Rehan Ahmed (D) Thr. Lrs. vs Akhtar Un Nisa(D) Thr. Lrs

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. OF 2024 (Arising out of SLP (Civil) No.18772 of 2014)

REHAN AHMED (D) THR. LRS. …APPELLANTS

VERSUS

AKHTAR UN NISA (D) THR.LRS. …RESPONDENTS

JUDGMENT

VIKRAM NATH, J.

Leave granted.

2. This appeal, by the Decree Holder, assails the

correctness of the judgment and order dated

21.03.2014 passed by the Rajasthan High Court,

Jaipur Bench at Jaipur in S.B. Civil Revision Petition

Signature Not Verified No.95/2007, Smt. Akhtar Un Nisa vs. Rehan Ahmed, Digitally signed by Neetu Khajuria Date: 2024.04.22 18:33:25 IST Reason: whereby the revision filed under Section 115 of the

SLP(CIVIL) NO. 18772 OF 2014 Page 1 of 22 Code of Civil Procedure, 19081 challenging the order of

the Executing Court dated 03.05.2007 rejecting the

objections under Section 47 CPC, has been allowed. The

order impugned therein passed by the Executing Court

was set aside and it was held that the decree dated

09.05.1979 passed by the Trial Court in Suit No.13/72

was inexecutable and a nullity and accordingly, the

objections under Section 47 CPC, were allowed.

3. The factual matrix giving rise to the present appeal is

as follows:

3.1. The dispute relates to property being Municipal Nos.52-

57, Maniharon Ka Rasta, Jaipur which was originally

owned by Ghulam Mohiuddin (Defendant No.1). An

agreement to Sell dated 04.10.1967 was executed for

sale of the suit property by Saeeduddin – Defendant

No.2 (brother of Defendant No.1) and also the power of

1 CPC SLP(CIVIL) NO. 18772 OF 2014 Page 2 of 22 attorney of Defendant No.1, for himself and for the

principal Defendant No.1.

3.2. Pursuant to the aforesaid agreement to sell, as the

vendor was not executing the sale deed, the appellant

(plaintiff) instituted a Civil Suit for specific performance

registered as Suit No.13/72 impleading Ghulam

Mohiuddin as Defendant no.1 and Saeeduddin as

Defendant No.2. During the pendency of the Suit, the

parties entered into a compromise dated 11.05.1978

and presented the same before the Trial Court, a copy

of which is filed as Annexure P-4. The terms of the

Compromise Deed are briefly set out below:

“ANNEXURE P-4

IN THE COURT OF ADDL. DIST. JUDGE, CLASS-1, JAIPUR CITY, JAIPUR

IN THE MATTER OF:

Rehan Ahmad S/o. Sh. Sultan Ahmad, aged about 22 years, Caste Muslim, R/o. Chaukadi Modikhana, Rasta, Maniharan, H. No. 57, Jaipur-3

... Plaintiff

SLP(CIVIL) NO. 18772 OF 2014 Page 3 of 22 VERSUS

1. Gulam Mohiuddin Khan, aged about 58 years S/o.

Sh. Badiuddin Khan, Caste Muslimn, R/o. Mohalla Kamnagran, Badayun (U.P)

2. Saiduddin Khan aged about 52 years S/o. Sh.

Badiuddin Khan, Caste Muslim, R/o. House of Abdulramham Khan, Gali Aatishbazi Rampur (U.P)

...Defendants

3. Ahsan Ahmad S/o. Sh. Sultan Ahmad aged about 32 years, Caste Muslim, R/o. Chaukadi Modikhana, Rasta Maniharan, H.No. 57, Jaipur-3

...Pro forma Defendant

Suit for specific performance of the contract regarding house and shop situated at Modikhana, Rasta Maniharan, Jaipur 000

Most respectfully showeth:

In the above civil suit, a compromise has been arrived at between the parties on under mentioned conditions, therefore, the suit may be decreed as per the compromise.

1. That, plaintiff and defendant No.3 executed an agreement for sale with the real brother and general power of attorney of Def. No.2 named Saiduddin Khan on 4.10.1967 in writing in respect to houses and shops No. 52 to 57, situated at Circle No.1, Chaukadi Modikhana, Jaipur, whose full description is given under, for a sale consideration of Rs.40,000/- in his own capacity and in the capacity of general power of attorney of Def. No.l, which was not accepted earlier by the defendant No.1 and 2, but now the

SLP(CIVIL) NO. 18772 OF 2014 Page 4 of 22 Def. No.1 admits that agreement for sale was executed on 4.10.1967 on behalf of Def. No.2 in his own capacity and on behalf and consent of Def. No.1.

