SOBHA SINGH AND SONS PVT. LTD.versusSHASHI MOHAN KAPUR (DECEASED) THR. L.R.

                         [2019] 9 S.C.R. 949                              949


              SOBHA SINGH AND SONS PVT. LTD.                              A
                                  v.
      SHASHI MOHAN KAPUR (DECEASED) THR. L.R.
                   (Civil Appeal No.5534 of 2019)
                           JULY 15, 2019                                  B
               [ABHAY MANOHAR SAPRE AND
                 DINESH MAHESHWARI, JJ.]
       Code of Civil Procedure, 1908 – Or. XX, rr. 6, 6A & 7, Or. 21,
rr.2, 11(2) & (3) and Or. XXIII, r.3 and ss. 35-A, 151 – Appellant-
                                                                          C
landlord is the decree holder and the respondent is the judgment
debtor – Appellant let out the suit house to the father of the original
respondent – Appellant filed suit in 2009 against the respondent
inter alia for his eviction from the suit house – Respondent
compromised the matter– Suit disposed of in terms of the said
compromise– Respondent filed application for extension of time to         D
vacate the suit house – Allowed– Respondent filed another
application seeking further time to vacate the suit house – Dismissed
– Respondent failed to vacate the suit house – Appellant filed
Execution Petition for execution of the consent order dated
01.06.2012 for obtaining vacant possession of the suit house –
                                                                          E
Judgment debtor died leaving behind the present respondent as legal
representative of the original tenant – Respondent filed four
applications challenging the executability of the consent order as
being null and void – Dismissed by the Executing Court imposing
cost of Rs.5 lakhs – First appeal filed by the Respondent – Allowed
by the High Court – Held: High Court was not right in holding that        F
in the absence of a formal decree not being drawn or/and filed, the
appellant had no right to file the Execution petition on the strength
of the consent order dated. 01.06.2012 – Principle in r.6A (2) of
Or.XX dealing with the filing of the appeal without enclosing the
copy of the decree along with the judgment and providing the
                                                                          G
consequence of not drawing up the decree, can be made applicable
also to filing of the execution application u/Or.XXI, r.2 – It is not
necessary to file copy of the decree along with execution application
unless the Court directs the decree holder to file certified copy of
the decree – Thus, even though the appellant did not file the certified
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                                  949
950            SUPREME COURT REPORTS                      [2019] 9 S.C.R.


A     copy of the decree along with the execution application for the
      reason that the same was not passed by the Court, yet the execution
      application filed by the appellant was maintainable –Further, all
      the objections raised by the respondent were frivolous and were
      raised only with a view to avoid execution of the compromise decree
      – Respondent took time twice to vacate the suit house and yet did
B
      not adhere to the undertaking given –Such conduct cannot be
      countenanced and is reprehensible– Executing Court was right in
      rejecting the objections raised by the respondent in his applications
      – No ground to interfere in the findings of the Executing Court –
      However, cost of Rs.5 Lakhs is excessive – Respondent to pay
C     compensatory cost of Rs.50,000/- to the appellant– Further
      directions issued – Decree.
           Words & Expressions – “and shall pass a decree in
      accordance therewith” – Meaning of – Discussed – Code of Civil
      Procedure, 1908 – Or. XXIII, r.3.
D           Code of Civil Procedure, 1908 – Or.XX, r.6A(2) – Non-filing
      of the certified copy of the decree, as the decree was not passed by
      the Court, along with the execution application – Effect of – Held:
      Notwithstanding the fact that the decree was not passed, yet by
      virtue of principle underlined in Or.XX, r.6A(2), the consent order
E     dated 01.06.2012 had the effect of a decree till the date of actual
      passing of the decree by the Court for the purposes of execution or
      for any other purpose.
            Code of Civil Procedure, 1908 – s.152 – Conditions for
      invoking power under – Discussed.
F           Code of Civil Procedure, 1908 – s.151 r/w Or.XX, r.6A – Held:
      In the present case, the Court which disposed of the suit, did not
      draw the decree but only passed the consent order – In such a case,
      the decree holder was required to file application u/s.151 r/w Or.XX,
      r.6A to the Court for drawing a decree in accordance with the
G     consent order dated. 01.06.2012.
            Allowing the appeal, the Court
            HELD: 1.1 The High Court was not right in holding that in
      the absence of a formal decree not being drawn or/and filed, the
      appellant (decree holder) had no right to file the Execution
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 SOBHA SINGH AND SONS PVT. LTD. v. SHASHI MOHAN KAPUR                  951
                (DECEASED) THR. L.R.

