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Judgment
This civil revision petition has been preferred under Section 115 of the Code of Civil Procedure, 1908 (hereinafter referred as "CPC") impugning order dated 09.05.2024 passed by Second Civil Judge, Junior Division, Mandsaur in Execution Case No. 24-A/2019, whereby the objection raised by the petitioner regarding the executability of the decree of declaration were rejected by the Executing Court.
The facts suffice for disposal of the present petition in nutshell are that the petitioner filed a suit for declaration against the Nagar Palika Parishad, Mandsaur in respect of House No. 60, Janta Market, Kalakhet, Gautam Nagar, Mandsaur seeking decree of declaration to the effect that the name of the petitioner / plaintiff (hereinafter referred to as "plaintiff") be recorded in the property register in respect of the suit property as occupier and tax payer. The further relief of declaration was sought that the respondent / defendant (hereinafter referred to as "defendant") Nagar Palika Parishad has no right to raise any dispute in respect of the said property. The defendant appeared in the case and raised the objection that the plaintiff has not paid the deficit development tax and compounding fees for raising the construction without permission, though the plaintiff is liable to pay, therefore, the diversion order passed by the Sub Divisional Officer is also liable to be cancelled and the plaintiff is not entitled to record his name in the property tax register as occupier and tax payer.
The Second Additional Judge to First Civil Judge, Class-II, Mandsaur in Civil Suit No. 50-A/2011, by judgment and decree dated 18.05.2012 dismissed the suit by holding that without making the payment of the development tax and the compounding fees, the plaintiff is not entitled to record his name as occupier and tax payer in the property tax register maintained by the defendant. The judgment and decree passed by the trial Court were challenged by the plaintiff in RCSA No. 20-A/2012 before Second Additional Judge to the Court of First District Judge, Mandsaur, which was decided by the judgment dated 17.09.2012 and the First Appellate Court reversed the judgment passed by the trial Court and partly allowed the appeal by passing the decree of declaration that plaintiff is entitled to record his name in the property tax register maintained by the defendant in respect of House No. 60, Janta Market, Kalakhet, Gautam Nagar, Mandsaur as occupier and tax payer. At the same time, the Appellate Court passed the decree that defendant Nagar Palika is also entitled to get the balance development tax and compounding fees for raising construction without permission from the plaintiff. The judgment and decree passed by the First Appellate Court were not assailed by any of the parties and, thus, attained the finality.
The plaintiff filed execution petition and the Municipal Council recorded the name of the plaintiff in the property tax register as occupier and tax payer, however, the plaintiff did not pay the balance development tax and compounding fees for raising construction without sanction map and, thus, an Execution Petition No. 24/2019 has been preferred by the defendant / respondent before Second Civil Judge, Junior Division, Mandsaur for executing the part of the decree of declaration and for recovery of the amount of Rs. 1,18,54,484/- from the plaintiff. The plaintiff raised the objection that no counter claim was filed by the defendant in the suit and the First Appellate Court has only passed the decree of declaration in favour of the defendant that the defendant is entitled to get the amount of balance development tax and compounding fees from the plaintiff and thus, the decree of mere declaration is not executable. The plaintiff prayed for dismissal of the execution petition.
The Executing Court, by impugned order dated 09.05.2024, rejected the objections raised by the plaintiff on the ground that the First Appellate Court, by judgment dated 17.09.2012, passed the decree in favour of the plaintiff that he is entitled for recording his name in the property tax register maintained by the Municipal Council as occupier and tax payer in respect of suit House No. 60, Janta Market, Kalakhet, Gautam Nagar, Mandsaur and the declaratory decree has also been passed in favour of Municipal Council that Municipal Council is entitled to get the amount of balance development tax and compounding fees for raising construction without permission and, thus the Appellate Court has passed the decree for payment of balance development tax and compounding fees and, consequently, the objections are not sustainable and the objections have been rejected by the Executing Court. However, direction was issued to the Municipal Council to submit the calculation before the Court to satisfy that how the amount of Rs. 1,18,54,484/- is recoverable from the plaintiff.
The plaintiff has preferred this revision petition impugning the order dated 09.05.2024 on various grounds inter alia that the Executing Court has committed error in holding that the Municipal Council is entitled to receive the amount of balance development tax and compounding fees from the plaintiff in the absence of any executable decree passed by the Appellate Court.
