MADHUSUDAN PARSHURAM Vs. DEVCON

JUDGEMENT

(1.) THIS appeal arises from Order dated 18th April, 1998 passed in Civil Miscellaneous Application No. 276/97/a in Execution Case No. 62/96/a by the Civil Judge, Senior Division, Panaji.

(2.) THE brief facts relevant for the decision are that the appellant filed an execution application being 62/96/a against the respondents praying for execution of a Sale Deed in terms of Decree dated 28th February, 1996 passed in Civil Suit No. 94/88/a. The Decree required the respondents to execute a Sale Deed of a flat bearing No. 103/ Type C admeasuring 80 sq. metres in area with proportionate undivided ownership rights in the Plot No. 10/a admeasuring 546 sq. metres comprised under Survey No. 9/6 of the village of Pehna de Franca. The appellant had also filed a copy of the draft Sale Deed along with the said application for execution praying for necessary directions in terms of Order 21, Rule 34 of Code of Civil Procedure. On receipt of notice of the said application, the respondents filed their reply to the same along with a copy of the draft Sale Deed. After hearing both the parties, the Executing Court by its Order dated 17th September, 1997 allowed the said application for execution and directed the respondents to execute the Sale Deed in accordance with the draft Sale Deed submitted by the appellant. Though, the respondents filed review application of the said Order and by the impugned Order the Executing Court allowed the same and held that the said draft Sale Deed prepared and proposed by the respondents to be accepted as the final draft and, therefore, both the parties to execute the Sale Deed accordingly.

(3.) THE impugned Order is sought to be assailed on the ground that the Executing Court erred in reviewing its Order dated 17th September, 1997 inasmuch as there was no error apparent on the face of record. It is the contention of the appellant that he was constrained to file the execution application along with the draft of the Sale Deed in terms of Order 21, Rule 34 since the respondents had failed to execute the Sale Deed. Though, the respondents filed their reply to the application for execution, in fact they did not file any objections as such to the said application. The Executing Court before approving the draft of the Sale Deed proposed by the appellant, had considered the reply filed by the respondents and had heard both the parties and thereafter had passed the said Order dated 17th September, 1997. According to the appellant, the whole purpose behind of filing of the review application is to delay the execution of the Sale Deed and the decree obtained by the appellant as long back in the year 1996. It is his further case that in terms of Order 21, Rule 34 of Code of Civil Procedure, it is for the decree holder to produce the draft of the Sale Deed when the judgment-debtor fails to comply with the decree. There is no question of accepting the draft Sale Deed prepared by the judgment-debtor, when the same was not in consonance with the award made rule of the Court on the basis of the agreement between the parties. In terms of agreement dated 20th April, 1986 between the parties, the appellant is entitled to get undivided share in the property in proportion of 80/546 and, therefore, the Executing Court ought to have dismissed the application for review.