petition on the strength of the consent order dated 01.06.2012.        A
This finding of the High Court is not legally sustainable.
[Para 24] [960-D]
       1.2 Order 20 Rule 6 of the Code deals with contents of
decree and provides that the decree shall agree with the
judgment, it shall contain the number of the suit, the names and       B
descriptions of the parties, their registered addresses and
particulars of claim, relief granted or any other determination
made in the suit, amount of costs incurred in the suit, and by
whom or out of what property and in what proportions, the cost
to be paid. Rule 6A deals with the preparation of decree. It says
that every endeavor shall be made to ensure that the decree is         C
drawn up as expeditiously as possible and, in any case, within
fifteen days from the date on which the judgment is pronounced.
Rule 6A (2) of Order 20 of the Code says that an appeal may be
preferred against the decree without filing a copy of the decree
and in such a case the copy made available to the party by the         D
Court shall for the purposes of Rule 1 of Order 41 be treated as
the decree but as soon as the decree is drawn, the judgment
shall cease to have the effect of a decree for the purposes of
execution or for any other purpose. Though Rule 6A (2) of Order
20 of the Code deals with the filing of the appeal without enclosing
the copy of the decree along with the judgment and further             E
provides the consequence of not drawing up the decree yet, the
principle underlined in Rule 6A(2) can be made applicable also
to filing of the execution application under Order 21 Rule 2 of
the Code. Order 20 Rule 7 deals with the date of decree. It says
that the decree shall bear date the day on which the judgment          F
was pronounced and when the judge has satisfied himself that
the decree has been drawn up in accordance with the judgment,
he shall sign the decree. [Paras 26-28] [963-A-E]
       1.3 Order 21 Rule 11(2) of the Code, which deals with the
execution of the decree, provides that the decree holder is only       G
required to give details of the judgment and the decree in the
execution application along with other details [see clauses (a) to
(j). Similarly, Order 21 Rule 11(3) of the Code makes it clear that
the Court “may” require the decree holder to produce a certified

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952            SUPREME COURT REPORTS                      [2019] 9 S.C.R.


A     copy of the decree. This clearly indicates that it is not necessary
      to file a copy of the decree along with execution application unless
      the Court directs the decree holder to file a certified copy of the
      decree. As and when the decree holder files an application for
      execution of any decree, he is required to ensure compliance of
      three things. First, the written application filed under Order 21
B
      Rules 10 and 11 (2) of the Code must be duly signed and verified
      by the applicant or any person, who is acquainted with the facts of
      the case, to the satisfaction of the Court; Second, the application
      must contain the details, which are specified in clauses (a) to (j)
      of Rule 11(2) of the Code, which include mentioning of the date
C     of the judgment and the decree; and Third, filing of the certified
      copy of the decree, if the Court requires the decree holder to file
      it under Order 21 Rule 11(3) of the Code. According to the
      appellant, the order dated 01.06.2012 itself is capable of being
      executable by virtue of Section 36 of the Code and, therefore,
      the High Court was not right in holding that the decree was
D
      required to be drawn. The argument is not acceptable for more
      than one reason. [Paras 29-34] [963-F-H; 964-A-E]
            1.4 First, the language of Order 23 Rule 3 of the Code does
      not admit passing of an order of the nature urged by the appellant;
      Second, the expression “the court shall order such agreement,
E     compromise or satisfaction to be recorded and shall pass a decree
      in accordance therewith” occurring in Order 23 Rule 3 of the
      Code, in clear terms, suggests that it is necessary after recording
      the compromise in the order to further pass a decree in
      accordance therewith. In other words, the expression “and shall
F     pass a decree in accordance therewith” is a clear indication that
      after the compromise is recorded by the Court, it shall proceed
      to “pass a decree”. So, the rule contemplates, first an order
      recording of the compromise and then simultaneously pass a
      decree in accordance with the order. In the light of the clear
      language of Order 23 Rule 3 of the Code, it is not possible to
G     accept the submission of the appellant that the order dated
      01.06.2012 itself amounts to a decree and, therefore, it is not
      necessary for the Court to pass a decree. Had this been the
      intention, the legislature would not have used the expression
      “and shall pass a decree in accordance therewith” in Order 23
H     Rule 3 of the Code. [Paras 35-37][964-E-H; 965-A]
  SOBHA SINGH AND SONS PVT. LTD. v. SHASHI MOHAN                     953
           KAPUR (DECEASED) THR. L.R.

      1.5 The Executing Court was right in rejecting the             A
objections raised by the respondent in his applications and,
therefore, find no good ground to interfere in those findings of
the Executing Court. All the objections raised by the respondent
were frivolous and were raised only with a view to avoid execution
of the compromise decree. None of the objections raised by the
                                                                     B
respondent could be gone into after consent order had been
passed. In any event, none of the objections raised by the
respondent had any substance on merits and were, therefore,
rightly rejected by the Executing Court. The respondent having
taken time twice to vacate the suit house and yet not adhering to
the undertaking given, this Court cannot countenance                 C
such conduct of the respondent. It is reprehensible.
[Paras 39-41] [965-B-F]
      1.6 Even though the appellant did not file the certified
copy of the decree along with the execution application for the
reason that the same was not passed by the Court, yet the            D
execution application filed by the appellant was maintainable.
Indeed, so long as the formal decree was not passed, the order
dated 01.06.2012 was to be treated as a decree during the
interregnum period by virtue of Order 20 Rule 6A (2) of the Code.
In other words, notwithstanding the fact that the decree had not
been passed, yet by virtue of principle underlined in Order 20       E
Rule 6A(2) of the Code, the order dated 01.06.2012 had the effect
of a decree till the date of actual passing of the decree by the
Court for the purposes of execution or for any other purpose.
This empowered the Executing Court to entertain the execution
application and decide the objections raised by the respondent       F
on merits. [Paras 42] [965-G-H; 966-A-B]
      1.7 Further, though the High Court was right in directing
the appellant to apply to the Court for drawing a decree, but was
not right in directing to apply under Section 152 of the Code.
Section 152 of the Code deals with the amendment of judgments,       G
decrees or orders. It provides that any clerical or arithmetical
mistakes in the judgments, decrees or orders or errors arising
therein from any accidental slip or omission may at any time be
corrected by the Court either of its own motion or on the
application of any of the parties. Order 20 Rule 3 also provides
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954            SUPREME COURT REPORTS                      [2019] 9 S.C.R.


