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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

SECOND APPEAL NO.559 OF 2025

WITH

INTERIM APPLICATION NO.12226 OF 2025

Rajan Chandiramani ... Appellant/Applicant

versus

Swadhinta Builders LLP … Respondent

WITH

SECOND APPEAL NO.600 OF 2025

WITH

INTERIM APPLICATION NO.12904 OF 2025

Jagruti Parikh and Anr. ... Appellants/Applicants

versus

Swadhinta Builders LLP … Respondent

WITH

SECOND APPEAL NO.598 OF 2025

WITH

INTERIM APPLICATION NO.12897 OF 2025

Priyanka Waghela ... Appellant/Applicant

versus

Swadhinta Builders LLP … Respondent

WITH

SECOND APPEAL NO.599 OF 2025

WITH

INTERIM APPLICATION NO.12899 OF 2025

Srichand Makhija ... Appellant/Applicant

versus

Swadhinta Builders LLP … Respondent

WITH

SECOND APPEAL NO.597 OF 2025

WITH

INTERIM APPLICATION NO.12896 OF 2025

Jayesh Jagdish Thakkar ... Appellant/Applicant

versus

Swadhinta Builders LLP … Respondent

Arun Sankpal 1/37

ARUN

RAMCHANDRA

SANKPAL

Digitally signed by

ARUN RAMCHANDRA

SANKPAL

Date: 2026.06.24

22:56:25 +0530

sa 559 of 2025.doc

Mr. Jay Chhabria with Ms. Tvishi Pant, Mr. Aditya Shete i/by Keystone

Partners, for Appellants.

Mr. Rubin Vakil with Mr. Abir P. (through VC), Mr. Kartik Joshi i/by Wadia

Ghandy and Co., for Respondent.

CORAM: N.J.JAMADAR, J.

RESERVED ON : 12 MARCH 2026

PRONOUNCED ON : 24 JUNE 2026

JUDGMENT :

1. These Second Appeals are directed against a common order dated 10

July 2025 passed by the Maharashtra Real Estate Appellate Tribunal (the

Appellate Tribunal), whereby the applications preferred by the respective

Appellants bearing Misc. Application No.351 of 2025, 352 of 2025, 353 of

2025, 354 of 2025 and 355 of 2025, for amendment in Execution Application

Nos.13 of 2023, 14 of 2023, 15 of 2023, 16 of 2023 and 17 of 2023, came to

be disallowed to the extent the Appellants sought direction that the

construction of the real estate project in question be done by the decree

holders or such other persons appointed by the Tribunal at the cost of the

judgment debtor and the expenses thereof be ascertained and recovered

from the judgment debtor as if it were included in the decree, so as to execute

the decree in the manner provided under Order XXI Rule 32(5) of the Code of

Civil Procedure, 1908 (the Code).

2. Since the appeals arise out of identical facts, assail the common order

and identical questions of law arise for consideration, all these appeals were

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taken up for hearing together and are being decided by this common

judgment. For the sake of convenience, the facts in Second Appeal No.559 of

2025 are noted as a representative case.

3. The background facts can be stated as under :

3.1 The Respondent is a promoter of real estate project “Shri Vallabh

Residency” which was being developed by the Respondent at Shivaji Road,

Kandivali (West), Mumbai (the subject project). The Appellant was allotted an

Apartment bearing No.902 in the subject project vide allotment letter dated 28

October 2010 for a total consideration of Rs.48,78,125/-. The allotment letter,

inter alia, provided that the possession of the subject apartment was to be

delivered to the allottee within 36 months from the date of commencement

certificate for work above plinth level or within 36 months from the date of the

amended plan sanctioned by MCGM after loading of TDR on th e plot,

whichever was later.

3.2 The Appellant claimed to have paid a sum of Rs.7.5 Lakhs to the

respondent towards the part consideration. On account of inordinate delay in

the completion of the subject project and failure on the part of the promoter to

execute the agreement for sale, despite having received the aforesaid part

consideration, the Appellant filed a complaint against the Respondent before

the Maharashtra Real Estate Regulatory Authority (the Authority), seeking

diverse reliefs.

