Balasinha Babasaheb Deshmukh vs Arjun Laxman Pawar and Anr. — Bombay HC (2025) — LawSathi Research

Balasinha Babasaheb Deshmukh vs Arjun Laxman Pawar and Anr. — Bombay HC (2025) — LawSathi Research

What the court decided

AI extract

Outcome

Writ Petition allowed; impugned order dated 19 April 2018 quashed and set aside; the application seeking execution of the instrument by appointing an Officer of the Court (Exhibit 15) remitted to the executing Court seized with Special Darkhast No.3 of 2018, to be heard and decided afresh after providing an opportunity of hearing to the parties.

Issue for consideration

Whether the executing Court could appoint an officer of the Court to execute and register the Sale Deed in execution of the decree for specific performance, notwithstanding the absence of a specific direction to that effect in the decree, having regard to Order XXI Rule 32(5) of the Code of Civil Procedure, 1908.

Court's answer

The learned Civil Judge rejected the application because his attention was not invited to Order XXI Rule 32(5) of the Code, and he therefore proceeded on the mistaken premise that such power could not be exercised except under Section 151 of the Code.

Ratio / Principle

It is expedient to set aside the impugned order and remit the application back to the executing Court to decide it afresh keeping in view the provisions contained in Order XXI Rule 32(5) of the Code.

Detailed headnote1 paragraphs

Execution of specific performance decree — Application by decree holder under Order XXI Rule 11(2) CPC seeking appointment of an officer of the Court to execute and register the Sale Deed — Rejected by Civil Judge, Sr. Div., Baramati on the ground that it would amount to the executing Court going beyond the decree and that Section 151 CPC could not be resorted to in the absence of a specific direction in the decree — Held, the attention of the learned Civil Judge was not invited to Order XXI Rule 32(5) CPC, which empowers the Court to direct some other person appointed by the Court to execute the instrument where the decree is for specific performance of the contract, and he thus proceeded on the premise that such powers could not be exercised under Section 151 CPC — Impugned order dated 19 April 2018 quashed and set aside; application (Exhibit 15) remitted to the executing Court seized with Special Darkhast No.3 of 2018 for fresh decision after hearing the parties. (Paras 11–19)

2025:BHC-AS:8507

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.2207 OF 2025

Balasinha Babasaheb Deshmukh ... Petitioner versus

Arjun Laxman Pawar and Anr. … Respondents

Mr. Nitin Gaware Patil with Mr. Jay Salunke, for Petitioner.

CORAM: N.J.JAMADAR, J.

DATE : 20 FEBRUARY 2025

P.C.

Heard the learned Counsel for the Petitioner.

The challenge in this Petition is to an order dated 19 April 2018 passed by the learned Civil Judge, Sr. Div. Baramati, whereby the application preferred by the Petitioner – decree holder to appoint an officer of the Court to execute and register a Sale Deed so as to execute the decree for specific performance of the contract passed by the Court in Special Civil Suit No.2 of 2008 dated 3 June 2013, came to be rejected.

Learned Civil Judge was of the view that the said prayer cannot be granted as it would amount to executing Court going beyond the decree. The provisions contained in Section 151 of the Code of Civil Procedure, 1908 also could not be resorted to, in the absence of a specific direction in the decree.

Learned Counsel for the Petitioner submits that even if a decree does not contain such a stipulation, the executing Court could have passed such

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direction as that is the only mode in which decree for specific performance can be executed, if the judgment debtor fails to execute instrument in terms of the decree. Attention of the Court was invited to the provisions contained in Order XXI Rule 32(5) of the Code, which empowers the Court to direct some other person, appointed by the Court, to execute an instrument, where the decree is for specific performance of the contract.

The Court finds that in the application filed under Order XXI Rule 11(2) of the Code, the Petitioner had indicated the manner in which the decree of the Court was to be executed and the mode in which the assistance of the Court was required to execute the decree.

It appears that the attention of the learned Civil Judge was not invited to the provisions contained in Order XXI Rule 32(5) of the Court, and, thus, the learned Judge has proceeded on the premises that such powers could not be exercised under Section 151 of the Code.

In the aforesaid view of the matter, it may be expedient to set aside the order and remit the application back to the executing Court to decide the same afresh keeping in view the provisions contained in Order XXI Rule 32(5) of the Code.

Hence, the following order :

ORDER

(i) The Writ Petition stands allowed.

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(ii) The impugned order dated 19 April 2018 stands quashed and set

aside.

(iii) The application seeking execution of the instrument by appointing Officer of the Court (Exhibit 15) stands remitted to the executing Court seized with Special Darkhast No.3 of 2018.

(iv) The executing Court shall hear and decide the said application afresh after providing an opportunity of hearing to the parties.

(v) The Writ Petition stands disposed.

( N.J.JAMADAR, J. )

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Signed by: S.S.Phadke Designation: PS To Honourable Judge Date: 24/02/2025 10:45:47