“No one can make you feel inferior, without your consent”

A decision of a civil suit culminates into a decree and the party in whose favour suit is decided, becomes the decree holder and the opposite party, against whom the suit is decided becomes the Judgement Debtor. Every judgement is followed by a decree, crystallising the rights of the parties to the lis, based on the reasoning given in the judgement.

A decree, is a formal expression which determines the interest of both the parties in a conclusive manner, with regards to any disputed matter in a civil suit. Significantly, a decree is a formal expression of adjudication by which the court determines the rights of parties regarding the matter in a controversy or a dispute. A set-off or a counterclaim can be obtained on the decree. It shall be deemed to include a rejection of a plaint and determination of any question under Section 144 of the Act. However, a decree shall not include, any adjudication from which an appeal lies as an appeal from an order; and any order of dismissal for default.

Section 2(2) of the code of civil procedure defines Decree as: –

(2) “decree” means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within section 144, but shall not include-

(a) any adjudication from which an appeal lies as an appeal from an order, or

(b) any order of dismissal for default.

Explanation-A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final;

A civil suit can be decided on the basis of contest; can be compromised; and can also be decided based on admission. At times, a civil suit is decided on the basis of admission so made in the written statement itself, without any contest.

Order XII Rule 6 reads as under :-

Judgment on admissions– (1) Where admissions of fact have been made either in the pleading or otherwise, whether orally or in writing, the court may at any stage of the suit, either on the application of an party or of its own motion and without waiting for the determination of any other question between the parties, make such Order or give such judgment as It may think fit, having regard to such admissions.

(2) Whenever a judgment is pronounced under sub-rule (1) a decree shall be drawn up in accordance with the judgment and the decree shall bear the date on which the judgment was pronounced.

From the language of Order XII Rule 6, of the Code of Civil Procedure, it is clear that it is open to the Court to base a judgment on admission on the pleadings or otherwise. The phrase “otherwise”, in the said provision clearly indicates that it is open to the Court to base the judgment on statements made by a party not only in the pleadings, but also de hors the pleadings. Such admissions may be made either expressly or even constructively.

The provision under `Order XII Rule 6′ of the Code is enabling, discretionary and permissive, and is neither mandatory nor it is peremptory, since the word “may” has been used. It is thus not incumbent on the Courts to pass judgment on admissions, and in order to succeed under Order XII Rule 6 CPC; the admission of the other party has to be clear and unequivocal. When either party, based on pleadings or otherwise, can convince the court regarding admission of fact, the court may, after due consideration, pass a judgment. However, it is necessary to highlight the word `may‘ which suggest that the Code has conferred complete discretion on the Court, which was reiterated in S.M. Asif v. Virender Kumar Bajaj, (2015) 9 SCC 287. Such discretion should always be based and guided by the principles of fairness and should not be arbitrary in nature.

A judgement based on admission can be passed by the court at any point of time, as there may be instances where a judgement is passed on the basis of admission given by the defendant in the written statement itself, or in a statement made in the court, at a later stage. The said admission by the defendant of the facts stated in the plaint, can relate to anything – from the most common recognition of family settlement; a Testament or a Will; or contract; or anything that is permissible under law. Such a judgement on admission is commonly called a Consent Decree because it is based on the consent/admission of the party to the lis. The said decree not only saves the time of the court from lengthy litigation, but also helps to maintain harmony and peace between the parties.

A consent decree, as stated above, can be based on anything, recognising any legal right between the parties, and the court on the basis of such an admission or understanding between the parties, may pass a decree. A consent decree though passed by a court of competent jurisdiction, determining the rights between the parties on the basis of admission or statements, may require registration in some cases.

Section 17 of The Registration Act,1908 lays down that any document that creates a right in a property which exceeds Rs100/- is required to be registered compulsorily, and in the absence of registration, the document shall have no effect, as per the provisions of section 49 of the said act.

Section 17 and Section 49 of the Registration Act 1908 reads as: –

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 No, XVI of 1864, 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:-

(a) Instruments of gift of immovable property;

(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) Lease 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:

Provided that the State Government may, by order published in the Official Gazette, exempt from the operation of this sub-section any lease executed in any district, or part of a district, the terms granted by which do not exceed five years and the annual rents reserved by which do not exceed fifty rupees.

