Execution petition

Judgment-debtor (a power distribution company) filed application to transfer of execution proceedings to the city/court where their head office was situated

Execution petition filed before High Court as the same Court passed decree in its original jurisdiction

Validity

High Court while exercising its original jurisdiction is not a Court exercising ordinary original civil jurisdiction, but is a constitutional Court

Application filed by judgment debtor, was not tenable; consequently, the same was dismissed

Decretal amount, already attached was ordered to be paid to the decree holder forthwith

Execution Application, filed by decree-holder, was granted.

Contention of the appellants was that as the suit-properties had already been sold out, the decree-holders had not impleaded the bona fide purchasers

Validity

Record revealed that in the entire proceedings since filing of suit till passing of judgment passed by High Court and the Supreme Court, nowhere an objection was raised by the appellants that the suit -properties had been sold out to the bona fide purchasers rather the same was concealed by the appellants and their predecessor-in-interest

Hence, non-arraying of the strangers or so called bona fide purchasers by the respondents /(decree-holders/ execution-petitioners) had no force

Said objection / point was neither agitated nor brought in the notice during the entire proceedings before the Courts

Once objections had not been taken at the initial stage before the Trial Court they could not be taken subsequently, particularly at the time of execution of decree

No material illegality or irregularity had been noticed in the impugned order passed by the Executing Court to be interfered by the High Court

Appeal filed by the judgment-debtor, being merit-less, was dismissed.

Contention of the appellants was that as the suit properties had already been sold out, the decree-holders had not impleaded the bona fide purchasers

Validity

If strangers, who claimed to be bona fide purchasers of the suit properties, were not aware with regard to the proceedings pending against the suit properties between the parties, still they had alternate remedy to approach the said forum for redressal of their grievance under S. 12(2) Civil Procedure Code, 1908, but the Appellants could not be allowed to step in the shoes of so called bona fide purchasers

No material illegality or irregularity had been noticed in the impugned order passed by the Executing Court to be interfered by the High Court

Appeal filed by the judgment-debtor, being merit-less, was dismissed.

When car was not found for attachment, the petitioner was directed by the Executing Court to produce said vehicle, failing which, Robkar was directed to be issued to the concerned In-charge Anti-Car Lifting Cell for locating whereabouts of said car and to take over possession thereof

Later, not only concerned SHO was directed to produce said car, but warrants of attachment of another owned car were also issued

Petitioner / judgment-debtor agitated the mode and procedure adopted by the Executing Court for satisfaction of the decree

Validity

Section 13 of the Family Courts Act, 1964, deals with enforcement of decree passed by the Family Court

Family Court and the Civil Court are at the same pedestal for the purpose of execution of decree, so in that capacity a "Family" or "Civil" Court enjoys all powers of the executing court vested in Part II as well as O.XXI of the Civil Procedure Code, 1908

Petitioner by his own conduct, was delaying the satisfaction of the decree to deprive his ex-wife and his kids of the fruits of the decree

Executing Court was justified to pass the orders which were rightly maintained by the Appellate Court

Constitutional petition was dismissed, in circumstances.

When car was not found for attachment, the petitioner was directed to produce said vehicle, failing which, Robkar was directed by the Executing Court to be issued to the concerned In-charge Anti Car Lifting Cell for locating whereabouts of said car and to take over possession thereof

Later, not only concerned SHO was directed to produce said car, but warrants of attachment of another owned car were also issued

Petitioner / judgment-debtor agitated the mode and procedure adopted by the Executing Court for satisfaction of the decree

Validity

Conduct of the petitioner was very much relevant in the controversy in hand

Decree involved maintenance allowance of petitioner's own kids and pertained to the year 2012 but he had not bothered to satisfy the same on his own, rather he had been consistenly made efforts to frustrate execution proceedings to avoid satisfaction thereof

Petitioner time and again choose to set in field tactics to handicap proceedings conducted for auction of his immoveable property and had not even hesitated to put up every effort for bringing even custody of his attached vehicles in absolute disguise

Thereafter, the Executing Court initiated process for attachment and auction of his aforementioned immoveable property and vehicles

Said circumstances existing in the present case lead to an irresistible conclusion that the petitioner was capable of satisfying the subject decree, but he deliberately and intentionally was avoiding to do so, forcing even his own kids to starve

Person showing such a callous attitude, in particular, towards discharge of his parental obligation was not entitled for any discretionary relief and so was the case with a person who himself was not ready to follow and comply with the law

Executing Court was justified to pass the orders which were rightly maintained by the Appellate Court

Constitutional petition was dismissed, in circumstances.

Suit filed by the petitioner culminated in dismissal at first instance, prompting the petitioner to file Civil Appeal, where judgment was entered in her favour with the impugned judgment and decree being set aside and suit was decreed as prayed

Appellate decree was then drawn up accordingly on 04.07.2011

Respondent filed Civil Revision Application which was dismissed on 18.09.2018, without any interim order for stay or suspension of the Appellate decree having ever been made during pendency of the matter

In that backdrop the Execution Application came to be filed by the petitioner on 20.04.2019

Case of the petitioner turned on the assertion that the doctrine of merger extended to the proceedings of the revisional forum, and that as the Appellate Decree merged into the final order/judgment of the revisional Court, the period of limitation began to run from the date of disposal of the Revision Application

Held, that revision was dismissed on 18.09.2018 for non-prosecution and no order had been made during the proceedings for stay or suspension of the Appellate Decree

As such, the doctrine of merger sought to be relied upon by the petitioner would not apply

Petition was dismissed accordingly.

