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Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL     APPEAL     No.     8297-8298     OF     2004   

M/s. Pushpa Sahakari Avas Samiti Ltd.       ….. Appellant

Versus

M/s. Gangotri Sahakari Avas S. Ltd. & Ors. … Respondents  

J     U     D     G     M     E     N     T      

Dipak      Misra,     J.   

The present appeals by special leave are directed against  

the judgment and order dated 10.01.2002 and 07.03.2003  

passed by the learned Single Judge of the High Court of  

Judicature at Allahabad in Civil Revision No. 341 of 1997 and  

Review Application No. 38861 of 2002 respectively.    The facts

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as uncurtained in the two appeals are that the appellant as  

plaintiff initiated a civil action forming subject matter of suit No.  

501 of 1995 against the respondent and others for permanent  

injunction.   In the suit, the parties entered into a compromise  

and on the basis of the compromise, a decree was drawn up on  

06.09.1996.  The terms and conditions of the compromise were  

made a part of the decree.  Be it noted, the compromise  

between the parties stipulated certain conditions and one such  

condition was that within a span of six months’  time, the  

defendant would pay a certain sum to the plaintiff.  For the sake  

of clarity and convenience, the said clause of the compromise  

is reproduced hereunder:-

 “That the defendant No. 1 acknowledges  and undertakes to pay Lacs Rs. 38,38000/-  (Rupees Thirty Eight Lacs and Thirty Eight  Thousand) only to the plaintiff within six  months from the date of this compromise.  The payment of the said amount by the  defendant No. 1 to the plaintiff shall have the  effect of settling entire claim of the plaintiff  as against the defendant No. 1 in full and  final”

2. In the petition for compromise which formed a part of the  

decree, there were other stipulations but they are not  

necessary  to be stated for the adjudication of these appeals.

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As has been indicated earlier, the decree was drawn up on  

06.09.1996.

3. As the first respondent did not honour the terms of the  

decree, the appellant filed an application for execution of the  

decree on 17.02.1997 and the said application was registered  

as Misc. Case No. 9 of 1997.  The respondent No. 1 entered  

contest and filed an objection under Section 47 of the Code of  

Civil Procedure (for short, ‘the Code’) which was registered as  

Misc. Case  No. 43 of 1997.  Allegations, counter allegations  

and rejoinders were put forth before the Executing Court.   One  

of the objections raised in the application under Section 47 of  

the Code was that as the decree holder had moved  the  

executing court for execution of the decree prior to the expiry  

of the six months’  period, the application was premature and,  

therefore, entire execution proceeding was vitiated being not  

maintainable.  The learned Civil Judge who dealt with the  

execution case did not find any merit in any of the objections  

raised and rejected the same.  It is worth noting that by the  

time the matter was taken up and the order came to be passed,  

the decree had become mature for execution.  After rejection of  

the objection, the executing court took into consideration the

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submission of the judgment-debtor and, accordingly, directed  

that the entire balance money as agreed to in the compromise  

should be paid to the decree holder.    

4. Aggrieved by the aforesaid order, the first respondent  

preferred Civil Revision No. 341 of 1997.   The learned Single  

Judge noted the contentions and subsequent orders that were  

passed in the execution petition.  The revisional court opined  

that no other objection could be raised for the first time in the  

revision and hence, no finding was warranted to be recorded on  

the said score.

5. As far as the premature filing of the execution petition is  

concerned, the learned Single Judge expressed his view as  

under:-  

“The question whether the execution was  premature or not is to be decided with regard  to the date at which the execution was filed.  If a suit is found to have been filed  premature, it cannot be decreed for the  reason that the period has expired during the  pendency of the suit.  Similar principle will  not apply to the execution.  If the execution  was premature when it was filed, it is liable to  be rejected and cannot be proceeded with  because it has prematured during the  pendency of the case.”

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Being of this view, he allowed the revision and set aside the  

order passed by the learned Civil Judge as a consequence of  

which the execution case entailed in dismissal.

6. We have heard Mr. Dinesh Dwivedi, learned senior counsel  

for the appellant, and Mr. S. K. Dubey, learned Senior counsel  

for the first respondent.  

