Supreme Court clarifies procedure for executing sale deed in specific performance decree: Rajbir vs. Suraj Bhan (2022) INSC 178

Introduction

Date of the Judgment: 28 February 2022

Citation: (2022) INSC 178

Judges: K.M. Joseph, J., and Hrishikesh Roy, J.

Can a court bypass the mandatory procedure for executing a sale deed in a specific performance decree? The Supreme Court recently addressed this crucial question, emphasizing that the procedure laid down in law must be strictly followed to prevent injustice. This case highlights the importance of adhering to the Civil Procedure Code, 1908, particularly Order XXI Rule 34, when executing sale deeds. The judgment was delivered by a two-judge bench comprising Justice K.M. Joseph and Justice Hrishikesh Roy.

Case Background

On 28 January 2006, the appellant, Rajbir, and his brother agreed to sell a property to the respondents, Suraj Bhan and Balraj. The respondents filed a suit for specific performance, stating that Rajbir’s brother had already conveyed his part of the property. Rajbir, however, had sold the property to another party, who was made the second defendant in the suit. The trial court decreed the suit in favor of the respondents, ordering Rajbir to execute the sale deed after the respondents deposited the remaining sale consideration within one month from the date of the judgment, i.e., 4 January 2013.

The decree specified that if Rajbir failed to execute the sale deed, the respondents could seek the court’s assistance. The property in question was described as 1/3 share of land measuring 72 Kanal 7 Marlas, which comes out to be 24 Kanal 2 Marlas, located in Village Salahawas. Rajbir’s appeals against this decree were unsuccessful, including a special leave petition before the Supreme Court.

Timeline

Course of Proceedings

The respondents initiated execution proceedings after Rajbir’s appeals were dismissed. Rajbir raised objections, arguing that the respondents had not deposited the full sale consideration within the stipulated one month. He contended that the decree could not be executed because the respondents had allegedly deposited only Rs. 34,41,100, while the remaining sale consideration was Rs. 62,65,469.

The executing court rejected Rajbir’s objections and imposed exemplary costs of Rs. 3,000. The court also directed the execution of the sale deed based on a draft submitted by the respondents. Rajbir challenged this order in the High Court, which dismissed his revision petition. The High Court noted that the decree was for 24 Kanals 2 Marlas and not 42 Kanals 11 Marlas as claimed by Rajbir.

Legal Framework

The core legal provision in this case is Order XXI Rule 34 of the Code of Civil Procedure, 1908 (CPC). This rule outlines the procedure for executing a document, such as a sale deed, when a judgment debtor fails to comply with a decree.

Order XXI Rule 34 of the CPC states:

“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 to the 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.
(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.”

This provision ensures that the execution of a document aligns with the decree’s terms and protects the judgment debtor’s rights by allowing them to raise objections to the draft document.

Arguments

Appellant’s Arguments:

• The appellant contended that the executing court had violated Order XXI Rule 34 of the CPC by not providing him with the draft sale deed and an opportunity to raise objections.
• He argued that the decree was for 66 Kanals, not 24 Kanals 2 Marlas, as claimed by the respondents.
• The appellant pointed out that the sale deed was executed based on a draft without considering his objections.
• He further argued that the executed sale deed pertained to a different survey number (Khewat 448) than what was specified in the decree and the agreement (Khewat 346).
• The appellant submitted that the property in the sale deed was abutting the road, whereas the decree related to a different part of the land.

Respondents’ Arguments:

• The respondents argued that the decree was for 24 Kanals 2 Marlas, which was part of a larger extent of 48 Kanals 4 Marlas.
• They contended that the appellant’s brother had already conveyed his share, and the appellant would not be prejudiced by executing the sale deed for 24 Kanals 2 Marlas.
• The respondents acknowledged that the court should have followed Order XXI Rule 34 but claimed that the matter was pending before the court and would have proceeded if not for the stay granted by the Supreme Court.

Issues Framed by the Supreme Court

The Supreme Court framed the following issue:

✓ Whether the executing court followed the correct procedure under Order XXI Rule 34 of the CPC while executing the sale deed.

Treatment of the Issue by the Court

Authorities

The Supreme Court primarily relied on the interpretation of Order XXI Rule 34 of the Code of Civil Procedure, 1908. The Court emphasized the mandatory nature of the procedure outlined in this rule, highlighting the importance of serving the draft sale deed on the judgment debtor, inviting objections, and considering them before executing the sale deed.

