REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL  APPEAL No.5534  OF 2019 (Arising out of S.L.P.(C) No.3053 of 2019)

Sir Sobha Singh And Sons Pvt. Ltd. ….Appellant(s)

VERSUS

Shashi Mohan Kapur(Deceased) Thr. L.R.               ….Respondent(s)

                 J U D G M E N T

Abhay Manohar Sapre, J.  

1. Leave granted.

2. This appeal is filed against the final judgment

and order dated 31.10.2018  passed by the  High

Court of  Delhi at  New  Delhi in  Ex.F.A.  No.42  of

2018   whereby the High Court   allowed the appeal

1

filed by the respondent herein   and set aside the

order  dated  22.10.2018  passed  by the  ADJ­02 &

Waqf Tribunal, New  Delhi  District, New  Delhi in

Execution No.5665 of 2016.

3. A few facts need mention hereinbelow for the

disposal of this appeal, which involves a short point.

4. The appellant is the plaintiff/decree holder

and the respondent is the defendant/judgment

debtor.

5. The dispute arises out of the execution

proceedings and it emanates from  Civil Suit  No.

369/2009 (new No.675/2009) decided on

01.06.2012.

6. The appellant  is  the  landlord of  a Flat­G­81,

IInd   floor along with one Servant Quarter J­3­62,

IIIrd floor situated at Sujan Singh Park, New Delhi

(hereinafter referred to as "suit house”).  

7. The appellant let out the suit house to the

father of the original respondent­Late Mr. R.L.

2

Kapur as back as in 1959. The appellant, however,

determined the tenancy by serving a quit notice to

Mr. R.L. Kapur on 21.12.2004. Mr. R.L. Kapur died

on 13.07.2007 leaving behind the respondent as his

legal representative.  

8. The appellant served another quit notice dated

16.01.2009 to the respondent and called upon him

to vacate the suit house. Since the respondent failed

to vacate the suit house, the appellant was

constrained to file Civil Suit in 2009 (Old

No.369/2009 new number  675/2009)  against the

respondent in the Court of ADJ for his eviction from

the suit house and the mesne profits.

9. The respondent, after entering his appearance

in the suit, did not contest it and compromised the

matter  with  the  appellant. It  was agreed that the

respondent (tenant) would hand over the vacant

possession of the suit house on or before

31.05.2016 to the appellant; Second, the

3

respondent  would pay a sum of  Rs.5,000/­   per

month towards user charges w.e.f.  01.06.2012 till

the date of  handing over of  the suit house to the

appellant; and third, the respondent would not

sublet or create any third party rights in the suit

house.

10. The Trial Court recorded the statement of the

parties and accordingly disposed of the civil suit in

terms of the aforementioned compromise by its

judgment dated 01.06.2012 which reads as under:

"With judicial intervention, the dispute between the parties has been amicably settled.   It is agreed that defendant shall vacate and hand over the vacant and peaceful possession of the suit property, i.e., Flat No.G­81, IInd floor and servant quarter No.J­ 3­62, IIIrd floor, Sujan Singh Park, New Delhi, as shown in the site plans already exhibited as Ex.PW1/14 and Ex.PW 1/15, to the plaintiff on or before 31.05.2016.  Defendant also  undertakes to  pay  the user  charges of the suit property at the rate of Rs.5000/­ per month w.e.f.   01.06.2012 to the plaintiff regularly till the date of handing over of the suit property to the plaintiff.  Defendant also undertakes not to sublet or create any third party interest in the suit property.

4

It is prayed that the case may be disposed off as compromised.

Statements of Brig. Gurbax Singh and  Mr. Shashi  Mohan  Kapur have been separately recorded and they  have been identified by their respective counsel.

Heard Perused.  Considered.

It appears that the statements have been made voluntarily and are accepted.

Both the sides shall remain bound by their respective statements.

In view of the submissions made as well as the statements of both the sides, the case is hereby disposed off as compromised.

Attested copies of the order be given to both the sides, dasti, as requested.