(2) Nothing in clauses (b) and (c) of sub-section (1) applies to. –

(i) Any composition-deed; or

(ii) Any instrument relating to shares in a Joint Stock Company, notwithstanding that the assets of such Company consist in whole or in part of immovable property-, or

(iii) Any debenture issued by any such Company and not creating, declaring, assigning, limiting or extinguishing any right, title or interest, to or in immovable property except in so far as it entitles the holder to the security afforded by a registered instrument whereby the Company has mortgaged, conveyed or otherwise transferred the whole or party of its immovable property or any interest therein to trustees upon trust for the benefit of the holders of such debentures; or

(iv) Any endorsement upon or transfer of any debenture issued by any such Company; or

(v) Any document 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; or

(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, or

(vii) Any grant of immovable property by Government or

(viii) Any instrument of partition made by a Revenue-officer; or

(ix) Any order granting a loan or instrument of collateral security granted under the land improvement Act, 1871, or the Land Improvement Loans Act, 1883; or

(x) Any order granting a loan under the Agriculturists Loans Act, 1884, or instrument for securing the repayment of a loan made under that Act; or

(xa) Any order made under the Charitable Endowments Act, 1890. (6 of 1890) vesting any property in a Treasurer of Charitable Endowments or divesting any such Treasurer of any property; or

(xi) Any endorsement on a mortgage-deed acknowledging the payment of the whole or any part of the mortgage-money, and any other receipt for payment of money due under a mortgage when the receipt does not purport to extinguish the mortgage; or

(xii) Any certificate of sale granted to the purchaser of any property sold by public auction by a Civil or Revenue-officer.

Explanation. – A document purporting or operating to effect a contract for the sale of immovable property shall not be deemed to require or ever to have required registration by reason only of the fact that such document contains a recital of the payment of any earnest money or of the whole or any part of the purchase money.

(3) Authorities to adopt a son, executed after the Ist day of January, 1872, and not conferred by a will, shall also be registered.

Section 49. Effect of non-registration of documents required to be registered

No document required by Section 17 or by any provision of the Transfer of Property Act, 1882 to be registered shall-

(a) Affect any immovable property comprised therein, or

(b) Confer any power to adopt, or

(c) Be received as evidence of any transaction affecting such property or conferring such power; unless it has been registered:

Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882, to be registered may be received as evidence of a contract in a suit for specific performance under Chapter 11 of the Specific Relief Act, 1877, or as evidence of part performance of a contract for the purposes of Section 53A of the Transfer of Property Act, 1892, or as evidence of any collateral transaction not required to be effected by registered instrument.

A bare perusal of the above two provisions makes it abundantly clear that any document that passes of a right in an immovable property of value of more than Rupees one hundred is required to be compulsorily registered, and any failure to do so, shall negate the effect of the same and can be received only as evidence of a contract, in a suit for specific performance of a contract. The underlying principle behind this provision is that parties to the litigation may not get the documents and consent decrees passed, in order to bypass and circumvent the provision of Stamp Act, resulting in defrauding the State exchequer of its legitimate dues.

A consent decree is sometimes also termed as a compromise decree, though the line between the two is very thin, and both have the same force, and are as much valid as any other contested decree, yet the major difference between the two is that a consent decree or a judgement on admission is passed under the provisions of order 12 rule 6, and a compromise decree is passed under the provisions of order 23 rule 3, of the Code of Civil Procedure, 1908. The law does not recognise any distinction between a consent decree or a compromise decree, and one passed after contest, as regards its effectiveness or the force behind it. The only difference between a consent decree or a decree on a consent on the one hand, and a decree after contest on the other, is that in the former case the suit is decided and a decree passed on the basis of a compromise or consent, and in the latter case it is passed after the court has, on the basis of the evidence, recorded its findings. In both the cases there is a formal adjudication by the court, conclusively determining the rights of the parties, in respect of the subject matter in dispute. The decree in first situation is as effective as the decree in the second situation.

Most common form of consent decree is a amongst the family members, whereby one person of the family files a suit against the others, asserting his rights and the other family members, who are often arrayed as defendants in the said suit, admit the claim of the plaintiff, either in written statement itself, or give a statement to that effect at a later stage.

A question that arose before the courts in many cases, arising out of the consent decree, was that whether such a consent decree, which is based on the admission between the parties, shall have a binding force, or shall fail because of lack of registration, in the light of the provisions of section 17 and section 49 of the Registration Act, the key point for determination being the recognition of a newly given right in the property, by way of the decree/document so executed, or the recognition of a pre existing right between the family members.

The Supreme Court in Sahu Madho Das v. Mukand Ram, AIR 1955 Supreme Court 481 observed as follows:

“It is well settled that a compromise or family arrangement is based on the assumption that there is an antecedent title of some sort in the parties and the agreement acknowledges and defines what that title is, each party relinquishing all claims to property other than that falling to his share and recognising the right of the others, as they had previously asserted it to the portions allotted to them respectively.” 

