TaxTMI 
TaxTMI 
2013 (10) TMI 365
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....nds. The cause for filing the said suit was the reluctance of the Defendants in complying with the terms and conditions of the said Agreement of Sale dated 25th January 1994. In the said suit the relief sought was in respect of specific performance of the said Agreement of Sale dated 25th January 1994 as also the letter dated 18th October 1994. During the pendency of the said suit, the parties entered into a compromise which was recorded in the Consent Terms which were drawn up. The said Consent Terms were filed in the said suit on 5th January 1995 and the said suit was decreed in terms of the said Consent Terms. It has been recorded in the said Consent Terms which have been signed by the parties that the Defendants have received a sum of Rs.25,50,000/- from the Plaintiff i.e. the Petitioner herein in full and final settlement towards the consideration of the suit lands. The Defendants undertook to execute conveyance in respect of the suit lands. The Defendants also undertook to produce the Certificate under Section 230-A of the Income Tax Act, 1961 on or before execution of the conveyance. The said Consent Terms also provided that the Plaintiff i.e. the Petitioner herein would pro....
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.... said letter/notice in respect of the lands mentioned in Annexure-A of the Consent Terms. On the Defendants failing to comply with the said notice, the Plaintiff filed Special Darkhast No.28 of 2010 for execution of the consent decree dated 5-1-1995 passed in the said Suit. The Plaintiff whilst seeking execution of the said decree had also sought other connected reliefs which are mentioned in the execution application. The list of the suit properties was also annexed to the said execution application being Annexure-A. The prayers in the said Special Darkhast No.28 of 2010 are reproduced hereunder for ready reference :- "(1) The Notices under O.21 R.22 of C.P.C. May be issued to the Defendants calling upon them to show cause why the Decree should not be executed against them. (2) It is prayed that simultaneously the Notices under O.21 R.34(2) of C.P.C. May be issued to the Defendants and the draft of the Sale Deed of the suit property may be served on the Defendants. (3) If the Defendant objects to the Draft which may be heard & decided. The Draft of the Sale Deed may be approved as per the provision under....
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....n the ground that since the execution proceeding has been registered, the same is within limitation and therefore the application Exhibit 17 for stay of the execution proceeding could not be entertained and accordingly rejected the same by order dated 24-2-2011. The said order was challenged by the Judgment Debtors by filing a Writ Petition in this Court being Writ Petition No.2128 of 2011. The said Writ Petition was allowed by a Learned Single Judge of this Court and the Learned Single Judge held that the direction to register the execution Petition, can by no stretch of imagination be held to be conclusive determination of the issue of limitation. The Learned Judge therefore set aside the said order dated 24-2-2011 and remanded the matter back to the Trial Court for deciding the objection as regards the maintainability of the execution Petition afresh on the point of limitation. 6. On remand, the Executing Court has passed the impugned order dated 21/04/2012 by which the Executing Court held that the execution proceeding is not barred by limitation entirely and that the same is barred only in respect of the conveyance of the Suit property which is sought. The Executing Court as ....
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....file the execution application would arise only when the Respondents denied execution of the conveyance when called upon to do so by the Petitioner. (E) That the Plaintiff called upon the Respondents to execute the conveyance by letter/notice dated 12/1/2010. The date of reckoning for limitation would be the said date i.e. 12/1/2010 from which the limitation would start to run in so far as the application for execution is concerned. (F) That the Petitioner has paid the further amounts to the Defendants in lieu of the constructed area which was to be handed over to the Respondents and the same was done between the period 2004-2007 and therefore the execution application filed in the year 2010 was within the period of 12 years of the said amount being paid. (G) That since Section 230A of the Income Tax Act was repealed on 01/06/2001, the Execution Application filed in the year 2010 was therefore within limitation; (H) That the execution of the decree stands apart from the enforceability of the decree. The enforceability of the decree in the instant case arose only when the Responde....