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3.3 By an order dated 28 March 2020, the Authority disposed the complaint

expressing its inability to issue directions under Section 13 of the Real Estate

(Regulation and Development) Act, 2016 (the RERA, 2016) as no

commencement certificate had been obtained by the Respondent – Promoter.

It was further directed that the rights of the complainant – allottee with respect

to the subject project stand protected and whenever the promoter starts the

project, it shall fulfill its statutory obligations.

3.4 Aggrieved by the aforesaid order, the Appellant preferred an appeal

before the Appellate Tribunal. By a judgment and order dated 30 June 2022,

the Appellate Tribunal was persuaded to partly allow the appeal and set aside

the order passed by the Authority and direct the Respondent – promoter to

execute the agreement for sale in respect of the subject apartment with the

respective complainants within 30 days; complete construction of the subject

project within 12 months after obtaining the requisite approvals and

permissions from the Competent Authorities, failing which liberty was granted

to the Appellant to take appropriate action under Sections 7 and 35 of the

RERA, 2016 and claim compensation in accordance with law. The

Respondent – promoter was also directed to pay interest on the amounts paid

by the allottees till handing over possession of the respective apartments.

3.5 In the wake of default on the part of the Respondent to comply with the

decree passed by the Appellate Tribunal, the Appellants sought execution of

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the decree by filing Execution Application No.13 of 2023 before the Appellate

Tribunal. By successive orders, the Appellate Tribunal noted the non-

compliance of the decree by the Respondent. By an order dated 22 June

2024, the Appellate Tribunal was constrained to issue warrant for recovery of

the amount due and payable by the Respondent and also impose penalty of

Rs.5,000/- for each day’s delay till the Respondent – judgment debtor

complied with the order of the Appellate Tribunal i.e. till the execution of the

agreement for sale in favour of the allottees – decree holders.

3.6 In the intervening period, certain proposals were made for development

of the subject project by entrusting it to a SPV – UHT Projects LLP. However,

the resolution could not materalise as the Promoter wanted another 66

months from the date it obtained consent of 2/3 allottees in the project.

Thereafter, the Appellant filed an application for amendment to the Execution

Application, inter alia, to seek an additional mode of assistance of the

Appellate Tribunal for execution of the decree in the manner provided under

Order XXI Rule 32 of the Code, in accordance with the Schedu le of

amendment appended thereto.

3.7 In the context of the controversy, it would be apposite to extract the

Schedule of amendment. It reads as under :

Schedule

In Sr. No. J in the Execution Application, after clause (i) add

the following clause as (i-a) :

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“(i-a) Under Order XXI Rule 32 of the CPC :

(i) the partners of the Judgment Debtor viz. Mr. Manish

Thakkar and Mr. Bhavesh Thakkar be detained in civil prison

and the properties of the Judgment Debtor be attached and

on the Judgment Debtor not obeying the decree even after

the attachment has been in force for 6 months, the property

attached be sold on the Decree Holder applying for the

same and out of the proceeds, the Decree Holder be paid

such compensation as this Hon’ble Tribunal deems fit;

(ii) this Hon’ble Tribunal in lieu of or in addition to all

or any of the processes aforesaid, direct that the

construction of the building being the subject matter of

the real estate project in question, be done by the

Decree Holder or such other person appointed by this

Hon’ble Tribunal, at the cost of the Judgment Debtor

and the expenses in this behalf be ascertained and

recovered from the Judgment Debtor as if it were

included in the decree.”