Plaintiffs and the defendant (possessor) were declared co-sharer/co-owners of the ancestral property (suit-house) by the Trail Court; and the defendant(judgment-debtor/ possessor) was directed to either buy the shares of plaintiffs or let them sell the house

Executing Court, however, auctioned suit-house to the highest bidder whereas the judgment-debtor/ possessor had showed his willingness to purchase suit-house by way of filing objections

Executing Court over-ruled said objections, against which order the judgment-debtor/possessor filed revision but the order was maintained

Contention of the petitioner (judgment-debtor/possessor) was that auction proceedings were carried out against the provisions of law, inter alia, without giving notice and hearing him (and even other co-sharers/decree-holders), the suit-property had been auctioned

Validity

It was the mandate of R. 66(2) of Order XXI of the Civil Procedure Code, ('C.P.C., 1908') that a proclamation of sale was to be drawn up by the Executing Court itself after prior notice to the decree-holder and the judgment-debtor

Sale by public auction without issuing notice to decree-holder and judgment-debtor would vitiate the proceedings

Said Rule also mandated that where situation to sell the property through auction had arisen, the Court as a rule must ask the parties to state the estimated price of the property, which in their opinion was likely to be fetched

Fixing reserve price in the proclamation was also mandatory, in absence whereof auction was illegal

In the present case, the proclamation was also not affixed on the Court Notice Board, which adversely affected the transparency of the auction proceedings

Impugned order passed by the executing Court was silent with regard to deposit of the balance amount of 75% by the auction purchaser within 15 days of the auction as mandated under R. 85 of O. XXI of the C.P.C, 1908

Rejoinder to objection filed by the respondent (auction-purchaser) and an application for depositing of the balance amount revealed that he had not deposited the balance within 15 days, while auction had taken place almost a month ago

Payment of the balance amount within 15 days of sale, was mandatory and upon non-compliance with said provisions there was no sale at all

Executing Court neither accepted the bid of the respondent (auction-purchaser) nor confirmed the sale as provided under R. 92 of O. XXI of C.P.C, 1908, thus it could not be said a vested right occurred in favour of the auction purchaser

In light of said illegalities coupled with non-deposit of balance sale amount of 75% by the respondent (auction purchaser) within stipulated time of the sale/auction, absence of confirmation of the sale in the impugned orders had rendered the auction proceedings in deviation of the mandatory provision of O. XXI, Rr. 54(2), 66, 85, 86 & 92, C.P.C.

High Court set-aside the impugned judgments and orders passed by both the Courts below and allowed the objection filed by the petitioner (judgment-debtor/ possessor), subject to full deposit auction/ sale money and deposit of sum equal to 5% of the purchase money

High Court directed that offer observing all other formalities the house-in-question shall be transferred in favour of the petitioner

Constitutional petition was allowed, in circumstances.

Executing Court turned down the objection of respondent/ex-wife that execution petition for recovery of Zar-e-Khulla was not maintainable

Appellate Court accepted the version/objection of respondent by allowing her revision petition

Held, that the decision of dissolution of marriage in terms of S.10(4) of the Family Courts Act, 1964, was compound, which on the one hand dissolved the marriage inter se parties and, on the other, said dissolution was made subject to return of dower

Manner and form of decree was prescribed in Rr. 16 and 17 of the Family Courts Rules, 1965, in light of which dissolution of marriage, on the basis of Khula subject to return of dower was a decree for all intent and purposes under S.13 of the Family Courts Act, 1964, and thus was executable

High Court set aside impugned judgment passed by the Appellate Court

Constitutional petition was allowed, in circumstances.

Petitioner agreed to sell 30 acres of land for a consideration of Rs.94 crore bounding the respondent to pay 1/4th amount of total consideration amount within 50 days and remaining amount was to be paid in 6 equal installments till performance date (i.e. 01.03.2019)

Respondent filed suit for specific performance of agreement and Trial Court ordered the respondent to deposit the remaining consideration amount in the Court but respondent failed to deposit the same

Responded submitted application and prayed for the suit to be decided in terms of compromise and on the same day counsel for the respondent got recorded his statement before the Court for vacation of stay to the extent of 15 acres 12 marlas land belonging to the petitioner, which was vacated

Respondent paid 5% amount (i.e. Rs.37,920,330/-) of the totalsale consideration

Respondent also paid amount of Rs.90,000,000/- to the petitioner

Petitioner contended that respondent did not comply with the compromise and failed to pay the remaining amount under terms of compromise

Trial Court passed detailed order directing the respondent to pay the remaining amount

Respondent did not comply with the said order, instead filed revision petition before High Court which was pending

Respondent filed execution petition and the executory Court ordered the petitioner to get 30 acres of land in respect of the response to the received amount

Validity

Order of Trial Court divulged that the same was passed only for vacation of stay order to the extent of 30-acres land

Such order did not mention that the said 30-acres land would be transferred in the name of the respondent in pursuance of amount of Rs.90,000,000/

As per terms of the compromise, the respondent was bound to pay 1/4th of the agreed amount, whereas the amount paid by respondent i.e. Rs.90,000,000/-, in no way was 1/4th of the total amount

Orders sought to be executed by filing execution petition as per S.36 of the Code of Civil Procedure, 1908, were not executable

No "executable order" was in the field

Revision petition was accepted accordingly.

Suit of the respondent/wife was partially decreed holding her entitled for getting godown or alternate amount of Rs.30,00,000/

Petitioner filed objection petition pleading that Rs.851,000/- had already been paid out of the Court for satisfaction of decree and matter was settled

Respondent denied such an alleged payment/satisfaction/settlement out of Court

Petitioner's objection petition was dismissed

Warrant of arrest of the petitioner was issued and his appeal thereagainst was also dismissed in limine

Petitioner contended that Executing Court had ignored the compromise between parties before arbitrator; payment out of Court was in accordance with law; and that two affidavits and receipt purportedly issued by brother of respondent was also ignored by the Court

Held, that Court's decree if not intervened by appellate Court would attain finality and Executing Court could not go behind decree subject to very limited circumstances permissible under S.47 of Civil Procedure Code

Plea of out of Court payment, if not supported by proof of payment through banking instrument/postal money-order/written evidence carrying signatures of the decree-holder or his authorised agent, the executing Court could not accept such an out of Court payment, unless it was confirmed by the decree-holder to the executing Court

Wisdom behind Rules 1 and 2 of Order XXI clearly was to avoid another round of litigation with respect to the satisfaction of decree and multiplicity of litigation

Court had to examine the documents relied by the petitioner to show the payment and genuineness of his claim, which included two affidavits and a receipt purportedly issued by the brother of respondent

Said affidavits were given by the strangers to the lis/decree in question

Said receipt did not contain signature of decree-holder and was issued by brother of the decree-holder without any proof of the fact the he was recognized/authorized agent of the decree-holder

Constitutional petition was dismissed accordingly.

