Amol S O Late Bhalchandra Joshi and ors Vs Deorao S O Santoshrao Bhongade and ors - Citation 909291 - Court Judgment

Judgment:
Judgment :

1. Rule, returnable forthwith. Heard finally by the consent of the learned counsels appearing for the parties.

2. All these three matters challenge the common order passed on 21-8-2009 by the learned 4th Joint Civil Judge, Senior Division, Nagpur, dismissing the application Exhibit 1 in Special Darkhast No.118 of 1995 and allowing the applications Exhibits 1 and 6 filed in Special Darkhast No.156 of 1995. The Executing Court has proceeded further in Special Darkhast No.156 of 1995 and the judgment-debtors in the said Darkhast are directed to execute and register the sale-deed of the suit property in favour of the applicant, after rejecting the objections at Exhibits 19, 70 and 159, to the executability of decree raised by the petitioners in all these three matters. The proceedings before the lower Court are stayed.

3. The facts leading to the case are as under :

The property in dispute (suit property) is the land admeasuring about 18.07 acres, bearing Survey Nos.53 and 54 out of Sheet No.291/74 and 292/75, having Khasra Nos.120/1 and 131 of Mouza Dhaba, P.H. No.7, Ward No.67, Tahsil and District Nagpur. A Special Civil Suit No.263 of 1985 was filed by 11 persons, who were the plaintiffs, for specific performance of contract dated 10-2-1982 in respect of the suit property, against one Santoshrao Bhongade, the owner of the property, who was joined as the sole defendant in the said suit. The names of 11 persons, who had filed the suit, are required to be stated as under :

(1) Bhalchandra s/o Nageshwarrao Joshi.

(2) Suresh s/o Gajanan Wakhre.

(3) Bakaram s/o Doma Thote.

(4) Advocate Abdul Karim s/o Mohd. Ibrahim.

(5) Syd. Shafique Ahmad.

(6) Nashir Ajam s/o Makbul Ahmed Bakshi.

(7) Gopal s/o Jhanaklal Saini.

(8) Shatrughan Singh Nathusingh Rathod.

(9) Vinaykumar s/o Balkrishna Dewale.

(10) Tulsiram s/o Yeshwantrao Virulkar.

(11) Hifzul Kabir s/o Hifzul Karim.

The Trial Court dismissed the said suit on 17-9-1991. The plaintiff Hifzul Kabir and six others (at Sr.Nos.1 to 6 above) preferred First Appeal No.790 of 1991 before this Court. During the pendency of the First Appeal, Santoshrao Bhongade, the original defendant died, and hence his legal representatives were brought on record. In this First Appeal, a decree for specific performance of contract was passed by this Court on 26-4-1993. The operative part of the order is reproduced below :

" In the result, the appeal is allowed with costs. The impugned judgment and decree are set aside. The cross-objection is also dismissed. The decree be drawn up in the following terms:

(a) The suit filed by the plaintiffs on behalf of themselves and defendant Nos.2 to 5 for specific performance of the contract for remaining area of 18.07 acres of the suit property is hereby decreed with costs.

(b) The plaintiffs as well as defendant Nos.2 to 5 are directed to deposit the balance consideration in Court after adjusting Rs.10,000/- already paid within six weeks from today.

(d) are directed to execute and register the sale-deed within a month after expiry of six weeks.

(d) On failure of the defendant No.1(a) to (d) to execute the sale-deed as directed, the plaintiffs as well as defendant Nos.2 to 5 shall obtain the sale-deed through Court.

(e) The plaintiffs as well as defendant Nos.2 to 5 be put in possession of the suit property as well."

Plaintiff Hifzul Kabir deposited within time specified, the balance amount of consideration of Rs.1,43,000/- on 7-6-1993 in CCD No.323, in the Trial Court.

4. The legal representatives of the original defendant Santoshrao Bhongade preferred Special Leave Petition No.6637 of 1994 before the Apex Court. When the matter was heard before the Apex Court on 15-9-1994, an order came to be passed by the Apex Court as under :

" Counsel for both the parties are agreed that the matter will be settled between the parties on the following basis.

An appropriate valuer shall be appointed to determine the price of 18.07 acres of land, now in question in the suit, as on 1st January, 1988. The price so determined shall be paid by the respondents to the petitioners and the sale will be completed according to law.

List the matter on 6.10.94. On that date counsel will intimate the name of the valuer. It is open to the parties to give the panel of three valuers in which case we will make the selection."

Thereafter the matter was listed on 6-10-1994, when the order was passed by the Apex Court as under :

" Leave granted.

There shall be a decree for specific performance in respect of the suit land (18.07 acres in extent) subject to the condition that the plaintiff pays the price of the said land as on January 1, 1988. It is directed that the price of the suit land as on January 1, 1988 shall be determined by Sri Golghate, Deputy Director, Town Planning, Nagpur Region, Nagpur, to whose nomination both the counsel have agreed.

The remuneration of Sri Golghate is tentatively fixed at Rs.2,000/- which shall be paid by both the parties in equal measure within 10 days. The price determined by Sri Golghate shall be final and be binding upon both the parties - subject, of course, to the orders of this Court.

The valuation shall be done as early as possible preferably within four weeks from the date of receipt of the order by Sri Golghate.

It is obvious that the amount already paid/deposited by the plaintiff shall be taken credit of while paying the amount determined as per the above direction.

List the matter after six weeks."

5. It transpires from the record that the compromise petition (Exhibit 115 dated 16-1-1995) between the petitioners and the respondent Nos.1, 3, 5, 7, 8, 9 and 11 in the said Special Leave Petition (Civil) No.8944 of 1993 was filed along with the joint affidavit (Exhibit 117 dated 8-1-1995) of the petitioners and the said respondents, in the Special Leave Petition. In para 2 of the said compromise petition, a reference was made to the deed of assignment said to have been prepared fraudulently by the respondent No.2 therein, who was the plaintiff Hifzul Kabir and without prejudice to the right to challenge the said deed of assignment, the compromise petition was filed. It was further stated that the petitioners in the said compromise petition had agreed that necessary conveyance deed shall be made and executed in favour of Ashok Manikrao Raut and Charansing Sompal Mathuria, in order to complete the transaction of specific performance of the decree passed.

6. In response to the order dated 6-10-1994, the valuer determined the value of the property and the Apex Court fixed the price of the land at the rate of Rs.42,000/- per acre. The Apex Court disposed of the said Special Leave Petition by its order dated 22-3-1995, which is reproduced below :

" This order is made in continuation of the orders dated September 15, 1994 and October 6, 1994. Pursuant to the order dated October 6, 1994, Sri Golghate, Deputy Director, Town Planning, Nagpur Region, Nagpur has submitted his valuation report. After considering as many as eleven instances of sales, the Deputy Director has valued the suit land at Rs.36,000/- per acre as on January 1, 1988 (i.e., Rs.90,000/- per Hect.). The suit land, it may be stated, is of the extent of 18.07 acres as mentioned in the plaint schedule.

After hearing the parties, we fix the valuation of the suit land at Rs.42,000/- per acre. The decree shall be prepared accordingly in terms of this order read with order dated October 6, 1994.

From the report of the valuer, Sri Golghate, it appears that valuation fees of Rs.2,000/- has not so far been paid to him. We fix the fees of Sri Golghate at Rs.4,000/- (including the said sum of Rs.2,000/- fixed earlier). The said amount shall be paid by the respondents-plaintiffs within two weeks from today and they shall be entitled to execute the decree only on submission of the receipt from Sri Goghate with respect to the said payment.

Sri Sanghi, learned counsel for the petitioner-appellant states that after the order dated October 6, 1994, some of the plaintiffs have entered into agreements with his client (defendant) whereunder some of the plaintiffs have agreed to pay a higher amount by way of consideration to the defendant and that those agreements should not be held to be affected by this order. Since the said agreements are alleged to have been entered into subsequent to our order dated October 6, 1994, we express no opinion on the submission made by Sri Sanghi.

The amount of consideration payable according to this order shall be deposited in the trial court within six weeks from today. On the said amount being deposited, the sale deed shall be executed by the defendant and on his default, by the court - if not executed already - and the possession of the land shall be delivered to the plaintiffs.

The amount deposited shall be allowed to be withdrawn by the defendants.

No costs."

It seems from the aforesaid order that the Apex Court was conscious of the terms incorporated in the compromise petition and hence it has been observed that since the said agreements were alleged to have been entered into subsequent to the order dated 6-10-1994, no opinion is expressed on it. The plaintiff Hifzul Kabir deposited the balance amount of consideration of Rs.6,20,000/- at the rate of Rs.42,000/- per acre on 8-5-1995, i.e. within the time stipulated by the Apex Court in the order dated 22-3-1995. The plaintiff Hifzul Kabir also paid an amount of Rs.4,000/- towards remuneration of the valuer Shri Golghate (Exhibit 174).

