Gaodevi Utkarsh Sra Co-Op. Housing Society Ltd. and Ors. Vs. Sudesh Darshan Aggarwal and Ors. - (National Consumer Disputes Redressal Commission) (12 Dec 2018)

Executing court cannot go beyond the decree.

MANU/CF/0832/2018

Consumer

In instant matter, the Complainant purchased a shop. The said building including the said shop of the Complainant was re-developed by the Housing Society through the Developers. Through the draw of lots, under the re-development agreement, the Complainant was allotted shop No. 5 and one Mrs. Kalawati Jain was allotted shop No. 6. It was stated that, the Housing Society and the Developers were not handing over the possession of the shop to the Complainant since 2005 on one pretext or the other and hence the Complainant got issued a legal notice to them seeking possession of shop No. 5. Whether including the shop number in the impugned order by the State Commission amounts to review/recall of its earlier order.

It is apparent on the face of the record that, the Complainant did not mention the shop number in the prayer and, therefore, in the substantive order the State Commission has only directed for possession of 'the shop.' The finding of the State Commission in the impugned order that 'the shop' referred to shop No. 5 does not amount to reviewing or recalling its own order as it is apparent on the face of the record that the Developers in his written version and in his affidavit of evidence has clearly stated that shop No. 5 was allotted to the Complainant by way of draw of lots.

The Society was set ex-parte before the State Commission. Even otherwise a perusal of the Complaint, the substantive order and the impugned order does not anywhere construe that the executing court has traversed beyond its original decree. While the executing court cannot go beyond the substantive order passed, it is also the duty of the executing court to interpret the decree in its truest sense in its endeavour to deliver justice.

The Supreme Court in Meenakshi Saxena Vs. ECGC has laid down that, the whole purpose of Execution proceedings is to enforce the verdict of the Court. Executing Court while executing the decree is only concerned with the execution part of it. The Court has to take the judgment in its face value. It is settled law that executing court cannot go beyond the decree. But the difficulty arises when there is ambiguity in the decree with regard to the material aspects. Then it becomes the bounden duty of the court to interpret the decree in the process of giving a true effect to the decree.

The Complainant had vested rights in shop No. 5. In view of the material on record, the Executing Court has only clarified its original order and interpreted 'the shop' to be 'shop No. 5'. No illegality or infirmity in the order passed by the State Commission directing the Housing Society to deliver shop No. 5 to the Complainant. Therefore, Appeal Execution is dismissed.

However, the Developers had already handed over the building to the Housing Society and it is the duty of the Housing Society to allot the shops to the Members. Though the document states that the allotment of different shops to the Members of the Housing Society has been approved by BMC and SRA along with the Developers and the Managing Committee of the Housing Society, there is no documentary evidence on record to substantiate that it is the Developers who has to make the allotments to the Members of the Housing Society. Hence, Appeal Execution preferred by the Developers is allowed while confirming the rest of the order of the State Commission in respect to the Housing Society.

Tags : SHOP POSSESSION DIRECTION