3.8 The application was resisted by the Respondent.

3.9 By the impugned order dated 10 July 2025, the Appellate Tribunal was

persuaded to partly allow the application to the extent of sub-clause (i) in

clause (i-a) and disallow the proposed amendment to incorporate the prayer

in sub-clause (ii), extracted above. The Appellate Tribunal was of the view that

the amendment proposed in terms of sub-clause (ii) cannot be allowed, at that

stage, as other allottees of the subject project were not before the Appellate

Tribunal and by the decree sought to be executed the Appellants were

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granted liberty to take recourse to the provisions contained in Section 7 of the

RERA, 2016 so that the Authority could take further steps as envisaged under

Section 8 of the RERA, 2016 in order to complete the project to protect the

interest of not only the Appellants – allottees but also all the allottees who

were not before the Appellate Tribunal.

3.10 Being aggrieved, the Appellants have preferred these appeals.

4. By an order dated 26 August 2025, these appeals were admitted on the

following substantial questions of law :

“i. Whether the learned Maharashtra Real Estate

Appellate Tribunal, Mumbai has committed grave

illegality and irregularity in considering the merits while

deciding the amendment application ?

ii. Whether clause 2 of the proposed amendment is

in accordance with sub Rule (5) of Rule 32 of Order XXI

of the Code of Civil Procedure, 1908 ?

iii. Whether the remedy under Order XXI Rule 32(5)

of the Code of Civil Procedure, 1908 which is an

independent remedy in execution, is in addition to the

remedies under Sections 7 and 35 of the RERA Act ?

5. I have heard Mr. Chhabria, learned Counsel for the Appellants and Mr.

Rubin Vakil, learned Counsel for the Respondent, at some length. With the

assistance of the learned Counsel for the parties, I have perused the material

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on record, including the orders passed by the Authority and the Appellate

Tribunal.

Submissions :

6. Mr. Chhabria, learned Counsel for the Appellants submitted that the

Appellate Tribunal committed grave error in law in delving into the merits of

the matter, while determining the justifiability of the proposed amendment.

The approach of the Appellate Tribunal in examining the merits and the

consequences that ensue the proposed amendment was clearly in teeth of

the settled position in law that, while considering the application for

amendment, the Court shall not delve into the merits of the matter, sought to

be introduced by way of amendment. Such an erroneous a pproach,

according to Mr. Chhabria, completely vitiated the consideration by the

Tribunal.

7. Mr. Chhabria would further submit that the Appellate Tribunal not only

delved into the merits of the matter and disputed questions of facts, but also

rendered findings on the merits of the matter, which was wholly impermissible

and unwarranted, while determining an application for amendment.

8. Mr. Chhabriya further submitted that, the Appellate Tribunal has

completely misconstrued the import of the amendment proposed in clause (ii).

In effect the Appellants were seeking to add an additional mode of assistance

of the Executing Court in executing the decree passed by the Appellate

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Tribunal, provided under Rule 32(5) of Order XXI for due execution of clause

(iv) of decree passed by the Appellate Tribunal. An executing Court is

empowered to order the execution of the decree in various modes prescribed

under Order XXI. A prayer for adding another mode of execution thus, could

not have been construed as travelling beyond the scope of the decree.

9. Laying emphasis on the provisions contained in Section 57 of RERA

2016, Mr. Chhabria would submit that, while executing an order, the Appellate

Tribunal is duty bound to execute the order as a decree of Civil Court, and for

that purpose, the Appellate Tribunal has been invested with the powers of a

Civil Court. Thus Appellate Tribunal while executing its order exercises the

power and performs the duties of the executing Court as envisaged under the

Code. The Appellate Tribunal, according to Mr. Chhabria, completely failed to

notice the statutory intendment in constituting the Appellate Tribunal as an

executing Court and for that purpose and conferring the powers of the Civil

Court upon the Appellate Tribunal. If considered through this prism Mr.

Chhabriya would urge, the application for amendment can only be said to be

in conformity with the provisions contained in Sub-Rule (5) of Rule 32 of

Order XXI of the Code.