After completion  of the formalities, file be consigned to record room."

11. On 27.05.2016, the respondent filed an

application under Section 148 read  with Section

151 of the Code of Civil Procedure, 1908 (hereinafter

referred to  as “the  Code”) and prayed therein for

extension of time to vacate the suit house. The

5

extension to vacate the suit house was sought on

medical grounds.

12. By order  dated 09.06.2016, the  Trial  Court

allowed the said application and granted time to the

respondent till 15.07.2016 to vacate the suit house.

The respondent was also directed to clear the

arrears of rent.

13. Instead of vacating the suit house on

15.07.2016, the respondent filed another

application on 18.07.2016 and further sought time

to vacate the suit house. The Trial Court, by order

dated  08.08.2016,  dismissed this application  and

declined to extend the time to vacate the suit house.

As a result of the dismissal of this application, the

respondent was under a  legal  obligation to vacate

the suit house immediately.

14. Since the respondent failed to vacate the suit

house, the appellant was constrained to file

Execution Petition (5655/2016) in the Executing

6

Court for execution of the consent decree dated

01.06.2012 against the respondent for obtaining

vacant possession of the suit house.  

15. The Executing Court, by order dated

30.09.2016, issued a warrant of possession against

the respondent/Judgment debtor in respect of suit

house. Since the respondent obstructed the

execution of decree, the appellant applied to the

Executing Court for providing him the police

assistance for obtaining possession of the suit

house  from the respondent. In the meantime, the

Judgment  debtor  died leaving  behind the  present

respondent as legal representative of the original

tenant.  

16.  On 18.10.2016 and 23.07.2018, the respondent

herein filed four applications.  One was under Order

47 read with Sections 114 and 151 of the Code for

review of the order; Second was under Sections 47

& 151 read with Order 21 Rules 11(2) and 26 of the

7

Code; Third was under Order 47 read with Sections

114 and 151 of  the Code; and Fourth was under

Section 151 of the Code.  One application was filed

by one Mr. Manmohan Kapur under Order 1 Rule

10 of the Code.

17. These applications were filed to challenge the

executability of the consent order dated 01.06.2012

itself as  being  null and void. The respondent, in

these  applications, raised essentially the following

three grounds.  

18. The first ground was that the appellant

obtained the consent order dated 01.06.2012 by

concealing the material facts  from the respondent

which, according to him, was in the nature of fraud.

The second ground was that no decree was drawn

by the Trial Court after passing the consent order

dated 01.06.2012; and the third ground was that

the suit in which the consent order dated

01.06.2012  was passed  was not  maintainable in

8

view of Section 50 of the Delhi Rent Control Act. The

appellant filed his reply to the aforementioned

applications denying all the three grounds raised by

the respondent.

19. By order dated 22.10.2018, the Executing

Court dismissed the applications filed by the

respondent (Judgment debtor). The Executing Court

held that the respondent was indulging in delaying

tactics only  to avoid the execution of the consent

order dated 01.06.2012. The Executing Court dealt

with each objection raised by the respondent and

found no merit in any of them. The Executing Court

held that the respondent having taken time twice to

vacate the suit house did not honor the orders of

the Court and, therefore, while dismissing his

applications and the application of one Mr.

Manomohan Kapur imposed a cost of Rs. 5 lakhs

upon each of them with a direction to pay 50% to

9

the appellant and remaining 50% to the Delhi Legal

Services Authority.

20. The respondent felt aggrieved and filed first

appeal before the Delhi  High Court.  By impugned

order, the High Court allowed the appeal and set

aside the order dated 22.10.2018 passed by the

Executing Court. The High Court held that since the

Trial Court did not draw up the formal decree after

passing the consent order on 01.06.2012, the

Execution Petition filed by the appellant (decree

holder) is not maintainable. The High Court,

however, granted liberty to the appellant (decree

holder) to  apply to the  Trial  Court  under  Section

152 of the Code for drawing up a decree in terms of

the consent order dated 01.06.2012. The appellant

(decree  holder) felt  aggrieved  by this  order  of the

High Court and has filed the present appeal by way

of special leave in this Court.