Shri Mangesh Bhachawat, learned counsel appearing on behalf of the petitioner / plaintiff argued that no decree for recovery of any specific sum was passed by the First Appellate Court and only the decree of declaration has been passed by the First Appellate Court, therefore, the Executing Court has committed error in holding that the direction for payment of balance development tax and compounding tax can be issued. The execution has been filed for issuance of recovery warrant of Rs. 1,18,54,484/-, which cannot be issued in the absence of any executable decree. Mr. Bhachawat further submits that the Executing Court has no jurisdiction to call for the accounts or particulars and adjudicate in the execution proceedings that how much amount is outstanding under the head of compounding fees and balance development tax. He submits that the defendant / respondent neither raised any counter claim in the suit nor paid any court fees, therefore, no decree of recovery was passed in favour of the defendant and now, Executing Court cannot issue a recovery warrant in the case by travelling behind the decree. The decree is not executable at all and the execution petition is liable to be dismissed.
Mr. Bhachawat relied on the judgment delivered by the Supreme Court in The State of Punjab v/s Buta Singh, 1995 Supp (3) SCC 684 , wherein the Supreme Court has held that in execution of a decree for a mere declaration, the Executing Court cannot direct recovery of any amount from the judgment debtor and the Executing Court had no jurisdiction to direct the recovery of any amount, which was not granted by the decree of mere declaration. The Supreme Court has further held that the order of the Executing Court being without jurisdiction and thus, no recovery order could be passed by the Executing Court. He further relied on the judgment delivered by the Supreme Court in the matter of State of Madhya Pradesh v/s Mangilal Sharma, 1998 (2) SCC 510, wherein the Supreme Court has held that in the absence of any executable decree no order for recovery can be passed by the Executing Court and no recovery warrant can be issued and a declaratory decree is not executable.
Mr. Bhachawat submits that the order passed by the Executing Court is completely without jurisdiction and the execution petition preferred by the defendant / respondent seeking execution of the decree of declaration is not maintainable and consequently, the same is liable to be rejected. He further submits that the execution petition has been filed for recovery of an amount, which has not been decreed in favour of the defendant and, therefore, the revision be allowed by setting aside the impugned order and the execution petition preferred by the respondent / defendant be rejected.
Shri Veer Kumar Jain, learned senior counsel alongwith Shri Vinay Vijaywargiya, Advocate appearing on behalf of the respondent submits that the decree is executable as the First Appellate Court at the time of passing the decree of declaration in favour of the plaintiff that he is entitled to record his name in the register of property tax maintained by Municipal Council in respect of the subject House No. 60, Janta Market, Kalakhet, Gautam Nagar, Mandsaur as occupier and tax payer, the First Appellate Court also passed the decree in favour of the respondent / defendant by holding that the Municipal Council is entitled to receive the amount of balance development tax and compounding fees. He submits that the decree was not challenged by any of the party and thus, has attained finality and, therefore, now, the plaintiff is precluded from raising any objection in respect of the decree.
Mr. Jain further submits that the execution petition preferred by the Municipal Council is maintainable as the Municipal Council has already recorded the name of the plaintiff as occupier and tax payer in the register of property tax maintained by the Municipal Council, but the plaintiff has not complied with the decree, by which the First Appellate Court has declared entitlement of the Municipal Council to receive balance development tax and compounding fees. He submits that the decree of declaration passed in favour of the plaintiff was conditional and the name of the plaintiff could have been recorded in the property tax register of Municipal Council only upon making payment of the balance development tax and compounding fees. As the plaintiff has not paid the balance development tax and compounding fees, the Municipal Council is entitled to file the execution for the purpose of execution of the said decree and recovery of the said amount from the plaintiff. He submits that the Executing Court has not travelled beyond the decree passed by the First Appellate Court and no illegality committed by the Executing Court in holding that the execution petition is maintainable. He prays for dismissal of the present revision petition by affirming the impugned order.
I have heard the counsel for the parties and perused the documents available on record.