7.  Criticizing the impugned order passed in Civil Revision,  

Mr. Dwivedi, learned senior counsel, has contended that when a  

suit is premature on the date of its institution and the Court can  

grant relief to the plaintiff if no manifest injustice or prejudice is  

caused to the party proceeded against, there is no reason or  

justification for not applying the said principle to an execution  

proceeding.  It is  urged by him that the question of a suit being  

premature does not go to the root of the jurisdiction of the  

Court, but the Court in its judicial discretion may grant a decree  

or refuse to do so and, therefore, in the case at hand, when the  

executing court had proceeded after the expiry of the  

stipulated period in the decree, there was no warrant on the  

part of the revisional court to interfere with the same, for the  

said order did not suffer from lack of appropriate exercise of  

jurisdiction or exercise of jurisdiction that the court did not

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possess.   It is canvassed by him that if the petition filed under  

Section 47 of the Code is scrutinized, it will clearly reveal that  

objections have been raised in a routine manner to delay the  

execution proceeding and such dilatory tactics by a judgment-

debtor should, in all circumstances, be deprecated and decried.  

In support of his contentions, he has placed reliance on  

Vithalbhai (P) Ltd. v. Union Bank of India1.

8. Mr. Dubey, learned senior counsel for the first respondent,  

per contra, contended that the executing court could not have  

entertained the application as it was filed prior to the expiration  

of the period.  In support of his stand, he has placed reliance on  

Lal Ram v. Hari Ram2. The next submission of Mr. Dubey is  

that as the execution was levied in a premature manner before  

the expiry of the period, the decree lost its potentiality of  

executability.  Elaborating the said submission, it is canvassed  

that the compromise decree could not have been taken up for  

the purpose of execution and hence, the objection under  

1

 (2005)  4 SCC 315

2

 AIR 1970 SC 1093

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Section 47 of the Code should have been accepted by the  

executing court, but as it failed to do so, the High Court, in  

exercise of the supervisory jurisdiction, has rectified the  

jurisdictional error.  

The learned senior counsel further urged that when the  

compromise decree imposed mutual obligations on both sides  

some of which were conditional, no execution could be ordered  

unless the party seeking execution not only offered to perform  

his part but also satisfied the executing court that he was in a  

position to do so.    In essence, the proponement of Mr. Dubey  

is that by levying the execution in a premature manner, the  

stipulations in the compromise decree have been totally  

overlooked and the real construction of the terms of the decree  

have been given an indecent burial.    To bolster the said  

submissions, he has commended us to the decisions in Jai  

Narain Ram Lundia v. Kedar Nath Khetan3 and Chen Shen  

Ling v. Nand Kishore Jhajharia4.

3

 AIR 1956 SC 359

4

AIR 1972 SC 726

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9. At the very outset, it may be stated that it is an admitted  

position that the execution was levied prior to the expiration of  

the period stipulated in the decree.  The executing court, as is  

evident, has addressed itself to all the objections that were  

raised in the application and rejected the same.  The principal  

objection relating to the maintainability of the proceeding on  

the foundation that it was instituted prematurely did not find  

favour with it.    The learned Single Judge has observed that if  

an execution is premature when it is filed, it is liable to be  

rejected.   Mr. Dwivedi has drawn an analogy between a  

premature suit and premature execution by placing heavy  

reliance on the authority in Vithalbhai (P) Ltd. (supra).   In  

Vithalbhai (supra), while dealing with the premature filing of a  

suit, a two-Judge Bench of this Court, after referring to a  

number of decisions of various High Courts and this Court,  

came to hold as follows:-  

“The question of suit being premature does  not go to the root of jurisdiction of the court;  the court entertaining such a suit and passing  decree therein is not acting without  jurisdiction but it is in the judicial discretion of  the court to grant decree or not.  The court  would examine whether any irreparable  prejudice was caused to the defendant on  account of the suit having been filed a little

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before the date on which the plaintiff’s  entitlement to relief became due and  whether by granting the relief in such suit a  manifest injustice would be caused to the  defendant.  Taking into consideration the  explanation offered by the plaintiff for filing  the suit before the date of maturity of cause  of action, the court may deny the plaintiff his  costs or may make such other order adjusting  equities and satisfying the ends of justice as  it may deem fit in its discretion.  The conduct  of the parties and unmerited advantage to  the plaintiff or disadvantage amounting to  prejudice to the defendant, if any, would be  relevant factors.”  

