REKHA MUKHERJEE versus ASHISH KUMAR DAS AND ANR.

Citation: [2003] SUPP. 5 S.C.R. 646 · Decided: 18-11-2003 · Supreme Court of India · Bench: V.N. KHARE · Disposal: Appeal(s) allowed

Judgment (excerpt)

A 
B 
REKHA MUKHERJEE 
v. 
ASHISH KUMAR DAS AND ANR. 
NOVEMBER 18, 2003 
[V.N. KHARE, CJ., S.B. SINHA AND DR. AR. LAKSHMANAN, JJ.] 
Suit for eviction by appellant-Suit for specific performance of agreement 
of sale by respondent-Trial Court decreeing appellant's suit-Appellant 
C furnishing an undertaking before Supreme Court not to proceed with execution 
of eviction decree till the decision in respondent's suit-Dismissal of 
respondent's suit by trial court-Appeal of respondent pending in High 
Court-Validity of the undertaking given before Supreme Court-Held, 
undertaking given till the decision in the suit does not mean till it attains 
finality-Doctrine of merger cannot be applied in interpretation of an 
D undertaking-Hence, the undertaking becomes invalid after dismissal of 
respondent's suit by trial court. 
Appellant-landlord filed a suit for eviction against the respondent-
tenants from suit premises. The respondents also filed a suit for specific 
E performance of the agreement of sale of the suit premises against the 
appellant The trial court decreed the suit of the appellant. The appellant filed 
an Execution Petition before the trial court. The first appellate court allowed 
the appeal of the respondents against the decree of the trial court. In second 
appeal, the High Court held in favour of the appellant. The respondents filed 
a Special Leave Petition before the Supreme Court, which was dismissed 
F subject to furnishing of an undertaking by the appellant not to execute the 
eviction decree till the trial court decides the specific performance suit of 
the respondent. This Court further directed the trial court to decide the suit 
of the respondents expeditiously within a period of six months. The appellant 
furnished an undertaking as per the order of this Court. 
G 
The trial court dismissed the specific performance suit of the 
respondents. The trial court allowed the review application of the respondents. 
The respondents filed an appeal before High Court against the dismissal of 
the suit by the trial Court. An application for stay of the execution proceeding 
filed by the respondent before the Executing Court was dismissed. In appeal 
H 
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REKHA MUKHERJEE v. A.K. DAS 
647 
by the respondents against the dismissal of the application by the Executing A 
Court, the High Court directed the Executing Court to decide the application 
for stay giving sufficient reasons. The Executing Court directed the parties 
to approach the Supreme Court for clarification to determine whether the 
undertaking given by the appellant before the Supreme Court is in force after 
the dismissal of the suit for specific performance by the trial court. In appeal B 
by the appellant against the direction of the Executing Court, the High Court 
held that the undertaking given by the appellant before the Supreme Court is 
still valid and hence the execution proceeding by the appellant cannot be 
proceeded with since the specific performance suit of the respondent has not 
yet attained finality. 
In appeal, the appellant contended that the undertaking of the appellant 
given before the Supreme Court has lost its efficacy on dismissal of the suit 
for specific performance of the respondents by the trial court 
c 
The respondents contended that the undertaking of the appellant is still 
effective since the appeal preferred by the respondents before the High Court D 
against the dismissal of the suit for specific performance is pending. 
Allowing the appeal, this Court 
HELD: 1.1. The undertaking of the appellant before this Court must be 
read together with the operative portion of the order of this Court which would E 
clearly go to show that the appellant had given the undertaking that the eviction 
decree would not be executed till the 'decision' of the suit for specific 
performance of contract and not thereafter. It is a well settled principle o'" law 
that a judgment should not be read as a statute. [652-E-F, G) 
Padma Sundara Rao (Dead) and Ors. v. State of T.N. and Ors., (2002) 3 F 
SCC 533; Haryana Financial Corporation and Anr. v. Jagadamba Oil Mills 
and Anr., [2002) 3 SCC 496; General Electric Co. v. Renusagar Power Co., 
(1987) 4 SCC 137; Rajeshwar Prasad Mishra v. The State of West Bengal and 
Anr., AIR (1965) SC 1887 MIS Amar Nath Om Prakash and Ors. v. State of 
Punjab and Ors., (198511sec345 and Hameed Joharan (Dead) and 01s. v. G 
Abdul Salam (dead) by Lrs. and Ors., [2001) 7 SCC 573, relied on. 
1.2. The e

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