentioned in sub-rule (2) of Rule 11 or Order XXI. The words used in the rule are that the application" shall contain in a tabular from the particulars". After this is done then the procedure prescribed under Rule 17 etc. has to be gone into. After that rule 30 onwards deals with the mode of execution Rule 32 deals, inter alia, with execution of decree for specific performance. Thereafter, there is another provision contained in Rule 34 which exclusively is for execution of document or endorsement of negotiable instrument. Under this rule the executing court cases gets jurisdiction to execute sale deed. All these provisions show that the orders must be passed by the executing court and not by the trial court. In this case, however, it is admitted that the trial court itself has to execute the decree as an executing court but that can be done only after an application is filed as envisaged under sub-rule 2 or Rule 11 of Order XXI because the process of execution starts with the filing of such application and not before that Learned counsel for the petitioner, in the circumstances, urges that he had filed an application on 27 8 1986 in the court below with a prayer to direct the judgment debtor to execute the sale deed He says that the same may be treated as an execution petitition Learned counsel also says that it is well settled that as to how a petition is labelled is not material. He is right. Labelling of an application is not material. What is material is as to what prayer has been made and if the informations required under the rule have been mentioned in that application.