It is not in dispute that the plaintiff filed a suit for declaration in respect of House No. 60, Janta Market, Kalakhet, Gautam Nagar, Mandsaur and no counter claim was filed by the defendant. The suit was dismissed by the trial Court and plaintiff preferred the first appeal against the judgment and decree passed by the trial Court. The First Appellate Court by judgment dated 17.09.2012 passed the decree of declaration in favour of the plaintiff by partly allowing the appeal and the First Appellate Court declared the plaintiff entitled to record his name as occupier and tax payer in the property tax record maintained by the Municipal Council in respect of suit house. Also passed the decree in favour of Municipal Council that the council is entitled to get deficit amount of development tax and compounding fees from the plaintiff. After passing the decree by the First Appellate Court, the plaintiff filed the execution petition, which was disposed of in full satisfaction by the Executing Court and thereafter, on 17.07.2019, the subject execution petition is preferred by the CMHO, Municipal council, Mandsaur seeking recovery of the amount of Rs. 1,18,54,484/-. Hence, the application for rejection of the execution was filed by the petitioner, which has been dismissed by impugned order dated 09.05.2024. Hence, the plaintiff has preferred this civil revision.
The first question which is involved in this case is that in the absence of any counter claim and payment of court fees, whether the First Appellate Court could pass the decree for recovery of Rs. 1,18,54,484/-against the plaintiff ? The law is settled on that issue that without seeking any relief and without payment of court fees, no decree for recovery can be passed. However, considering the defence raised by the defendant in written statement that as the plaintiff has not paid the balance development tax and compounding fees, the Municipal Council is not recording his name as occupier and tax payer in the property tax register in respect of the suit house, the First Appellate Court, at the time of partly decreeing the suit filed by the plaintiff, also passed a decree of declaration that the Municipal Council is entitled to get the amount of balance development tax and compounding fees from the plaintiff.
By no stretch of imagination, it can be argued that the said decree is for recovery of amount and any attachment warrant can be issued in execution of the said decree. The decree in question is a decree of declaration and the question for consideration is that whether a decree for declaration is executable ? As per Section 51 read with Order XXI Rule 10 of CPC, the decree for declaration is not executable. This issue was originally raised before the Supreme Court in Prakash Chand Khurana v/s Harnam Singh & Ors., 1973 (2) SCC 484, wherein the Supreme Court has held that a decree merely for declaration of the rights of the parties is not executable. The Supreme Court further held in that case that if any party defaulted in discharging their obligations under the decree, the decree would not become executable as it was merely to declare the rights of the parties. The Supreme Court further fortified this position of law in the case of State of Punjab and another v/s Buta Singh (supra), wherein the Supreme Court has held that Executing Court cannot direct recovery of any amount in execution of a decree for mere declaration, which is not executable.
The Supreme Court in the matter of State of Madhya Pradesh v/s Mangilal Sharma (supra) considered this issue in detail and held that a declaratory decree merely declares the right of the decree holder vis a vis the judgment debtor and does not in terms direct the judgment debtor to do or refrain from doing any particular act or thing and, therefore, the same is not executable. The relevant paragraphs of the judgment read as under:
"6.A declaratory decree merely declares the right of the decree-holder vis-à-vis the judgment-debtor and does not in terms direct the judgment-debtor to do or refrain from doing any particular act or thing. Since in the present case decree does not direct reinstatement or payment of arrears of salary the executing court could not issue any process for the purpose as that would be going outside or beyond the decree. The respondent as a decree-holder was free to seek his remedy for arrears of salary in the suit for declaration. The executing court has no jurisdiction to direct payment of salary or grant any other consequential relief which does not flow directly and necessarily from the declaratory decree. It is not that if in a suit for declaration where the plaintiff is able to seek further relief he must seek that relief though he may not be in need of that further relief. In the present suit the plaintiff while seeking relief of declaration would certainly have asked for other reliefs like the reinstatement, arrears of salary and consequential benefits. He was, however, satisfied with a relief of declaration knowing that the Government would honour the decree and would reinstate him. We will therefore assume that the suit for mere declaration filed by the respondent-plaintiff was maintainable, as the question of maintainability of the suit is not in issue before us.
