Case Note & Summary
The petitioner, claiming to be Opponent No.4 in Regular Darkhast No.25/2009 pending before the Civil Judge, Junior Division, Pathardi, filed a Civil Revision Application challenging the order of the executing court rejecting his objection to execution. The petitioner objected on the ground that the decree passed under the Specific Relief Act, 1963 was a preliminary decree and thus not executable unless final decree proceedings were drawn up. The executing court heard the petitioner, referring to him as 'alleged Judgment Debtor No.4', and after hearing the decree holder, rejected the application. The High Court heard the counsel for the petitioner and the caveator (respondent No.1). The court held that a preliminary decree for specific performance of contract is executable under Order 21 Rule 32 of the Code of Civil Procedure, 1908 without the need for separate final decree proceedings. The court further observed that the executing court cannot go behind the decree and must execute it as it stands. The revision was dismissed, upholding the order of the executing court.
Headnote
A) Civil Procedure - Execution of Decree - Preliminary Decree for Specific Performance - Executability - A preliminary decree for specific performance of contract is executable under Order 21 Rule 32 of the Code of Civil Procedure, 1908 without the need for separate final decree proceedings - The executing court cannot go behind the decree and must execute it as it stands - Objection by a person who is not a party claiming through the judgment debtor is not maintainable (Paras 2-4).
Issue of Consideration
Whether a preliminary decree passed under the Specific Relief Act, 1963 for specific performance of contract is executable without drawing up final decree proceedings before the trial court.
Final Decision
The Civil Revision Application is dismissed. The order of the executing court rejecting the petitioner's objection is upheld. No order as to costs.
Law Points
- Preliminary decree for specific performance of contract is executable under Order 21 Rule 32 CPC
- no separate final decree required
- executing court cannot go behind decree
- objection by third party not claiming through judgment debtor not maintainable
Case Details
2014 LawText (BOM) (02) 23
Civil Revision Application No.17 of 2014
Shri S.K. Shinde for petitioner, Shri V.D. Salunke for respondent No.1/Caveator
Dattatraya Dinkar Ghule, Dr. Dilip Shankar Bade, Umrao Pandurang Bangar, Jayashri d/o Shankar Bade
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Nature of Litigation
Civil Revision Application against order of executing court rejecting objection to execution of decree
Remedy Sought
Petitioner sought to set aside the order of the executing court and to hold that the decree is not executable without final decree proceedings
Filing Reason
Petitioner objected to execution of decree on ground that it was a preliminary decree under Specific Relief Act and not executable unless final decree proceedings are drawn up
Previous Decisions
Executing court rejected petitioner's application
Issues
Whether a preliminary decree for specific performance of contract is executable without separate final decree proceedings
Submissions/Arguments
Petitioner argued that the decree passed under the Specific Relief Act, 1963 was a preliminary decree and not executable unless final decree proceedings are drawn up before the trial court.
Respondent No.1 (decree holder) opposed the revision.
Ratio Decidendi
A preliminary decree for specific performance of contract is executable under Order 21 Rule 32 of the Code of Civil Procedure, 1908 without the need for separate final decree proceedings. The executing court cannot go behind the decree and must execute it as it stands.
Judgment Excerpts
The executing Court heard the petitioner referring to him as 'alleged Judgment Debtor No.4' and after hearing the decree holder also, has rejected the application of the present petitioner.
A preliminary decree for specific performance of contract is executable under Order 21 Rule 32 of the Code of Civil Procedure, 1908 without the need for separate final decree proceedings.
Procedural History
Regular Darkhast No.25/2009 was pending before Civil Judge, Junior Division, Pathardi. Petitioner filed objection to execution. Executing court rejected the objection. Petitioner filed Civil Revision Application No.17/2014 before the Bombay High Court, Bench at Aurangabad. The High Court heard the parties and dismissed the revision on 20th February 2014.
Acts & Sections
- Specific Relief Act, 1963:
- Code of Civil Procedure, 1908: Order 21 Rule 32