10. Mr Chhabria would further urge that the Appellate Tribunal committed

a manifest error in observing that Section 7 of RERA 2016 in the given

circumstances can be the appropriate remedy for the allottees as the decree

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gives the allottees liberty to take recourse to Section 7 of RERA 2016. It was

urged that the said liberty does not imply that the other modes of execution of

the decree passed by the Appellate Tribunal cannot be resorted to. The liberty

granted to the allottees cannot be construed as an obligation to force the

allottees to resort to another round of litigation. Mr. Chhabria would urge

Section 7 is not a measure of enforcement of the order passed by the

Appellate Tribunal. Therefore, the second and third substantial questions of

law also deserve to be answered in favour of the allottees.

11.To lend support to these submissions Mr. Chhabria placed reliance on

the judgments of the Supreme Court in the cases of Rajes Kanta Roy vs.

Shrimati Shanti Debi and Another

1

, AIR 1957 SC 255, and Kamlesh

Aggarwal vs. Narain Singh Dabbas and Another

2

.

12. Per contra, Mr. Rubin Vakil, the learned Counsel for the Respondents,

would support the impugned order. It was submitted that the principles which

govern an application for amendment in the pleadings, informed by liberal

consideration do not apply to an application for amendment in the execution

proceeding. The power of the executing Court to amend the execution

application is thus not as wide as the amendment in the original proceeding.

To this end, Mr.Vakil placed reliance on a judgment of this Court in the case of

1 AIR 1957 SC 255.

2 (2015) 11 SCC 661.

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Ratnakar Bank Ltd, Kolhapur Vs Usha Rajaram Nimbalkar and Ors.

3

13. Secondly, Mr. Vakil would urge the executing Court, as a matter of law,

cannot go beyond the decree. Thus, the amending power of the executing

Court must be exercised keeping in view the overarching principle that the

executing Court cannot travel beyond the decree. If the proposed amendment

has the effect of expanding the scope of the decree and the prayers travels

beyond the stipulation in the decree, the executing Court cannot permit such

amendment. A very strong reliance was placed by Mr. Vakil on the judgment

of the Supreme Court in the case of Topanmal Chhotamal Vs Kundomal

Gangaram and others

4

and a decision of this Court in the case of Iqbal

Hussain Vs Municipal Council, Purna.

5

14. Premised on the aforesaid limitation on the amending power of the

executing Court, Mr. Vakil submitted in the case at hand, the Appellate

Tribunal was wholly justified in declining to permit the allottees to introduce

the amendment at clause (ii) extracted above as the consequence of such

amendment would be to materially expand the scope of the decree.

15. Mr. Vakil, urged with tenacity that Clause (iv) of the order passed by the

Appellate Tribunal itself provides the remedy available to the allottees in the

event of failure to comply with the directions in the said order. The Appellate

32013(4) Mh.L.J. 524.

4AIR 1960 SC 388.

52015(6) Mh.L.J. 833.

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Tribunal was, therefore, within its rights in holding that if recourse to the

provisions of Section 7 is taken, the interest of all the allottees in the subject

project can be adequately considered.

16. RERA 2016 provides a framework to take over real estate project with

an in built mechanism for protecting the rights of the stake holders. In

contrast, if one or two individual allottees are permitted to execute the project

by invoking the aid of Rule 32(5) of Order XXI of the Code, there is clear and

present danger of such allottees executing the project focusing on the

particular apartment agreed to be allotted to such allottees living a large

section of allottees in the lurch. It is for this reason, RERA 2016 gives

preference to the collective interest over the interest of an individual allottee.

17.Reliance on the provisions contained in Section 57 of RERA 2016,

according to Mr. Vakil, does not advance the cause of the submission on

behalf of the allottees. The provision contained in Section 57 of RERA 2016,

is in the nature of a deeming fiction. The deeming fiction, Mr. Vakil would urge,

is not to be expanded beyond the purpose or the language of the Section for

which it is created. Thus a limited deeming fiction cannot be permitted to be

expanded to circumvent or bypass the substantive provisions under Sections

7 and 8 of RERA 2016. To buttress this submission, Mr Vakil placed reliance

on the judgment of the Supreme Court in the case of Mancheri Puthusseri

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Ahmed and Ors Vs Kuthiravattam Estate Receiver.