In AIR 1966 SC 292 (Larger Bench) Tek Bahadur Bhujil v. Debi Singh Bhujil. Supreme Court examined the concept of family settlement and held that the word ‘Family’ cannot be interpreted in a narrow sense and it is not necessary that the person entering into a family arrangement must have some antecedent title. It is to be assumed that parties to the arrangement had an antecedent title of some sort and the agreement clinches and defines what that title is. It was further held that family arrangement can be arrived orally. Its terms may be recorded in writing in the form of a Memorandum as to what had been agreed upon by the parties. In such a situation, it is not required to be registered

In the case of Ram Charan Dass v. Giri Nandini Devi, AIR 1966 Supreme Court 323, the Supreme Court held as follows:

“Courts give effect to a family settlement upon the broad and general ground that its object is to settle existing or future disputes regarding property amongst members of a family. In this context the word ‘family’ is not to be understood in a narrow sense of being a group of persons whom the law recognizes as having right of succession or having a claim to a share in the disputed property. The consideration for a family settlement is the expectation that such a settlement will result in establishing or ensuring amity and goodwill amongst the relations. The consideration having passed by each of the disputants the settlement consisting of recognition of the right asserted by each other cannot be impeached thereafter……..”

“…….. The transaction of a family settlement entered into by the parties who are members of a family bona fide to put an end to the dispute among themselves, is not a transfer. It is not also the creation of an interest. For, in a family settlement each party takes a share in the property by virtue of the independent title which is admitted to that extent by the other parties. Every party who take benefit under it need not necessarily be shown to have, under the law, a claim to a share in the property. All that is necessary to show is that the parties are related to each other in some way and have a possible claim to the property or a claim or even a semblance of a claim on some other ground as, say, affection.”

Again, in the case of Kale v. Deputy Director of Consolidation, AIR 1976 Supreme Court 807, it was held by the Supreme Court that: –

“The members who may be parties to the family arrangement must have some antecedent title, claim or interest even a possible claim in the property which is acknowledged by the parties to the settlement. Even if one of the parties to the settlement has no title but under the arrangement the other party relinquishes all its claims or titles in favour of such a person and acknowledges him to be the sole owner, then the antecedent title must be assumed and the family arrangement will be upheld and the Courts will find no difficulty in giving assent to the same…….”

“……… Even if bona fide disputes, present or possible which may not involve legal claims are settled by a bona fide family arrangement which is fair and equitable the family arrangement is final and binding on the parties to the settlement.”

Thus, the above said judgements laid down clearly that a consent decree can be passed on the basis of admission recognising a family arrangement or settlement between the parties, and the dispute in this case can be settled, even if it is relating to a future claim or even a possible claim. Any such settlement between the family members can be oral or in writing and had no requirement of any registration or other legalities.

In 1989 PLJ 182 Gurdev Kaur and others v. Mehar Singh and others it was held that the compromise or consent decree, even if it creates title, does not require registration. It was further held that grounds on which the compromise decree can be set aside are the same on which a contract can be set aside, namely fraud, misrepresentation, coercion or unsound mind,

The said position of law was again reiterated In Bhoop Singh v. Ram Singh Major and others, 1995(3) RRR 541 (SC), whereby the Supreme Court while relying upon its earlier decision in Tek Bahadur v. Debi Singh, AIR 1966 Supreme Court 292 held that: –

“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 a 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 value of Rs. 100/- or upwards. Any other view would find the mischief of avoidance of registration, which requires payment of stamp duty, embedded in the decree or order.

17. It would, therefore, be the duty of 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 praesenti 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 registerable.

18. The legal position qua Clause (vi) of Section 17(2) can, on the basis of the aforesaid discussion, be summarised as below:

(1) Compromise decree if bona fide, in the sense that the compromise is not a device to obviate payment of stamp and frustrate the law relating to registration, would not require registration. In a converse situation, it would require registration.

(2) If the compromise decree were to create for the first time right, title or interest in immovable property of the value of Rs. 100/- upwards in favour of any party to the suit, the decree or order would require registration.

(3) If the decree were not to attract any of the Clauses of sub-section (1) of Section 17, as was the position in the aforesaid Privy Council and this Court’s cases, it is apparent that the decree would not require registration.

(4) If the decree were not to embody the terms of compromise, as was the position in Lahore case, benefit from the terms of compromise cannot be derived, even if a suit were to be disposed of because of compromise in question.

(5) If the property dealt with by the decree be not the “subject matter of the suit or proceeding”, Clause (vi) of sub-section (2) would not operate, because of the amendment of this clause by Act 21 of 1929, which has its origin in the aforesaid decision of the Privy Council, according to which the original clause would have been attracted, even if it were to encompass property not litigated.”