After so stating, the Bench ruled that the plea as  

regards the maintainability of the suit on the ground of its  

being premature should be promptly raised and it will be  

equally the responsibility of the Court to dispose of such a  

plea.  Thereafter, it was observed as follows:-

“However, the court shall not exercise its  discretion in favour of decreeing a premature  suit in the following cases: (i) when     there     is     a    mandatory     bar     created     by     a     statute     which    disables     the     plaintiff     from     filing     the     suit     on     or    before     a     particular     date     or     the     occurrence     of    a     particular     event;      (ii)     when     the     institution     of    the     suit     before     the     lapse     of     a     particular     time    or     occurrence     of     a     particular     event     would    have     the     effect     of     defeating     a     public     policy     or    public     purpose;     (iii)     if     such     premature    institution     renders     the     presentation     itself   

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patently     void     and     the     invalidity     is     incurable    such     as     when     it     goes     to     the     root     of     the     court  ’  s    jurisdiction;     and     (iv)     where     the     lis     is     not    confined     to     parties     alone     and     affects     and    involves     persons     other     than     those     arrayed     as    parties,     such     as     in     an     election     petition     which    affects     and     involves     the     entire     constituency.    (See Samar Singh v. Kedar Nath 13.)  One  more category of suits which may be added  to the above, is:  where leave of the court or  some authority is mandatorily required to be  obtained before the institution of the suit and  was not so obtained.”  

[Emphasis Supplied]  

10.  We have referred to the aforesaid dictum in extenso as we  

find that the Bench has given emphasis on various aspects,  

namely, an issue getting into the root of the jurisdiction of the  

Court; causing of irreparable and manifest injustice; adjustment  

of equities; concept of statutory bar; presentation that invites a  

void action and anything that affects the rights of the other  

party; and obtaining of leave of the Court or authority where it  

is a mandatory requirement, etc.  On a perusal of the various  

provisions relating to execution as enshrined under Order XXI of  

the Code, we do not find anything which lays down that  

premature filing of an execution would entail its rejection.   The

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principles that have been laid down for filing of a premature  

suit, in our considered opinion, do throw certain light while  

dealing with an application for execution that is filed  

prematurely and we are disposed to think that the same can  

safely be applied to the case at hand.   

11. Presently, we shall advert to the submission of Mr. Dubey  

that the executing court could not have entertained the  

application as it was filed before the expiration of the period.  

The learned senior counsel has relied on the decision rendered  

in Lala Ram (supra).  In the said case, an order of acquittal  

passed -by the learned Magistrate was assailed before the High  

Court by seeking leave under Section 417(3) of the Code of  

Criminal Procedure, 1898 and the High Court granted leave as a  

consequence of which the appeal came to be filed eventually.  

The High Court accepted the appeal and convicted the accused.  

It was contended before this Court that the appeal could not  

have been entertained by the High Court having been filed  

beyond the expiry of sixty days in view of the language  

employed under Section 417(4) of the Code.  Emphasis was laid  

on the term “entertain”.  Repelling the contention, this court  

held as follows: -

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“The learned counsel also suggests that  the word “entertain” which occurs in Section  417 (4) means “to deal with or hear”  and in  this connection he relies on the judgment of  this Court in Lakshmi Rattan Engineering  Works v. Asst. Commr., Sales Tax, (1968) 1  SCR 505 = (AIR 1968 SC 488).  It seems to us  that in this context “entertain” means “file or  received by the Court”  and it has no  reference to the actual hearing of the  application for leave to appeal; otherwise the  result would be that in many cases  applications for leave to appeal would be  barred because the applications have not  been put up for hearing before the High Court  within 60 days of the order of acquittal”

On a perusal of the aforesaid passage, it is vivid that the three-

Judge Bench interpreted the terms ‘were entertained’  in the  

context they were used under the old Code and did not accept  

the submission ‘to deal with or hear’.  Regard being had to the  

context, we have no shadow of doubt that the said decision is  

distinguishable and not applicable to the obtaining factual  

matrix.   