A     that judgment can be altered or added either under Section 152
      or in review. In order to invoke the powers under Section 152 of
      the Code, two conditions must be present. First, there has to be
      a judgment or decree or an order, as the case may be, and second,
      the judgment or decree or order, as the case may be, must contain
      any clerical or arithmetical error for its rectification. In other
B
      words, Section 152 of the Code contemplates that the Court has
      passed the judgment, decree or the order and the same contains
      clerical or arithmetical error. Any party to such judgment, decree
      or order, as the case may be, has a right to apply at any time
      under Section 152 of the Code to the concerned Court for
C     rectification of any arithmetical or/and clerical error in the
      judgment, decree or the order, as the case may be.
      [Paras 44-47] [966-D-G]
             1.8 In the case at hand, the Court which disposed of the
      suit, did not draw the decree but only passed the order. In such a
D     situation, the decree holder was required to file an application
      under Section 151 read with Order 20 Rule 6A of the Code to the
      Court for drawing a decree in accordance with the order dated
      01.06.2012. Indeed, in the concluding para of the order dated
      01.06.2018 that the Court has already directed to ensure
      compliance of the formalities. It would have been, therefore,
E     proper in such circumstances for the Court to simultaneously
      draw a decree the same day itself or in any event within 15 days
      as provided in Order 20 Rule 6A. This being a procedural matter,
      even if it was not done, yet the same could be done by the Court
      at the instance of the appellant (decree holder) applying for
F     drawing up a decree after filing of the execution application.
      [Paras 48, 49] [966-G-H; 967-A-C]
             1.9 Though it is found that it is a fit case for imposition of
      cost but cost of Rs.5 Lakhs is excessive. Having regard to all
      facts and circumstances of the case, it is just and proper to impose
G     a compensatory cost of Rs. 50,000/- on the respondent under
      Section 35-A of the Code.[Paras 50, 51] [967-C-E]
           1.10 The High Court was not right in holding that the
      execution petition itself is not maintainable. The High Court
      though was right in directing the appellant to apply to the
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   SOBHA SINGH AND SONS PVT. LTD. v. SHASHI MOHAN                       955
            KAPUR (DECEASED) THR. L.R.

concerned Court for drawing up a decree but the High Court was          A
not right in directing the appellant to apply it under Section 152
of the Code. The execution petition filed by the appellant is
maintainable and was, therefore, rightly allowed by the Executing
Court by rejecting the objections raised by the respondent except
with two modifications indicated above. The appellant is hereby
                                                                        B
granted two weeks’ time to apply under Section 151 read with
Order 20 Rule 6(A) of the Code to the concerned Court with a
prayer for passing a decree in accordance with the order dated
01.06.2012 passed under Order 23 Rule 3 of the Code. In the
peculiar circumstance of this case, it is expected that the Court
concerned passes and draws the decree without any delay and, in         C
any case, within one week of moving of the application by the
appellant. Such act of passing and drawing up the decree being
formal in nature, no objection or dispute in that regard is to be
entertained by any Court. Once the decree is drawn and its details
are specified in the execution application as provided under Order
                                                                        D
21 Rule 11 (2)(c) and the certified copy of the decree is filed, if
required by the Court, in terms of Order 21 Rule 11(3) of the
Code, the order of the Executing Court dated 22.10.2018 with
the above modification regarding payment of costs amount will
be given effect to against the respondent. The respondent is,
however, granted one month’s time to vacate the suit house after        E
completion of the procedural formalities by the concerned Court
after making payment of all arrears of rent till the date of
delivery of possession of suit house to the appellant.
[Paras 52-55] [967-F-H; 968-A-D]
      CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5534               F
of 2019
      From the Judgment and Order dated 31.10.2018 of the High Court
of Delhi at New Delhi in Execution First Appeal No. Ex.F.A./42/2018
       Huzefa Ahmadi, Sr. Adv., S. Santanam Swaminadhan, Anand
Singh, Ms. Nishtha Khurana, Kartik Malhotra, Mrs. Aarthi Rajan, Advs.   G
for the Appellant.
     Ms. Aishwarya Bhati, Sr. Adv., Ms. Suruchi Mittal, Karan Kapur,
Abhishek Gautam, Advs. for the Respondent.

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956             SUPREME COURT REPORTS                           [2019] 9 S.C.R.