2. That, Def. No.l also admits that a sum of Rs.

10,000/- out of entire agreed sale consideration was received in respect to the disputed property on 4.10.1967 and a sum of Rs.1,000/- was received on 1.1.69 and Rs.500/- on 22.1.69 i.e. a total of Rs.11,500/- was received by def. No. 2 on behalf of Def No. 1 which is liable to be adjusted from the total consideration of the property, but the plaintiff and defendant No.3 have alleged to spent Rs.6,500/- in the repairing of house etc, which amount shall not be adjusted from the sale consideration because all these repairing and construction was done after the above agreement by the plaintiff and Def. No.3. besides this, the Def. No.1 has received Rs. 1500/- on 17.10.88, and Rs.1000/- on 24.10.77 and Rs.1000/- on 11.11.77 from the plaintiff towards the cost of this property.

3. That, the Def. No.1 shall get executed and registered sale-deed of the above described houses and shops in favor of plaintiff Rehan Ahmad till 1.7.1978 and shall receive remaining sale consideration amount of Rs.25,000/ -. If the Def. No. 1 fails to execute sale deed in this period then the plaintiff Rehan Ahmad shall be entitled to get the sale-deed executed and registered in his favor through the Court. Entire cost of registry would be borne equally by the plaintiff Rehan Ahmad and Def. No.1 Gulam Mohiuddin. In this respect when the Def. No.1 will ask for half cost for this from the plaintiff Rehan Ahmed then the plaintiff Rehan Ahmad shall pay the same taking receipt from him and because of this the Def. No.1 shall not be entitled to get the period agreed for registry extended. The def. No.1 has received

SLP(CIVIL) NO. 18772 OF 2014 Page 5 of 22 today the half cost of registry i.e. Rs.1,000/- from the plaintiff Rehan Ahmad. Complete responsibility to receive N.O.C. shall be of the Def. No.l.

4. That, Def. No.2 is residing in the third floor of disputed property which would be got vacated by defendant No.1 and the physical possession will be given to the plaintiff Rehan Ahmed prior to registration, and shall get the rent notes executed by the tenants who are presently occupying the disputed property in favour of Rehan Ahmed.

5. That, pro forma defendant No.3 has relinquished his entire right in respect to the disputed property in favor of plaintiff Rehan Ahmad on 28.6.1977 through a deed of Relinquishment, which was. ordered by the court on 28.09.1977. Therefore, pro forma defendant no.3 shall have no connection now with this sale.

6. That, the. def. No.2 Saiduddin Khan, himself has admitted that he did not have right to sell or to execute agreement for sale of the disputed property, but now, the defendant No.1, who is the real owner of this disputed property, admits this agreement, therefore, now there is no hindrance in passing decree.

7. That, cost of this suit shall be borne by the parties respectively.

DESCRIPTION OF PROPERTY

Pucca House comprising of three storeys and One chauk including entire internal houses of three storevs and five shops outside, out of which two shops are situated towards south of Sadar Darwaja and three shops are situated towards north of Sadar Darwaja along with staircase adjoining the shops towards the north on which Municipal No, written on the pole of House is 54/1 and

SLP(CIVIL) NO. 18772 OF 2014 Page 6 of 22 Municipal Number of shops situated towards south are 52 and 53 and Municipal Number of shops situated towards north are 55, 56 and 57, Circle 1 and no number is assigned to the staircase i.e. entire property including house and shops having municipal number 52 to 57, Circle No.1 and boundaries of these houses and shops are as under:

In East: Rasta Maniharan Government.

In west: House of Sindhi in between which littered Government street is situated.

In north: Temple of Digambar Jain

In south: House and shops of Tirthdas Shyamiani.

Therefore, it is prayed that compromise be verified and decree be passed in accordance with the compromise.

