Ajit Kumar v. Monk Trading Pvt Ltd & Ors.

1. This petition has been filed under Article 227 of the Constitution of India seeking dismissal of the execution proceedings pending before ADJ-03, South District, Saket Courts, New Delhi (‘transferee Court’) in Execution Petition bearing No. 386/2022. There is no order of the transferee Court, which is impugned in this petition.

2. Learned counsel for the Petitioner states that the ADJ, Central District, Tis Hazari Courts, Delhi (‘Trial Court’) vide order dated 24.09.2022 has transferred the unamended decree dated 09.05.2022 to the transferee Court for its execution. He states, however, subsequently, on 05.11.2022, the decree has been amended on an application filed by Respondent No. 1.

2.1. He states that no fresh directions have been issued by the Trial Court for transferring the amended decree of 05.11.2022 to the transferee Court for execution. He states that the Respondent No.1 has filed the amended decree dated 05.11.2022 before the transferee Court and is pursuing the execution. He states that now that an amended decree has come into existence, which is sought to be enforced in the execution proceedings; in the absence of fresh directions by the Trial Court under Section 37 of CPC transferring the amended decree dated 05.11.2022, the execution proceedings qua the unamended decree are not maintainable.

2.2. He fairly states that these objections have not been raised before the Executing Court.

2.3. He states, however, there would be a requirement of a fresh order of transfer to be issued under Section 37 and 39 of CPC.

3. In reply, learned counsel for the Respondent states that the amendments carried out by the Trial Court to the decree on 05.11.2022 was merely clerical and were carried out only to include the name of the legal representatives of the deceased defendant No. 1 and to correct the reference of ‘cost of appeal’ to ‘cost of suit’. He states that therefore, no fresh directions are required to be issued by the Trial Court under Section 37 of the CPC to the transferee Court.

3.1. He states that the order dated 24.09.2022 passed earlier by the Trial Court under Section 37 to the transferee Court are sufficient.

4. This Court has considered the submissions of the parties and perused the record.

5. Learned counsel for the Petitioner herein fairly states that the Court, which has the appropriate jurisdiction for executing the decree dated 09.05.2022 as amended on 05.11.2022 is the transferee Court. He also fairly concedes that there has been no satisfaction of the decree of possession till date.

6. The Trial Court by its order dated 05.11.2022 carried out clerical corrections in the decree. The names of the legal representatives of deceased defendant no.1 i.e., late Shri Rajbir Singh was recorded and the entry of ‘cost of appeal’ was corrected to record ‘cost of suit’. The said legal representatives were already brought on record as per the order dated 01.11.2022. These corrections in no manner affect the executability of the decree dated 09.05.2022. The amendment carried out on 05.11.2022 is clerical in nature and therefore, by filing the said amended decree on record before the transferee Court, the Respondent No.1 has duly updated the said execution proceedings.

7. This Court has considered the submissions of the Petitioner and finds no merit in the contention that the execution proceedings before the transferee Court are not maintainable.

8. This Court is of the opinion that no such objections have been raised before the Executing Court and since the corrections, which are carried out by the Trial Court are merely clerical in nature and the amended decree already stands placed before the transferee Court, the objections raised by the Petitioner herein in these proceedings for the first time are without any merit.

9. The material fact is that the decree of possession, passed by the Trial Court has not been satisfied and the transferee Court has the requisite jurisdiction to enforce the decree dated 09.05.2022 as amended on 05.11.2022.

10. No prejudice has been caused to the judgment debtor by the filing of the amended decree before the transferee Court. The rules governing execution are not to be implemented with a pedantic approach; the Petitioner herein has due notice of the decree and the execution; the requirement of the Code therefore, stands satisfied. This Court finds no merit in the submission that the order dated 24.09.2022, transferring the original decree dated 09.05.2022 shall cease to have effect upon passing of the subsequent order dated 05.11.2022 making clerical errors in the said decree; considering that there is admittedly been no satisfaction of the decree.

11. Accordingly, the present petition is dismissed.