Though the said judgement of the Supreme Court only laid down the concept of mandatory registration of a decree, in case the value of the property is more than Rupees one hundred, and is creating the right in the property for the first time, yet many civil suits were filed on the basis of aforesaid plea of non registration of earlier passed consent decrees. It may be noted that in Bhoop Singh’s case (supra), the Supreme Court had just laid down the law, on the basis of earlier law, but had no where explained the concept of pre existing right, yet many already settled consent decrees became the subject matter of challenge on account of non registration of the same. It was also held in Bhoop Singh’s case that a memorandum of family arrangement does not require registration, as it simply recognises the rights of the family members as created earlier. The relevant paragraph holding so laid down that: –

“14. In Tek Bahadur v. Debi Singh, AIR 1966 Supreme Court 292, the Constitution Bench of this Court considered the validity of the family arrangement and the question was whether it requires to be compulsorily registered under Section 17. This Court, while up-holding oral family arrangement, held that registration would be necessary only if the terms of the family arrangements are reduced into writing. A distinction should be made between the document containing the terms and recital of family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made either for the purpose of record or for information of the Court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immovable properties and therefore does not fall within the mischief of Section 17(2) of the Registration Act. It was held that a memorandum of family arrangement made earlier which was filed in the Court for its information was held not compulsorily registrable and therefore it can be used in evidence for collateral purpose, namely, for the proof of family arrangement which was final and binds the parties. The same view was reiterated in Maturi Pullaiah v. Maturi Narshimham, AIR 1966 Supreme Court 1836, wherein it was held that the family arrangement will need registration only if it creates any interest in immovable property in present time in favour of the parties mentioned therein. In case where no such interest is created the document will be valid, despite it being non-registered and will not be hit by Section 17 of the Act.”

The aforesaid judgment though said nothing about a pre existing right but it led to a series of litigation, which unsettled the many settlements between the family members on the basis of earlier passed consent decrees. It was in Bachan Singh v. Kartar Singh and others, 2002(3) RCR(Civil) 495 (SC), that the Supreme Court held that

“……… A consent decree passed by the Court is not required to be registered under the provisions of the Indian Registration Act and therefore, the view taken by the first Appellate Court was not legally correct and has been rightly set aside by the High Court. We are, therefore, in agreement with the view taken by the High Court.”

The said view was followed by the Punjab and Haryana High Court in Jagdish v. Ram Karan, 2003(1) RCR(Civil) 657 (P&H) and further in Hari Singh v. Gurcharan Singh, 2003(3) RCR (Civil) 632(P&H) whereby after relying upon the entire law on the issue it was held that: –

“…… that if the claim of the defendant was admitted by the plaintiff and on the basis of the said admission, a decree was passed and if there was no fraud in passing the decree, then the said decree was good and valid and could not be ignored on the ground that the same was not registered.”

The said judgements were subsequently followed in a number of other judgements to hold that a consent decree, which is based upon an admission of pre existing rights, does not require registration, and cannot be challenged on that ground. The same view was reiterated by the Punjab and Haryana High Court in Tejpal Singh v. Kushal Pal Singh RSA Number 5023 of 2009 decided on 08/05/2017.

The Supreme Court in Phoolpati v. Ram Singh, (2015) 3 SCC 164 drew a distinction between self acquired property and joint Hindu Family property, and held that qua self acquired property, the civil Court decree was required to be registered. However, the said judgment passed by the Supreme Court of India was in the peculiar facts of that case, as there was a dispute relating to some gift, as well as a decree, and cannot be taken to be as a general exception to various other judgements. The same view was taken by the Punjab and Haryana High Court in Dhian Singh v. Mohinder Singh 2017 (4) PLR 729.

In a very recent judgement of the Supreme Court in Mohammade Yusuf v. Rajkumar, 2020(2) RCR (CIVIL) 23 observed that a compromise decree does not require registration if it does not mention the property that is not the subject-matter of the suit. It was held that: –

“The only question to be considered in this appeal is as to whether the above noted compromise decree dated 04.10.1985 was required to be registered under section 17 of the Registration Act, 1908 or not?”

“……… Under Section 17(1)(b), 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 requires registration. The word “instrument” is not defined in Registration Act, but is defined in the Indian Stamp Act, 1899 by Section 2(14).

6. A compromise decree passed by a Court would ordinarily be covered by Section 17(1)(b) but sub-section (2) of Section 17 provides for an exception for 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. Thus, by virtue of sub-section(2)(vi) of Section 17 any decree or order of a Court does not require registration. In sub-clause(vi) of sub-section (2), one category is excepted from sub-clause(vi), i.e., 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. Thus, by conjointly reading Section 17(1)(b) and Section 17(2)(vi), it is clear that a compromise decree comprising immovable property other than which is the subject matter of the suit or proceeding requires registration, although any decree or order of a Court is exempted from registration by virtue of Section 17(2)(vi). A copy of the decree passed in Suit No.250-A of 1984 has been brought on record as Annexure P-2, which indicates that decree dated 04.10.1985 was passed by the Court for the property, which was subject matter of the suit. Thus, the exclusionary clause in Section 17(2)(vi) is not applicable and the compromise decree dated 04.10.1985 was not required to be registered on plain reading of Section 17(2)(vi). The High Court referred to judgment of this Court in Bhoop Singh v. Ram Singh Major and Others, (1995) 5 SCC 709: 1995(3) R.R.R. 541, in which case, the provision of Section 17(2)(vi) of Registration Act came for consideration. This Court …….