Petitioner/judgment debtor contended that respondent/decree holder had failed to make payment of balance consideration amount within two months of passing of judgment/decree and agreement ceased to exist

Validity

If condition of the depositing amount mentioned in the decree was not fulfilled, then the said agreement would cease to exist or rescind, however, certain exceptions were there including the circumstances beyond the control of the decree holder or due to stay of proceeding by some court

Petitioner/judgment debtor filed objection and lingered on the matter from one pretext to another

Respondent/decree holder on various dates produced cheque for making payment of sale consideration which either could not be paid due to absence of the petitioner or he was reluctant to receive the same

Execution application was also consigned to record due to stay order

Executing Court was required to direct the decree holder to deposit the sale consideration amount in the CCD account of the Court, but had not ordered

Decree holder could not be prejudiced due to the act of Court

Decree holder was directed by High Court to deposit balance consideration amount within 15 days

Revision petition was disposed of accordingly.

Declaratory decree was not executable under O.XXI, R.32 of C.P.C. but injunction decree was executable under the said provision

No limitation did run against the decree of injunction and decree in favour of petitioners could be executed

Plaintiffs were forced to reinitiate the proceedings in the present suit but they had been non-suited on the ground of res judicata

Courts below had neither executed the earlier decree nor decided the present suit on merit

Case was remanded to the Trial Court for decision afresh on merits after framing of issues and recording evidence

Impugned judgments and decrees passed by the Courts below were set aside and parties were directed to maintain status-quo till disposal of suit

Revision was allowed, in circumstances.

Decree remained capable of execution till an appeal or revision was filed or such proceedings were pending but no stay order had been passed

No limitation had been provided for execution of a decree of Civil Court which had merged into decree of Appellate Court

Limitation for execution of decree would commence from accrual of right to apply and such right would start when appeal or revision had been finally disposed of by the last higher forum

Limitation period for filing execution petition would be reckoned from the date of appellate decision

Revision was dismissed, in circumstances.

Findings recorded by the Courts below were devoid of merits and without application of judicial mind which were not sustainable under the law

Impugned orders passed by the Courts below were set aside and execution petition was dismissed

Revision was allowed in circumstances.

Appeal was disposed of with the observation that monthly rent should be increased and deposited in the account of landlord and dispute with regard to previous rent should be resolved by the competent Court of law

Execution petition was filed but same was dismissed on the ground that no relationship of landlord and tenant existed at the time of filing of appeal

Validity

Provisions of Civil Procedure Code, 1908 were not applicable to the proceedings in stricto sensu, however, Rent Controller could follow the equitable principles thereof

Decree should be executed in terms and conditions mention in the code

Executing Court had to confine its deliberations within the purview of the decree and not beyond that and to dispose of the objections in the light of terms and conditions of a decree

Rent Controller had no authority to deviate from a real controversy between the parties

Petitioner had filed execution petition with regard to consent order passed by the High Court

Executing Court was bound to resolve the question of amount of arrears of rent in the case

Matter was remanded to the Executing Court by the High Court with the direction to dispose of the execution petition and objection filed by the parties in the light of terms and conditions of order passed by the High Court

Appeal was allowed, in circumstances.

Mortgagee filed a suit for declaration for recovery of mortgage amount which was ex-parte decreed and execution petition was moved

Auction of mortgaged property was conducted during execution proceedings and sale certificate was issued and property was sold in favour of auction purchasers

Mortgagor moved application for setting aside of ex-parte decree which was accepted

Mortgagor and mortgagee thereafter filed suits for declaration and redemption against each other

Suit of mortgagor was decreed but that of mortgagee was dismissed

Validity

Judgment-debtor could apply for setting aside of a sale of immovable property in execution of decree before its confirmation upon satisfying the decretal debt and paying compensation to the auction purchaser for the loss of bargain

Sale of immovable property in execution of a decree could be set aside on the ground of irregularity or fraud in conducting the said sale

Applicant for setting aside such sale had to prove substantial injury by such irregularity or fraud

No such application could be entertained unless amount not exceeding twenty percent of the sum realized at the sale or security had been deposited

Auction purchaser had right to move an application for setting aside of such sale on the ground that judgment-debtor had no saleable interest in the property which had been sold

Application for setting aside sale of immovable property in execution of a decree could be moved within a period of thirty days from the date of sale

Where immovable property had been sold in execution of a decree and such sale had become absolute then such property would be deemed to have vested in the purchaser from the time when property was sold and not from the date when sale had become absolute

Such sale of property would not automatically wipe out even if it was found that decree under which sale was ordered had been set aside without resorting to O.XXI, Rr. 89 to 91 of C.P.C.

Sale in the present case had not only been confirmed but a court certificate of sale had also been issued

Non-observance of procedural law would create impediment on the way of fair trial

Courts below had nullified a valid sale in execution merely because decree had been wiped out which had resulted in miscarriage of justice

Impugned judgments and decrees were set aside to the extent of setting aside of auction and sale of suit property

Plaintiff could move an application for setting aside of sale in accordance with law if so desired

Revision was allowed, accordingly.