A           The Judgment of the Court was delivered by
            ABHAY MANOHAR SAPRE, J.
            1. Leave granted.
            2. This appeal is filed against the final judgment and order dated
B     31.10.2018 passed by the High Court of Delhi at New Delhi in Ex.F.A.
      No.42 of 2018 whereby the High Court allowed the appeal filed by the
      respondent herein and set aside the order dated 22.10.2018 passed by
      the ADJ-02 & Waqf Tribunal, New Delhi District, New Delhi in
      Execution No.5655 of 2016.

C           3. A few facts need mention hereinbelow for the disposal of this
      appeal, which involves a short point.
              4. The appellant is the plaintiff/decree holder and the respondent
      is the defendant/judgment debtor.
            5. The dispute arises out of the execution proceedings and it
D     emanates from Civil Suit No. 369/2009 (new No.675/2009) decided on
      01.06.2012.
            6. The appellant is the landlord of a Flat-G-81, IInd floor along
      with one Servant Quarter J-3-62, IIIrd floor situated at Sujan Singh Park,
      New Delhi (hereinafter referred to as “suit house”).
E            7. The appellant let out the suit house to the father of the original
      respondent-Late Mr. R.L. Kapur as back as in 1959. The appellant,
      however, determined the tenancy by serving a quit notice to Mr. R.L.
      Kapur on 21.12.2004. Mr. R.L. Kapur died on 13.07.2007 leaving behind
      the respondent as his legal representative.
F             8. The appellant served another quit notice dated 16.01.2009 to
      the respondent and called upon him to vacate the suit house. Since the
      respondent failed to vacate the suit house, the appellant was constrained
      to file Civil Suit in 2009 (Old No.369/2009 new number 675/2009) against
      the respondent in the Court of ADJ for his eviction from the suit house
G     and the mesne profits.
            9. The respondent, after entering his appearance in the suit, did
      not contest it and compromised the matter with the appellant. It was
      agreed that the respondent (tenant) would hand over the vacant
      possession of the suit house on or before 31.05.2016 to the appellant;
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 SOBHA SINGH AND SONS PVT. LTD. v. SHASHI MOHAN KAPUR                      957
    (DECEASED) THR. L.R. [ABHAY MANOHAR SAPRE, J.]

Second, the respondent would pay a sum of Rs.5,000/- per month towards     A
user charges w.e.f. 01.06.2012 till the date of handing over of the suit
house to the appellant; and third, the respondent would not sublet or
create any third party rights in the suit house.
      10. The Trial Court recorded the statement of the parties and
accordingly disposed of the civil suit in terms of the aforementioned      B
compromise by its judgment dated 01.06.2012 which reads as under:
      “With judicial intervention, the dispute between the parties
      has been amicably settled. It is agreed that defendant shall
      vacate and hand over the vacant and peaceful possession
      of the suit property, i.e., Flat No.G-81, IInd floor and             C
      servant quarter No.J-3-62, IIIrd floor, Sujan Singh Park,
      New Delhi, as shown in the site plans already exhibited as
      Ex.PW1/14 and Ex.PW 1/15, to the plaintiff on or before
      31.05.2016. Defendant also undertakes to pay the user
      charges of the suit property at the rate of Rs.5000/- per
      month w.e.f. 01.06.2012 to the plaintiff regularly till the          D
      date of handing over of the suit property to the plaintiff.
      Defendant also undertakes not to sublet or create any third
      party interest in the suit property.
      It is prayed that the case may be disposed off as
      compromised.                                                         E

      Statements of Brig. Gurbax Singh and Mr. Shashi Mohan
      Kapur have been separately recorded and they have been
      identified by their respective counsel.
      Heard Perused. Considered.                                           F
      It appears that the statements have been made voluntarily
      and are accepted.
      Both the sides shall remain bound by their respective
      statements.
      In view of the submissions made as well as the statements            G
      of both the sides, the case is hereby disposed off as
      compromised.
      Attested copies of the order be given to both the sides,
      dasti, as requested.
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958            SUPREME COURT REPORTS                           [2019] 9 S.C.R.


A           After completion of the formalities, file be consigned to
            record room.”
            11. On 27.05.2016, the respondent filed an application under Section
      148 read with Section 151 of the Code of Civil Procedure, 1908
      (hereinafter referred to as “the Code”) and prayed therein for extension
B     of time to vacate the suit house. The extension to vacate the suit house
      was sought on medical grounds.
             12. By order dated 09.06.2016, the Trial Court allowed the said
      application and granted time to the respondent till 15.07.2016 to vacate
      the suit house. The respondent was also directed to clear the arrears of
C     rent.
             13. Instead of vacating the suit house on 15.07.2016, the respondent
      filed another application on 18.07.2016 and further sought time to vacate
      the suit house. The Trial Court, by order dated 08.08.2016, dismissed
      this application and declined to extend the time to vacate the suit house.
D     As a result of the dismissal of this application, the respondent was under
      a legal obligation to vacate the suit house immediately.
            14. Since the respondent failed to vacate the suit house, the
      appellant was constrained to file Execution Petition (5655/2016) in the
      Executing Court for execution of the consent decree dated 01.06.2012
E     against the respondent for obtaining vacant possession of the suit house.
             15. The Executing Court, by order dated 30.09.2016, issued a
      warrant of possession against the respondent/Judgment debtor in respect
      of suit house. Since the respondent obstructed the execution of decree,
      the appellant applied to the Executing Court for providing him the police
F     assistance for obtaining possession of the suit house from the respondent.
      In the meantime, the Judgment debtor died leaving behind the present
      respondent as legal representative of the original tenant.
            16. On 18.10.2016 and 23.07.2018, the respondent herein filed
      four applications. One was under Order 47 read with Sections 114 and
      151 of the Code for review of the order; Second was under Sections 47
G
      & 151 read with Order 21 Rules 11(2) and 26 of the Code; Third was
      under Order 47 read with Sections 114 and 151 of the Code; and Fourth
      was under Section 151 of the Code. One application was filed by one
      Mr. Manmohan Kapur under Order 1 Rule 10 of the Code.