12. In this context, we may refer with profit to the two-Judge  

Bench decision in Martin & Harris Ltd. v. VIth  Additional  

Distt. Judge and others5.  In the said Case, the Court was  

5

(1998) 1 SCC 732

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interpreting the language employed in the proviso to Section  

21(1) of the U.P. Urban Buildings (Regulation of Letting, Rent  

and Eviction) Act, 1972.  The proviso stipulated that where the  

building was in occupation of a tenant before its purchase by  

the landlord, such purchase being made after the  

commencement of the Act, no application shall be entertained  

on the grounds mentioned in Clause (a) of the said Section  

unless three years’  period had lapsed since the date of  

purchase.  A contention was canvassed that filing of an  

application before the expiry of the three years’  period was  

barred by the provision contained in the said proviso.  Repelling  

the said submission, the Bench opined thus: -

“It must be kept in view that the proviso  nowhere lays down that no application on the  grounds mentioned in clause (a) of Section  21(1) could be “instituted” within a period of  three years from the date of purchase.  On  the contrary, the proviso lays down that such  application on the said grounds cannot be  “entertained”  by the authority before the  expiry of that period.  Consequently it is not  possible to agree with the extreme  contention canvassed by the learned Senior  Counsel for the appellant that such an  application could not have been filed at all  within the said period of three years.”

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After so stating, the Bench distinguished the decision rendered  

in Anandilal Bhanwarlal v. Kasturi Devi Ganeriwala6 which  

dealt with “institution” and eventually came to hold as follows:  

-

“Thus the word “entertain” mentioned in the  first proviso to Section 21(1) in connection  with grounds mentioned in clause (a) would  necessarily mean entertaining the ground for  consideration for the purpose of adjudication  on merits and not at any stage prior thereto  as tried to be submitted by learned Senior  Counsel, Shri Rao, for the appellant.  Neither  at the stage at which the application is filed  in the office of the authority nor at the stage  when summons is issued to the tenant the  question of entertaining such application by  the prescribed authority would arise for  consideration.   

13.  In this context, we may usefully refer to the decision in  

Hindusthan Commercial Bank Ltd. v. Punnu Sahu (Dead)  

Through Legal Representatives7.  In the said case, this  

Court was interpreting Rule 90 of Order XXI of the Code of Civil  6

(1985) 1 SCC 442

7

 (1971) 3 SCC 124

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Procedure as amended by the Allahabad High Court.  The  

amended proviso to Rule 90 stipulated the circumstances under  

which no application to set aside the sale shall be entertained.  

It was contended before this Court that the expression  

“entertain” found in the proviso referred to the initiation of the  

proceedings and not to the stage when the Court had taken up  

the application for consideration.  This Court referred to the  

earlier decision in Lakshmiratan Engineering Works Ltd. v.  

Asst. Comm., Sales Tax, Kanpur8 and opined that the  

expression “entertain” conveys the meaning “adjudicate upon”  

or “proceed to consider on merits”.   

14. In State of Haryana v. Maruti Udyog Ltd. and Others  

9, this Court was dealing with Section 39 (5) of the Haryana  

General Sales Tax Act, 1973 which stipulated that no appeal  

shall be entertained unless it is filed within sixty days from the  

date of the  order appealed against and the appellate authority  

was satisfied that the amount of tax assessed and the penalty  

8

 AIR 1968 SC 488  

9

 (2000) 7 SCC 348

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and interest, if any, recoverable from the persons had been  

paid.  The Bench interpreting the term “entertainment” of the  

appeal ruled that when the first proviso to Section 39 (5)  

speaks of the “entertainment of the appeal”, it means that the  

appeal will not be admitted for consideration unless there is  

satisfactory proof available of the making of the deposit of  

admitted tax.  