11……….. In view of the pronouncement of this Court by Three Judge Bench judgment in Ravinder Kaur Grewal and Others v. Manjit Kaur and Others (supra), the very basis of the High Court for holding that compromise deed dated 04.10.1985 requires registration is knocked out. The present is not a case where there is any allegation that the decree dated 04.10.1985 is a collusive decree. The decree dated 04.10.1985 was in favour of the plaintiff of 7 biswa land, survey No.203 and for remaining land of survey No.203, it was held that it belonged to defendants.

12. In Bhoop Singh (supra), this Court held that the earlier decree required registration for the reasons as mentioned in paragraph 19. The reasons given in paragraph 19 of the above case has no application in the facts of the present case.

13. This Court in Som Dev and Others v. Rati Ram and Another, (2006) 10 SCC 788 : 2006(4) R.C.R.(Civil) 303 while explaining Section 17(2)(vi) and Section 17(1)(b) and (c) held that all decree and orders of the Court including compromise decree subject to the exception as referred that the properties that are outside the subject matter of the suit do not require registration. In paragraph 18, this Court laid down following: –

“18. ……. But with respect, it must be pointed out that a decree or order of a court does not require registration if it is not based on a compromise on the ground that clauses (b) and (c) of section 17 of the Registration Act are attracted. Even a decree on a compromise does not require registration if it does not take in property that is not the subject-matter of the suit………”

…………… In facts of the present case, the decree dated 04.10.1985 was with regard to property, which was subject matter of the suit, hence not covered by exclusionary clause of Section 17(2)(vi) and present case is covered by the main exception crafted in Section 17(2)(vi), i.e., “any decree or order of a Court”. When registration of an instrument as required by Section 17(1)(b) is specifically excluded by Section 17(2)(vi) by providing that nothing in clause (b) and (c) of sub-section (1) applies to any decree or order of the Court, we are of the view that the compromise decree dated 04.10.1985 did not require registration and learned Civil Judge as well as the High Court erred in holding otherwise. We, thus, set aside the order of the Civil Judge dated 07.01.2015 as well as the judgment of the High Court dated 13.02.2017. The compromise decree dated 04.10.1985 is directed to be exhibited by the trial court. The appeal is allowed accordingly.”

The said judgement of the supreme court was again followed in Gurcharan Singh v. Angrez Kaur 2020(2) RCR (Civil) 696, Wherein it was held that :-

“Defendants obtained right, title and interest in suit property by virtue of decree passed in earlier suit between owner and defendants – In said suit original owner admitted claim of defendants and consent decree was passed – Owner in said suit prayed that suit of plaintiffs be decreed as prayed – Pre-existing right of plaintiffs was admitted by defendant and decree was passed therein – No registration of decree required – High Court erred in holding decree as void for want of registration.”

The aforesaid law as laid down by various courts makes it clear that a consent decree is as good as any other contested decree i.e. a decree obtained after contest, and shall have the same binding force as any other validly passed decree.

A consent decree also creates an estoppel against the parties to the litigation and it cannot be challenged subsequently on merits, except on the grounds of fraud, misrepresentation, undue influence etc. As discussed above the registration of the decree also has been made a ground to challenge the same, but time and again the same has been negated, and discouraged by the courts, if the person in whose favour the decree was passed, had a pre existing right in the property that is subject matter of the decree.

Though there is no limitation to challenge a decree on the basis of fraud etc., however, the same needs to be challenged within a period of 3 years from the date of knowledge of the same (fraud), in light of the provisions of Articles 58 and 59 of the Limitation Act.

It may also be mentioned that a compromise decree passed under the provisions of Order 23 Rule 3 can only be challenged before the same court i.e. the court which passed the decree, or in appeal under the provisions of Order 23 Rule 3A, but a judgement on admission, as under Order 12 Rule 6, popularly called a consent decree, can be challenged by the person so affected, even in a separate civil suit on the basis of fraud etc., but not on the ground that facts pleaded in the previous suit culminating in the impugned consent decree were erroneous and incorrect. The said questions stand determined and concluded by the consent decree, and cannot be re adjudicated, and would be barred by principle of res judicata in the subsequent suit.