Applicants

Rehan Ahmad, Plaintiff

Rehan (in English)

Gulam Mohiuddin Khan, Def. No.1

sd.Ghulam mohiuddin khan (in English)

Both Parties Jaipur:

Date: 11.5.78”

4. In paragraph No.1 of the Compromise Deed, it is

mentioned that Defendant No.1, although had earlier

SLP(CIVIL) NO. 18772 OF 2014 Page 7 of 22 not accepted the Agreement to Sell, now admits that the

Agreement to Sell dated 04.10.1967 was executed by

Saeeduddin–Defendant No.2, not only in his own

capacity but also on behalf of Defendant No.1 as Power

of Attorney holder. Paragraph No.2 mentions the details

of the amount received by the Defendant under the

Agreement to Sell as advance until the time the

compromise was arrived at. It would be relevant to

mention that the total sale consideration was

Rs.40,000/- out of which as per paragraph No.2 of the

Compromise Deed, Rs.15,000/- had already been

received by the Defendants. Paragraph No.3 mentions

that the Defendant No.1 will get the Sale Deed executed

and registered in favour of the Plaintiff till 01.07.1978

after receiving Rs.25,000/- of the remaining sale

consideration. It, however, mentioned that if the

Defendant No.1 does not execute the Sale Deed till

01.07.1978, the Plaintiff would be entitled to get the

SLP(CIVIL) NO. 18772 OF 2014 Page 8 of 22 Sale Deed executed and registered in his favour through

the Court. The cost of registration would be borne

equally by the Plaintiff and Defendant No.1. It was

further mentioned that Defendant No.1 had also

received half of the cost of registration from the Plaintiff

and furthermore, the responsibility to receive the NOC

would be of Defendant No.1. Paragraph No.4 mentions

that Saeeduddin–Defendant No.2 was residing on the

third floor of the suit property which Defendant No.1-

Ghulam Mohiuddin would get vacated and ensure that

physical possession is delivered to the Plaintiff-Rehan

Ahmed prior to registration. Further, the rent notes

executed by the tenants who are presently occupying

the suit property, would be executed by the tenants in

favour of Rehan Ahmed. One Ahsan Ahmed has been

impleaded as proforma defendant in respect of whom it

was stated in paragraph No.5 of the Compromise Deed

that he had relinquished his entire right to the property

SLP(CIVIL) NO. 18772 OF 2014 Page 9 of 22 in favour of the Plaintiff–Rehan Ahmed through a Deed

of Relinquishment dated 28.06.1977 which was

accepted by the Court vide order dated 28.09.1977. In

paragraph No.6 it was stated that Defendant No.2-

Saeeduddin admitted that he did not have the right to

sell or execute the Agreement to Sell but now Defendant

No.1, who was the real owner of the suit property,

admits this agreement. Therefore, there is no hindrance

in passing the compromise decree. The property was

also described in the Compromise Deed to be a pacca

house comprising of three stories and one chauk

including the entire internal houses of the three storeys

and five shops outside along with the staircase

adjoining the shops. The house was numbered as 54/1

in the municipal records, whereas the five shops were

numbered as 52, 53, 55, 56 and 57. Thus the entire

property in question including the house of the five

SLP(CIVIL) NO. 18772 OF 2014 Page 10 of 22 shops having municipal numbers 52 to 57 (except 54),

Circle No.1.

5. The Addl.District & Sessions Judge, Court No.1, Jaipur

City, Jaipur proceeded with the compromise and

required the same to be duly verified for which due time

was granted to the parties. On 09.05.1979, initially the

suit was dismissed in the absence of the Plaintiff.

However, on the same date, upon an application being

filed, the case was again taken up on board. The Trial

Court recorded that Rehan Ahmed and that Mohiuddin

(Defendant No.1) had executed the compromise. The

Plaintiff (Rehan Ahmed) further stated that he does not

want to pursue any proceedings against Saeeduddin

and also Ahsan Ahmed-Defendant Nos.2 and 3, as such

the suit was dismissed against Saeeduddin and Ahsan

Ahmed. It was decreed against Ghulam Mohiuddin as

per the compromise. Accordingly, a decree was drawn.

As per the decree, when the defendant did not execute

SLP(CIVIL) NO. 18772 OF 2014 Page 11 of 22 the Sale Deed, the Plaintiff -Decree holder initiated the

proceedings for execution. In the execution proceedings

Defendant No.1 Ghulam Mohiuddin filed objections

stating that the Plaintiff had not paid the balance sale

consideration, and had allowed substantial time to pass

for about six to seven years, during which time the

value of the property had doubled and as such the

decree could not be executed now on account of the

default of the Plaintiff-Decree holder. These objections

were dismissed by the Executing Court by a detailed

order dated 09.12.1998 on the findings that before the

registration of the Sale Deed, Defendant No.1 was

required to fulfil his obligations which included getting

the third floor vacated, getting the NOC and also getting

the rent deeds transferred in the name of the Plaintiff.