15.   In view of the aforesaid authorities in the field, the  

submission of Mr. Dubey that the executing court could not  

have entertained the execution proceeding solely because it  

was instituted before the expiry of the period stipulated in the  

compromised decree despite the factum that by the time the  

Court adverted to the petition the said period was over, is  

absolutely unacceptable.     

16. The next limb of proponement of Mr. Dubey is that the  

decree had lost its potentiality of executability having been  

filed on a premature date. On a first flush, the aforesaid  

submission looks quite attractive but on a deeper probe and  

keener scrutiny, it melts into insignificance.   In Dhurandhar  

Prasad Singh v. Jai Prakash University and Others10, while  

10

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dealing with the power of the executing court under Section 47  

of the Code of Civil Procedure, a two-Judge Bench has  

expressed thus:-

“The exercise of powers under Section 47 of  the Code is microscopic and lies in a very  narrow inspection hole.  Thus it is plain that  executing court can allow objection under  Section 47 of the Code to the executability of  the decree if it is found that the same is void  ab initio  and a nullity, apart from the ground  that the decree is not capable of execution  under law either because the same was  passed in ignorance of such a provision of law  or the law was promulgated making a decree  inexecutable after its passing ”

17. Tested on the anvil of the aforesaid principle, it is difficult  

to accept the stand that the decree had become inexecutable,  

and, accordingly, we repel the same.

18. The learned senior counsel for the respondent has further  

propounded that the executing court could not have passed  

any order on the application for execution as it was filed prior  

to the expiry of the period.   Pyramiding the said submission, it  

is urged by him that such advertence in an execution  

proceeding frustrates the construction of the terms of the  

 (2001) 6 SCC 534

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decree.  Mr.   Dubey has drawn immense inspiration from the  

verdict in Chen  Shen Ling (supra).   On a careful perusal of  

the aforesaid decision, it is  plain and patent that the three-

Judge Bench had dealt with the consideration of the terms of  

the decree and eventually, placing reliance on the decision in  

Jai Narain Ram Lundia (supra), expressed the view that no  

execution can be ordered unless the party seeking execution  

not only offered to perform his part but, also when objection  

was taken, satisfied the executing court that he was in a  

position to do so.   Be it noted, in the case Jai Narain Ram  

Lundia (supra), this Court has adverted to the reciprocal  

application, their inter-linking and the indivisibility of the terms  

of the decree and opined that the executing court cannot go  

behind the decree and it cannot defeat the directions in the  

decree.  In both the decisions, the issue pertained to the nature  

of order to be passed by the executing court or the type of  

direction to be issued by it.  The ratio enunciated therein does  

not remotely deal with the filing of an execution petition in  

respect of a compromise decree prior to the expiry of the date  

as stipulated in the terms and conditions of the decree.  Hence,  

we have no scintilla of doubt that the said authorities do not

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support the stand so vehemently put forth by Mr. Dubey,  

learned senior counsel for the first respondent.   

19. In view of our aforesaid premised reasons, we arrive at the  

irresistible conclusion that the executing court did not commit  

any error by entertaining the execution petition.  The learned  

Single Judge in civil revision has annulled the said order without  

any justification.  While so doing, he had not dealt with other  

objections raised by the Judgment-debtor on the ground that  

they are raised for the first time.   On a query being made, Mr  

Dwivedi, learned senior counsel for the petitioner, fairly stated  

that the said objections were raised in a different manner in the  

objection filed under Section 47 of the Code and the revisional  

court should have been well advised to deal with the same on  

merits.  Regard being had to the aforesaid analysis, we set  

aside the order passed in civil revision and remit the matter to  

the High Court  to deal with the objections on merits.  As it is an  

old matter, we request the learned Chief Justice of the High  

Court of Allahabad to nominate a learned Judge to dispose of  

the civil revision within a period of six months.  It is hereby  

made clear that the parties shall not seek unnecessary

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adjournment before the revisional court and should cooperate  

so that the revision shall be disposed of within the timeframe.    

20. Consequently, the appeals are allowed to the extent  

indicated hereinabove leaving the parties to bear their  

respective costs.   

......................................J.                      [Deepak Verma]

......................................J.           [Dipak Misra]

New Delhi; March  30, 2012.