Where period of limitation for any legal proceeding had been provided in the Limitation Act, 1908 or anywhere else in the statute then recourse might not be made to the provisions of Art. 181 of Limitation Act, 1908

No order for execution of decree was to be passed upon any fresh application presented after expiration of six years from the date of decree sought to be executed

If fresh application had been filed then same would be governed by S. 48, C.P.C.

First execution petition would be governed by Art. 181 of Limitation Act, 1908 which provided a period of three years for filing an application for execution of the decree

Petitioners, in the present case, had not applied for execution of decree before filing of present execution petition, which was barred by 16 months and 10 days

Period of limitation provided under S. 48, C.P.C. was not relevant

Petitioners had failed to point out any illegality or defect in the impugned judgment passed by the Court below

Revision was dismissed, in circumstances.

Defendants filed execution petition wherein plaintiffs moved objection petition that no decree had been passed in favour of defendants and execution petition was not maintainable

Objection petition was dismissed concurrently

Validity

Suit property had been declared in the ownership of predecessor of the parties

Defendants being legal heirs of deceased were entitled to their due shares according to Law of Inheritance

Words 'parties' had been used in S.2(2), C.P.C. rather than plaintiff or plaintiffs

Decree determined the rights of plaintiffs or defendants

When decree had determined certain rights to which defendant or defendants were held entitled then in such a case the defendants would be included in the definition of 'decree holder' or 'holder of a decree'

Words 'decree holder' or 'holder of a decree' could not be restrained to the persons who stood on the panel of plaintiffs during proceedings of the case

Once court had declared some rights enforceable then all the persons entitled under such a decree would be entitled to file execution petition regardless of the fact they were plaintiffs or defendants

Executing Court was to determine as to how much was the share of each of the successors according to Law of Inheritance and whether any of the legal heirs had received or sold any part of his property

Court for the said determination should record evidence and then proceed in accordance with law

Revision was disposed of, in circumstances.

Present execution petition had been filed after nine years from the date of passing of the decree which was barred by time

Appeal had been allowed to be withdrawn without any modification or alteration in the judgment passed by the Court below

Judgment of Court below would not merge into the order of Appellate Court, in circumstances

Decree-holder should have filed execution petition within three years from the date of decree of Court below and not from the order of Appellate Court

Appellate Court had rightly set aside the order of Executing Court and dismissed the execution petition being time barred

No error of law or mis-reading of record had been pointed out in the impugned order passed by the Appellate Court

Revision was dismissed in, circumstances.

Applicants moved application that suit property was undivided dwelling house and they were ready to purchase the same which was dismissed concurrently

Waiver, principle of

Applicability

Validity

Petitioners or their predecessor never pressed into service the alleged claim that suit property was an undivided dwelling house belonging to undivided family which could not be partitioned or they were willing to purchase the same

Petitioners had filed present petition after a period of twenty three years from the date of decree passed in partition suit

Petitioners could not raise the plea under S. 4 of Partition Act, 1893 and principle of waiver was applicable, in circumstances

Suit property was not an undivided dwelling house

Revision was dismissed, accordingly.

Suit was decreed with the observation that minor would be entitled to get the maintenance allowance from the person having administration of property of his deceased father

Contention of petitioners was that grand-father of minor had died and his legal heirs were not bound to pay maintenance allowance to the minor

Objection petition was dismissed concurrently

Validity

Land owned by the deceased father of minor was in the possession of petitioners

Petitioners were bound to pay maintenance allowance to the minor, in circumstances

Executing Court could not go beyond the decree rather to execute the decree in letter and spirit

Minor had right to receive the maintenance as well as fruits of his owned share of land till handing over the said land to minor

Petitioners were bound to pay maintenance allowance till they were enjoying the possession of land owned by the deceased father of minor

Courts below had rightly passed the impugned orders and no illegality had been committed

Revision was dismissed, in circumstance.

If father of minors was poor then it was the obligation of grandfather in easy circumstances to maintain his grandchildren

Grandchildren had right to claim maintenance allowance from their grandfather

Said right of grandchildren did not absolve either judgment debtor or surety from making payment of the decretal amount to the minors in terms of surety bond submitted before the Executing Court by making himself liable to make payment in case the father of the minors did not appear or make said payment

Liability of surety was co-extensive with that of principal debtor unless it was otherwise provided by the contract

Petitioner had submitted surety for Rs.5,00,000/- to be paid in default of judgment debtor and while accepting such liability he had not made the same conditional upon or subject to any claim of the minors against grandfather

Petitioner-surety had no right to claim that the decretal amount be recovered from the judgment debtor or anyone else

Arrest of judgment debtor did not absolve the surety from making payment of decretal amount and his liability was joint and several with the judgment-debtor

Provisions of Civil Procedure Code, 1908 had not been made applicable to the proceedings before Family Court but said Court was empowered to adopt any procedure to regulate its own proceedings and even adopt principles of Civil Procedure Code, 1908

Surety might be proceeded against for enforcement of his liability as provided under S.145 of C.P.C.

Surety had agreed to make payment of decretal amount in case of failure of judgment debtor to do so or on account of his non-appearance

Petitioner could not be absolved from his liability to pay the agreed amount after default

Executing Court had provided sufficient opportunities to the petitioner before proceeding against him

Courts below had passed impugned orders in accordance with law and record of the case

Constitutional petition was dismissed in circumstances.

Defendants-judgment-debtors filed revision but during pendency of the same execution petition was moved which was accepted and Executing Court passed order for execution of judgment and decree

Validity

No stay order had been passed in the revision petition filed on behalf of judgment-debtors

Appellate Court, if satisfied, could suspend operation of judgment and decree which were under execution

Civil Procedure Code, 1908, did not restrict decree-holder from filing execution petition during pending proceedings in appeal or revision

Decree-holder could not be deprived from his right of seeking execution proceedings pending disposal of appeal or revision

Mere filing of appeal or revision did not operate as a stay order over right of decree-holder to file execution petition nor it should be termed as suspension of decree impugned

Mere pendency of appeal or revision could not debar the Executing Court from either to stop or conclude execution proceedings

Concurrent findings of fact could not be questioned in constitutional petition

Constitutional petition could not be considered as an appeal against the order passed by the appellate Court and revisional Court

No illegality or infirmity had been pointed out in the impugned orders passed by the Courts below

Constitutional petition was dismissed, in circumstances.