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 SOBHA SINGH AND SONS PVT. LTD. v. SHASHI MOHAN KAPUR                        959
    (DECEASED) THR. L.R. [ABHAY MANOHAR SAPRE, J.]

      17. These applications were filed to challenge the executability of    A
the consent order dated 01.06.2012 itself as being null and void. The
respondent, in these applications, raised essentially the following three
grounds.
       18. The first ground was that the appellant obtained the consent
order dated 01.06.2012 by concealing the material facts from the             B
respondent which, according to him, was in the nature of fraud. The
second ground was that no decree was drawn by the Trial Court after
passing the consent order dated 01.06.2012; and the third ground was
that the suit in which the consent order dated 01.06.2012 was passed
was not maintainable in view of Section 50 of the Delhi Rent Control
Act. The appellant filed his reply to the aforementioned applications        C
denying all the three grounds raised by the respondent.
       19. By order dated 22.10.2018, the Executing Court dismissed
the applications filed by the respondent (Judgment debtor). The Executing
Court held that the respondent was indulging in delaying tactics only to
avoid the execution of the consent order dated 01.06.2012. The Executing     D
Court dealt with each objection raised by the respondent and found no
merit in any of them. The Executing Court held that the respondent
having taken time twice to vacate the suit house did not honor the orders
of the Court and, therefore, while dismissing his applications and the
application of one Mr. Manomohan Kapur imposed a cost of Rs. 5 lakhs         E
upon each of them with a direction to pay 50% to the appellant and
remaining 50% to the Delhi Legal Services Authority.
       20. The respondent felt aggrieved and filed first appeal before the
Delhi High Court. By impugned order, the High Court allowed the appeal
and set aside the order dated 22.10.2018 passed by the Executing Court.      F
The High Court held that since the Trial Court did not draw up the formal
decree after passing the consent order on 01.06.2012, the Execution
Petition filed by the appellant (decree holder) is not maintainable. The
High Court, however, granted liberty to the appellant (decree holder) to
apply to the Trial Court under Section 152 of the Code for drawing up a
decree in terms of the consent order dated 01.06.2012. The appellant         G
(decree holder) felt aggrieved by this order of the High Court and has
filed the present appeal by way of special leave in this Court.



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960            SUPREME COURT REPORTS                           [2019] 9 S.C.R.


A           21. So, the short question, which arises for consideration in this
      appeal is whether the High Court was justified in allowing the
      respondent’s (Judgment Debtor’s) appeal and thereby was justified in
      holding that the Execution Petition filed by the appellant (5655/2016)
      was not maintainable for want of formal decree not being drawn up by
      the Court after passing of the order dated 01.06.2012.
B
            22. Heard Mr. Huzefa Ahmadi, learned senior counsel, for the
      appellant and Ms. Aishwarya Bhati, learned senior counsel, for the
      respondent.
             23. Having heard the learned senior counsel for the parties and
C     on perusal of the record of the case, we are inclined to allow the appeal,
      set aside the impugned order and restore the order of the Trial Court
      with modification as indicated below.
             24. In our opinion, the High Court was not right in holding that in
      the absence of a formal decree not being drawn or/and filed, the appellant
D     (decree holder) had no right to file the Execution petition on the strength
      of the consent order dated 01.06.2012. This finding of the High Court, in
      our view, is not legally sustainable for the reasons set out hereinbelow.
             25. The issue in this case is required to be decided in the light of
      Order 20 Rule 6, Order 20 Rule 6A, Order 20 Rule 7, Order 21 Rules
E     11(2) & (3) and Order 23 Rule 3 of the Code. These provisions read as
      under:
                                     “Order 20 Rule 6
            Contents of decree. (1) The decree shall agree with the
            judgment; it shall contain the number of the suit, the names
F           and descriptions of the parties, their registered addresses,
            and particulars of the claim, and shall specify clearly the
            relief granted or other determination of the suit.
            (2) The decree shall also state the amount of costs incurred
            in the suit, and by whom or out of what property and in what
G           proportions such costs are to be paid.
            (3) The Court may direct that the costs payable to one party
            by the other shall be set off against any sum which is
            admitted or found to be due from the former to the latter.

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SOBHA SINGH AND SONS PVT. LTD. v. SHASHI MOHAN KAPUR                961
   (DECEASED) THR. L.R. [ABHAY MANOHAR SAPRE, J.]