6

18. Lastly, Mr. Vakil would submit that the provisions contained in Sections

7 and 8 of RERA 2016 being in the nature of a special law, the provisions of

general law contained in Order XXI Rule 32(5) of the Code must yield to the

provisions of RERA 2016. At any rate, if any conflict arises, between the

provisions of general law and a special law, the special law prevails. Reliance

was placed on the judgment of the Supreme Court in the case of Sanwarmal

Kejriwal Vs Vishwa Coop Housing Society Ltd.

7

19. Mr. Vakil would thus urge that all the questions are required to be

answered in the negative.

20. In the alternative, Mr. Vakil would submit if the Court were to hold in

favour of the allottees on first question of law, questions 2 and 3 need not be

answered as, in that event, post the proposed amendment the matter would

be required to be determined by the Appellate Tribunal. If this Court renders

the finding on substantial question of law No. 3, in particular, nothing would

survive for determination by the Appellate Tribunal in the underlying

proceeding.

21. Mr Chhabriya, the learned Counsel for the Appellants, joined the issue

by canvassing a submission that the promoter was raising bogie of interest of

all the allottees. It was submitted that had the Appellate Tribunal allowed the

6(1996) 6 SCC 185.

7(1990) 2 SCC 288.

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amendment, and eventually decides to execute the decree in the manner

provided under Sub-Rule (5) of Rule 32, the execution need not by the

allottees-decree holders only. The Appellate Tribunal can appoint a receiver, a

new developer, or even an association of allottees can be appointed. Thus,

the submission canvassed on behalf of the Respondent, which found favour

with the Appellate Tribunal, that the interest of the other allottees may be

jeopardized, is unsustainable.

22. Mr. Chhabriya would further urge if the contention of the Respondent is

acceded to, then it would imply that the other modes of execution namely,

attachment of the property of the Judgment Debtor or the detention of the

Judgment Debtor in civil prison cannot also be resorted to. Such an

interpretation would render the provisions of Section 40(2) and 57 of RERA

2016 completely otiose.

Consideration:

Question Nos.(i) and (ii)

23. As the controversy revolves around the execution of the order passed

by the Appellate Tribunal especially in relation to the completion of the project,

it may be appropriate to extract the relevant directions in the said order.

24. Clause (iv) of the said order reads as under:

“(iv) Respondent/Promoter is directed to complete construction of

subject project within 12 months after taking due approvals and

permissions from the competent Authorities, failing which appellants

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are at liberty to take appropriate action under Sections 7 and 35 of the

Act of 2016 and claim compensation in accordance with the law.”

25. The Appellate Tribunal, in the impugned order construed the liberty

granted by the aforesaid order to the allottees as the appropriate remedy

provided in the decree for non-compliance of the said direction. The failure on

the part of the allottees to take recourse to the dispensation provided under

Section 7 was arrayed against the allottees.

26. On the first substantial question of law, the legal position is absolutely

clear. At the stage of consideration of application for amendment in the

pleadings, the Court need not delve into the merits of the amendments. The

enquiry at that stage is confined to the permissibility and desirability of the

proposed amendment through the prism of two broad principles, namely,

whether the proposed amendment is necessary for the determination of real

question in controversy and whether the proposed amendment has the

potentiality of such prejudice to adversary that it cannot be compensated.

27. A useful reference in this context can be made to a judgment of the

Supreme Court in the case of Rajesh Kumar Aggarwal And Ors Vs K. K.

Modi and Ors,

8

wherein it was enunciated that while considering whether the

application for amendment should be allowed, the Court should not go into

the correctness or falsity of the case sought to be introduced by way of

8(2006) 4 SCC 385.

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amendment nor the Court should record a finding on the merits of the

amendment. The observations in paragraphs 18 and 19 are instructive and

hence extracted below.