10

21. So, the short question, which arises for

consideration in this appeal is  whether the  High

Court was justified in allowing the respondent's

(Judgment Debtor’s) appeal and thereby was

justified in holding that the Execution Petition filed

by the appellant (5655/2016) was not maintainable

for want of formal decree not being drawn up by the

Court after passing of the order dated 01.06.2012.

22. Heard Mr. Huzefa Ahmadi, learned senior

counsel, for the appellant and Ms. Aishwarya Bhati,

learned senior counsel, for the respondent.

23. Having  heard the learned  senior  counsel for

the parties and on perusal of the record of the case,

we are  inclined to allow the appeal,  set aside the

impugned order and restore the order of the Trial

Court with modification as indicated below.

24. In our opinion, the High Court was not right

in holding that in the absence of a formal decree not

being drawn or/and filed, the appellant (decree

11

holder) had no right to file the Execution petition on

the strength of the consent order dated 01.06.2012.

This finding of the High Court, in our view, is not

legally sustainable for the reasons set out

hereinbelow.

25. The issue in this case is required to be decided

in the light of Order 20 Rule 6, Order 20 Rule 6A,

Order 20 Rule 7, Order 21 Rules 11(2) & (3) and

Order 23 Rule 3 of the Code. These provisions read

as under:

“Order 20 Rule 6

Contents of decree.  (1) The decree shall agree with the judgment; it shall contain the number of the suit, the names and descriptions of the parties, their registered addresses, and particulars of the claim, and shall specify clearly the relief granted or other determination of the suit.

(2) The decree shall also state the amount of costs incurred in the suit, and by whom or out of what property and in what proportions such costs are to be paid.

(3) The Court may direct that the costs payable to one party by the other shall be set off

12

against any sum which is admitted or found to be due from the former to the latter.  

Order 20 Rule 6A

Preparation of decree. (1)   Every endeavour shall be  made to ensure that the decree is drawn up as expeditiously as possible, and, in any case, within fifteen days from the date on which the judgment is pronounced.

(2) An appeal  may be preferred against the decree without filing a copy of the decree and in such a case the copy made available to the party by the Court shall, for the purposes of rule 1 of Order XLI, be treated as the decree. But as soon as the decree is drawn, the judgment shall  cease to have the effect of  a decree for the purposes of execution or for any other purpose.

Order 20 Rule 7

Date of decree­ The decree shall bear date the day on which the judgment was pronounced, and, when the Judge has satisfied himself that the decree has been drawn up in accordance with the judgment, he shall sign the decree.  

Order 21 Rule 11(2)

Written application—Save as otherwise provided by sub­rule(1),  every application for the execution of a decree shall be in writing, signed and verified by the applicant or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case, and shall contain in a tabular form the following particulars, namely—  

13

(a) the number of the suit; (b) the names of the parties;  (c) the date of the decree;  (d) whether any appeal has been preferred from the decree;  (e) whether any, and (if any) what, payment or other adjustment of the matter in controversy has been made between the parties subsequently to the decree;  (f) whether any, and (if any)  what, previous applications have been made for the execution of the decree, the dates of such applications and their results;  (g) the amount with interest (if any) due upon the decree, or other relief granted thereby, together with particulars of any cross­decree, whether passed before or after the date of the decree sought to be executed;  (h) the amount of the costs (if any) awarded;  (i) the name of the person against whom execution of the decree is sought; and  (j) the  mode in  which the assistance  of the Court is required whether—  

(i) by the delivery of any property specifically decreed;  [(ii) by the attachment, or by the attachment and sale, or by the sale without attachment, of any property;  (iii)  by the arrest and detention  in prison of any person;  (iv) by the appointment of a receiver;  (v) otherwise, as the nature of the relief granted may require.

14

Order 21 Rule 11 (3)

The  Court to  which an application is  made under sub­rule (2) may require the applicant to produce a certified copy of the decree.  

