DARSHAN KAUR Vs. GURDIAL SINGH

JUDGEMENT

(1.) The matter here concerns the execution of a decree for specific performance.

(2.) Execution, of a decree of specific performance having been applied for, notice was served upon the judgment-debtor. The judgment-debtor was proceeded against ex parte when he did not appear despite service. On the application of the decree-holder, thereafter, it appears, a Local Commissioner was appointed who executed a sale deed pertaining to the land, which was the subject matter of the decree. It was thereafter that the judgment-debtor filed an application under S.47 of Civil P.C. seeking the setting aside of the said sale deed on the ground that the draft of the document to be executed had not been served upon him and no opportunity had been afforded to him for filing objections to the proposed sale deed. The reference here being to the provisions of Order 21, Rule 34 of the Civil P.C. This objection prevailed with the trial Court where there provisions were held to be mandatory and the sale deed was consequently set aside and notice of the draft sale deed was ordered to be given to the judgment-debtor.

(3.) A reading of the impugned order of the trial Court would show that what appears to have tilted this case against the decree-holder was the judgment of the High Court of Andhra Pradesh in P.Venkanna Chetti v. B.Apparao Naidu, AIR 1959 Andh Pra 666, where it was held that the provisions of O.21, R.34 (3) that the court must consider the objections of the judgment-debtor to the draft sale deed, were mandatory. A reading of this judgment would however show that on facts, it was clearly distinguishable from the present case, in that, there as draft sale deed had been served upon the judgment-debtor, with the notice to him to file objections, if any, to it. The judgment-debtor instead filed another draft sale deed. The court without considering the objections of the judgment-debtor accepted the draft submitted by the decree-holder. It was in this context, that the court observed that the provisions of O.21, R.34(3) of the Civil P.C. were mandatory. The order of the executing court was consequently set aside and the trial Court was directed to consider the objections of the judgment-debtor to the draft sale deed. It deserves note that unlike the present case, that was not a case where the judgment-debtor was being proceeded against ex parte for failure to appear despite notice.