Judgment

How each authority was viewed by the Court?

The Court placed significant emphasis on the mandatory nature of Order XXI Rule 34 of the Code of Civil Procedure, 1908*. The Court held that the executing court’s failure to comply with the procedure outlined in this rule was a serious error that warranted intervention.

What weighed in the mind of the Court?

The Supreme Court’s decision was primarily influenced by the need to uphold the rule of law and ensure that procedural requirements are strictly followed. The Court emphasized that the executing court’s failure to adhere to Order XXI Rule 34 of the CPC could lead to a miscarriage of justice. The Court also noted that the execution of the sale deed without considering the appellant’s objections was a grave error.

Fact:Law Ratio

The Court’s reasoning was heavily based on the legal requirements of Order XXI Rule 34 of the CPC, rather than the factual aspects of the case.

The Court emphasized that the procedure under Order XXI Rule 34 of the CPC is mandatory and must be followed to ensure that the execution of the sale deed is in accordance with the decree. The Court noted that the executing court had failed to follow this procedure, which led to a miscarriage of justice.

The Court rejected the argument that the appellant’s objections were already considered, stating that the objections to the execution petition were different from the objections to the draft sale deed. The Court emphasized that the executing court must consider the objections to the draft sale deed as per Order XXI Rule 34 of the CPC.

The Court also took note of the discrepancy in the survey numbers between the decree and the executed sale deed. The Court highlighted the importance of ensuring that the execution of the decree is in conformity with the decree.

The Supreme Court’s decision was based on a strict interpretation of the law, particularly Order XXI Rule 34 of the CPC. The Court’s reasoning was that the executing court had a duty to follow the procedure laid down in the law and that any deviation from this procedure could lead to a miscarriage of justice.

The Court considered the argument that the matter was pending before the court but held that this did not absolve the executing court of its duty to follow the procedure under Order XXI Rule 34 of the CPC.

The Court’s decision is a clear affirmation of the principle that procedure is the handmaiden of justice and that any deviation from the prescribed procedure can lead to injustice. The Court also emphasized that the executing court has a duty to ensure that the decree is executed as it is and in accordance with the law.

“It is well settled that the execution court cannot go beyond the decree. The decree must be executed as it is.”

“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.”

“The only course which is available to us is to direct the objections of the appellant to the draft sale deed to be considered.”

Key Takeaways

• The Supreme Court emphasized the mandatory nature of Order XXI Rule 34 of the CPC in executing sale deeds in specific performance decrees.
• Executing courts must provide judgment debtors with the draft sale deed and an opportunity to raise objections.
• Failure to follow the prescribed procedure can lead to the setting aside of the sale deed and further litigation.
• The executing court must ensure that the sale deed is in conformity with the decree.
• The court cannot go beyond the decree and must execute the decree as it is.

Directions

The Supreme Court directed the following:

• The execution court (Civil Judge (Senior Division), Jhajjar) shall provide the appellant with a copy of the draft sale deed within two weeks from the date of production of the judgment copy.
• The appellant is allowed to file objections to the draft sale deed within three weeks thereafter.
• The execution court will then hear both parties and make a decision on the objections.
• If the sale deed is found to be in violation of the decree, it will be set aside, and a fresh sale deed will be executed.
• The entire process shall be completed within four months from the date the judgment copy is produced before the court.
• Further proceedings based on the sale deed dated 11 June 2019 shall be kept in abeyance until the court’s decision.

Development of Law

The ratio decidendi of this case is that the procedure outlined in Order XXI Rule 34 of the CPC is mandatory and must be strictly followed by the executing court when executing a sale deed in a decree for specific performance. This judgment does not introduce any new legal principles but reaffirms the importance of procedural compliance in the execution of decrees.

Conclusion

The Supreme Court’s judgment in Rajbir vs. Suraj Bhan & Anr. emphasizes the critical importance of adhering to the procedural requirements of Order XXI Rule 34 of the Code of Civil Procedure, 1908, when executing a sale deed in a specific performance decree. The Court set aside the High Court’s order and directed the executing court to rectify the procedural lapses by providing the appellant with an opportunity to raise objections to the draft sale deed. This case serves as a reminder that procedural compliance is essential to ensure justice and prevent future litigation.