The bench of Justice M. M. Sundresh and Prashant Kumar Mishra while reiterating the principle that the executing court cannot go beyond the decree, held that, “the legal principle that an Executing Court cannot go beyond the decree stands fortified, subject to the rigor of Section 47 read with Order XXI of the Code. As a matter of course, an Executing Court is enjoined with the duty to give effect to the decree. Any interference, including on a question involving jurisdiction, should be undertaken very sparsely as a matter of exception. The onus lies heavily on the judgment-debtor to convince the Court that a decree is inexecutable. When an exercise is likely to involve a factual adjudication, it should better be avoided.

While stating the limitations of the Executing Court, the bench said “the conduct of a party assumes significance. If a party is likely to have an undue advantage, despite the availability of an opportunity to raise a plea of lack of jurisdiction at an earlier point of time, it should not be permitted to do so during the execution proceedings. In other words, a plaintiff shall not be made to suffer by the passive act of the defendant in submitting to the jurisdiction. One has to see the consequence while taking note of the huge pendency of the cases before various Courts in the country. There is no gainsaying that but for the adverse decree suffered, a judgment-debtor would not have ventured to raise such a plea. It is clearly a case of an afterthought to suit his convenience. He cannot be allowed to approbate and reprobate.”

With regard to the question of choosing the forum, the court said “there is a subtle difference when we deal with a case involving coram non-judice. The principle governing lack of jurisdiction to a forum may differ from a case where two or more forums deal with the same issue along with the rights and liabilities of the parties. To make the position clear, one has to see as to whether there is any change in the rights and liabilities of the parties by choosing one forum as against the other.”

“When the process becomes the same for both parties who undertake the said route willingly, the question of jurisdiction cannot be put against each other after it has attained finality, unless it is demonstrated that the rights of the party who suffered the decree are obliterated” , the bench remarked.

The facts of the case are that, “The appellant being the undisputed owner of the suit property executed a registered lease deed in favour of respondent no. 2. Respondent no. 1 concern is being represented by a person who is the son of the individual (since deceased) who represented respondent no. 2. The period of lease was for 33 years. The suit premises was sublet without permission by respondent no(s). 1 and 2.

After the expiry of the lease by efflux of time, the appellant issued a legal notice requiring respondent no. 2 to hand over the vacant possession. A reply was given stating that the possession having been handed over only on 25.11.1966, the lease subsists till 24.11.1999. On receipt of the said reply-notice by respondent no. 2 dated 05.06.1999, a second notice was issued by the appellant to which a different response came; that the said registered lease was extended orally for another 33 years.

A reference was also made to the arbitration clause available under the original lease deed. 6. The appellant promptly filed a suit in O.S. No. 132 of 1999 before the Wakf Tribunal seeking a decree for ejectment and recovery of possession, along with arrears of rent and damages. After a prolonged litigation and delaying tactics employed at the hands of respondent no(s). 1 and 2, a decree was passed at last on 13.11.2002. The suit was 3 dismissed against defendant no(s). 3, 4, 5, and 7, while defendant no. 6 was set exparte. No plea with respect to the jurisdiction of the Wakf Tribunal was raised, while the aborted attempt to raise a defense of oral lease was rightly repelled.

Sr. Advocates Dr. Abhishek Manu Singhvi and Mr. Huzefa Ahmadi assisted by Mr. Mahfooz Ahsan Nazki, AOR represented the petitioners whereas Sr. Advocate Mr. Shyam Divan assisted by Mr. B. Shravanth Shanker, AOR and Mr. K.Parameshwar, AOR appeared for the Respondents.

Case Details:-

SLP (C) No. 997 of 2022
MUMTAZ YARUD DOWLA WAKF
VERSUS
M/S BADAM BALAKRISHNA HOTEL PVT. LTD. & ORS.

Click here to view/download the judgment