7. On 15-4-1995, a Special Darkhast No.118 of 1995 was filed under Order 21, Rules 11 and 16 of the Civil Procedure Code by 7 plaintiffs, namely (1) Bhalchandra s/o Nageshwarrao Joshi, (2) Suresh s/o Gajanan Wakhre, (3) Shatrughan Singh Nathusingh Rathod, (4) Tulsiram s/o Yeshwantrao Virulkar, (5) Advocate Abdul Karim s/o Mohd. Ibrahim, (6) Nashir Ajam s/o Makbul Ahmed Bakshi and (7) Gopal s/o Jhanaklal Saini claiming to be the assignors of the decree along with one Ashokkumar Manikrao Raut and Charansing Sompal Mathuria, the assignees of the decree. It was claimed that the decree be executed by registration of sale-deed in favour of the assignees of the decree-holders in respect of the suit property. The plaintiff Hifzul Kabir filed his objection (Exhibit 18) to Special Darkhast no.118 of 1995 on 5-10-1995. The other plaintiff Syed Shafique also filed his independent objection (Exhibit 28) in Special Darkhast No.118 of 1995 on 9-10-1996. The judgment-debtors filed their reply (Exhibit 32) on 1-8-1997 to the objection at Exhibit 28. On 4-10-2008, the assignors, assignee and judgment-debtors in Special Darkhast no.118 of 1995 filed an application (Exhibit 93) for recording satisfaction of the decree under Order 21, Rules 1 and 2 of the Civil Procedure Code on the ground that on 27-3-1995 the deed of assignment of decree at Exhibit 114 was executed in favour of assignees Ashokkumar Manikrao Raut and Charansing Sompal Mathuria and that the sale-deed dated 17-11-1995 (Exhibit 217) was also executed in favour of the said assignees by the judgment-debtors. The applicants in Special Darkhast no.118 of 1995 also filed a pursis (Exhibit 99) for disposing of the execution proceedings on the ground that the matter has been compromised between the decree-holder Nos.1 to 7 and the judgment-debtors and hence they do not want to proceed further with the execution proceedings.

8. The plaintiff Hifzul Kabir also filed another Special Darkhast No.156 of 1995 on 12-6-1995, under order 21, Rule 11(2) read with Order 21, Rule 16 of the Civil Procedure Code. The claim in Special Darkhast No.156 of 1995 was on the basis of the deed of assignment dated 27-4-1993 at Exhibit 178 said to have been executed by 10 plaintiffs in favour of Hifzul Kabir, who was the eleventh plaintiff in Special Civil Suit No.163 of 1985. One of the plaintiffs, viz. Abdul Karim objected to this Special Darkhast by filing his objection (Exhibit 19) on 1-8-1995. On 18-9-1996, the reply was filed in Special Darkhast No.156 of 1995 by four other plaintiffs praying for dismissal of the said Darkhast. On 15-12-2008, the non-applicant Nos.1, 5, 8 and 9 in Special Darkhast No.156 of 1995 filed their reply at Exhibit 159 opposing the said Darkhast.

9. In support of the claim in Special Darkhast No.118 of 1995, four witnesses were examined, viz. (1) Nashir Ajam s/o Makbul Ahmed Bakshi, one of the plaintiffs and assignors in Exhibit 114, (2) Tulsiram Virulkar, one of the plaintiffs and assignors in Exhibit 114, (3) Charansing Sompal Mathuria, one of the assignees and applicants in Special Darkhast No.118 of 1995, and (4) Shrawankumar, the attesting witness on Exhibit 114. In support of the claim in Special Darkhast No.156 of 1995, the applicant Hifzul Kabir examined himself and also examined one more original plaintiff Syed Shafique Ahmad, who was one of the assignors in the deed of assignment at Exhibit 178. Both these deeds of assignments at Exhibits 114 and 178 were unregistered and were in respect of a decree for specific performance of contract of immovable property, passed in Special Civil Suit No.263 of 1985.

10. The Executing Court decided both these Special Darkhast Nos.118 of 1995 and 156 of 1995 by its common order dated 21-82009. Special Darkhast No.118 of 1995, based upon the deed of assignment dated 27-3-1995 at Exhibit 114 (hereinafter referred to as "the Deed at Exhibit 114"), was dismissed by upholding the objections at Exhibits 18 and 28. The Executing Court allowed Special Darkhast No.156 of 1995 based upon the deed of assignment dated 17-4-1993 at Exhibit 178 (hereinafter referred to as "the Deed at Exhibit 178") and rejected the objections at Exhibits 19, 70 and 159 filed therein and directed the judgment-debtors to execute and register the sale-deed of the suit property in favour of the applicant in Special Darkhast No.156 of 1995 within a period of fifteen days. The operative part of this order is reproduced below :

"1) Application at Exh.1 of SD No.118/95 is hereby dismissed.

2) Objection at Exh.18 & 28 in SD No.118/95 are hereby allowed.

3) Application at Exh.93 in SD No.118/95 is hereby dismissed.

4) Pursis at Exh.99 in SD No.118/95 is not accepted.

5) Application at Exh.1 & 6 of SD No.156/95 is allowed.

6) Objection at Exh.19, 70 & 159 in SD No.156/95 at hereby dismissed.

7) SD Application No.156/95 be proceeded further. J.Dr. in SD No.156/95 is directed to execute and to register the sale-deed of suit property in favour of applicant of SD No.156/95 within a period of 15 days from today."

11. The Executing Court disbelieved the evidence of Shrawankumar, the attesting witness, and Charansing Sompal Mathuria led in support of the Deed at Exhibit 114 in Special Darkhast No.118 of 1995. The oral evidence of Nashir Ajam s/o Makbul Ahmed Bakshi in support of Exhibit 114 has been held to be not supporting the assignees in Special Darkhast No.118 of 1995. The oral evidence of Tulsiram s/o Yeshwantrao Virulkar in support of Exhibit 114 was also considered and his version, that he signed the blank paper was rejected. The evidence of Syed Shafique Ahmad, one of the assignors in Exhibit 178, was relied upon along with the evidence of another plaintiff Nashir Ajam s/o Makbul Ahmed Bakshi and that of Tulsiram s/o Yeshwantrao Virulkar to hold that the deed at Exhibit 178 was proved. The finding is recorded that the applicants in Special Darkhast no.118 of 1995 have failed to prove the Deed at Exhibit 114. The Executing Court has further recorded the finding that the Deed at Exhibit 114 was executed by 7 out of 11 decree-holders in favour of strangers, whereas the Deed at Exhibit 178 was executed by 10 decree-holders/plaintiffs in favour of Hifzul Kabir, who was also one of the original plaintiffs. In respect of the plea that the Deed at Exhibit 178 was fraudulent, the finding is recorded by the Executing Court that the decree-holders and the judgment-debtors had the knowledge of the Deed at Exhibit 178 in the year 1994-95 itself. The argument that the Deed at Exhibit 178 was not produced before the Apex Court and that it was suppressed, has been rejected and it has been held that this was not the issue before the Apex Court. It was further held that the applicants in Special Darkhast No.118 of 1995 and the objectors in Special Darkhast No.156 of 1995 have failed to establish that the Deed at Exhibit 178 was in any manner fraudulent.

12. On the question of withdrawal of the amount deposited and its redeposit for getting the sale-deed executed and registered, the Executing Court recorded the finding that it cannot be inferred that the applicant in Special Darkhast no.156 of 1995 was not ready and willing to perform the part of the agreement. It was held that the amount was deposited within the time prescribed in the decree passed by this Court and also within the time prescribed by the Apex Court to deposit the enhanced amount of consideration. It was held that the said amount was withdrawn with the permission of the Court to redeposit the said amount. It was held that the amount was redeposited as per the order of the Court and hence there was no question of waiver of claim or rejection of the Darkhast on the ground that the applicant in Special Darkhast No.156 of 1995 was not ready and willing to perform his part of the agreement. It was further the finding recorded that the applicants in Special Darkhast No.118 of 1995 had failed to establish that they had deposited the amount pursuant to the decree passed in First Appeal No.790 of 1991 by this Court and as per the order dated 223-1995 passed by the Apex Court. It was further held that the remuneration of Rs.4,000/- was paid to the valuer Shri Golghate by the plaintiff Hifzul Kabir and hence he cannot be denied the execution of a decree.

13. The Executing Court has further recorded the finding that the assignee Hifzul Kabir, who was the applicant in Special Darkhast No.156 of 1995, being one of the plaintiffs, was having pre-existing right in the decree, the decree did not create any new right in his favour and hence neither the decree nor the Deed at Exhibit 178 was required to be registered under Section 17 of the Registration Act. As against this, so far as the Deed at Exhibit 114 is concerned, it was held that the assignees were strangers and had no pre-existing right in the suit property and by the Deed at Exhibit 114, new rights were created in their favour and hence it required registration under Section 17 of the Registration Act. On the question of consideration for execution of the Deed at Exhibit 178, the Executing Court did not record any finding.

