Procedure: the handmaid of justice


A court judgment in a long and winding property dispute has emphasised the crucial nature of due procedure an attention to regulation when adjudicating such disputes.

In this case, the appellant, along with his brother, agreed to sell a certain property to the respondents. The respondents then 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, and the appellant filed his objections, stating that the decree cannot be executed because of the actions and conduct of the decree holders, as they had only deposited an amount of INR3.4 million (USD45,100) as against a total amount of INR62.6 million, which was deficient, and there was 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 was the subject matter of the decree, was Khewat 346, whereas the sale deed related 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, and the sale deed came to be executed, but 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 applied, as the decree in question provided for the execution of the document, which was a document of sale. If the judgment debtor neglected or refused to obey the decree, the decree holder was 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 was to be delivered to the court, and it became the duty of the court to serve the draft on the judgment debtor. There must be a notice inviting objections and 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, and the execution of the document is effected by the court, or the officer appointed.

However, in this 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 for the parties in question but also persons who come to deal with those parties in future, as it can lead to further litigation. This 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 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 had been executed on the strength of the draft sale deed, was found to be violative of the decree, it would necessarily be set aside, and a fresh sale deed must then be executed by the execution court.