Order 23 Rule 3

Compromise of suit— Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise in writing and signed by the parties or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject­matter of the suit, the Court shall order such agreement, compromise satisfaction to  be  recorded,  and shall  pass  a decree in accordance therewith so far as it relates to the parties to the suit, whether or not the subject­matter of the agreement, compromise or satisfaction is the same as the subject­matter of the suit.”

26. Order 20 Rule 6 of the Code deals with

contents of decree and provides that the decree

shall agree with the judgment, it shall contain the

number of the suit, the names and descriptions of

the parties, their registered addresses and

particulars of claim, relief granted or any other

determination  made in the suit, amount  of costs

15

incurred in the suit, and by whom or out of what

property  and in  what  proportions, the cost to  be

paid. Rule 6A deals with the preparation of decree.

It says that every endeavor shall be made to ensure

that the decree is drawn  up as expeditiously as

possible and, in any case, within fifteen days from

the date on  which the judgment is pronounced.

Rule 6A (2) of  Order 20 of the Code says that an

appeal may be preferred against the decree without

filing a copy of the decree and in such a case the

copy made available to the party by the Court shall

for the purposes of Rule 1 of Order 41 be treated as

the decree but as soon as the decree is drawn, the

judgment shall cease to have the effect of a decree

for the purposes of execution or for any other

purpose.

27. In our considered opinion, though Rule 6A (2)

of Order 20 of the Code deals with the filing of the

appeal without enclosing the copy of the decree

16

along with the  judgment and further provides the

consequence of not drawing up the decree yet, in

our opinion, the principle underlined in Rule 6A(2)

can be made applicable also to filing of the

execution application under Order 21 Rule 2 of the

Code.  

28. Order 20 Rule 7 deals with the date of decree.

It says that the decree shall bear date the day on

which the judgment was pronounced and when the

judge has satisfied himself that the decree has been

drawn up in accordance with the judgment, he shall

sign the decree.  

29.  Order 21 Rule 11(2) of the Code, which deals

with the execution of the decree, provides that the

decree holder is only required to give details of the

judgment and the decree in the execution

application along with other details [see clauses (a)

to (j)].

17

30. Similarly, Order 21 Rule 11(3) of the Code

makes it clear that the  Court "may" require the

decree holder to produce a certified copy of the

decree. This clearly indicates that it is not necessary

to file a copy  of the  decree  along  with execution

application unless the Court directs the decree

holder to file a certified copy of the decree.  

31. The aforesaid discussion, therefore, leads us to

a conclusion that  as and when the decree holder

files an application for execution of any decree, he is

required to ensure compliance of three things.  

32. First, the written application filed under Order

21 Rules 10 and 11 (2) of the Code must be duly

signed and verified by the applicant or any person,

who is acquainted with the facts of the case, to the

satisfaction  of the  Court;  Second, the  application

must contain the details, which are specified in

clauses (a)  to  (j)  of  Rule 11(2) of  the Code, which

include mentioning of the date of the judgment and

18

the decree; and  Third,  filing of  the certified copy of

the decree, if the Court requires the decree holder to

file it under Order 21 Rule 11(3) of the Code.

33. This takes us to deal with next point urged by

the learned senior counsel for the appellant.

According to learned counsel, the order dated

01.06.2012 itself is capable of being executable by

virtue of Section 36  of the Code and, therefore, the

High Court was not right in holding that the decree

was required to be drawn.  

34. The argument is not acceptable for more than

one reason. True it is that there are some orders,

which are in the nature of decree and thus capable

of being executed as such but the question, which

arises for consideration in this case, is whether the

order passed under Order 23 Rule 3 of the Code is

such an order. In our opinion, it is not.

35. First, the language of Order 23 Rule 3 of the

Code  does not admit passing of an order of the

19

nature urged by the learned senior counsel for

appellant;  Second,  the expression "the court shall

order such agreement,  compromise or satisfaction

to be recorded and shall pass a decree in

accordance therewith" occurring in Order 23 Rule 3

of the Code, in clear terms, suggests that it is

necessary after recording the compromise in the

order to further pass a decree in accordance

therewith.