“18. As discussed above, the real controversy test is the basic or

cardinal test and it is the primary duty of the Court to decide whether

such an amendment is necessary to decide the real dispute between

the parties. If it is, the amendment will be allowed; if it is not, the

amendment will be refused. On the contrary, the learned Judges of

the High Court without deciding whether such an amendment is

necessary has expressed certain opinion and entered into a

discussion on merits of the amendment. In cases like this, the Court

should also take notice of subsequent events in order to shorten the

litigation, to preserve and safeguard rights of both parties and to sub-

serve the ends of justice. It is settled by catena of decisions of this

Court that the rule of amendment is essentially a rule of justice, equity

and good conscience and the power of amendment should be

exercised in the larger interest of doing full and complete justice to the

parties before the Court.

19. W hile considering whether an application for amendment

should or should not be allowed, the Court should not go into the

correctness or falsity of the case in the amendment. Likewise, it

should not record a finding on the merits of the amendment and the

merits of the amendment sought to be incorporated by way of

amendment are not to be adjudged at the stage of allowing the prayer

for amendment. This cardinal principle has not been followed by the

High Court in the instant case.”

(emphasis supplied)

28.It is true, powers of the executing Court to permit the amendment are

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not as wide as the Court dealing with the original proceeding. Yet, the

aforesaid principles, govern an application for amendment in an execution

proceeding as well as it cannot be controverted that the power to order

amendment can be exercised by executing Court under Section 151 and the

general amending power under Section 153 of Code ( Ratnakar Bank Ltd,

Kolhapur (Supra)

29. If the impugned order is tested on the aforesaid touchstone, it

becomes abundantly clear that the Appellate Tribunal has delved into the

merits of the amendment. It was observed that the recourse to the execution

in the manner provided under Rule 32(5) of Order XXI appeared to be the last

resort for execution of decree, if the decree remains unexecuted despite the

attachment and sale of the property of the Judgment Debtor and the detention

of the Judgment Debtor in civil prison. The Appellate Tribunal went on to hold

that the Judgment Debtor had made attempts to satisfy the decree in earnest

and there was no willful disobedience on the part of the Judgment Debtor.

Thirdly, the Applicant had not resorted to the provisions contained in Section 7

of RERA 2016 which appeared to be the appropriate remedy.

30. All the aforesaid findings, in the considered view of this Court, touch

upon the merits of the proposed amendment. Whether to extend the aid in the

manner provided under Rule 32(5) of Order XXI is a matter to be determined

by the executing Court having regard to the fact-situation which may obtain

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when the Appellate Tribunal is called upon to pass such order.

31. However, the Appellate Tribunal could not have declined to grant leave

to amend the execution application so as to incorporate the said additional

mode of execution on the premise that it would be the last resort. Findings of

the Appellate Tribunal that there was no willful disobedience on the part of the

Judgment Debtor was also inapposite while considering the prayer for

amendment. The said finding has the propensity to influence the further

orders that may be passed by the Appellate Tribunal in the execution

proceeding. Likewise, the view of the Appellate Tribunal that in view of the

liberty granted by the Appellate Tribunal in the order dated 30

th

June 2022 in

Clause (iv) [extracted above] recourse to Section 7 of the RERA 2016

appeared to be the appropriate remedy, and, thus, the proposed amendment

seeking the execution of the decree in the manner provided under Rule 32(5)

of Order XXI of the Code was not warranted again betrays a determination on

the merits of the amendment.

32. For the forgoing reasons, this Court is persuaded to hold that the

Appellate Tribunal committed an error in delving into the merits of the

amendment and the consequences that would ensue if the Decree Holders

are permitted to incorporate the prayer in Clause (ii) extracted above while

deciding the application for amendment. The said course was in dissonance

with the settled position in law.