                     Order 20 Rule 6A                               A
   Preparation of decree. (1) Every endeavour shall be made
   to ensure that the decree is drawn up as expeditiously as
   possible, and, in any case, within fifteen days from the date
   on which the judgment is pronounced.
   (2) An appeal may be preferred against the decree without        B
   filing a copy of the decree and in such a case the copy made
   available to the party by the Court shall, for the purposes
   of rule 1 of Order XLI, be treated as the decree. But as
   soon as the decree is drawn, the judgment shall cease to
   have the effect of a decree for the purposes of execution or     C
   for any other purpose.
                    Order 20 Rule 7
   Date of decree- The decree shall bear date the day on which
   the judgment was pronounced, and, when the Judge has
   satisfied himself that the decree has been drawn up in           D
   accordance with the judgment, he shall sign the decree.
                    Order 21 Rule 11(2)
   Written application—Save as otherwise provided by sub-
   rule(1), every application for the execution of a decree shall
                                                                    E
   be in writing, signed and verified by the applicant or by
   some other person proved to the satisfaction of the Court
   to be acquainted with the facts of the case, and shall contain
   in a tabular form the following particulars, namely—
   (a) the number of the suit;
                                                                    F
   (b) the names of the parties;
   (c) the date of the decree;
   (d) whether any appeal has been preferred from the decree;
   (e) whether any, and (if any) what, payment or other             G
   adjustment of the matter in controversy has been made
   between the parties subsequently to the decree;
   (f) whether any, and (if any) what, previous applications have
   been made for the execution of the decree, the dates of
   such applications and their results;
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962     SUPREME COURT REPORTS                      [2019] 9 S.C.R.


A     (g) the amount with interest (if any) due upon the decree,
      or other relief granted thereby, together with particulars of
      any cross-decree, whether passed before or after the date
      of the decree sought to be executed;
      (h) the amount of the costs (if any) awarded;
B     (i) the name of the person against whom execution of the
      decree is sought; and
      (j) the mode in which the assistance of the Court is required
      whether—

C     (i) by the delivery of any property specifically decreed;
      [(ii) by the attachment, or by the attachment and sale, or by
      the sale without attachment, of any property;
      (iii) by the arrest and detention in prison of any person;
      (iv) by the appointment of a receiver;
D
      (v) otherwise, as the nature of the relief granted may
      require.
                       Order 21 Rule 11 (3)
      The Court to which an application is made under sub-rule
E     (2) may require the applicant to produce a certified copy of
      the decree.
                       Order 23 Rule 3
      Compromise of suit— Where it is proved to the satisfaction
F     of the Court that a suit has been adjusted wholly or in part
      by any lawful agreement or compromise in writing and
      signed by the parties or where the defendant satisfies the
      plaintiff in respect of the whole or any part of the subject-
      matter of the suit, the Court shall order such agreement,
      compromise satisfaction to be recorded, and shall pass a
G     decree in accordance therewith so far as it relates to the
      parties to the suit, whether or not the subject-matter of the
      agreement, compromise or satisfaction is the same as the
      subject-matter of the suit.”

H
 SOBHA SINGH AND SONS PVT. LTD. v. SHASHI MOHAN KAPUR                           963
    (DECEASED) THR. L.R. [ABHAY MANOHAR SAPRE, J.]

       26. Order 20 Rule 6 of the Code deals with contents of decree            A
and provides that the decree shall agree with the judgment, it shall contain
the number of the suit, the names and descriptions of the parties, their
registered addresses and particulars of claim, relief granted or any other
determination made in the suit, amount of costs incurred in the suit, and
by whom or out of what property and in what proportions, the cost to be
                                                                                B
paid. Rule 6A deals with the preparation of decree. It says that every
endeavor shall be made to ensure that the decree is drawn up as
expeditiously as possible and, in any case, within fifteen days from the
date on which the judgment is pronounced. Rule 6A (2) of Order 20 of
the Code says that an appeal may be preferred against the decree without
filing a copy of the decree and in such a case the copy made available to       C
the party by the Court shall for the purposes of Rule 1 of Order 41 be
treated as the decree but as soon as the decree is drawn, the judgment
shall cease to have the effect of a decree for the purposes of execution
or for any other purpose.
       27. In our considered opinion, though Rule 6A (2) of Order 20 of         D
the Code deals with the filing of the appeal without enclosing the copy of
the decree along with the judgment and further provides the consequence
of not drawing up the decree yet, in our opinion, the principle underlined
in Rule 6A(2) can be made applicable also to filing of the execution
application under Order 21 Rule 2 of the Code.
                                                                                E
       28. Order 20 Rule 7 deals with the date of decree. It says that the
decree shall bear date the day on which the judgment was pronounced
and when the judge has satisfied himself that the decree has been drawn
up in accordance with the judgment, he shall sign the decree.
       29. Order 21 Rule 11(2) of the Code, which deals with the execution      F
of the decree, provides that the decree holder is only required to give
details of the judgment and the decree in the execution application along
with other details [see clauses (a) to (j)].
       30. Similarly, Order 21 Rule 11(3) of the Code makes it clear that
the Court “may” require the decree holder to produce a certified copy           G
of the decree. This clearly indicates that it is not necessary to file a copy
of the decree along with execution application unless the Court directs
the decree holder to file a certified copy of the decree.