Thus from the entire case law on the point, it can well be said that though both the words `compromise’ and `consent decree’ are often interchangeably used and there is a thin line of distinction between a `consent decree or a judgement based on admission’ and a `compromise decree’, as passed under order 23 rule 3, and one holds as good as the other, yet when it comes to challenging the same on any of the permissible grounds, both hold different parameters and checks.

Further more, a `Judgment on Admissions’ under Order XII Rule 6, can not be claimed as matter of right as the language used in that provision of the Code is enabling, discretionary and permissive, and is neither mandatory nor it is peremptory, since the word “may” has been used. No matter how much clear the admission may be, the said power with the court is absolutely discretionary and should be exercised judicially, on the facts and circumstances of each case. The underlying object of the abovementioned rule is to enable a party to obtain speedy judgment on admission, in respect of admitted claims, although disposal of disputed claims in a suit are pending. A decree can be passed only to the extent of admitted claims, for which admissions are clear, unequivocal and unambiguous. There is no specific form of admission required for a Court to pass a decree. It may be contained in pleadings or otherwise. It may be in writing or may even be oral, but once recognised and affirmed by the court in the shape of a decree, the same is as effective and has the same force as any other decree obtained after a contest.

Despite having a binding effect and application of principle of estoppel as against the parties to the litigation in consent decrees, they are challenged as easy as they are consented too.

Thus, it would not be wrong to conclude by saying that “one can never consent to creep when one feels an impulse to soar”.

(The author is a practising advocate in the Punjab and Haryana High Court at Chandigarh and the views shared herein are personal only)

INTRODUCTION

As the title of this article suggests, in this article, we will discuss some important heads of procedure incorporated under Code of Civil Procedure (hereinafter to be referred as CPC or Code) for executing a decree passed by a civil court in India. Suppose A files a suit against B for Rs 100,000/- and obtains a decree against him. Here A is the judgement-creditor or decree-holder. B is the judgement-debtor, and the amount of Rs 100,000/- is the judgement-debt or the decretal amount. Since the decree is passed against B, he is bound to pay Rs 100,000/- to A. Supposedly in spite of the decree, B refuses to pay the decretal amount to A. Now, what remedy is left with A to recover his said amount? A can recover the said amount from B by executing the decree through judicial process. The principles governing execution of decrees and orders are dealt with in Sections 36 to 74 (substantive law) and Order 21 of the CPC (procedural provisions). Order 21 contains 106 Rules and is the longest of all Orders in the Code.

EXECUTION: MEANING

The term “execution” has not been defined in the code. In its widest sense, the expression “execution” signifies the enforcement or giving effect to a judgement or order of a court of justice. In other words, execution is the enforcement of decrees and orders by the process of the court, so as to enable the decree-holder to realise the fruits of the decree. In Ghan Shyam Das v. Anant Kumar Sinha, (1991) 4 SCC 379, dealing with the provisions of the Code relating to execution of decrees and orders, the Hon’ble Apex Court stated, “So far as the question of executability of a decree is concerned, the Code contains elaborate and exhaustive provisions for dealing with it in all aspects. The numerous rules of Order 21 of the Code take care of different situations providing effective remedies not only to judgement-debtors and decree-holders but also to claimant objectors. In an exceptional case, where provisions are rendered incapable of giving relief to an aggrieved party in adequate measure and appropriate time, the answer is a regular suit in the civil court.”

COURTS BY WHICH DECREES MAY BE EXECUTED: SECTION 38

A decree may be executed either by the court which passed it, or by the court to which it is sent for execution. A court which has neither passed a decree, nor a decree is transferred for execution, cannot execute it. Section 37 of the Code defines the expression “court which passed a decree” and the following courts fall within the said expression:

(i) The court of first instance which actually passed the decree;

(ii) The court of first instance in case of appellate decrees;

(iii) Where the court of first instance has ceased to exist, the court which would have jurisdiction to try the suit at the time of execution and

(iv) Where the court of first instance has ceased to have jurisdiction execute the decree, the court which at the time of execution would have had jurisdiction to try the suit.

But, sometimes a peculiar situation arises. Suppose court A passed a decree, and thereafter a part of the area within the jurisdiction of court A is transferred to court B. In such a situation the following two questions arise:

a) whether court A continues to have jurisdiction to entertain an application for execution? And

b) whether court B (to which the area is transferred) can also entertain an application for execution without a formal transmission of the decree from court A to B?

The first question must now be answered in the affirmative after the pronouncement of the Supreme Court in the case of Merla Ramanna v. Nallaparaju, AIR 1956 SC 87, wherein the court held:

“It is settled law that the court which actually passed the decree does not lose its jurisdiction to execute it, by reason of the subject-matter being transferred subsequently to the jurisdiction of another court.”