As such there was no default on the part of the Plaintiff.

In the meantime, the Defendant No.1 Mohiuddin died.

The order dated 09.12.1998 was challenged by one

SLP(CIVIL) NO. 18772 OF 2014 Page 12 of 22 General Tariq, s/o. Defendant No.2- Saeeduddin and

legal heir of Defendant No.1 Gulam Mohiuddin,

claiming rights under a sale executed by Defendant

No.1 Mohiuddin by way of S.B.Civil Revision Petition

No.55 of 1999. The said revision came to be dismissed

by the High Court vide order dated 02.06.2006. General

Tariq preferred a Special Leave Petition before this

Court registered as S.L.P.(C) No.12463 of 2006, which

came to be dismissed by this Court vide order dated

11.08.2006. With the dismissal of the Special Leave

Petition the innings of the objections under Section 47

CPC filed by the Judgment-debtor – Defendant No.1

Mohiuddin came to an end. General Tariq, s/o.

Defendant no.2- Saeeduddin did not carry the matter

any further by way of review or otherwise before this

court. However, a new round of objections under

Section 47 CPC came to be initiated by respondent no.1

– Akhtar Un Nisa, wife of Defendant No.2-Saeeduddin

SLP(CIVIL) NO. 18772 OF 2014 Page 13 of 22 and the mother of General Tariq. The objections by

respondent No.1 Akhtar Un Nisa are to the following

effect:

I. The decree dated 09.05.1979 is without

jurisdiction and a nullity;

II. The property in the suit was a joint property of

Ghulam Mohiuddin and Saeeduddin–

Defendants No. 1 and 2 respectively;

III. The suit having been filed as against both the

brothers, the compromise deed could not have

been arrived at between the Plaintiff and

Defendant No.1 alone;

IV. The Trial Court could not have accepted the

settlement/compromise between the Plaintiff

and Defendant No.1 regarding Defendant No.2

vacating the third story of the house in question

and the rent notes being transferred in favour

of the plaintiff.

SLP(CIVIL) NO. 18772 OF 2014 Page 14 of 22 V. Since there was no decree against Saeeduddin,

as such Decree holder could not have any right

of getting possession of the portion of the

property which was admittedly in possession of

Saeeduddin and owner. Further, the tenants of

Saeeduddin in the disputed property were

tenants of the applicant-objector Akhtar Un

Nisa-respondent no.1.

6. The Executing Court, vide judgment and order dated

03.05.2007, dismissed the objections under Section 47

CPC filed by Smt.Akhtar Un Nisa.

7. Aggrieved by the same, Smt.Akhtar Un Nisa preferred a

revision before the High Court which has since been

allowed by the impugned order giving rise to the present

appeal.

8. After careful consideration of the arguments presented

by both sides, this Court believes that the High Court

erred in setting aside the Executing Court's order dated

SLP(CIVIL) NO. 18772 OF 2014 Page 15 of 22 09.12.1998 and in declaring the Trial Court's decree

dated 09.05.1979 void. The High Court's decision

appears to be based on several incorrect assumptions

and observations.

9. The core of the High Court's reasoning rests on the

erroneous assumption that the property was jointly

owned by Defendants No. 1 and No. 2, and that the

absence of Defendant No. 2's signature on the

compromise dated 11.05.1978 invalidated the decree.

However, Defendant No. 2 has consistently

acknowledged that he had no ownership rights over the

property. In his written statement to the Trial Court in

Suit No. 13/72, he explicitly stated that the property

belonged solely to Defendant No. 1. This was further

supported by a family arrangement dated 17.09.1976

and reinforced in Paragraph 6 of the compromise deed.

The compromise, signed by Defendant No. 1 and the

plaintiff and later verified by Defendant No. 2 through

SLP(CIVIL) NO. 18772 OF 2014 Page 16 of 22 an application dated 14.05.1979, substantiates that

Defendant No. 1 was the sole owner. These facts were

upheld by the High Court and this Court in previous

proceedings. During the challenge to the execution

proceedings filed by General Tarik before the High

Court, the High Court vide order dated 11.8.2006 had

also recorded the finding that Defendant no.2 did not

have ownership rights over the suit property which fact

was also upheld by this Court. Defendant no. 2 had

limited rights of being in possession of the third floor of

suit property. Due to the aforesaid reasons, the Plaintiff

and Defendant no. 1 were the only necessary parties

needed for the compromise dated 11.05.1978 as

Defendant no.1 was the sole owner of the suit property.

