SMT. PARVATIBAI SUBHANRAO NALAWADE versus ANWARALI HASANALI MAKANI AND ORS. ETC.

Citation: [1991] SUPP. 3 S.C.R. 558 · Decided: 20-12-1991 · Supreme Court of India · Bench: L.M. SHARMA · Disposal: Appeal(s) allowed

Judgment (excerpt)

A 
SMT. PARVATIBAI SUBHANRAO NALAWADE 
v. 
'.... 
ANWARALI HASANALI MAKANI AND ORS. ETC. 
-
"' 
DECEMBER 20, 1991 
B 
[LALIT MOHAN SHARMA, J.S. VERMA AND S.C. AGRAWAL, JJ.] 
Code of Civil Procedure, 1908: 
Order 21, Rule 97-0bstruction to execution of consent decree for 
recovery of possession of premises by the tenant-Writ Petitions IJy Obstruc-
-~ 
c tionists-Maintainability of-Whether High Court justified in entertaining the 
Petitions and deciding merits of dispute against tenant. 
Constitution of India, 1950: 
D 
Articles 226 and 227-Dispute relating to immovable property governed 
by ordinary civil law-Whether High Court could exercise its special jurisdic-
tion. 
In terms of the consent decree passed by the trial court in the suit for 
eviction of the tenant-the' appellant's deceased father-from the portion of 
E the building belonging to respondent No. 3 Bank, the tenant was to vacate 
the premises, and on demolition of the old building and construction of 
new building, the landlord was to give possession of an identical (equal) 
area as in the original premises to the tenant. The right of the tenant to an 
identical area was an essential condition. While the tenant complied with 
his part of the compromise by handing over the premises, the respondent 
~ .... 
F Bank did not respect its undertaking by giving possession of an identical 
area to the tenant on completion of the building. Hence, the tenant ·made 
an application for restoration of possession, which was dismissed by the 
trial court as not maintainable. The matter ultimately went to the High 
Court which, though over-ruled the respondent's contention that the 
decree was not executable, held that the appropriate remedy for the tenant 
G was by way of execution of the consent decree, and remitted the matter for 
,,.J.._ 
disposal, treating it as execution proceedings. However, respondents No.1 
and 2 who had been inducted in the new building, resisted the delivery of 
""]111111 
possession. Consequently, the appellant filed an application under Order 
21, Rule 97 of the Code of Civil Procedure, which was allowed by the sma II 
causes court. On rejection of their appeals by the District Judge, respon-
H dents No. 1 and 2 and another person filed Writ Petitions before the High 
558 
SMT. PARVATIBAI v. A.H. MAKANI 
559 
CourL Though the High Court rejected various grounds raised by the A 
respondents it held that the tenements in possession or the respondents/ 
petitioners were not comparable to the premises in possession of the tenant 
in the old building and expressing its displeasure on the appellant's 
attitude in rejecting the offer made by the landiord concluded that the 
Writ Petitioners-respondents deserved sympathy. Hence the appeals, by 
special leave, by the tenant's legal heir. 
B 
Allowing the appeals and remitting the matter to the executing 
i-
Court, this Court, 
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' , 
• , .. 
r 
__. 
HELD: 1.1 The High Court was not justified either in entertaining 
the writ petitions or the respondents or in deciding the merits of the C 
dispute against the appellant. (562 A] 
1.2 Instead or honouring the pledge given by it in the form or an 
"undertaking" to give an identical area in the new building to the tenant, 
in terms of the compromise reached, the respondent-Bank inducted the 
writ petitioners-respondents and did not make any offer to the tenant or D 
after his death to his heir until the matter reac.hed the High Court on the 
second occasion and the writ petitions were being argued after more than 
two decades. Therefore, there is no conceivable reason to condemn the 
appellant for her insistence for the benefits under the consent decree or tor 
any sympathy with the landlord-Bank or the Writ Petitioners before the E 
High Court who took advantage of the situation. (562 BC] 
1.3 The right of the appellant under the consent decree cannot be 
defeated in view or the final determination by the High Court on the 
earlier occasion, and the respondent-Bank is liable for making its under-
taking good as well as for any suitable compensation for the gross delay or F 
more than two decades since the completion of the new building. (5620] 
1.4 As to the identification of the particular area in the new building 
to be allotted to the appellant, the matter is remitted to the executing court 
for reconsideration after permitting the parties to give any additional 
evidence they desire to offer without delaying the proceeding and to G 
execute the decre

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