Judgment:
Oral Judgment:
The learned senior counsel appearing for the Plaintiffs on instructions, restricted the arguments to prayer clauses (a) and (b), which are reproduced as under:-
â(a) That this Hon'ble Court be pleased to order and direct the office of the Prothonotary and Senior Master to take on file, number and process the above Execution Application even before sealing of the Consent Decree dated 8th June 1998 passed in the above matter.
(b) That this Hon'ble Court be pleased to pass an order under Sub-rule (2) of Order XXI Rule 22 of the Code of Civil Procedure 1908 allowing execution of the Consent Decree dated 8th Jun3 1998 passed in the above matter without issuance of the usual Notice under Order XXI Rule 22 of the C.P.C. to the Defendant Nos. 2 to 4 abovenamed.â
2 They are not pressing other prayer clauses i.e. from (c) to (m) at this stage of the Execution. Admittedly, by order dated 8 June 1998 the Suit got disposed of in view of the consent terms. The consent terms was signed by the Plaintiffs and Defendant No.5 only. Other Defendant Nos. 1 to 4 were not present. As averred and as noted from the consent terms there are various reciprocal obligations which were to be complied with by Defendant Nos. 1 to 4 also. There were non-compliances as recorded in the averments including the following paragraph Nos. 10 and 11 of the affidavit, which reads as under:-
â10 I say that Defendant Nos. 1 to 4 have not complied with any of their obligations under the Consent Decree and narrated hereinabove including their obligations under Clauses 22 and 23 thereof. Clause 23 of the Consent Terms provides, inter-alia, that in the event Defendant Nos. 1(deceased) to 4 failed to obtain indenture/s of Conveyance in respect of the said remaining portion of 183 Acres of Survey No.31 of the Suit property from the original owners and furnish index-II to the Plaintiffs in respect of such remaining portion of the Suit property within a period of 6 months from the date of the Consent Terms, the payment of installments by the Plaintiffs to Defendant No.1 (deceased) to 4 shall stand postponed by a period equivalent to the period of delay from the expirty of the said 6 months till the Conveyances in respect of the said remaining portion of the Suit property have been duly registered and Index-II in respect thereof is furnished to the Plaintiffs. I say that since Defendant Nos. 1(deceased) to 4 have failed to obtain such Indentures of Conveyance (for 183 Acres), the payment of the installments set out in the Second Schedule to the Consent Terms stood postponed as aforesaid. The installments in the Second Schedule have therefore still not become due for payment. I say that upon Defendant Nos. 1(deceased) to 4 furnishing to the Plaintiffs Indentures of Conveyance and Index-II in respect of the said 183 Acres (Survey No.31) and also complying with their obligations under Clause 15(a) and (b) of the Consent Terms, the Plaintiffs will make payment of the balance consideration money of Rs.4,98,50,000/- in the manner contemplated by the Consent Decree.
11 I say that the Plaintiffs have always been ready and willing to comply with their obligations under the Consent Decree as mandated by it. I say that the Consent Decree similarly mandates that Defendant Nos.1 (Deceased) to 4 comply with their obligations thereunder. However, Defendant Nos.1 (Deceased) to 4 have despite lapse of more than 9 years failed and neglected to comply with their obligations thereunder. In view thereof, the Plaintiffs have been unable to obtain conveyance of the Suit properties in their favour and to perfect their title thereto as contemplated by the Consent Decree.â
The Plaintiffs therefore, have no option but to put the said consent terms now for the execution. Accordingly, the Execution Application in question filed some time in the year 2007. The Execution Application is still pending, the same was also amended some time in the year 2011.
3 The original Defendant Nos. 1 to 4 have resisted all the prayers by filing reply and averments so made by the Plaintiffs. It is relevant to note here that the contesting Defendants challenged the consent decree, has attained finality, initially in view of the order passed by the Single Judge, confirmed by the Division Bench on 6 July 2010 and lastly in view of dismissal of the Special Leave Petition dated 25 August 2010. Even otherwise, at this stage, in view of the restricted prayers so made.
