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Property Lawyer: Decree not mandatory for filing execution petition; SC.

Supreme Court of India

Justice Abhay Manohar Sapre and Justice Dinesh Maheshwari

The SC {Sir Sobha Singh and Sons Private Limited versus Shashi Mohan Kapur} was in seisin of the issue - whether the execution petition is maintainable in case the trial court did not draw up the formal decree i.e. (in absence of formal decree)?

In the said case, the high court had set aside the order of the executing Court, on the technical ground, that since the trial court did not draw the formal decree after passing the consent order, the execution filed by the appellant without the formal decree is not maintainable.

The SC while setting aside the judgement of the High Court has held that even if the Appellant did not file the certified copy of the decree along with the execution application, for the reason that the same was not passed by the court. The execution application filed by the appellant was maintainable. It was further held that as long as the formal decree was not passed, the order of the trial court by which suit was disposed of, was to be treated as a decree, during the interregnum period, by virtue of Order 20 Rule 6A(2) of the Code. It was held that the said provision empowers the executing Court to entertain the execution application, by treating order of the court as a decree. Finally, the cost imposed upon the JD, by the executing court, in the sum of Rupees 5 lacs, for filing frivolous objections, was reduced to Rupees 50,000 by the SC. The Liberty was also given to the appellant for filing the application before the trial court for drawing up the formal decree. The Appeal was allowed and disposed of today in the above terms by the SC.


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