14. The plaintiffs, who were the applicants/assignors in Special Darkhast No.118 of 1995, have preferred Writ Petition No.113 of 2010 and they are represented by Advocate Shri Kshirsagar, whereas the assignees, who were the applicants in Special Darkhast No. 118 of 1995, have filed Civil Revision Application No.76 of 2009 and they are represented by Advocate Shri Gupta. Thus the interest of the petitioners in Writ Petition No.113 of 2010 and the applicants in Civil Revision Application No.76 of 2009 is common to challenge the order passed by the Executing Court. The legal representatives of the judgment-debtor Santoshrao Bhongade have preferred Writ Petition No.1691 of 2010 claiming that both the Deeds at Exhibits 114 and 178 have not been proved and hence both the Special Darkhasts are required to be dismissed.

15. Shri Kshirsagar and Shri Gupta, the learned counsels, have advanced their arguments in support of the Deed at Exhibit 114 and to challenge the findings in respect of the Deed at Exhibit 178 recorded by the Executing Court. Relying upon the decision of the Apex Court in S.P. Chengalvaraya Naidu (dead) by L.Rs. v. Jagannath (dead) by L.Rs. and others, reported in AIR 1994 SC 853, the learned counsels have strenuously urged that the Deed at Exhibit 178 was fraudulently prepared by the plaintiff Hifzul Kabir and it was never brought to the notice of the petitioners and the applicants till filing of Special Darkhast no.156 of 1995 on 12-6-1995, although it was said to have been executed on 27-4-1993, i.e. immediately on the next date of the decision in First Appeal No.790 of 1991. According to them, the Deed at Exhibit 178 was not proved to be genuine, as it was suppressed by the plaintiff Hifzul Kabir. According to them, the Deed at Exhibit 114 has been signed on all pages by the assignors and it has been proved in evidence.

16. It is their further submission that the sale-deed dated 17-11-1995 at Exhibit 217 has been executed by the judgment-debtors in favour of the assignees in the Deed at Exhibit 114, which has satisfied the decree, and unless the proceedings are instituted to challenge the sale-deed at Exhibit 217, no direction can be given to the assignees in the Deed at Exhibit 114 to join the execution of the sale-deed in Special Darkhast No.156 of 1995. They have further urged that a decree for specific performance of contract, transfers an immovable property, creating right, title and interest in favour of decree-holders, so also the Deed at Exhibit 178 and hence either of these two documents are required to be registered under Section 17(1)(e) and (b) of the Registration Act and in the absence of it, the same are inadmissible in evidence. Both the learned counsels have agreed that on this count, a Deed at Exhibit 114, to which their clients are parties, would also be inadmissible in evidence, as the same is an unregistered document and assigns the rights under the decree in respect of immovable property.

17. It is the further submission of the learned counsels that there is no evidence on record to show that any consideration was paid for executing the Deed at Exhibit 178 and hence it would be illegal, void and unenforceable document and the Executing Court ought to have dismissed Special Darkhast no.156 of 1995. Shri Naidu, the learned counsel for the original defendants/judgment-debtors and the petitioners in Writ Petition No.1691 of 2010, has urged that on the basis of the aforesaid argument, both the Deeds at Exhibits 114 and 178 are inadmissible in evidence and the Executing Court ought to have, therefore, dismissed both the Special Darkhast. It is the common ground raised by all these three counsels that there was waiver of claim, when Hifzul Kabir had withdrawn the amount deposited in the Court for getting the sale-deed executed. Hence, on this count, Special Darkhast No.156 of 1995 has to be dismissed.

18. Shri Sharif, the learned counsel appearing for the respondent Hifzul Kabir in all these three matters, has supported the findings recorded by the Executing Court in its order impugned in all these matters. He has urged that the Executing Court has recorded the specific finding that the Deed at Exhibit 178 has been duly proved and the petitioners and the applicants in all these matters have failed to establish that the Deed at Exhibit 178 was a fraudulent one. He submits that the Executing Court, after taking into consideration the documentary and oral evidence available on record, has recorded the finding on a possible view of the matter that the Deed at Exhibit 178 is proved and the petitioners and the applicants in all these matters have failed to establish that the Deed at Exhibit 178 was fraudulent. On the question of sale-deed at Exhibit 217 dated 17-11-1995, he has urged that it is hit by doctrine of lis pendens under Section 52 of the Transfer of Property Act and the applicants in Special Darkhast no.118 of 1995 are bound to join the sale-deed to be executed and registered in Special Darkhast no.156 of 1995. He has relied upon the notice dated 22-12- 1986 at Exhibit 176 issued under Section 52(2) of the Transfer of Property Act read with Section 18 of the Registration Act by the Registrar about pendency of Special Civil Suit No.263 of 1985. He has further relied upon Exhibit 177, which was the notice published in newspaper on 6-10-1991.

He submits that it is not necessary to challenge the sale-deed at Exhibit 217, as urged by the learned counsels for the petitioners and the applicants.

19. Shri Sharif has further urged that Exhibit 178 is the deed of conveyance of a decree for specific performance of a contract and it does not amount to transfer of property attracting the provision of Section 17(1)(e) of the Registration Act. He submits that the deed of assignment itself does not create any right, title, interest in or charge on the suit property, but it is merely creating a right to obtain another document, which will, when executed, create any such right, title or interest in an immovable property. For this proposition, he relied upon the provision of Section 17(2)(v) of the Registration Act and the provisions of Section 54 of the Transfer of Property Act. He further submits that what is being sought to be assigned by the Deed at Exhibit 178, is the actionable claim, as contemplated by Section 130 read with Section 3 of the Transfer of Property Act, which neither requires registration of it, nor requires an evidence of payment of consideration. He, therefore, submits that the Executing Court has rightly taken a view, which does not call for any interference either in writ jurisdiction or in revisional jurisdiction.

20. Now coming to the question of proof of the Deeds at Exhibits 114 and 178, the Executing Court has recorded the finding that the Deed at Exhibit 114 has not been proved, whereas the Deed at Exhibit 178 has been proved. The Deed at Exhibit 178 was attested by Hifzul Kabir, the assignee, who has examined himself and one another Abdul Wahid, who was not available for examination, as was dead. The Executing Court has held that one of the original plaintiffs Syed Shafique Ahmad, who is the assignor in the Deed at Exhibit 178, has admitted his signature on it and has also stated that 10 decree-holders/plaintiffs have executed the Deed at Exhibit 178 and it is signed by the attesting witnesses. The execution and the contents of the Deed at Exhibit 178 have been proved by the said witness. The Executing Court has also considered the oral evidence of Nashir Ajam s/o Makbul Ahmed Bakshi, examined by the applicants in Special Darkhast No.118 of 1995, who has admitted the Deed at Exhibit 178. The Executing Court has further held that Tulsiram s/o Yeshwantrao Virulkar, examined by the assignees in the Deed at Exhibit 114, has admitted his signature on Exhibit 178 and his explanation that he signed the blank paper, has been rejected, as it is not supported by any evidence. In respect of the Deed at Exhibit 114, the Executing Court has recorded the finding that the evidence of Nashir Ajam s/o Makbul Ahmed Bakshi, examined by the assignees in the Deed at Exhibit 114, does not support the case. The evidence of attesting witness Shrawankumar on the Deed at Exhibit 114, has been disbelieved on the ground that there was variance and it was unsafe to rely upon it. The evidence of Charansing Sompal Mathuria, the assignee, has also been disbelieved to prove the genuineness of the Deed at Exhibit 114. None of the learned counsels appearing for the petitioners and the applicants in all these matters, could point out any perversity in recording such findings by the Executing Court. It is not urged that the findings are not based upon any evidence, nor they have taken me through the evidence of the witnesses to point out any discrepancy or variance in the substantial evidence of the witnesses or that such findings are based upon wrong factual position. There is no jurisdictional error brought to my notice in recording such findings. The findings are based upon the evidence available on record and at any rate it is a possible view of the matter, which does not call for any interference.

21. On the plea of alleged fraudulent nature of the Deed at Exhibit 178, the Executing Court has recorded the finding that the decree-holders and the judgment-debtors had the knowledge of the Deed at Exhibit 178 in the year 1994-95 itself. The argument that the Deed at Exhibit 178 was not produced before the Supreme Court and it was suppressed, has also been rejected on the ground that it was not an issue before the Supreme Court. The compromise petition at Exhibit 115 dated 16-1-1995 filed before the Supreme Court shows that there is reference not only to the Deed at Exhibit 178, but also the alleged fraudulent nature of it. The police complaint dated 7-11-1994 at Exhibit 216 on record also substantiates the fact of knowledge. At any rate, this fact was pointed out by the parties to the Deed at Exhibit 114, before the Supreme Court and the Supreme Court made it clear that no opinion is expressed. It was, therefore, open for the parties to lead evidence in execution proceedings to establish the alleged fraudulent nature of the Deed at Exhibit 178. However, the rival parties have failed to establish it.

