Chhote Lal vs Gulab Singh

Sheel Nagu, J.—The petitioners have filed this petition under Article 227 of Constitution of India assailing the interlocutory order dated 04.08.2014 Annexure P-1 passed in case No. 4-A/1997/execution by Civil Judge, Class-I, Raghogarh, Dist. Guna, whereby an application under section 151 of CPC preferred on behalf of judgment debtors /petitioners herein objecting to the maintainability of pending execution proceedings on the ground of decree holders having not filed original decree of the trial court dated 23.11.1998 has been rejected.

Learned counsel for the petitioners/judgment debtors is heard on the question of admission.

On hearing learned counsel for the petitioners/judgment debtors and pursuing the record, facts giving rise to the instant case are that the trial court in Civil Suit No. 4-A/1997 passed a decree on 23.11.1998 in favour of the respondents/decree holder which was affirmed in Appeal No. 121-A/1998 on 15.11.2000 with certain amendments. The decree holder initiated execution proceedings by furnishing all the details without filing certified copy of the original decree dated 23.11.1998. The petitioners/judgment debtors, however, filed a true copy of judgment and decree passed on 15.11.2000 by First Appellate Court by which the original decree was affirmed with certain modification.

Learned counsel for the petitioners/judgment debtors primarily contends that by way of an application under section 151 of CPC his client objected to the maintainability of the execution proceedings in the absence of decree holders having filed certified copy of the decree passed by the trial court.

The provision contained in Order 21 Rule 11(2) of CPC makes it clear that written application for execution of decree ought to contain details of items mentioned in clauses (a) to (j). Order 21 Rule 11(3) of CPC further provides that whenever a written application for execution is made under Order 21 Rule 11(2) of CPC, the Court may require applicant to provide certified copy of the decree. The use of term �may� in Order 21 Rule 11(3) of CPC discloses the intention of the statute that requirement of filing certified copy of decree along with written application for execution of order under Order 21 Rule 11(2) of CPC is not mandatory.

Moreover, the State amendment for Madhya Pradesh, inserted the following proviso to Order 21 Rule 11(2) of CPC, which read thus :-

"Provided that, when the applicant files with his application a certified copy of the decree the particulars specified in clauses (b), (c ) & (h) need to be given in the application.�

The above said amendment applicable to Madhya Pradesh clearly provides that whenever a certified copy of the decree, whose execution is sought by decree holder, is filed along with written application under Order 21 Rule 11(2) of CPC then particulars mentioned in clauses (b), (c ) & (h) of Order 21 Rule 11(2) of CPC, need not be disclosed.

The corollary of this rule is that when certified copy of the decree does not accompany the written application for execution, only then the decree holder should mention particular provided in clauses (b), (c ) & (h). This further demonstrates that law does not require filing of certified copy of the decree sought to be executed along with an application for execution, in mandatory terms.

In view of above, it is further held that looking to the directory and non-mandatory nature of the statutory provision supra non-filing of certified copy of the decree along with an application for execution, cannot result in execution proceedings suffering dismissal.

The petitioners/judgment debtors have not been able to demonstrate that there was any direction passed by the executing court and yet the decree holders failed to file certified copy of the decree sought to be executed.

In view of the above, the application under section 151 of CPC challenging maintainability of execution proceedings in question has rightly been rejected by the trial court vide order impugned.

None of the jurisdictional purviews set by law have been transgressed by the trial court while passing the order impugned, therefore, no case is made out in the limited supervisory jurisdiction of this Court under Article 227 of Constitution of India.

Accordingly, this petition deserves to be and is, therefore, dismissed, sans cost.