With regard to the second question, the Explanation added to Section 37 by the Amendment Act of 1976 makes it amply clear that both the courts would be competent to entertain an application for execution of a decree.

TRANSFER OF DECREE FOR EXECUTION: SECTIONS 39-42; ORDER 21 RULES 3-9

As a general rule, the court which passed the decree is primarily the court to execute it, but such court may send the decree for execution to another court either suomotu or on the application of the decree-holder if any of the following grounds exists:

(i) The judgement-debtor actually and voluntarily resides or carries on the business, or personally works for gain, within the local limits of jurisdiction of such court; or

(ii) The judgement-debtor does not have property sufficient to satisfy the decree within the local limits of the jurisdiction of the court which passed the decree but has property within the local limits of such court; or

(iii) The decree directs the sale or delivery of immovable property situate outside the local limits of the jurisdiction of such other court; or

(iv) The court which passed the decree considers it necessary for any other reason to be recorded in writing that the decree should be executed by such other court.

The decree-holder has no vested or substantive right to get the decree transferred to another court. The provisions of Section 39 are not mandatory and the court has discretion to decide it. Sub-section (3) of Section 39 clarifies that the transferee court must have pecuniary jurisdiction to deal with the suit in which the decree was passed. Likewise, sub-section (4) of Section 39 further makes it clear that the court passing decree has no power to execute such decree against a person or property outside the local limits of its territorial jurisdiction. However, Section 46 of the Code empowers the court which passed the decree to issue precept to court which would be competent to execute the decree (within whose jurisdiction the property of judgement-debtor is lying) to attach any property belonging to the judgement-debtor. The order passed under Section 46 is interim in nature and can be lasted for two months only unless the case is covered by proviso. An order of permanent attachment under Section 46 is, therefore, illegal.

WHO MAY APPLY FOR EXECUTION: RULE 10

The following persons may file an application for execution:

a) Decree-holder.

b) Legal representative of the decree-holder, if the decree-holder is dead.

c) Representative of the decree-holder.

d) Any person claiming under the decree-holder.

e) Transferee of the decree-holder, in case decree has been transferred by an assignment in writing or by operation of law.

f) One or more of the joint decree-holders, if for benefit of all the decree-holders and application is made for execution of whole decree and no contrary condition is imposed in the decree.

g) Any person having special interest.

AGAINST WHOM EXECUTION MAY BE TAKEN OUT

Execution may be taken out against the following persons:

i) Judgement-debtor.

ii) Legal representative of the judgement-debtor, if he is dead. However, they shall be liable to the extent of the property of the deceased judgement-debtor which has come to their hands.

iii) Representative of or the person claiming under the judgement-debtor.

iv) Surety of the judgement-debtor.

NOTICE OF EXECUTION: RULE 22

Rule 22 provides for the issue of show-cause notices to persons against whom execution is applied for in certain cases. As a general rule, the law does not require any notice to be issued for execution. In the following cases only, however, such notice must be issued:

1) Where an application is made two years after date of decree; or

2) Where an application is made against the legal representative of the judgement-debtor; or

3) Where an application is made for the execution of a decree passed by a court of reciprocating territory; or

4) Where an application is made against the assignee or receiver of insolvent judgement-debtor; or

5) Where the decree is for payment of money and the execution is sought for arrest and detention of judgement-debtor; or

6) Where an application is made against a surety; or

7) Where an application is made by the transferee or assignee of the decree-holder.

Omission to give notice is a defect which goes to the root of the proceeding and renders them null and void and without jurisdiction unless the judgement-debtor waives such notice. Moreover, Sub-rule (2) of Rule 22 empowers the court to dispense with such notice, if it would cause unreasonable delay or would defeat the ends of justice.

LIMITATION FOR EXECUTION

The period of limitation for the execution of a decree (other than a decree granting a mandatory injunction) is 12 years from the date of the decree. The period of limitation for the execution of a decree for mandatory injunction is 3 years from the date of the decree.

WHEN EXECUTING COURTMAY STAY EXECUTION? : RULE 26

The power to stay the execution of a decree by a transferee court is not similar to the power of the court which passes a decree. Whereas the transferor court can grant absolute stay, the transferee court can stay execution for a reasonable time to enable the judgement-debtor to apply to the transferor court or to appellate court to grant stay against the execution.

Where the judgement-debtor applies for stay of execution, the transferee court must obtain security from the judgement-debtor or impose such condition as it may think fit. The provision is thus mandatory and imperative. Rule 28 provides that the transferee court is bound by an order made by the court which passed the decree or by an appellate court in relation to execution of such decree.