22. The manner in which the proceedings are conducted by the parties after the dismissal of Special Civil Suit No.263 of 1985 by the Trial Court on 17-9-1991 gives an impression that there was some understanding amongst all the plaintiffs/decree-holders about the prosecution of the proceedings to its logical end. The intrinsic evidence in the Deed at Exhibit 178 shows that it was executed in lieu of the assignee (Hifzul Kabir) agreeing to deposit the entire decretal amount on behalf of the decree-holders/assignors in the Court. The evidence of the plaintiff Hifzul Kabir recorded in the execution proceedings shows that the Deed at Exhibit 178 bears the signatures of some of the plaintiffs, who have admitted the execution of the said deed. It is also not in dispute that the plaintiff Hifzul Kabir deposited an amount of Rs.1,43,000/- on 7-6-1993, i.e. within the time stipulated by this Court in its judgment and decree passed on 26-4-1993 in First Appeal No.790 of 1991. There is also no challenge to the finding that the plaintiff Hifzul Kabir deposited the balance amount of Rs.6,20,000/- on 3-6-1995 and it is neither the case of the other decree-holders nor the assignees in the Deed at Exhibit 114 that they had contributed for deposit of the said amount. If the plaintiff Hifzul Kabir had not deposited the entire amount, then his claim for withdrawal of the said amount and for redeposit of it would have been opposed by the other plaintiffs/decree- holders or the judgment-debtors on the ground that they had deposited this amount or any part thereof in the Court and the plaintiff Hifzul Kabir had no right to withdraw the entire amount. On the contrary, reply to Exhibit 66, the application for permission to withdraw, is silent and order dated 23-9-1997 below Exhibit 66 shows no objection by the main objectors. It is the plaintiff Hifzul Kabir, who had redeposited the amount in the Court vide Exhibit 105 dated 27-3-2001 after getting permission from the Court and it was not challenged. The Executing Court has recorded the finding in Special Darkhast No.156 of 1995 that the assignors in the Deed at Exhibit 114 have failed to lead evidence to prove their objection to the Deed at Exhibit 178 that it was fraudulent in nature.

23. The question whether the deed of assignment at Exhibit 178 was fraudulent or not, is a question of fact, which is required to be decided in the facts and circumstances of each case and on appreciation of evidence available on record. Although this fact was brought to the notice of the Supreme Court, when order was passed on 22-3-1995, no opinion was expressed on it and hence the questions of genuineness and validity of the Deeds at Exhibits 114 and 178 being those falling under Section 47 of the Civil Procedure Code, it was open to be agitated in execution proceedings. The judgment of the Apex Court in S.P. Chengalvaraya Naidu (dead) by L.Rs. v. Jagannath (dead) by L.Rs. and others, reported in AIR 1994 SC 853, turns upon the facts of that case, wherein it was held that the preliminary decree was obtained by playing fraud on the Court. I have already held that the findings recorded by the Executing Court are that the parties to the Deed at Exhibit 114 have failed to establish that the Deed at Exhibit 178 was fraudulent, which does not call for any interference. In view of this, the said judgment is of, therefore, no help to the petitioners and the applicants.

24. Now, turning to the question whether a decree for specific performance and the Deed at Exhibit 178 amount to transfer of property to attract the requirement of compulsory registration, the provisions of the Transfer of Property Act will have to be seen first. The provisions of the Transfer of Property Act contemplate various modes of transfer of properties, like transfer by sale, mortgage, lease, exchange, gifts, etc. The said provisions also deal with the transfer of an actionable claim, apportionment, creation of charge over the property, etc. The semblance is to the provisions of Section 54 of the Transfer of Property Act, dealing with the sale of immovable property, the same being relevant is reproduced below:

" "Sale" defined.-- "Sale" is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised.

Sale how made.--Such transfer, in the case of tangible immovable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument.

In the case of tangible immovable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property.

Delivery of tangible immovable property takes place when the seller places the buyer, or such person as he directs, in possession of the property.

Contract for sale.--A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties.

It does not, of itself, create any interest in or charge on such property."

25. Section 54, reproduced above, makes out a clear distinction between a "Sale" and a "Contract for Sale" in respect of an immovable property. The sale is complete upon execution of the sale-deed and in case of an immovable property exceeding the value of one hundred rupees, the ownership or title to such property validly passes on to the purchaser, only upon registration of such sale-deed, which attracts stamp duty as conveyance under Item 20 of Schedule I of the Stamp Act. Merely because purchase money is paid and possession is obtained, that by itself will not pass on a valid title upon the purchaser. As against this, a contract for sale by itself does not create any interest in or charge on the immovable property agreed to be sold. It is not the same as "sale" and the title to the immovable property remains with the vendor. A "contract for sale" is complete upon execution of the document, i.e. the agreement to sale. It is, however, not required to be compulsorily registered to seek its enforcement in the Court of law, in view of the proviso to Section 49 of the Registration Act, even if the property agreed to be sold is of the value exceeding one hundred rupees. A registered sale-deed of immovable property, by itself is the conclusive evidence of the ownership or the title in respect of the property purchased. However, a contract for sale of immovable property, merely provides a right to seek specific performance of contract, which the Court may or may not grant. If such a decree for specific performance is not granted, the matter ends there and the vendor is free to deal with the property in any manner, without any let, hindrance, claim, etc. from the purchaser in a contract for sale.

26. The question is, when a decree for specific performance of contract is passed, does it extinguish the contract for sale, which is the subject matter of suit The answer is found in the following passage in para 25 of the judgment of the Apex Court in Hungerford Investment Trust Ltd. (In Voluntary Liquidation) v. Haridas Mundhra and others, reported in AIR 1972 SC1826 :

" We have already indicated that the contract between the parties was not extinguished by the passing of the decree, that it subsisted notwithstanding the decree. It was an implied term of the contract and, therefore, of the decree passed thereon that the parties would perform the contract within a reasonable time. To put it in other words, as the contract subsisted despite the decree and as the decree did not abrogate or modify any of the express or implied terms of the contract, it must be presumed that the parties to the decree had the obligation to complete the contract within a reasonable time."

The aforesaid decision has been followed by the Apex Court in its subsequent judgment in Kumar Dhirendra Mullick and others v. Tivoli Park Apartments (P) Ltd., reported in (2005) 9 SCC 262, and a law laid down is stated in para 27 as under

" In the case of Hungerford Investment Trust Ltd. v. Haridas Mundhra it has been held that when the court passes the decree for specific performance, the contract between the parties is not extinguished. That the decree for specific performance is in the nature of preliminary decree and the suit is deemed to be pending even after the decree. Hence, the court retains control over the entire matter even after the decree. Since the court retains control over the matter, despite the decree, it is open to the court to order rescission of the agreement, when it is found that the decree-holder is not ready and willing to abide by his obligations under the decree."

27. In the light of the aforesaid judgments of the Apex Court, it has to be held that the contract between the parties is not extinguished, upon passing of a decree and it subsists notwithstanding the decree. Passing of the decree does not abrogate or modify any of the express or implied terms of the contract. The parties to the contract continue to bear their rights and obligations to complete the contract in accordance with the terms and conditions of the contract. It does not confer an indefeasible right upon the decree-holder to get the property straightaway in his own name. The decree for specific performance of contract is in the nature of a preliminary decree and the Court passing the decree continues to retain its control over the entire matter and the suit is deemed to be pending, even after such a decree. Such decree is subject to the further process, upto the stage of execution of the sale-deed and its registration. The Court continues to monitor the further process and may either direct the execution of the sale-deed by the vendor or the execution of the sale-deed through the process of Court or even to refuse the execution of the sale-deed, if it is found that the decree-holder is not ready and willing to abide by his obligations, which are traceable either to the contract for sale or to the terms of such decree. In a given case, the Court may also order rescission of the agreement, to do equity. Thus, the grant of specific performance and its execution is an equitable relief and he who seeks equity can be put on the terms to ensure that the equity is done to the opposite party. Merely because a decree for specific performance is passed, it cannot be presumed that a decree-holder is bound to get the sale-deed executed in his favour.

28. Thus, a decree for specific performance passed on the basis of an agreement to sale or a contract for sale, merely recognizes a claim for specific performance of contract, which is capable of being specifically enforced at the instance of a decree-holder. It does not elevate the status of a decree-holder, subsisting prior to passing of such a decree, to that of the owner of the property in question. It does not create any right, title, interest in or charge on the immovable property in favour of a decree-holder. Even in respect of such a decree, the sale would be complete only upon the execution of the sale-deed in favour of the decree-holder either by the vendor/judgment-debtor or through the process of the Court. It is only upon the registration of such sale-deed upon payment of stamp duty under Item 20 of Schedule I of the Stamp Act, that any right, title and interest in such property shall validly pass on to the decree-holder, who is the purchaser of the suit property. Hence, mere passing a decree for specific performance of contract does not result in the transfer of property.