First application for execution of a decree would be governed by Art. 181 of Limitation Act, 1908 and rest of the applications made thereafter would be governed by six years period of limitation as provided by S.48, C.P.C.

Petitioner had filed first execution petition after the period of five years, which was time barred

No illegality or irregularity had been committed by the Courts below while passing the impugned orders

Revision was dismissed, in circumstances.

Executing Court passed order for holding fresh auction but Appellate Court set aside the same with the direction to complete sale proceedings in favour of auction purchaser

Contention of petitioners-decree holders was that they were ready to purchase the shares of other legal heirs but Court Auctioneer had not mentioned the said offer in his auction report

Validity

Offer of legal heirs in the matter of inheritance should be given preference over the offer of third party subject to the ability to match the highest bidder

Judgment-debtors and decree-holders did not extend their consent in favour of auction purchaser rather they themselves had shown their intention to purchase the subject property for higher amount than the offered amount of auction purchaser

Court or officer holding the sale, if authorized in this regard, had discretion to decline the acceptance of highest bid if offered price was either inadequate and/or otherwise the property under auction/sale had the potential to fetch more price than the offered one

Executing Court was aware with regard to location of the subject property and its market value

Submission of bid did not mature into a contract until and unless same was accepted

Nazir of the Court who was sent execution petition was not competent to accept or refuse any bid

Nazir of the court, in the present case, had acted as an agent of the seller but ex-facie he was not vested with the power either to accept or refuse any of the offers received by him and offer was placed before the Executing Court

Deposit of 25% of the bid amount was subject to its realization

Auction purchaser could not claim any legal/vested right in the subject property mere on the basis of deposit of 25% of the bid amount

No right/title in the auctioned property should be deemed to be created/transferred in favour of any bidder unless bid was forwarded to and accepted by the Court

Once sale was accepted and balance 75% of the bid amount was deposited within fifteen days then such bid would be deemed to have been confirmed automatically if otherwise no order for confirmation of sale was passed

Ownership right in the auctioned property would be deemed as vested in the successful bidder from the date when auction was held

Mere participation in the auction proceedings and floating a highest bid by an auction purchaser did not clothe him with any right in the property being auctioned

Auction purchaser on the basis of his highest bid could not claim any right and/or had any locus standi to challenge the order passed for re-auction/sale of property by the Executing Court until and unless such offer of auction purchase was accepted

Offer of auction purchaser had been rejected in the present case and he could not ask for deposit of balance of 75% amount

Provisions of Order XXI, Rr. 84 & 85, C.P.C. were mandatory in nature and on non-compliance thereof property under auction/sale was liable to be re-sold forthwith

Appellate Court had failed to appreciate that subject property belonged to the legal heirs of deceased

Executing Court was not only to act as custodian of legal heirs but it had power either to accept or reject any of the bids whether it was lowest or highest

Appellate Court had wrongly exercised jurisdiction after rejection of highest offer/bid of auction purchaser by the Executing Court and committed illegality and irregularity while passing the impugned order

Impugned order passed by the Appellate Court was set aside and Nazir of the Court was directed to conduct sale of subject property afresh and parties were allowed to participate in the same

Constitutional petition was allowed, in circumstances.

Limitation did bar the remedy or assistance of the Court and it did not extinguish the right or title if accrued under the decree

Decree-holder had filed execution petition for enforcement of compromise decree after more than five years which was time barred

No bar existed against judgment-debtor either to file objection and/or initiate execution proceedings if decree passed so permitted

Once limitation had started it could not be stopped

First execution petition should be filed within a period of three years from passing of a decree

Mutation in favour of decree-holder on the basis of a decree could be effected even if execution petition was barred by time

Impugned orders passed by the Courts below were in accordance with law

Constitutional petition was dismissed, in circumstances.

Decree holder approached District Judge who passed direction under S. 115, C.P.C. for expeditious disposal of execution petition

Validity

Jurisdiction to be exercised under S. 115, C.P.C. was of supervisory nature

Jurisdiction of District Court under S. 115, C.P.C. in a matter was to the extent of Rs.25,00,000/

Such jurisdiction could be exercised on an application made by any person or even suo motu, subject to pecuniary jurisdiction of the Court in a case decidedwhere no appeal was provided

Suo motu revisional jurisdiction could only be exercised where matter was pending before the Court and some illegality or jurisdictional error had come to the notice of the Court

No application in the present matter had been filed nor any illegality or jurisdictional error had been brought before the District Judge

District Court was not competent to pass the impugned order as valuation of suit was beyond its pecuniary jurisdiction

District Court or even High Court had no inherit or suo moto power to issue direction or pass order when no lis was pending before it

District Court had supervisory and administrative control but that was only to the limited extent

Once judgment and decree was passed and execution petition was filed then Executing Court was to proceed in accordance with law and was not to wait for judgment debtor to file an appeal

When execution proceedings were stayed or any other injunctive order was passed by the Appellate Court then Executing Court was to obey the said order

Impugned order passed by the Court below was set aside

Constitutional petition was allowed, in circumstances.

Objections raised by the judgment-debtors could not be considered by the Executing Court and same were beyond its jurisdiction

Second appeal was dismissed, in circumstances.

Appellate Court directed the judgment debtor either to deposit decretal amount in the Court or furnish security till next date of hearing

Validity

Judgment debtor in case of a decree for payment of money was bound to deposit the decretal amount in the Court or furnish security for its payment otherwise objection should not be considered

Judgment debtor had failed to deposit decretal amount in the Executing Court

Appellate Court had rightly directed the judgment debtor to deposit decretal amount and no exception could be taken to it

Revision was dismissed, in circumstances.