36. In other words, the expression "and shall pass

a decree in accordance therewith" is a clear

indication that after the compromise is recorded by

the Court,  it shall proceed to "pass a decree". So,

the rule contemplates, first an order recording of the

compromise and then simultaneously pass a decree

in accordance with the order.  

37. In the light of the clear language of Order 23

Rule 3 of the Code, it is not possible to accept the

submission of learned senior counsel for the

20

appellant that the order dated 01.06.2012 itself

amounts to a decree and, therefore, it is not

necessary for the Court to pass a decree. Had this

been the intention, the legislature would not have

used the expression "and shall pass a decree in

accordance therewith" in  Order  23  Rule  3  of the

Code.

38. This takes  us to examine the  next question

though not decided by the High Court on merits.

39. As mentioned above, the Executing Court

dismissed the applications filed by the respondent

with a cost of Rs. 5 lakhs which resulted in

issuance of warrant of possession of the suit house.

The High Court, by impugned order, set aside the

order of the Executing Court and dismissed the

execution application as being not  maintainable.

The High Court, however, did not then consider it

necessary to  examine the  question as to  whether

21

the Executing Court was right in rejecting the

respondent’s applications.

40. We have, therefore,  perused the order of the

Executing Court. Having perused it, we are of the

considered view that the Executing Court was right

in rejecting the objections raised by the respondent

in his applications and, therefore, find no good

ground to interfere in those findings of the

Executing Court.  

41. In our  view,  all the  objections  raised by the

respondent were frivolous and were raised only with

a view to avoid execution of the compromise decree.

None of the objections raised by the respondent

could  be  gone into after consent  order  had  been

passed. In any event, none of the objections raised

by the respondent had any substance on merits and

were, therefore, rightly rejected  by the  Executing

Court to which we concur.   In our view, the

respondent  having taken time twice  to  vacate the

22

suit house and yet not adhering to the undertaking

given, this Court cannot countenance such conduct

of the respondent.  It is reprehensible.   

42. This takes  us  to  examine the  next  question,

namely, what is the effect of not filing the copy of

the decree along with the execution application filed

by the appellant.   In our view, even though the

appellant did not file the certified copy of the decree

along with the execution application for the reason

that the same was not passed by the Court, yet the

execution application filed by the appellant, in our

view,  was  maintainable.   Indeed, so long as the

formal decree was not passed, the order dated

01.06.2012 was to be treated as a decree during the

interregnum period by virtue of Order 20 Rule 6A (2)

of the  Code. In  other  words,  notwithstanding the

fact that the  decree had not  been passed,  yet  by

virtue of principle underlined in Order 20 Rule 6A(2)

of the  Code, the  order  dated 01.06.2012 had the

23

effect of a decree till the date of actual passing of

the decree by the Court for the purposes of

execution or for any other purpose. This empowered

the Executing Court to entertain the execution

application and decide the objections raised by the

respondent on merits.    

43. This takes us to examine the last point as to

whether the  High Court  was  justified  in  directing

the appellant to apply  under Section 152 of the

Code for drawing a decree.

44. In our opinion, though the  High  Court  was

right in directing the appellant to apply to the Court

for drawing a decree, but was not right in directing

to apply under Section 152 of the Code.  

45. Section 152 of the Code deals with the

amendment of judgments, decrees or orders. It

provides that any clerical or arithmetical mistakes

in the judgments, decrees or orders or errors arising

therein from any accidental slip or omission may at

24

any time be corrected by the Court either of its own

motion or on the application of any of the parties.

Order 20 Rule 3 also provides that judgment can be

altered or added either under Section 152 or in

review.

46. In our opinion, in order to invoke the powers

under Section 152 of the Code, two conditions must

be  present.  First, there  has to  be  a judgment  or

decree or an order, as the case may be, and second,

the judgment or decree or order, as the case may

be, must contain any clerical or arithmetical error

for its rectification. In other words, Section 152 of

the Code contemplates that the Court has passed

the judgment, decree or the order and the same

contains clerical or arithmetical error.