29. The argument based upon the provisions of Section 17(1)(b)(e) and Section 17(2)(v) of the Registration Act in respect of registration of a decree for specific performance of contract, is required to be dealt with. The said provisions, being relevant, are reproduced below :

"17. Documents of which registration is compulsory -

(1) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act XVI of 1964, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came or comes into force, namely,--

(b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property.

(c) non-testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest; and

(d) leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent;

(e) Non-testamentary instruments transferring or assigning any decree or order of a Court or any award when such decree or order or award purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property."

(2) Nothing in clauses (b) and (c) of sub-section (1) applies to-(v) any document other than the documents specified in sub-section(1-A) not itself creating, declaring, assigning, limiting or extinguishing any right, title or interest of the value of one hundred rupees and upwards to or in immovable property, but merely creating a right to obtain another document, which will, when executed, create, declare, assign, limit or extinguish any such right, title or interest.

(vi) any decree or order of a Court except a decree or order expressed to be made on a compromise and comprising immovable property other than that which is the subject-matter of the suit or proceeding."

Relying upon the provisions of Section 17(1)(b) and Section 17(1)(e) of the Registration Act, Shri Kshirsagar, Shri Gupta and Shri Naidu, the learned counsels appearing for the applicants in Special Darkhast No.118 of 1995 and the judgment-debtors, have urged that a decree for specific performance of contract is covered by Section 17(1)(e) of the Registration Act and the Deed at Exhibit 178 is covered by Section 17(1) (b) of the Registration Act.

30. Section 17(1)(e) deals with an assignment of a decree of a Court, when such decree purports or operates to create, declare, assign, limit or extinguish, whether in present or in future any right, title or interest, whether vested or contingent of the value of one hundred rupees and upwards, to or in immovable property. What is contemplated by this provision is that the decree passed itself, should purport or operate to create, declare, assign, limit or extinguish, whether in present or in future any right, title or interest, whether vested or contingent of the value of one hundred rupees and upwards, to or in immovable property. As pointed out earlier, the decree for specific performance of contract by itself, does not create right, title or interest in or charge on the immovable property in favour of a decreeholder. Hence, the provision of Section 17(1)(e) is not at all attracted. Though the Executing Court was right in holding that neither the decree nor the Deed at Exhibit 178 required registration, it committed an error in holding that the Deed at Exhibit 114 was required to be registered.

31. Relying upon the judgment of the Apex Court in Bhoop Singh v. Ram Singh Major and others, reported in AIR 1996 SC 196, it is urged that a compromise decree is held to be compulsorily registrable under the provisions of Section 17(2)(vi) of the Registration Act and by the same analogy a decree for specific performance of contract is also compulsorily registrable. The law laid down by the Apex Court is contained in paras 16 and 17 of the judgment, which are reproduced below :

"16. We have to view the reach of Clause (vi), which is an exception to sub-section (1), bearing all the aforesaid in mind. We would think that the exception engrafted is meant to cover that decree or order of a Court, including decree or order expressed to be made on a compromise, which declares the pre-existing right and does not by itself create new right, title or interest in praesenti in immovable property of the value of Rs.100/- or upwards. Any other view would find the mischief of avoidance of registration, which requires payment of stamp duty, embeded in the decree or order."

"17. It would, therefore, be the duty of the Court to examine in each case whether the parties have pre-existing right to the immovable property, or whether under the order or decree of the Court one party having right, title or interest therein agreed or suffered to extinguish the same and created right, title or interest in prasenti in immovable property of the value of Rs.100/- or upwards in favour of other party for the first time, either by compromise or pretended consent. If latter be the position, the document is compulsorily registrable."

The decision is on clause (vi) of Section 17(2) of the Registration Act, which deals with any decree or order of a Court, which is exempted from registration under clauses (b) and (c) of Section 17(1) of the said Act. It has been held that the exception engrafted therein is meant to cover that decree or order expressed to be made on compromise, which declares the pre-existing right and does not by itself create new right, title or interest in praesenti in immovable property of the value exceeding one hundred rupees. The Executing Court has recorded the finding that Hifzul Kabir was one of the plaintiffs and was having preexisting right in the decree. Assuming this finding to be correct, the exemption under clause (vi) of Section 17(2) of the said Act would apply. Be that as it may, a decree for specific performance of contract, as has already been held, neither extinguishes right, title or interest in the immovable property, nor creates right, title or interest in immovable property and hence it is not compulsorily registrable under clauses (b) and (c) of Section 17(1) of the said Act. Hence, the said judgment is of no help to the petitioners and the applicants.

32. The next judgment relied upon by the learned counsels for the petitioners and the applicants is reported in Raychand Jivaji v. Basappa Virappa Bellary, reported in AIR 1941 Bombay 71. It is urged that a decree creating charge over an immovable property of the value exceeding one hundred rupees, is required to be compulsorily registered under clause (e) of Section 17(1) of the Registration Act. It is a decision rendered by the Division Bench in Letters Patent Appeal concurring with the view taken by the learned Single Judge. The view taken by the learned Single Judge is also reported and the relevant portion is contained in column 1 of page 72, which is reproduced below :

" It is contended on behalf of the appellant that this view is wrong. Section 17(1)(e), Registration Act, provides that non-testamentary instrument transferring or assigning any decree or order of a Court or any award when such decree or order or award purports or operates to create, declare, assign, limit or extinguish, whether in present or in fuure, any right, title or interest whether vested or contingent, of the value of one hundred rupees and upwards to or in immovable property shall be registered. By the charge the property mentioned in the decree is made a security for the payment of the money to the decree-holder. Although by this charge no right in rem is created, nevertheless, the right created is something more than a mere personal obligation. It is a right to payment out of the property specified, and for the purposes of S.17(1)(e) there is, in my opinion, a very little difference between a charge and a simple mortgage. It was held in 1 Bom 267 that where a mortgagee obtained a decree against his mortgagor for the payment of the mortgage moneys and in default for the sale of the mortgaged property, and his heirs afterwards executed an assignment of the decree, for valuable consideration, to the plaintiff who proceeded to execute the decree by sale of the mortgaged property, the assignment was a document compulsorily registrable under the Registration Act. This view was followed in 11 Bom LR 356. A different view has been taken by the Calcutta and Allahabad High Courts in 23 Cal 450 and 13 ALL 89 in which it was held that such an assignment did not require registration on the ground that the assignment is not of any interest in immovable property but of the decree itself, and the decree, though it be a decree upon a mortgage bond, can in no sense be regarded as immovable property, and further on the ground that the assignment does not of itself create an interest in immovable property. Neither the Bombay ruling nor the Allahabad and Calcutta rulings are directly in point so far as the present appeal is concerned, since they relate to assignments of mortgage decrees and not to assignment of a decree creating a charge, but the principle of the Bombay decision applies, in my opinion, to the present case. The view taken by the Calcutta High Court in 23 Cal 450 that the deed of assignment does not in itself operate to create any right, title or interest and that all that it assigns is the decree, is clearly in conflict with the view which the Bombay High Court took in 1 Bom 267. The assignment of a decree which creates a charge on the property is, in my opinion, clearly an assignment coming with the purview of S.17(1)(e). There is nothing in the language of that section which can support the contention urged on behalf of the appellant, that only assignments of decrees which are simultaneous with the making of the decrees are covered by that section, and that where the decree had already created the interest long before the assignment was made, the assignment would not be governed by cl. (e). The language of the clause is wide enough to cover all decrees whether made prior to the assignment or simultaneously with the assignment. The view taken by the learned trial Judge is therefore, in my opinion, correct."

The Division Bench expressed its views in column 1 of page 74 as under :

" This provision by which transfers and assignments of decrees are made compulsorily registrable was added by an amending Act in 1929. There was formerly a conflict of authority as to whether an assignment of a decree creating or declaring rights to or in immovable property exceeding Rs.100 in value was compulsorily registrable under S.17(1) (b). The Calcutta and Allahabad High Courts said registration was not necessary because the assignment was not of any immovable property but of the decree itself and the assignment did not of itself create an interest in the property. This High Court took a different view in 1 Bom 267 and 11 Bom LR 356. But we are concerned not with S.17(1)(b) but with the new provision in S.17(1)(e), which I have just read, and it is now quite clear that all that has to be considered is whether the decree or order or award as the case may be creates or declares, etc., a right to or in immovable property of a value exceeding Rs.100. If it does, the assignment of it is compulsorily registrable. In 1 Bom 267 the facts were that a mortgagee had obtained a decree against his mortgagors

for the payment of the mortgage moneys and in default for the sale of the mortgaged property, and his heir executed an assignment of the decree to the plaintiff who proceeded to execute it by sale of the mortgaged property. It was held that the assignment was a document of which the registration was compulsory. No judgment appears to have been delivered by this Court which merely expressed concurrence in the decision of the lower Courts. But in the report a passage is cited from the judgment of the District Judge, which was the Court of first appeal.