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.... the said contention. (IV) That the submission based on clause 12 viz. that the conveyance was to be executed as and when called upon by the Petitioner was not a point which was urged before the Executing Court and has been urged for the first time in this Court. The Petitioner is therefore dis-entitled to raise the said point as the said point was not for consideration before the Executing Court. (V) That the receipts in respect of payments made between the year 2004-2007 do not mention that the said payments were towards the constructed portion which was to be handed over to the Defendants by the Petitioner, and therefore, the said receipts cannot aid the Petitioner to get the time extended; (VI) That Section 18(1) of the Limitation Act would have no application as the receipts in question are after the decree has been passed by the Executing Court; and would also not apply in view of clause (c). (VII) That the permission to be obtained under Section 230A would not postpone the execution unless the specified date was mentioned by which date the permission was to be obtained, as....
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.... 230-A of the Income Tax Act, 1961 on or before execution of the Conveyance. The defendants shall do all such acts, deeds and things which are necessary and required for effectively transferring the said lands in favour of the plaintiff or his nominee or nominees as aforesaid. 6. The defendants shall execute an Irrevocable General Power of Attorney in favour of the plaintiff or his nominee or nominees as per the draft prepared by the plaintiff or his nominees as the case may be in respect of the properties described in Annexure A hereto. 7. It is hereby declared that the Power of Attorney dated 25th January, 1994, the declaration dated 25th January 1994 is valid and subsisting and binding on the defendants. 9. The plaintiff shall be entitled to develop the said lands by construction of building or buildings thereon and by selling flats and premises therein. 10. It is declared that the defendants have no subsisting right, title or interest of whatsoever nature in respect of the said lands or any part thereof. 12. In the event of the defendants failing to execut....
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....that the decree in question is enforceable from day one and that the said decree was not a conditional decree or was contingent upon the happening of certain events. 12. Now coming to the first submission of the Learned Counsel for the Decree Holder, no doubt a consent decree presupposes an agreement which has been arrived at between the parties and in terms of which agreement, the parties desire that the proceedings be disposed of. The consent decree in the instant case, no doubt reflects the agreement which was arrived at between the parties in the said Suit. However, the said agreement cannot be equated with an agreement of which the enforcement is sought in a Suit. The agreement in question in the instant matter has translated itself into a decree and therefore all the attributes of a decree would be applicable to it. The submission of the Learned Counsel for the Decree Holder based on clause 4 seems to be attractive at the first blush, but does not hold water on deeper scrutiny. As indicated above, the decree in question was enforceable from day one as the Court in question was not required to do anything further in the matter for the decree being made enforceable. Therefore,....
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.... a specific order of Court, the decree is enforceable immediately. In the facts of the present case, the decree nowhere discloses that it specifies some future date for its enforcement, the court has not postponed the enforceability of the decree by any order. Hence the decree in question in the present case was enforceable from day one i.e. 5-1-1995. The said Judgment therefore can hardly said to aid the case of the Decree Holder in so far as getting over the aspect of limitation is concerned. 15. In West Bengal Essential Commodities Supply Corpn's case (supra) the Apex Court was concerned with the enforceability of a money decree. The Apex Court held that a decree or order is said to be enforceable when it is executable, and for a decree to be executable, it must be in existence. The Apex Court further held that a decree would be deemed to come into existence immediately on the pronouncement of the judgment. In the facts of the case before it where the decree was a money decree, the Apex Court held that the decree became enforceable immediately on the pronouncement of the judgment, and therefore, it cannot be said that the delay in drawing up the decree renders it unenforceable ....
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.... Navani's case (supra) the permission of the Board of Trustees of the Port of Bombay was to be obtained where as in the present case, the certificate under Section 230-A of the Income Tax Act was to be obtained. Hence in my view, the fact that the permission under Section 230-A was to be obtained would not make the decree in question a conditional decree so as to extend the period of limitation or suspend the period of limitation from running till such time as the certificate was obtained. 17. The Learned Counsel appearing for the Decree Holder also sought to rely upon Section 18(1) of the Limitation Act to contend that since payment has been accepted by the Judgment Debtors between the years 2004 to 2007 in lieu of the flat admeasuring 600 sq.ft. which was to be handed over to the Judgment Debtors, the limitation period would get extended as a fresh period of limitation would have to be computed from the date of payment and therefore the application filed in the year 2010 was within time. In so far as the said submission is concerned, a serious objection was taken on behalf of the Judgment Debtors to the said submission on the ground that the receipts which are sought to be relie....