4 Rule 300 of the Bombay High Court (Original Side) Rules, (for short, the Rules) deals with the procedure of drawing up of decrees and the orders passed in the Court. Rule 314 deals with the certified copy of the execution and/or order to accompany application for execution and the power of the Court or the Judge in Chamber, to allow execution before sealing of decree or order. Admittedly, the Plaintiffs in view of non-compliances of the reciprocal obligations by the contesting Defendants, took steps for drawings up the decree/order which was beyond 30 days from the date of consent terms in question. To the draft so submitted, obligations were raised by the other side (contesting Defendants). Therefore, till this date, Master and Assistant Prothonotary of this Court, in view of the Rules, could not settle the draft decree. Rule 300 (1) as referred above, provides for lodging the Draft within four weeks from date of the Judgment and Order and its copy is required to be served on the other side. The finality is always subject to hearing of both the parties. In case, where the party who is required to lodge the Draft fails, the other side is also required to lodge such Draft, as required under Rule 300(2) of the Rules. Both the parties admittedly, failed to take steps within 30 days.
5 There is no procedure and/or any rules which contemplates that in case of delay and/or taking steps within the prescribed time, the parties required to obtain and/or seek permission to condone the delay in lodging and/or filing such Draft of decree. The issue is, in the present case, whether the consent decree/terms as ordered on 8 June 1998 has attained finality and/or itself ought to have been put for settlement of decree and/or Draft within four weeks (30 days) from the date of the consent terms. The Court, in my view, needs to consider the facts and circumstances of the case while taking note of the objections so raised and so also take decision based upon the Rules which governed and control such execution proceedings.
6 Admittedly, in view of the averments so recorded, there were reciprocal obligations which need to be performed by the other side. There were non-compliances. The question of putting consent decree/Judgment/order for execution comes when there is a denial and/or failure on the part of the other side to comply with the consent terms. Therefore, in a given case there may not be the occasion to put up, those consent terms for execution.
7 The office and/or the other party, in such background, could not have insisted sealing of the decree which was under challenge. The issue of limitation and/or discussion with regard to the same, in my view, in the present facts and circumstances is irrelevant to adjudicate and/or to decide the power of the Master and Assistant Prothonotary to seal the decree within four weeks and/or after four weeks. Such Rules even otherwise, cannot be utilized to restrict the rights of the parties to get the consent terms executed as there was non-compliance of the other side. The date of decree and/or taking steps from such date in the present facts and circumstances, cannot be the reason to deny the rights and/or power of the office to seal the decree as required.
8 Even otherwise, Rule 314 empowers the Judge to allow execution even before sealing of the decree or order. The only requirement is, it should be supported by the "good cause" and/or "sufficient rule". Therefore, there is no bar for the Court to pass appropriate order in the facts and circumstances of the case even in view of the period of 30 days so prescribed in Rule 300 of the Rules.
9 As recorded above, in the present facts and circumstances and as admittedly, there were objections raised by the contesting party with regard to the consent terms itself, and that has attained the finality, therefore, considering the averments so made and in view of the fact that the consent terms for the reasons so recorded, could not be executed within the prescribed time by complying with the office requirements.
10 The consent decree is of 8 June 1998. The Plaintiff sought execution of the same in the year 2007 for the first time. Therefore, it is within limitation so far as it is not beyond the period of 12 years. The consent decree as such is executable.
11 Order 21 Rule 22 of the Code of Civil Procedure prescribed that the leave/notice is required to be issued to the other side if decree is not put for execution within two year from the date of decree. In the present case, admittedly, the Chamber Summons filed on 13 April 2007. The Court, therefore, needs to consider even this facet when passing further order on prayers so sought in the execution application. In the present case, in view of the reasons so recorded above, and as the contesting Defendants have already filed reply and also present in the Court, I am inclined to grant leave so far as prayer clause (b) is concerned.
12 Therefore, taking over all view of the matter, the Chamber Summons is allowed in terms of prayer clauses (a) and (b).
13 This Court, by order dated 24 April 2007 has granted interim relief in terms of prayer clause (j). That has been in force till this date. However, in view of disposal of the present Chamber summons in terms of prayer clauses (a) and (b), and as the Plaintiffs are not pressing other prayer clauses, i.e. (c) to (i) and (k) to (l) at this stage and submitting to continue to prayer clause (j) for 12 weeks, I am inclined to continue the same for 12 weeks from today.
14 All points are kept open, so far as other prayers are concerned. There shall be no order as to costs.
15 In view of this, report dated 30 July 2012, of the Master and Assistant Prothonotary, in this regard is also disposed of.