The deed of sale, under which this decree was transferred from Damodar to Gopal, purported to assign to Gopal certain interest in immovable property; for it gave to him the liberty to sell by auction, by executing the decree against it, the defendant's house; and this liberty to sell was certainly an interest in immovable property and the decision of the Subordinate Judge was, I think, right, and must therefore be confirmed.

We must take it, I think, that this Court in dismissing the appeal concurred in this reasoning. It is a very old case, but it does not appear to have been dissented from, and on the contrary it was followed in 11 Bom LR 356, as I have said. Apart from these Bombay cases there are several other authorities for the view that a charge is a right to or in immovable property within the meaning of the Registration Act. One of these cases was cited by the learned counsel for the appellant himself, 28 ALL 655. In his judgment in that case Richards J., said (page 659) "

It would appear that the provisions as to registration contained in the Registration and Transfer of Property Acts apply to charges (when created by acts of parties) just as much as to mortgages In 58 Cal 136 it was held by Rankin C.J. That a mere charge on immovable property is within cl.(1)(b) of S.17, Registration Act, because, as he said, it is a right in immovable property - a right to have it brought to sale to realize a sum of money to be paid to the chargee. The decision in this case was reversed in 58 IA 323, but, on another point, unconnected with the question of registration. Then there is a very recent decision of the Calcutta High Court in 43 CWN 858, in which the Court was concerned with a decree for arrears of rent which created a charge on immovable property. It was held that because it created a charge it came within the terms of S.17, Registration Act. Mr. Desai referred us to 35 Cal 837, in which the question was whether a decree by which immovable property was hypothecated was void because there was no duly registered instrument as required by S.17. The Court disallowed the argument but that was done by reason of a provision which was then contained in the Act by which decrees were exempted from the rule as to compulsory registration of documents. We think there can be no doubt that N.J. Wadia J. was right in holding that this deed of assignment required registration."

It has been held that all that has to be considered is that whether the decree or order or award, as the case may be, creates or declares, etc., a right to or in immovable property of the value exceeding one hundred rupees. If it does, the assignment of it is compulsorily registrable. I have already taken a view that the decree for specific performance of contract does not by itself create right, title or interest in or charge on the immovable property and hence it is in conformity with the view expressed in the aforesaid judgment.

33. Shri Kshirsagar, the learned counsel, then relied upon the judgment of the Andhra Pradesh High Court in K. Bhaskaram and another v. Mohammad Moulana (Died) and others, reported in AIR 2005 AP 524. It is the decision rendered by the learned Single Judge. A suit for specific performance of contract was decreed by the Trial Court and was also confirmed in appeal. The execution petition was filed and it was signed by all the decree-holders. During the pendency of the proceedings, an application was filed under Order 21, Rules 15 and 16 of the Code of Civil Procedure to direct the judgment-debtors to execute and register the sale-deed relating to the suit schedule property in favour of the plaintiff No.4/decree-holder No.4. The question was whether the assignment of decree in respect of immovable property requires registration. The relevant observations are contained in paras 13 and 18 of the judgment, which are reproduced below :

"13. In the instant case, admittedly, the transfer of the decree by way of assignment by the decree-holder Nos.3 and 5 to 8 in favour of the decree-holder No.4 requires registration under Section 17 of the Registration Act. If the said decree was transferred by a registered instrument by the other decree-holders in favour of the decree holder No.4, then under the first proviso to Rule 16, Order 21, C.P.C., the decree-holder No.4 shall file an application giving a notice to the other decree-holders who have transferred their right of decree by way of assignment as well as the judgment-debtors-appellants herein. Admittedly, no such notice has been issued to the transferors as well as the judgment-debtors about the so-called assignment of the decree."

"18. ...In the instant case, it is the case of the decree-holder No.4 that he has got the assignment of decree in immovable property from other decree-holders and admittedly, such transfer of decree by way of assignment, transferring the right in respect of the immovable property, requires registration and therefore, the said judgment also supports the contention of the learned counsel appearing for the appellants-judgment-debtors."

It is thus apparent that the parties before the Court admitted the position that the transfer of decree by way of assignment requires registration. In fact, there is no adjudication whether the decree for specific performance of contract transfers any right, title and interest in the immovable property of the value exceeding one hundred rupees. The Court proceeds on the concession given on the point of law, which cannot be said to lay down any ratio. Even if it is the ratio of the judgment, I am unable to agree with it, for the reason that I have already taken a view that the assignment of a decree for specific performance of contract does not amount to transfer of property and hence the judgment will not help the learned counsel for the petitioners.

34. What is next contended is that if the decree does not create any such right, title or interest in an immovable property, then it is the Deed at Exhibit 178, which creates right, title or interest in an immovable property in favour of the assignee and the same is, therefore, covered by Section 17(1)(b), reproduced above. This argument also cannot be accepted. What has been conveyed by executing the Deed at Exhibit 178, is the claim for specific performance of contract in terms of the decree by the decree-holders/assignors in favour of the assignee. Clause 2(A) of this Deed at Exhibit 178 is reproduced below :

"(2) AND WHEREAS, the Ten Assignors abovenamed have agreed to assign the above decree in First Appeal No.790 of 1991 in favour of the Assignee for purposes of completing their part of the transaction by depositing in the Trial Court, the balance sale consideration of Rs.1,43,000/-. Consts of stamps and Registration Fees within the time stipulated by the decree for the reason that the Assignors are today not in a position even to collectively arrange the sum of Rs.1,30,000/- (Rupees One Lakh Thirty Thousands Only) representing their 10/11th share of the balance sale consideration besides an identical share of expenses to be deposited on account of costs of stamps and registration fees for effective compliance of the terms of the decree aforesaid within the time limited thereby - NOW THIS DEED WITNESSES :-

(A) That in pursuance of the above solemn agreement and in consideration of the assurance and undertaking by the Assignee to fulfill each and every obligation cast upon the Assignors by the Judgment and Decree aforesaid, the assignors/Party No.1 do hereby and hereunder transfer, assign and abdicate in favour of the Assignee all their rights, title, interest and benefits accruing to them under the decree Dt.26/04/1993 in First Appeal No.790 of 1991 of the High Court of Judicature at Bombay, Nagpur Bench, Nagpur and all benefits and advantages thereof including the right to execute the same in any manner prescribed by law to have the same executed by the Assignee and for his benefit absolutely."

All the plaintiffs are the parties to the Deed of Assignment at Exhibit 178. Out of 11 plaintiffs, 10 plaintiffs are the assignors and one plaintiff, viz. Hifzul Kabir, is the assignee. It is the decree for specific performance of contract for sale dated 10-2-1982 in respect of an immovable property of the value more than one hundred rupees passed in Special Civil Suit No.263 of 1985 on 26-4-1993, which has been assigned by the Deed at Exhibit 178. If the decree itself does not create or purport to create any right, title or interest in or charge on the immovable property, then the question of conveying such right, title or interest in or charge on the immovable property by executing the deed of assignment, does not arise. Hence the provision of Section 17(1)(b) of the Registration Act is also not attracted.

35. Shri Sharif, the learned counsel appearing for the respondent Hifzul Kabir, has urged that the Deed at Exhibit 178 is covered by Section 17(2)(v) of the Registration Act, as it creates a right to obtain another document, which will, when executed, create, declare, assign, limit or extinguish any such right, title or interest. He has relied upon the decision of the learned Single judge of this Court in Padma Nair v. Deputy Collector, Valuation and Stamp Duty and another, reported in 1994 Mh.L.J. 497. The question involved therein was whether the document in question was an agreement for sale of immovable property or it is a conveyance of immovable property. It was held that the document was an agreement to sale, which does not by itself create any interest in or charge on such property. It has been held that an agreement for sale is merely a document creating a right to obtain another document of sale on fulfillment of the terms and conditions specified therein. According to Shri Sharif, the decree for specific performance of contract has been passed on the basis of an agreement to sale dated 10-2-1982, which gives the plaintiffs/decree-holders a right to obtain another document, i.e. the sale-deed. He, therefore, submits that if this is the decree passed, then the Deed at Exhibit 178 gives a right to obtain another document, i.e. the sale-deed, pursuant to the decree for specific performance passed by the Court. Since the argument is based upon the decision of this Court and the correctness of the said decision has not been challenged, I am neither required to express any opinion on it, nor am I expressing opinion on it, in view of what I have already held.

36. Now coming to the question as to whether the assignment of a decree for specific performance of contract amounts to transfer of an actionable claim, the definition of "actionable claim" given in Section 3 of the Transfer of Property Act needs to be seen. The same is, therefore, reproduced below :

" "actionable claim" means a claim to any debt, other than a debt secured by mortgage of immovable property or by hypothecation or pledge of movable property, or to any beneficial interest in movable property not in the possession, either actual or constructive, of the claimant, which the Civil Courts recognise as affording grounds for relief, whether such debt or beneficial interest be existent, accruing, conditional or contingent."