STAY OF EXECUTION PENDING SUIT: RULE 29

Rule 29 enacts that where a suit by the judgement-debtor is pending in a court against the decree-holder, such court, may, on the judgement-debtor furnishing security or otherwise as it thinks fit, stay execution of the decree until disposal of such suit. For this rule to apply, there must be two simultaneous proceedings in one and the same court. The underlying object of this provision is twofold, namely, firstly, to enable the judgement-debtor and the decree-holder to adjust their claims against each other; and secondly, to avoid multiplicity of execution proceedings.

MODE OF EXECUTION: SECTION 51

The code lays down various modes of execution. After the decree-holder files an application for execution of a decree, the executing court can enforce execution. The substantive provision (Section 51) merely enumerates different modes of execution in general terms, while the conditions and limitations under which the respective modes can be availed of are prescribed by different provisions under Order 21. The Code provides the following modes for execution of different types of decrees:

1) Delivery of property.

2) Attachment and sale or by sale without attachment of any property.

3) Arrest and detention in prison for such period not exceeding as specified in Section 58.

4) Appointment of receiver.

5) Other manner as the nature of relief granted may require.

QUESTIONS TO BE DETERMINED BY EXECUTING COURT: SECTION 47

Section 47 is one of the most important provisions in the Code relating to execution. It applies only to matters arising subsequent to the passing of a decree and deals with objections to execution, discharge and satisfaction of a decree. It lays down the principle that matters relating to the execution, discharge or satisfaction of a decree arising between the parties, or their representatives, should be determined in execution proceedings and not by a separate suit.

Conditions

In order that this section may apply, the following conditions must be satisfied:

a) The question must be one arising between the parties to the suit in which the decree is passed or their representatives (not only legal representatives, but also representative-in-interest); and

b) It must relate to the execution, discharge or satisfaction of the decree.

Both the above conditions must be satisfied cumulatively.

NOTE: An order under Section 47 does not amount to a decree, it is not appealable under Section 96 and 100. A revision application under Section 115 of the Code is, therefore, maintainable provided the conditions laid down in Section 115 are satisfied.

SECTION 47 AND ORDER 21 RULE 58: DISTINCTION

Order 21 Rule 58 postulates that where any property(whether movable or immovable) is attached in execution of a decree, it is always open to the parties, their representatives or third parties having some right, title or interest in or possessed of the property attached, to raise objection against such attachment. If the objection is raised by a party or his representative, the question falls under Section 47 of the Code and should be decided by the executing court and not by a separate suit.

On the other hand, if such objection is raised by a third party, two courses are open to him. Firstly, he may straightaway file a suit claiming appropriate relief. Secondly, he may file an application under Order 21 Rule 58 of the Code to the executing court.

Section 47 applies to parties to the suit or their representatives, whereas, Order 21 Rule 58 applies to third parties or their representatives. Section 47 not only bars a suit but also bars an appeal, on the other hand, Order 21 Rule 58 bars a suit not appeal.

ORDER 21 RULE 58 AND ORDER 21 RULES 97 & 99: DISTINCTION

As we discussed above Order 21 Rule 58 deals with objections made by parties to the suit or third party with respect to the attachment of the property in execution of a decree, whereas, Order 21 Rule 97 talks about objections made by decree-holder or auction purchaser of immovable property after they are resisted or obstructed by any person (either judgement-debtor or third party) in obtaining possession of the said property delivered to them in execution of a decree, on the other hand, Order 21 Rule 99 stipulates objections made by third party only when he/she is dispossessed of immovable property by the decree-holder or auction-purchaser.

From this, it is amply clear that Order 21 Rule applies only when the property (whether movable or immovable) is attached in execution of decree, whereas, Order 21 Rules 97 & 98 comes into play only when the immovable property alone is delivered to judgement-holder or auction-purchaser in execution of a decree.

NOTE: An order passed under Order 21 Rule 98 or 100 on application under Order 21 Rule 97 or 98, respectively, is always subject to appeal and hence, can be challenged in appeal. But, any said order being passed summarily without making any inquiry or framing issues under Order 21 Rule 101, the aggrieved would be left with only one remedy i.e. Revision not appeal, as held by Hon’ble Supreme Court in Sameer Singh v. Abdul Rab Ors., 2014(4) RCR (Civil) 914.

CONCLUDING REMARKS

From the above discussion, it is manifest that the Code contains elaborate and exhaustive provisions for execution of decrees and orders and provide effective remedies not only to decree holders and judgement-debtors, but also to objectors and third parties. In exceptional cases, where provisions are rendered ineffective or incapable of giving relief to an aggrieved party, he can file a suit in a civil court. It is pertinent to apprise to the voracious readers here that in this article some topics like, procedure to be adopted for sale of property, resistance to delivery of possession, distribution of assets are left untouched in order to avoid giving too much length to this article. One can see Order 21 for the relevant provisions prescribed therein touching the said topics.