47. Any party to such judgment, decree or order,

as the case may be, has a right to apply at any time

under  Section  152  of the  Code to the concerned

Court for rectification of any  arithmetical or/and

25

clerical error in the judgment, decree or the order,

as the case may be.

48. In the case at hand, we find that the Court,

which disposed of the suit, did not draw the decree

but only passed the order. In such a situation, the

decree  holder  was required to file an application

under Section 151 read with Order 20 Rule 6A of

the Code to the Court for drawing a decree in

accordance with the order dated 01.06.2012.

Indeed, we find in the concluding para of the order

dated 01.06.2018 that the Court has already

directed to ensure compliance of the formalities. It

would have been, therefore, proper in such

circumstances for the Court to simultaneously draw

a decree the same day itself or in any event within

15 days as provided in Order 20 Rule 6A.  

49. Be that as it  may, this being a procedural

matter, even if it was not done, yet the same could

be done by the Court at the instance of the

26

appellant (decree holder) applying for drawing up a

decree after filing of the execution application.  

50. This takes us to examine the last question as

to whether the Executing Court was right in

imposing a cost of Rs.5 lakhs on the respondent for

filing applications raising therein frivolous

objections to avoid execution of the decree against

them.  As  mentioned  above, the  Executing  Court

while rejecting the respondent’s objection imposed a

compensatory cost of Rs.5 lakhs on the respondent.

In our view, though we find that it is a fit case for

imposition of cost  but imposition  of cost of  Rs.5

Lakhs is excessive.  

51. Having regard to all facts and circumstances of

the case which we have discussed above, we

consider it just and proper to impose a

compensatory cost of Rs. 50,000/­ on the

respondent under Section 35­A of the Code.   Let it

27

be paid by the respondent to the appellant within

one month from the date of this order.

52. We  are, therefore, of the considered  opinion

that the High Court was not right in holding that

the execution petition itself is not maintainable. The

High Court though was right in directing the

appellant to apply to the concerned Court for

drawing up a decree but the High Court was not

right in  directing the  appellant to  apply it  under

Section 152 of the Code.

53. In view of the foregoing  discussion,  we  hold

that the execution petition filed by the appellant is

maintainable and was, therefore, rightly allowed by

the Executing Court by rejecting the objections

raised by the respondent except with two

modifications indicated above.   

54. The appellant is hereby granted two  weeks’

time to apply under Section 151 read with Order 20

Rule 6(A) of the Code to the concerned Court with a

28

prayer for passing a decree in accordance with the

order dated 01.06.2012 passed under Order 23

Rule 3 of the Code. In the peculiar circumstance of

this case, we would expect the Court concerned to

pass and draw the decree without any delay and, in

any case, within one week of moving of the

application by the appellant.   It is also made clear

that such act of passing and drawing up the decree

being formal in nature, no objection or dispute in

that regard is to be entertained by any Court.  Once

the decree is drawn and its details are specified in

the execution application as provided under Order

21 Rule 11 (2)(c) and the certified copy of the decree

is filed, if required by the Court, in terms of Order

21 Rule 11(3) of the Code, the order of the

Executing Court dated 22.10.2018 with the above

modification regarding payment of costs amount will

be given effect to against the respondent.

29

55. Let the aforementioned procedural proceedings

be completed within the time framed by the

concerned Court. The respondent is, however,

granted one month’s time to vacate the suit house

after completion of the procedural formalities by the

concerned Court after making payment of all

arrears of rent till the date of delivery of possession

of suit house to the appellant.

56. In view of the foregoing discussion, the appeal

succeeds and is accordingly allowed. The impugned

order is set aside whereas the order of the

Executing Court is modified to the extent indicated

above.

                                    .………...................................J.                                    [ABHAY MANOHAR SAPRE]                                       

    …...……..................................J.              [DINESH MAHESHWARI]

New Delhi; July 15, 2019

30