The "actionable claim" has been defined to mean (1) a claim to any debt, other than a debt secured by mortgage of immovable property or by hypothecation or pledge of movable property, or (2) a claim to any beneficial interest in movable property not in possession, actual or constructive, of the claimant, which the Civil Courts recognise as affording grounds for relief, whether such debt or beneficial interest be existent, accruing, conditional or contingent.

37. In this respect, the judgment in Shah Mulji Deoji v. Union of India, representing E.I. Rly., Administration and G.I.P. Rly. Administration, reported in AIR 1957 Nagpur 31, needs to be seen. It was a case of a difference of opinion between the two Hon'ble Judges of this Court, which was referred to a third Judge. The relevant observations in the said judgment, contained in para 90 thereof, are reproduced below :

"... This Chapter was remodelled and the sections were rearranged and modified by Act II of 1900. The definition of "actionable claim" contained in S. 130 was transferred to S. 3 which runs as follows :--

'"Actionable claim' means a claim to any debt, other than a debt secured by mortgage of immoveable property or by hypothecation or pledge of moveable property, or to any beneficial interest in moveable property not in the possession, either actual or constructive of the claimant, which the Civil Courts recognize as affording grounds for relief, whether such debt or beneficial interest be existent, accruing, conditional or contingent."

Actionable claim thus under this definition included claims recognized by Civil Courts as affording grounds for relief either,

(a) as to unsecured debts, or

(b) as to beneficial interests in moveable property not in possession, actual or constructive, whether present or future, conditional or contingent.

It cannot be disputed that the rights under a contract are beneficial interest in moveable properties. They are certainly not things in possession and a right to the benefit of an obligation under a contract can only be and are enforced by an action at law. Right to benefit of a contract therefore falls within the definition of "actionable claim"."

Section 130 of the Transfer of Property Act deals with the mode of transfer of an actionable claim. The same has also been considered in the said judgment and the relevant portion is contained in para 93 thereof, which is reproduced below

" Section 130 of the Transfer of Property Act describes the mode of assignment of an actionable claim. It will be seen that the provisions of this section differ in certain respects from the provisions of the English law regarding statutory assignments under the Judicature Act of 1873 or the Law of Property Act of 1925. The assignment under S. 130 of the Transfer of Property Act need not be absolute; the assignment can be by way of security also. See Mulraj Khatau v. Vishwanath, ILR 37 Bom 198 (PC) (Z43).

No consideration is required for the assignment. The assignment is to be effected by execution of an instrument in writing signed by the transferor or his authorized agent and is complete and effectual upon the execution of such an instrument. No notice to the debtor is required to complete the assignment.

The assignee gets all the rights and remedies of the assignor, whether by way of damages or otherwise. The assignee can sue in his own name. It is not necessary for him to join the transferor as a party to the suit nor to obtain his consent to such a suit. The proviso is intended only for the protection of the debtor who, without the knowledge of the assignment, discharges his obligation to the original creditor. Such a discharge of obligation without notice is a valid discharge as against the assignee."

A decree for specific performance of contract in respect of immovable property is in the nature of a debt, which is a movable property. It is a "chose in action", providing not a right to ownership of corporeal property, but it is the beneficial interest to obtain right to ownership of incorporeal property. Black's Law Dictionary defines it "as a known legal expression used to describe all personal property, which can be claimed or enforced by action and not by taking physical possession. It includes rights under a contract and rights of action arising from breach of contract." It creates beneficial interest in the movable property which can be enforced by action of law. A claimant is entitled to knock the door of the Court and the Court would recognize the claim for granting relief. It is heritable and assignable by executing a deed of conveyance. It is not a right to sue but something more than that and something less than the right of ownership of immovable property. It does not require any consideration, which is apparent from the provisions of Section 130 of the Transfer of Property Act itself. Apart from that, the judgment reproduced above also holds that no consideration is required for assignment. The assignment is to be effected by executing an instrument in writing signed by the transferee or his authorized agent and it is complete and effectual upon the execution of such an instrument.

38. A deed of assignment is a contract between the parties.

Take a case where an unregistered deed of assignment of a decree for specific performance of contract for sale is executed upon certain terms and conditions. The assignor subsequently detracts from the terms of such deed either by filing separate proceedings for execution of such decree or by opposing the claim of the assignee to get such decree executed in his favour on the basis of such deed. In such situation, the only remedy available to the assignee is to ask for specific performance of the deed of assignment and such a claim is enforceable by filing a suit, in terms of the proviso to Section 49 of the Registration Act against the assignor, even though the deed of assignment is not registered. Thus, a deed of assignment of a decree for specific performance of contract, merely gives a cause of action to a claim for specific performance of contract of assignment and nothing more. The Deed at Exhibit 178 conforms to all such requirements and hence it can be characterised as the transfer of an actionable claim and the absence of evidence regarding consideration cannot be a ground to hold that the deed of conveyance is not enforceable. The argument of the learned counsels appearing for the petitioners and the applicants that the deed of conveyance is liable to be declared as void for want of consideration, is, therefore, rejected and it is held that no consideration is required to be shown to transfer/assignment of a decree for specific performance of contract, which is an actionable claim.

39. The next question is whether the respondent Hifzul Kabir is entitled to seek specific performance of contract on the basis of the Deed at Exhibit 178. It is not in dispute that he was one of the plaintiffs, in whose favour a decree has been passed. By this Deed at Exhibit 178, all the ten plaintiffs have assigned the rights under the decree in favour of the respondent Hifzul Kabir. Under Section 15(b) of the Specific Relief Act, the specific performance of a contract may be obtained by the representative-in-interest or the principal, of any party thereto. The Apex Court has in its judgment in Shyam Singh v. Daryao Singh (dead) by L.Rs. and others, reported in AIR 2004 SC 348, has held that the expression "any party thereto" or "their representative-in-interest" includes transferees and assignees from contracting party in whose favour a right exists. It has been held that the implied prohibition against assignment of a transfer of a right cannot be inferred unless words or expression in the document clearly indicate such prohibition. In the document, which deed at Exhibit 178, there is no such prohibition and, therefore, the assignee being representative-in-interest, as defined in Section 15(b) of the Specific Relief Act, is entitled to seek the enforcement of a decree under order 21, Rule 16 of the Civil Procedure Code. Hence, the respondent Hifzul Kabir has right to seek the enforcement of contract by filing the execution proceedings.

40.On the question of execution of sale-deed dated 17-11-1995 at Exhibit 217 by the judgment-debtors in favour of assignees in the Deed at Exhibit 114, the Executing Court has recorded the finding that the same is hit by the doctrine of lis pendens. The undisputed factual position is that the notice under Section 52(2) of the Transfer of Property Act read with Section 18 of the Registration Act about pendency of Special Civil Suit No.263 of 1985 was issued on 22-12-1986 (Exhibit 176). Similarly, the public notice in newspaper was also given on 6-10-1991 (Exhibit 177). On both these dates, Special Civil Suit No.263 of 1985 was pending. When the sale-deed dated 17-11-1995 at Exhibit 217 was executed, Special Darkhast Nos.118 and 156 of 1995 were pending. I have already taken a view that the proceedings of Special Civil Suit No.263 of 1985 continue to remain pending even after passing of a preliminary decree for specific performance of contract. Any alienation of the suit property pending the decision of the suit was obviously hit by the provisions of Section 52 of the Transfer of Property Act and hence it was not necessary for the plaintiff Hifzul Kabir to file a fresh civil suit for getting a declaration that the sale-deed dated 17-111995 at Exhibit 217 be set aside or cancelled or that it is not binding upon him. In this respect, para 42 of the judgment of the Apex Court in Durga Prasad and another v. Deep Chand and others, reported in AIR 1954 SC 75, is relevant and the same is reproduced below :

" In our opinion, the proper form of decree is to direct specific performance of the contract between the vendor and the plaintiff and direct the subsequent transferee to join in the conveyance so as to pass on the title which resides in him to the plaintiff. He does not join in any special covenants made between the plaintiff and his vendor; all he does is to pass on his title to the plaintiff. This was the course followed by the Calcutta High Court in - Kafiladdin v. Samiraddin', A.I.R. 1931 Cal 67 (C) and appears to be the English practice. See Fry on Specific Performance, 6th Edn. Page 90, paragraph 207; also - 'Potter v. Sanders', (1846) 67 ER 1057 (D). We direct accordingly."

In view of above, it has to be held that the transferee of the property during the pendency of the proceedings for execution of a decree for specific performance of contract, can be directed to join the execution and registration of sale-deed in respect of the property, which is the subject matter of execution and it is not necessary for the decree-holder or his assignee to file a separate suit for challenging such sale-deed. The purchaser of the property in the registered sale-deed at Exhibit 217 being the subsequent transferee, can be directed by the Executing Court in Special Darkhast No.156 of 1995 to join the execution and the registration of the sale-deed. The argument that the doctrine of lis pendens does not apply to the proceedings of execution of a decree passed in the suit for specific performance of contract, is, therefore, rejected.