                                                                                H
964             SUPREME COURT REPORTS                           [2019] 9 S.C.R.


A            31. The aforesaid discussion, therefore, leads us to a conclusion
      that as and when the decree holder files an application for execution of
      any decree, he is required to ensure compliance of three things.
             32. First, the written application filed under Order 21 Rules 10
      and 11 (2) of the Code must be duly signed and verified by the applicant
B     or any person, who is acquainted with the facts of the case, to the
      satisfaction of the Court; Second, the application must contain the details,
      which are specified in clauses (a) to (j) of Rule 11(2) of the Code, which
      include mentioning of the date of the judgment and the decree; and Third,
      filing of the certified copy of the decree, if the Court requires the
      decree holder to file it under Order 21 Rule 11(3) of the Code.
C
             33. This takes us to deal with next point urged by the learned
      senior counsel for the appellant. According to learned counsel, the order
      dated 01.06.2012 itself is capable of being executable by virtue of Section
      36 of the Code and, therefore, the High Court was not right in holding
      that the decree was required to be drawn.
D
             34. The argument is not acceptable for more than one reason.
      True it is that there are some orders, which are in the nature of decree
      and thus capable of being executed as such but the question, which
      arises for consideration in this case, is whether the order passed under
      Order 23 Rule 3 of the Code is such an order. In our opinion, it is not.
E
            35. First, the language of Order 23 Rule 3 of the Code does not
      admit passing of an order of the nature urged by the learned senior
      counsel for appellant; Second, the expression “the court shall order such
      agreement, compromise or satisfaction to be recorded and shall pass a
      decree in accordance therewith” occurring in Order 23 Rule 3 of the
F     Code, in clear terms, suggests that it is necessary after recording the
      compromise in the order to further pass a decree in accordance therewith.
            36. In other words, the expression “and shall pass a decree in
      accordance therewith” is a clear indication that after the compromise is
      recorded by the Court, it shall proceed to “pass a decree”. So, the rule
G     contemplates, first an order recording of the compromise and then
      simultaneously pass a decree in accordance with the order.
             37. In the light of the clear language of Order 23 Rule 3 of the
      Code, it is not possible to accept the submission of learned senior counsel
      for the appellant that the order dated 01.06.2012 itself amounts to a
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 SOBHA SINGH AND SONS PVT. LTD. v. SHASHI MOHAN KAPUR                         965
    (DECEASED) THR. L.R. [ABHAY MANOHAR SAPRE, J.]

decree and, therefore, it is not necessary for the Court to pass a decree.    A
Had this been the intention, the legislature would not have used the
expression “and shall pass a decree in accordance therewith” in Order
23 Rule 3 of the Code.
       38. This takes us to examine the next question though not decided
by the High Court on merits.                                                  B
       39. As mentioned above, the Executing Court dismissed the
applications filed by the respondent with a cost of Rs. 5 lakhs which
resulted in issuance of warrant of possession of the suit house. The
High Court, by impugned order, set aside the order of the Executing
Court and dismissed the execution application as being not maintainable.      C
The High Court, however, did not then consider it necessary to examine
the question as to whether the Executing Court was right in rejecting the
respondent’s applications.
      40. We have, therefore, perused the order of the Executing Court.
Having perused it, we are of the considered view that the Executing           D
Court was right in rejecting the objections raised by the respondent in his
applications and, therefore, find no good ground to interfere in those
findings of the Executing Court.
       41. In our view, all the objections raised by the respondent were
frivolous and were raised only with a view to avoid execution of the          E
compromise decree. None of the objections raised by the respondent
could be gone into after consent order had been passed. In any event,
none of the objections raised by the respondent had any substance on
merits and were, therefore, rightly rejected by the Executing Court to
which we concur. In our view, the respondent having taken time twice
to vacate the suit house and yet not adhering to the undertaking given,       F
this Court cannot countenance such conduct of the respondent. It is
reprehensible.
       42. This takes us to examine the next question, namely, what is
the effect of not filing the copy of the decree along with the execution
application filed by the appellant. In our view, even though the appellant    G
did not file the certified copy of the decree along with the execution
application for the reason that the same was not passed by the Court,
yet the execution application filed by the appellant, in our view, was
maintainable. Indeed, so long as the formal decree was not passed, the
                                                                              H
966             SUPREME COURT REPORTS                            [2019] 9 S.C.R.


A     order dated 01.06.2012 was to be treated as a decree during the
      interregnum period by virtue of Order 20 Rule 6A (2) of the Code. In
      other words, notwithstanding the fact that the decree had not been passed,
      yet by virtue of principle underlined in Order 20 Rule 6A(2) of the Code,
      the order dated 01.06.2012 had the effect of a decree till the date of
      actual passing of the decree by the Court for the purposes of execution
B
      or for any other purpose. This empowered the Executing Court to
      entertain the execution application and decide the objections raised by
      the respondent on merits.
             43. This takes us to examine the last point as to whether the High
      Court was justified in directing the appellant to apply under Section 152
C     of the Code for drawing a decree.
             44. In our opinion, though the High Court was right in directing
      the appellant to apply to the Court for drawing a decree, but was not
      right in directing to apply under Section 152 of the Code.