Execution petition was filed for implementation of succession certificate wherein objection application was moved but same was dismissed

Contention of petitioner was that succession certificate was not a decree and same was not executable

Validity

Succession certificate did not fall within the ambit of decree and it merely declared that legal heir of the deceased was entitled to recover the amount mentioned in the said certificate

Succession certificate was not capable of being executed as a decree or order of the Court

Impugned order passed by the Court below was set aside and execution petition was dismissed by allowing objection petition

Appeal was allowed, in circumstances.

Courts below had committed illegality and irregularity while passing the impugned orders being not sustainable in the eye of law which were set aside and execution petition was remanded to the Executing Court with the direction to decide the same afresh after obtaining objections from the judgment debtor

Revision was allowed, accordingly.

Execution petition was moved wherein applicants filed objection petition that they had possession of suit land but they had not been impleaded in the suit

Executing Court dismissed the objection petition which had been maintained by the Appellate Court

Validity

Petitioners had been impleaded as defendants in the connected suit which had been consolidated with the suit of decree-holders

Applicants were well aware with regard to suit filed on behalf of decree-holders and their father had contested the same

Petitioners had filed present objection petition with mala fide intention to defeat the execution of decree which had attained finality

Applicants had not approached the Executing Court with clean hands and they were estopped by their conduct to object the execution proceedings

Courts below had rightly dismissed the objection petition, in circumstances

No irregularity had been committed by the Courts below while dismissing objection petition

Revision was dismissed, in circumstances.

Executing Court directed to the Manager of a Bank to assess profit at the rate of 22% on decretal amount due against the judgment debtor

Judgment debtor filed objection petition but same was dismissed

Manager of the Bank submitted report with regard to profit on the amount which was due against judgment debtor

Decree holder filed objections on the report of Manager of the Bank but same were declined

Validity

Trial Court had not granted compound interest on the decretal amount rather profit on an amount which was due against judgment debtor from institution of suit till execution of decree

Executing Court passed direction to the Manager of the Bank for calculation of 22% profit on the amount due against judgment debtor in his presence and with consent of decree holder

Decree holder had not challenged the said order of Executing Court before higher forum and same had attained finality

Executing Court could not go beyond the decree

Petitioner had failed to point out any illegality or irregularity committed by the Executing Court

Revision was dismissed in circumstances. [Paras. 11, 12, 13 & 14 of the judgment]

Appellate Court accepted the appeal and remanded the matter with the direction to the Executing Court to proceed in accordance with law and decide the same after recording of evidence

Appellate Court while deciding appeal made observation that possession of demised premises could be handed over to the landlord subject to the decision of objection petition

Landlord thereafter filed application before the Executing Court seeking possession of suit property on the basis of said observations which was dismissed

Revisional Court without affording opportunity of hearing to the objection petitioner ordered that possession of suit land be handed over to the landlord forthwith subject to condition that if objection petition was decided against him then possession would be taken back and would be delivered to the party entitled

Validity

Court below had denied the opportunity of hearing to the petitioner while hearing the impugned petition

Court while deciding a matter finally was required to afford opportunity of hearing to the contesting parties

Impugned order had been passed in violation of principles of natural justice

Where adverse action was contemplated to be taken against a person then he/she would have right to defend such action notwithstanding the fact that statute governing his/her rights did not contain the provision of principles of natural justice

Appellate Court should have restricted itself to the issues raised before it and could not dilate upon any other issue although same might be pending before subordinate Court

Observation made in the impugned order was beyond the mandate of Appellate Court

Impugned orders passed by the Appellate Court were set aside

Case was remanded to District Judge who should either himself decide the matter or assign the same for disposal to Additional District Judge except the one who had already expressed his opinion

Constitutional petition was allowed accordingly.

Petitioner-surety had given an undertaking to produce the judgment-debtor as and when required but he had failed to fulfil said undertaking

Principle of estoppel was applicable in the case

Petitioner could not be absolved of the liability for which he stood surety

Surety was bound to procure the attendance of judgment-debtor or his surety was to be forfeited by the Executing Court

Executing Court was directed to pass an appropriate order under Ss. 54 & 55 of C.P.C.

Detention of petitioner in a civil prison was to be for some specific period after issuing show-cause notice

Constitutional petition was dismissed in circumstances.

Second wife of judgment-debtor (husband) filed suit for declaration wherein injunctive order was passed restraining him from alienation of suit property

Executing Court consigned execution petition till decision of civil suit

Validity

No injunctive order qua the execution proceedings nor execution process could be suspended through declaratory suit

Injunctive order itself was limited to the extent of alienation by the judgment-debtor

Judgment-debtor could not escape from his liability for satisfaction of his debts

Execution proceedings had to be independently dealt with and same could not be held in abeyance nor could be ordered to be consigned to record room

Any alienation of property with intent to defeat the claim or to defraud the creditors was nullity in law and could not be used detrimental to the interest of the claimant in a decree passed against its executant

Judgment-debtor could not be allowed to carve out pleas in conspiracy with his second wife for the purpose of avoiding his paternal obligation of making payment of maintenance to the minors

Judgment-debtor was bound to maintain his minor children instead of fetching tactics and devices to avoid his liability

Family Court was empowered to execute the decree for the payment of maintenance

Family Court could recover the arrears through sale of the immovable property of the defaulter

Executing Court was competent to proceed with the execution proceedings when there was no injunctive order qua the proceedings of execution nor the execution of decree was under suspension from any competent Court

Impugned order passed by the Executing Court suffered from illegality and error of jurisdiction which could not be countenanced

Impugned orders were set aside and objection petitionwas dismissed

Executing Court was directed to proceed with the execution petition in accordance with law

Constitutional petition was allowed accordingly.

