Source: Supreme Court

Why in News?

The Supreme Court (SC) after prolonged litigation, finally granted relief to the owner of the suit property (Mumtaz Yarud Dowla Wakf) in favour of whom the decree was already granted back in 2002 in the matter of Mumtaz Yarud Dowla Wakf V. M/S Badam Balakrishna Hotel Pvt. Ltd. & Ors.

What is the Background of the Mumtaz Yarud Dowla Wakf v. M/S Badam Balakrishna Hotel Pvt. Ltd. & Ors Case?

• The appellant, being the owner of the suit property executed a registered lease deed in favour of respondent no. 2. now represented by his son Respondent No. 1.
  • The period of lease was 33 years, and the suit premises was sublet without the permission of respondent no. 1 and 2.
• After the expiry of the lease by efflux of time, the appellant issued a legal notice requiring respondent No. 2 to hand over the vacant possession.
  • A notice of reply was sent by the respondent after which the appellant said that the registered lease was extended orally for another 33 years.
• A reference was filed in accordance with the arbitration clause available under the original lease deed by the respondent.
• The appellant then filed a suit before the Wakf Tribunal seeking a decree for ejectment and recovery of possession, along with arrears of rent and damages, the suit was dismissed
• Not being satisfied with the decree passed, respondents no(s). 1 and 2 filed a revision petition before the High Court (HC).
  • It was also dismissed citing that there is no legal basis to continue in occupation after the expiry of the lease.
• The dilatory tactics adopted by respondents continued even thereafter, to the extent that the appellant had to file an execution petition.
• During the execution proceedings, respondent no. 2 did not raise the plea of maintainability of the suit.
  • However, after four years an additional counter was filed by respondents raising the plea that the suit as laid and decreed ought not to have been entertained. The same came to be dismissed by the executing court.
• A revision petition was filed in the HC in which the earlier HC order was reversed.
• Hence, the present appeal was filed in the SC.

What were the Court’s Observations?

• Justice M. M. Sundresh, observed that as far as legal principles are involved an Executing Court cannot go beyond the decree, subject to the rigor of Section 47 read with Order XXI (Execution of Decrees and Orders) of the Code of Civil Procedure, 1908 (CPC).
• SC while placing reliance on Union of India and Others v. N. Murugesan and Others (2022), wherein it was held by SC that no party can be allowed to accept and reject the same thing, and thus one cannot blow hot and cold, the court called out the dilatory tactics adopted by respondents while setting aside the impugned order of the HC and restoring the order passed by the executing court in favour of appellant/ suit property owner.

What is Execution of a Decree?

• The term Execution as such is not defined under CPC but it signifies giving effect to a judgment or order of a court of justice.
• CPC deals with execution under Sections 36-74 and Order XXI.
• Section 38 mentions the Court by which decree may be executed — A decree may be executed either by the Court which passed it, or by the Court to which it is sent for execution.
• Section 47 of CPC provides that Questions to be determined by the Court executing decree —
  • (1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit.
  • (3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the Court.
  • Explanation I - For the purposes of this section, a plaintiff whose suit has been dismissed and a defendant against whom a suit has been dismissed are parties to the suit.
• Explanation II -
  • (a) For the purposes of this section, a purchaser of property at a sale in execution of a decree shall be deemed to be a party to the suit in which the decree is passed; and
  • (b) all questions relating to the delivery of possession of such property to such purchaser or his representative shall be deemed to be questions relating to the execution, discharge or satisfaction of the decree within the meaning of this section.