D            45. Section 152 of the Code deals with the amendment of
      judgments, decrees or orders. It provides that any clerical or arithmetical
      mistakes in the judgments, decrees or orders or errors arising therein
      from any accidental slip or omission may at any time be corrected by the
      Court either of its own motion or on the application of any of the parties.
      Order 20 Rule 3 also provides that judgment can be altered or added
E     either under Section 152 or in review.
             46. In our opinion, in order to invoke the powers under Section
      152 of the Code, two conditions must be present. First, there has to be a
      judgment or decree or an order, as the case may be, and second, the
      judgment or decree or order, as the case may be, must contain any
F     clerical or arithmetical error for its rectification. In other words, Section
      152 of the Code contemplates that the Court has passed the judgment,
      decree or the order and the same contains clerical or arithmetical error.
             47. Any party to such judgment, decree or order, as the case may
      be, has a right to apply at any time under Section 152 of the Code to the
G     concerned Court for rectification of any arithmetical or/and clerical error
      in the judgment, decree or the order, as the case may be.
             48. In the case at hand, we find that the Court, which disposed of
      the suit, did not draw the decree but only passed the order. In such a
      situation, the decree holder was required to file an application under
H
 SOBHA SINGH AND SONS PVT. LTD. v. SHASHI MOHAN KAPUR                            967
    (DECEASED) THR. L.R. [ABHAY MANOHAR SAPRE, J.]

Section 151 read with Order 20 Rule 6A of the Code to the Court for              A
drawing a decree in accordance with the order dated 01.06.2012. Indeed,
we find in the concluding para of the order dated 01.06.2018 that the
Court has already directed to ensure compliance of the formalities. It
would have been, therefore, proper in such circumstances for the Court
to simultaneously draw a decree the same day itself or in any event
                                                                                 B
within 15 days as provided in Order 20 Rule 6A.
       49. Be that as it may, this being a procedural matter, even if it was
not done, yet the same could be done by the Court at the instance of the
appellant (decree holder) applying for drawing up a decree after filing of
the execution application.
                                                                                 C
      50. This takes us to examine the last question as to whether the
Executing Court was right in imposing a cost of Rs.5 lakhs on the
respondent for filing applications raising therein frivolous objections to
avoid execution of the decree against them. As mentioned above, the
Executing Court while rejecting the respondent’s objection imposed a
compensatory cost of Rs.5 lakhs on the respondent. In our view, though           D
we find that it is a fit case for imposition of cost but imposition of cost of
Rs.5 Lakhs is excessive.
       51. Having regard to all facts and circumstances of the case which
we have discussed above, we consider it just and proper to impose a
compensatory cost of Rs. 50,000/- on the respondent under Section 35-            E
A of the Code. Let it be paid by the respondent to the appellant within
one month from the date of this order.
      52. We are, therefore, of the considered opinion that the High
Court was not right in holding that the execution petition itself is not
maintainable. The High Court though was right in directing the appellant         F
to apply to the concerned Court for drawing up a decree but the High
Court was not right in directing the appellant to apply it under Section
152 of the Code.
       53. In view of the foregoing discussion, we hold that the execution
petition filed by the appellant is maintainable and was, therefore, rightly      G
allowed by the Executing Court by rejecting the objections raised by the
respondent except with two modifications indicated above.
      54. The appellant is hereby granted two weeks’ time to apply
under Section 151 read with Order 20 Rule 6(A) of the Code to the
                                                                                 H
968             SUPREME COURT REPORTS                            [2019] 9 S.C.R.


A     concerned Court with a prayer for passing a decree in accordance with
      the order dated 01.06.2012 passed under Order 23 Rule 3 of the Code.
      In the peculiar circumstance of this case, we would expect the Court
      concerned to pass and draw the decree without any delay and, in any
      case, within one week of moving of the application by the appellant. It
      is also made clear that such act of passing and drawing up the decree
B
      being formal in nature, no objection or dispute in that regard is to be
      entertained by any Court. Once the decree is drawn and its details are
      specified in the execution application as provided under Order 21 Rule
      11 (2)(c) and the certified copy of the decree is filed, if required by the
      Court, in terms of Order 21 Rule 11(3) of the Code, the order of the
C     Executing Court dated 22.10.2018 with the above modification regarding
      payment of costs amount will be given effect to against the respondent.
             55. Let the aforementioned procedural proceedings be completed
      within the time framed by the concerned Court. The respondent is,
      however, granted one month’s time to vacate the suit house after
D     completion of the procedural formalities by the concerned Court after
      making payment of all arrears of rent till the date of delivery of possession
      of suit house to the appellant.
            56. In view of the foregoing discussion, the appeal succeeds and
      is accordingly allowed. The impugned order is set aside whereas the
E     order of the Executing Court is modified to the extent indicated above.

      Divya Pandey                                                   Appeal allowed.




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G




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