Execution petition was moved wherein judgment-debtor filed objection that he had made construction over the roof of the shop and decree could not be executed

Executing Court dismissed the objection petition but Appellate Court remanded the matter with the direction to deliver symbolic possession instead of physical possession of roof of the said shop

Validity

Judgment-debtor had never claimed to have raised any alleged construction over the roof of the shop in the written statement and that suit was not maintainable in its existing form

Even no compensation had been claimed by the judgment-debtor for the structure if any in his written statement

Executing Court had rightly concluded that the grounds raised in the objection petition could not be raised at the stage of execution as the subject-matter thereof was a pre-decretal matter which could have been entertained and adjudicated in the suit and not through execution petition

Appellate Court had held that construction over the roof of the shop could not be demolished and only symbolic possession could be delivered

Appellate Court had modified the decree which was for physical possession to a decree for symbolic possession in execution petition

Appellate Court had committed error of law and travelled beyond the jurisdiction while modifying the order of Executing Court or converting the decree in a decree for symbolic possession

Questions pertaining to the pre-decretal matters were to be raised in defence during the trial and could not be allowed to be raised in execution proceedings

Executing Court could not go behind or beyond the decree

Decree passed in favour of decree-holder had attained finality and judgment-debtor could not be allowed during execution proceedings to raise pre-trial matters

Alleged decree was not for symbolic possession rather it mandated delivery of physical possession of the suit property

Judgment-debtor was bound to comply with the direction contained in the decree

Claim of construction could not be entertained during the proceedings for execution of decree

Executing Court was bound to execute the decree strictly in the terms provided therein

Pre-trial questions if not raised during the trial or in the appeal could not be permitted to be urged as objection to the execution of decree

Impugned order passed by the Appellate Court was without jurisdiction and suffering from legal error and same could not be approved

Order passed by the Executing Court was restored and that of Appellate Court set aside

Appeal was allowed, in circumstances.

Property of judgment-debtor was auctioned wherein objection petition was moved but same was dismissed by the Executing Court

Contention of petitioner was that suit for specific performance was filed with regard to suit property and same had been decreed

Validity

Applicant for filing objection petition was required to deposit 5% of the purchase money for payment to the auction purchase and also must have deposited the amount mentioned in the proclamation of sale

No formal order of the Court or permission was required for deposit of the said amount

If said amount was not deposited then objections were not competent

Objections were filed under O. XXI, R. 89 of C.P.C. but without fulfilling requisite compliance of the said provisions and it would be considered as if no such application had been preferred

Objection petition could not be moved after 30 days of auction

Agreement to sell did not create or confer right or title in the suit property except it did extend a right to file a suit for specific performance

Alleged agreement to sell had been executed for avoidance of execution of present decree

Attachment of property in question was in the knowledge of applicant even before entering into agreement to sell and thereafter at the time of alleged judgment and decree passed in the suit for specific performance

Present objection application had not been moved in accordance with O. XXI, R. 89, C.P.C.

Frivolous objections had been raised only to delay the process of execution and drag the decree-holder and auction purchaser into litigation

Revision was dismissed with cost of Rs. 1,00,000/- which was directed to be distributed equally between the decree-holder as well as auction purchaser.

Statement for compromise was recorded on behalf of one of the decree-holders that he did not want execution of decree to his extent

Contention of applicants was that decree in question was not executable

Objection petition was dismissed by the Courts below

Validity

Executing Court was bound to execute the decree, as it was, and it could not exceed beyond the same

One or more persons could submit application for execution of joint decree

Omission on the part of decree-holder to state in his application the names of all the persons who were interested in the decree did not render the execution proceedings invalid

If anyone or more decree-holders had relinquished their rights in the decree then their such conduct would not make the whole decree redundant and un-executable

Petitioner-decree-holder, in the present case, had included rest of the decree-holders in the array of pro forma respondents

Executing Court had rightly protected rights of other decree-holders while observing that sale deed should be executed and registered in favour of all except one who was disinterested to get the decree executed

No illegality, irregularity or jurisdictional defect had been pointed out in the impugned orders passed by the Courts below

Constitutional petition was devoid of merits which was dismissed, in circumstances.

Execution petition was dismissed in circumstances.

Civil Court could neither declare proceedings of Executing Court as illegal nor regulate the property involved in the execution proceedings

Judgment and decree of one civil Court could not be nullified by another

Official Assignee (Nazir) had neither issued any notice to any of the judgment-debtor before inspection of property to be auctioned nor he appeared to have been physically present at the inspection

Report of Nazir did not disclose as to how and who identified suit shop to the inspection team

Proceedings in civil suit filed subsequently could not have any bearing on the orders of Executing Court

Applicant had no right to retain possession nor any order of civil Court passed in other civil suit would have effect of setting aside any of the orders of Executing Court for auction and possession to auction purchaser

Auction of suit shop was lawful and auction purchaser was entitled for possession being lawful owner under authority of Court order/decree

Official Assignee (Nazir) was directed to take possession of suit shop and hand over its possession to the auction purchaser

Revision was dismissed in circumstances.

Family Court directed the judgment debtor to pay entire decretal amount in lump sum and dismissed the objection petition

Validity

Family Court in its judgment directed the judgment debtor for lump sum payment of decretal amount which observation was upheld by the Supreme Court

Observation of Family Court for payment of lump sum decretal amount had attained finality

Executing Court did not commit any illegality while refusing fixation of instalments

Impugned order was passed at the stage of execution proceedings which did not fall within the definition of a "decision" or decree rather it was an interlocutory order

Only a decision or a decree passed by a Family Court was appealable before Shariat Appellate Bench of High Court

Family Court had discretion to fix instalments if it deemed fit

Instalments could not be claimed as a matter of right

No appeal or revision had been provided under Azad Jammu and Kashmir Family Courts Act, 1993 against such direction for making payment of decretal amount

No appeal or revision had been provided against an interlocutory order passed by the Family Court

Appeal was dismissed, in circumstances.