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33. The proposed amendment at sub-clause (ii) extracted above ,

essentially seeks another mode of assistance of the Appellate Tribunal in the

execution of the decree. The proposed sub-clause (ii) sought to be added in

the prayer clause of the execution application is a replica of the text of sub-

rule (5) of Rule 32 of Order XXI of the Code.

34. It would be relevant to note that by the order dated 30

th

June, 2022, the

Appellate Tribunal has directed the respondent-promoter to (i) execute an

Agreement for Sale in respect of the appellant's apartment within 30 days and

(ii) complete the construction of the subject project within 12 months after

taking due approvals and permissions. The relief sought to be added by

inserting sub-clause (ii) seeks the execution of the aforesaid part of the order

dated 30

th

June, 2022 by the decree-holders themselves or by such other

person as may appointed by the Tribunal, on account of the failure of the

respondent judgment-debtor to comply with the said directions contained in

the order dated 30

th

June, 2022. Thus, Sub-clause (ii) of the proposed

amendment is in complete accord with sub-rule (5) of Rule 32.

35. Resultantly, the question Nos. 1 and 2 are required to be answered in

the affirmative.

Question No.(iii)

36. Though Mr Vakil submitted that if this Court renders an affirmative

finding on Question No. (i), then this Court may not record findings on

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Question No. (iii) yet this Court considers it expedient to record findings on

Question No. (iii) as the impugned order proceeds on the premise that in view

of the liberty granted to the allottees to take recourse to Section 7 of RERA

2016, it is impermissible to invoke the provisions contained in Order 32(5) of

the Code.

37. Before appreciating whether the aforesaid approach of the Appellate

Tribunal is justifiable, a reference to few provisions of RERA 2016 may be

apposite. Section 40(2) of the RERA 2016 provides that if any adjudicating

officer or Regulatory Authority or the Appellate Tribunal, as the case may be,

issues any order or directs any person to do any act, or refrain from doing any

act, then in case of failure by any person to comply which such order or

direction, the same shall be enforced, in such manner as may be prescribed.

38. Section 57 of RERA 2016 which confers the powers of the executing

Court upon the Appellate Tribunal reads as under:

“57. Orders passed by Appellate Tribunal to be executable as a

decree.

(1) Every order made by the Appellate Tribunal under this Act

shall be executable by the Appellate Tribunal as a decree of civil court,

and for this purpose, the Appellate Tribunal shall have all the powers of a

civil court.

(2) Notwithstanding anything contained in sub-section (1), the

Appellate Tribunal may transmit any order made by it to a civil court

having local jurisdiction and such civil court shall execute the order as if it

were a decree made by the court.”

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39. The relevant part of Section 7 which empowers the Authority to revoke

the registration reads as under:

“7. Revocation of registration

(1) The Authority may, on receipt of a complaint or suo motu in

this behalf or on the recommendation of the competent authority, revoke

the registration granted under section 5, after being satisfied that—

(a) the promoter makes default in doing anything required by or

under this Act or the rules or the regulations made thereunder;

(b) the promoter violates any of the terms or conditions of the

approval given by the competent authority;

(c) the promoter is involved in any kind of unfair practice or

irregularities.

Explanation.— … … …

(2) The registration granted to the promoter under section 5 shall

not be revoked unless the Authority has given to the promoter not less

than thirty days notice, in writing, stating the grounds on which it is

proposed to revoke the registration, and has considered any cause

shown by the promoter within the period of that notice against the

proposed revocation.

…….

(4) The Authority, upon the revocation of the registration,—

(a) shall debar the promoter from accessing its website in relation

to that project and specify his name in the list of defaulters and display

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his photograph on its website and also inform the other Real Estate

Regulatory Authority in other States and Union territories about such

revocation or registration;

(b) shall facilitate the remaining development works to be carried

out in accordance with the provisions of section 8;

(c) shall direct the bank holding the project bank account,

specified under sub-clause(D) of clause (l) of sub-section (2) of section

4, to freeze the account, and thereafter take such further necessary

actions, including consequent de-freezing of the said account, towards

facilitating the remaining development works in accordance with the

provisions of section 8;