7.Mr Gambhir, learned counsel for the respondent, has been unable to show as to how a decree for declaration which the respondent got could at all be executable. It was, therefore, submitted by him that once the court gave a declaration about the legal status of the respondent that he was still in continuance of service of the appellant and his services were never terminated, the necessary consequence would be that the respondent should be granted arrears of salary and other consequential benefits by the appellant unlike in a case which was governed by law of contract between the parties. It is difficult to accept this proposition as the provisions of law contained in Section 34 of the Specific Relief Act are specific and in that case even declaration could not have been granted as it could be said that the respondent was able to seek further relief than a mere declaration of his legal status and which he omitted to do so. In State of Punjab v. Krishan Dayal Sharma² the plaintiff obtained a decree that he was entitled to be promoted from the post of Inspector of Police to that of Deputy Superintendent of Police with effect from the date when his juniors were promoted and further claimed relief for all consequential benefits, rights and privileges. The suit was decreed and in the execution application filed by the plaintiff in addition to the benefits flowing from the decree, he also claimed compound interest at the rate of 12% per annum on the amount found due to him. The claim of interest was allowed by the executing court. This Court noticed that the decree which was put to execution did not contain any order or direction for the payment of any interest on the amount which was payable to the decree-holder consequent to the declaration made by the Court decreeing a suit. It was also not disputed that no relief for interest had been claimed by the decree-holder in his suit nor any such claim was discussed or awarded by the Court decreeing the suit. This Court held that the executing court was bound by the terms of the decree and could not add or alter the decree on its notion of fairness or justice. The Court further observed that no doubt the courts had power to award interest on the arrears of salary or pension or other amount to which a government servant was found entitled to having regard to the facts and circumstances of the case but that power could not be exercised by the executing court in the absence of any direction in the decree. In Parkash Chand Khurana v. Harnam Singh³ one of the contentions raised by the appellants before this Court was that the award in question was merely declaratory of the rights of the parties and was, therefore, inexecutable. The Court observed as under: (SCC pp. 490-91, para 18)
"This contention is based on the wording of clause 7 of the award which provides that on the happening of certain events the respondents shall be entitled to take back the possession'. We are unable to appreciate how this clause makes the award merely declaratory. It is never a precondition of the executability of a decree that it must provide expressly that the party entitled to a relief under it must file an execution application for obtaining that relief. The tenor of the award shows that the arbitrator did not intend merely to declare the rights of the parties. It is a clear intendment of the award that if the appellants defaulted in discharging their obligations under the award, the respondents would be entitled to apply for and obtain possession of the property."
8.In Prakash Chand v. S.S. Grewal the petitioner had a decree in his favour declaring his dismissal from service to be illegal, void and of no effect. The Punjab Government did not reinstate him nor paid him the arrears of salary. He, therefore, filed a writ petition for taking contempt of court proceedings against certain officials of the State Government. The Court held as under:
"A declaratory decree, in my opinion, cannot be executed as it only declares the rights of the decree-holder qua the judgment-debtor and does not, in terms, direct the judgment-debtor to do or to refrain from doing any particular act or thing. Since there is no command issued to the judgment-debtor to obey, the civil process cannot be issued for the compliance of that mandate or command. The decree-holder is free to seek his legal remedies by way of suit or otherwise on the basis of the declaration given in his favour."
9.In our view, it is a correct statement of law except that it may not be fully applicable in the case of a government servant who acquires a status and his service conditions are governed by statutory rules as noticed above. 10. We are, therefore, of the opinion that the courts below did not exercise their jurisdiction properly and the respondent could not have sought execution of the declaratory decree when no relief was granted to him towards arrears of salary and other consequential benefits."
The Supreme Court further reiterated the same law in the case of Mohinder Singh (Dead) through Legal Representatives v/s Paramjit Singh and others, 2018 (5) SCC 698, Akkamma & Ors. v/s Vemavathi & Ors., 2021 (18) SCC 371 a n d Venkataraja and Others v/s Vidyane Doureradjaperumal (Dead) through Legal Representatives and Others, 2014 (14) SCC 502, wherein the Supreme Court has held that a decree of declaration is not executable and the same cannot be executed.
Considering the law laid down by the Supreme Court and considering the facts and circumstances of the case, wherein the petitioner / plaintiff has filed a suit for declaration in respect of the subject house and no counter claim was filed by the respondent / defendant and no court fees was paid by the respondent, the respondent cannot put the decree for execution, by which merely it is declared that the respondent is also entitled to get the amount of balance development tax and compounding fees from the plaintiff. The petitioner preferred an execution, which was disposed of in full satisfaction and, thereafter, the second execution filed by the respondent cannot be treated as maintainable. In considered view of this Court, the Executing Court has committed jurisdictional error in rejecting the objections raised by the petitioner.
Consequently, the Civil Revision Petition is allowed. Impugned order dated 09.05.2024 is hereby set aside and the proceedings of Execution Case No. 24-A/2019 pending in the Court of Second Civil Judge, Junior Division, Mandsaur are hereby quashed.
No order as to costs.
Copy of this order be forwarded to the Executing Court.