Decree passed by a Court required to be satisfied and till its satisfaction a number of execution petitions could be filed provided first application was moved within the span of three years after passing of decree or final order sought to be executed

If first execution petition was filed within stipulated period then successive applications could be filed by the decree holder within the period of six years

Applicant was required to furnish detail of previous application if any with date and result

Petitioner had moved execution petition earlier which was finally disposed of by the Executing Court by a speaking and well reasoned order

If present execution application was treated as a second application then it would be hit by the principle of res judicata

Order passed in the earlier execution petition had attained finality

Petitioner did not disclose the factum of filing of previous application and its result which was legal requirement

Counsel being officer of the Court was required to place the facts before the Court in order to enable it to arrive at a just conclusion

Counsel had failed to discharge his legal obligation and decree passed in suit was collusive

Revision was dismissed in limine.

Decree holders' first execution petition was pending before the Executing Court and same was adjourned till further orders by the Supreme Court

Second execution petition was moved after dismissal of appeal and review by the Supreme Court which was not time barred

Nothing was on record that ad-interim order of Supreme Court was modified or recalled prior to final order

No illegality or irregularity had been pointed out in the impugned order passed by the Executing Court

Appeal was dismissed in circumstances.

Petitioner (Ex-wife)/ decree-holder contended that executing court had rightly held her execution petition as maintainable

Respondent/ Judgment-debtor contended that Appellate Court had rightly dismissed the execution petition as the same was time-barred being filed after more than three years of passing of the decree

Validity

Respondent did not pay any maintenance allowance as per decree till the filing of execution petition so the petitioner on denial of maintenance allowance moved the executing court

Provision of Limitation Act, 1908 were not applicable in family matters in strict sense

Article 181 of Limitation Act, 1908 was residuary in nature which dealt with the situation when someone had to move an application and not execution petition for which no period of limitation was provided in the law and even in the Limitation Act, 1908 therefore, Appellate Court while appreciating Art. 181 of the Limitation Act, 1908 had erred in law by applying the same to the execution matter

Petitioner/decree-holder had averred in execution petition that respondent/ Judgment debtor had not paid decretal amount of maintenance so respondent could not be given benefit of wrong of his refusal to pay the decretal amount in any garb

High Court set aside the judgment passed by the Appellate Court and restored the order passed by the Family Court/Executing Court

Constitutional petition was allowed accordingly.

Trial Court dismissed the suit but appellate Court decreed the same subject to payment of "admissible compensation" to the Authority

Execution petition was moved and Executing Court fixed Rs. 61,000/- as fair and just compensation

Validity

Judgment passed by the Appellate Court had attained finality

Executing Court had determined "admissible compensation"

Petitioners had participated in the execution proceedings

Possession of plot in question was taken forcibly by the petitioners which was delivered to the plaintiff/respondent

Petitioners had paid prevalent price of plot in question

No illegality, irregularity, mis-reading or non-reading of record had been pointed out

Revision was dismissed in circumstances.

Revision was allowed in circumstances.

Execution petition was filed wherein local commission was appointed to determine whether suit property was partitionable

Executing Court dismissed execution petition due to filing of fresh application for partition of suit property

Validity

Earlier proceedings culminated into final decree and affirmed by the High Court

Execution of decree which included a decree for possession to the extent of share of decree-holders only and not beyond that could not be frustrated

No person should benefit from any improvements made during proceedings in a Court of law which would not thwart the effects of a decree

If applicants-decree-holders had submitted any application for grant of preliminary decree for partition then same could not be allowed to benefit the judgment-debtors

Judgment-debtors had willingly adopted the mode of spot inspection by local commission and they could not be held to have been denied the right of due process of law or condemned unheard in any manner

Right of petitioner-decree-holder had already been established and mode of partition had been followed which did not require any further inquiry

Application for grant of preliminary decree for partition could be considered as a step in aid of execution of decree

Impugned order was set aside in circumstances

Execution petition should be deemed to be pending before the Executing Court and application for grant of preliminary decree for partition be clubbed together with the same

Revision was allowed accordingly.

Plaintiff and defendant made settlement through compromise that properties mentioned in the compromise deed would be transferred in favour of plaintiff

Plaintiff moved execution petition wherein surety submitted objection petition but same was dismissed

Contention of surety was that decree was passed with regard to the properties which were not subject matter of the suit and he was not bound to satisfy the decree

Validity

Decree was passed on the basis of compromise with regard to properties which were not subject matter of the suit

Said decree could not be executed against the surety

Surety never consented for satisfaction of decree regarding the properties which were not subject matter of the suit

Suit was not decided on merits

Parties had agreed that if properties mentioned in the compromise deed were not transferred in favour of decree-holder then decretal amount would be recovered after auction of the properties

Surety was not bound to satisfy the decree of the Court passed on the basis of compromise deed when he was not privy to the contract of compromise

When terms were settled between the parties to the suit through a compromise then surety would be discharged

Findings recorded by the Courts below were nullity in the eye of law

Impugned orders passed by the Courts below were set aside

Revision was allowed in circumstances.

Petition for correction of sale deed was moved which was accepted with the direction to the Revenue Official to delete Khasra number incorporated in the sale deed

Validity

No Khasra number of suit land was mentioned either in the agreement to sell or plaint and decree in favour of plaintiff

Agreement to sell was with regard to shops jointly owned by the defendants

Decree for specific performance of part of suit property was passed without specification of boundaries as well as mentioning the area of said property

Sale deed was registered without ensuring that it was in accordance with the judgment passed by the Trial Court

Limitation could not be a hurdle in the way of dispensation of justice when a wrong had been done by the Court

Petitioner for invoking constitutional jurisdiction was bound to show some jurisdictional defect committed by the courts below

No such defect had been pointed out in the orders passed by the courts below

Constitutional petition was dismissed in circumstances.