10. The High Court also incorrectly held that the provisions

of Order XXIII, Rule 3 of the CPC were not adhered to,

claiming that the Trial Court failed to properly verify the

compromise. It is essential to clarify that the

SLP(CIVIL) NO. 18772 OF 2014 Page 17 of 22 compromise was indeed reached on 11.05.1978, with

its verification delayed due to various adjournments

caused by the absence or illness of Defendant No.1 and

other procedural delays. On 09.05.1979, a fresh

compromise application containing identical terms was

submitted and duly signed by both parties due to the

original being misplaced. The Trial Court then correctly

recorded and verified this compromise, fulfilling the

requirements of Order XXIII, Rule 3 of the CPC.

11. It must be made clear that the compromise between the

Plaintiff and Defendant no. 1 was arrived on 11.05.1978

and it was only the procedural requirements of Order

XXIII Rule 3 of verifying and the compromise before the

Court which were eventually completed on 09.05.1979.

A perusal of the record of proceedings before the Trial

Court reveals that verification of the terms of the

compromise was attempted on 11.05.1978 but was not

possible as Defendant No.1 was not present. Moreover,

SLP(CIVIL) NO. 18772 OF 2014 Page 18 of 22 on subsequent dates being 11.5.1978, 24.07.1978,

31.01.1979 and 20.03.1979, either due to the illness of

Defendant no.1 or due to the Presiding Officer not being

present, there were various adjournments before the

Trial Court. Finally, on 09.05.1979, Gulam Mohiuddin

appeared before the Court and the parties submitted a

fresh compromise application was filed because the

earlier compromise application submitted on 11-05-

1978 was not traceable on the record of the Court

containing the same terms and conditions as in the

compromise application earlier filed on 11.05.1978. The

said application was also duly signed by both the

parties. On the basis of the said compromise presented

on 09.05.1979, the Trial Court took the compromise

application on record, verified the fresh compromise

application fulfilling all the terms and conditions of

Order XXIII Rule 3 CPC. The terms and conditions of

the compromise were read over to the parties and were

SLP(CIVIL) NO. 18772 OF 2014 Page 19 of 22 accepted by them and the signatures of the parities

were taken on the compromise application by the Court

and thereafter the Court recorded its satisfaction on the

compromise application, which is on the record of the

Trial Court. The decree dated 09.05.1979 was passed

based on this compromise.

12. As far as the terms of the compromise are concerned,

which have also been questioned by the High Court, the

agreement stipulated that Defendant No. 1 was to

execute and register the sale deed in favor of the

plaintiff by 01.07.1978, after receiving balance

payment of Rs 25,000/-. The decree's execution was

contingent upon Defendant No. 1 fulfilling conditions

such as obtaining the NOC and ensuring Defendant No.

2 vacating the portion of the property in question in his

possession. The recording of the compromise and the

consequent decree on 09.05.1979, although appearing

SLP(CIVIL) NO. 18772 OF 2014 Page 20 of 22 procedurally delayed, adhered to the process required

under CPC.

13. Furthermore, the High Court overlooked the fact that

General Tarik, legal heir of Defendant No. 2, had

previously objected to the execution proceedings, which

was dismissed on 09.12.1988. Subsequent appeals

before the High Court, including a Special Leave

Petition to this Court, were also dismissed. Therefore,

similar objections by Respondent No. 1, Smt. Akhtar Un

Nisa, in her capacity as one of the legal heirs of

Defendant No. 2 would not be maintainable and would

amount to abuse of process of law.

14. In light of the reasons recorded above, this Court finds

merit in the appellant-plaintiff’s argument and holds

that the Executing Court had rightly rejected the

objections under Section 47 CPC filed by Smt.Akhtar

Un Nisa vide order 03.05.2007.

SLP(CIVIL) NO. 18772 OF 2014 Page 21 of 22

15. Accordingly, the appeal is allowed. The impugned

judgement of the High Court is set aside, and the

Executing Court's order dated 03.05.2007 is restored

and the objections of Respondent no.1 under Section 47

of the CPC stand rejected.

16. There shall, however, be no order as to costs.

………………………………..……J (VIKRAM NATH)

………………………………..……J (SATISH CHANDRA SHARMA) NEW DELHI APRIL 22, 2024

SLP(CIVIL) NO. 18772 OF 2014 Page 22 of 22