41.The question is whether by executing the sale-deed at Exhibit 217 the judgment-debtors can intervene or defeat the right of assignee in the Deed at Exhibit 178 by making adjustment with the other decree-holders. The Supreme Court, in its judgment in Dhani Ram Gupta and others v. Lata Sri Ram and another, reported in AIR 1980 SC 157, has dealt with this aspect of the matter. The Supreme Court has confirmed the view taken by the Calcutta High Court reported in (1899) ILR 26 Cat 250. The relevant quotation from the judgment of the Calcutta High Court, as it appears in para 4 of the judgment of the Apex Court, is reproduced below :

" "...If, however, there is an assignment pending proceedings in execution taken by the decree-holder, I see nothing in the Code which debars the Code from recognising the transferee as the person to go on with the execution. The recognition of the Court is no doubt necessary before he can execute the decree, but it is the written assignment and not the recognition which makes him the transferee in taw. The omission of the transferee, if it was an omission, to make a format apptication for execution, was merety an error of

procedure and does not affect the merits of the case It is argued for the respondent that the transferee's title was not comptete as express notice of the transfer had not been given to the judgment-debtor. As already observed, the transfer, as between transferor and the transferee, is affected by the written assignment. If the judgment-debtor had no notice of the transfer and being otherwise unaware of it paid the money to the decree-holder, the payment was, of course, a good payment, and he cannot again be held liable to the transferee" ..."

The Supreme Court has clearly expressed its agreement with the aforesaid observations made by the Calcutta High Court. In view of this, it has to be held that if there is an assignment pending proceeding in execution, taken by the decree-holder, there is nothing in the code, which debars the code from recognising the transferee as the person to go on with execution. The judgment-debtor cannot defeat the right of assignee, by making adjustment with other decree-holders. The transfer of property by executing the sale-deed at Exhibit 217 in this case was made during the pendency of the execution proceedings, of which the judgment-debtor had the notice. Hence, any such adjustment out of Court cannot defeat the right of the assignee in the Deed at Exhibit 178.

42.Now, lastly coming to the question of plea of waiver, Shri Sharif, the learned counsel, has relied upon the judgment of the Supreme Court in M/s. Motilal Padampat Sugar Mills Co. Ltd. v. The State of Uttar Pradesh and others, reported in AIR 1979 SC 621. In para 5 of the said judgment, the Supreme Court has held that in the first place, it is elementary that waiver is a question of fact and it must be properly pleaded and proved. No plea of waiver can be allowed to be raised unless it is pleaded and the factual foundation for it, is laid down in the pleadings. In para 6 of the said judgment, it has been held that waiver means the abandonment of right and it may be either express or implied from the conduct, but its basic requirement is that it must be "an intentional act with knowledge". There can be no waiver unless the person, who is said to have waived, is fully informed as to his right and with full knowledge of such right, he intentionally abandons it. For a waiver to be effectual, it is essential that the person granting it should be fully informed as to his rights. In another judgment of the Supreme Court in Provash Chandra Dalui and another v. Biswanath Banerjee and another, reported in AIR 1989 SC 1834, a distinction has been made between the waiver and estoppel, and para 21 of the said judgment being relevant, the same is, therefore, reproduced below :

" The essential element of waiver is that there must be a voluntary and intentional relinquishment of a known right or such conduct as warrants the inference of the relinquishment of such right. It means the forsaking the assertion of a right at the proper opportunity. The first respondent filed suit at the proper opportunity after the land was transferred to him, and no covenant to treat the appellants as Thika tenants could be shown to have run with the land. Waiver is distinct from estoppel in that in waiver the essential element is actual intent to abandon or surrender right, while in estoppel such intent is immaterial. The necessary condition is the detriment of the other party by the conduct of the one estopped. An estoppel may result though the party estopped did not intend to lose any existing right. Thus voluntary choice is the essence of waiver for which there must have existed an opportunity for a choice between the relinquishment and the conferment of the right in question. Nothing of the kind could be proved in this case to estopp the first respondent."

43.The plaintiff Hifzul Kabir filed an application Exhibit 66 in the Trial Court for permission to withdraw the amount of Rs.7,63,000/-deposited by him. The contents of the said application are reproduced below :

"Application for permission to withdraw the amount of Rs.7,63,000/- deposited by Decree Holder Hifzul Kabir.

The decree-holder Hifzul kabir begs to state and apply as under:-

1.That it is a matter of record that the decree holder Hifzul Kabir had deposited the following amounts in the CCD of this Hon'ble Court :-

Rs.1,43,000.00 - CCD No.324 of 7.6.1993

Rs.2,00,000.00 - CCD No.286 of 8.5.1995

Rs.3,20,000.00 - CCD No.287 of 8.5.1995 Rs.1,00,000.00 - CCD No.288 of 8.5.1995

Rs.7,63,000.00 - Total

2. The proceedings in the above execution application are inordinately delayed in view of the fact that some strangers by playing fraud commenced execution proceedings in their name styling themselves as decree holders, being S.D. No.118 of 1995 in another Court. At any rate both the proceeding are now before one and the same court.

3. The amount deposited by the decree holder Hifzul Kabir is his personal amount deposited by him in CCD and the huge amount is lying in deposit without interest. Since the present execution proceeding shall take quite sometime for being finally disposed of, it is necessary in the interests of justice as also expedient in the facts and circumstances of the case to permit the decree holder Hifzul Kabir and the said amount be paid to him by means of a cheque in his name. The decree holder shall deposit whatever amount that may be directed by this Honble Court upon the conclusion of the present execution proceedings, so that he could utilize the said amount in his other businesses.

Prayer: It is, therefore, humbly and respectfully prayed that the said amount of Rs.7,63,000/- be refunded to the decree holder Hifzul Kabir, in the interest of justice.

Decree holder

Nagpur

11th August 1997

Counsel for D.Hrs."

The aforesaid contents were not denied. The Trial Court passed an order below Exhibit 66 on 23-9-1997 as under :

"Read the application and reply by main contesting parties J.Dr.(a) to J.Dr.(d). Heard arguments. Shri Jain, the learned counsel for main objector has no objection to withdraw the amount. The entire amount is deposited by D.Hr. Hifzul Kabir. Matter is not likely to be decided in near future and hence, I allow D.H. Hifzul Kabir to withdraw Rs.7,63,000/-. This withdrawal of amount shall be on his risk. In view of the order of Hon'ble Supreme Court, Nazir to comply."

Subsequently Hifzul Kabir filed an application Exhibit 105 on 27-3-2001 for grant of permission to deposit the said amount. The Executing Court passed an order on 6-2-2009 holding that it is just and desirable to permit the applicant to redeposit the amount without prejudice to the rights of the non-applicants, if any, in the background of the case. It is not disputed that the entire amount was deposited by Hifzul Kabir within the time stipulated in the decree passed by this Court and the order passed by the Apex Court on 22-3-1995. The withdrawal of the amount was not with an intention to waive his rights, which is apparent from the contents of the application itself and there was always readiness and willingness on his part to redeposit the said amount. There is neither any pleading nor any evidence to establish that there was waiver on the part of the plaintiff Hifzul Kabir while withdrawing the amount. Hence, the contention raised is, therefore, rejected.

44. For the reasons stated above, Writ Petition Nos.113 of 2010, 1691 of 2010 and Civil Revision Application No.76 of 2009 are all dismissed. Rule is discharged. No order as to costs.

45. At this stage, Shri Gupta, the learned counsel appearing for the applicants in Civil Revision Application No.76 of 2009, prays for continuation of interim order passed by this Court for a further period of two months so as to enable the applicants to prosecute their further remedies as are available in law.

46. Shri Sharif, the learned counsel appearing for the respondent No.5 in Writ Petition No.113 of 2010 and respondent No.18 in Civil Revision Application No.76 of 2009, opposes the prayer and submits that the matter has been pending since long.

47. In view of the fact that the interim order is operating till this date, the same shall continue for a further period of four weeks, after expiry of the said period, it shall stand automatically vacated without reference to the Court.

Court	Mumbai Nagpur High Court
Decided On	Jan-06-2011
Case Number	Writ Petition No.113 of 2010, Writ Petition No.1691 of 2010 And Civil Revision Application No.76 of 2009
Judge	R.K. Deshpande, J.
Appellant	Amol S/O Late Bhalchandra Joshi and ors.
Respondent	Deorao S/O Santoshrao Bhongade and ors.
Appellant Advocate	Shri S.P. Kshirsagar And Ors.
Respondent Advocate	M.B. Naidu And Ors.
Cases Referred	Motilal Padampat Sugar Mills Co. Ltd. v. The State of Uttar Pradesh and

Amol S/O Late Bhalchandra Joshi and ors. Vs. Deorao S/O Santoshrao Bhongade and ors. - Court Judgment