(d) may, to protect the interest of allottees or in the public interest, issue

such directions as it may deem necessary”

40. Section 8 of RERA 2016 casts an obligation on the Authority to take

measures consequent upon lapse or revocation of registration. It reads as

under:

8. Obligation of Authority consequent upon lapse of or on

revocation of registration

Upon lapse of the registration or on revocation of the registration

under this Act, the Authority, may consult the appropriate Government

to take such action as it may deem fit including the carrying out of the

remaining development works by competent authority or by the

association of allottees or in any other manner, as may be determined

by the Authority:

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Provided that no direction, decision or order of the Authority

under this section shall take effect until the expiry of the period of

appeal provided under the provisions of this Act:

Provided further that in case of revocation of registration of a

project under this Act, the association of allottees shall have the first

right of refusal for carrying out of the remaining development works.

41. The phraseology of Section 57 makes the Legislative intendment

absolutely clear. Firstly, it provides that every order made by the Appellate

Tribunal shall be executable. Secondly, such order is to be executed by the

Appellate Court itself. Thirdly, an order made by the Appellate Tribunal is to be

executed as a decree of civil Court, and, fourthly, for that purpose, i.e.,

execution of order made by Appellate Tribunal, the Appellate Tribunal shall

have all the powers of a civil Court. The necessary implication is that the

Appellate Tribunal while executing its own order is empowered with the

powers of the executing Court.

42. The provisions contained in sub-Section (2) of Section 57, which opens

with a non-obstante clause, makes the import of sub-Section (1) of Section 57

crystal clear. Under sub-Section (2), notwithstanding the power conferred on

the Appellate Tribunal to execute its own order, the Appellate Tribunal has

been conferred discretion to transmit any order made by it to a civil Court

having local jurisdiction. The later part of the sub-Section (2) of Section 57

enjoins the civil Court to execute the order passed by the Appellate Tribunal

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as if it were a decree passed by the Court.

43. The contrast in the first and second part of sub-Section (2) of Section

57 is of material significance. The first part uses the word, “may” to emphasize

the discretionary nature of the power to transmit the order to a civil Court

having local jurisdiction. The later part by employing the word, “shall” makes it

obligatory on the civil Court to execute the order as if it were a decree made

by the Court. It is also imperative to note that while conferring the discretion to

transmit the order for execution to civil Court, the Legislature has not hedged

the said discretion by providing the conditions in regard to the cases in which

the order can be transmitted for execution. The only restriction is that the civil

Court to which the order is to be transmitted for execution shall have the local

jurisdiction.

44. Keeping in view the aforesaid legislative intendment discernible from

the plain reading of Section 57, the submission of Mr. Vakil that Section 57

creates a deeming fiction and, therefore, it is required to be construed strictly

and, if so construed, the Appellate Tribunal would not have power to entertain

a prayer for execution of the order in the manner provided by sub-Rule (5) of

Rule 32 of Order XXI deserves to be appreciated.

45. The principles of interpretation of a deeming fiction are well-founded.

The Court must first ascertain the purpose for attainment of which a legal

fiction is created. The import of the legal fiction must be restricted by its plain

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terms. The fiction cannot be enlarged to encompass in its fold the matters

beyond the text of such fiction. In the case of Mancheri Puthusseri Ahmed

and Ors (Supra), on which reliance was placed by Mr.Vakil, the Supreme

Court expounded the principles which govern the construction of a legal

fiction in the following terms:

“8… … … In the first place the Section creates a legal fiction.

Therefore, the express words of the Section have to be given their full

meaning and play in order to find out whether the legal fiction

contemplated by this express provision of the Statute has arisen or not

in the facts of the case; Rule of construction of provisions creating

legal fictions is well settled. In interpreting a provision creating a legal

fiction the Court is to ascertain for what purpose the fiction is created,

and after ascertaining this, the Court is to assume all those facts and

consequences which are incidental or inevitable corollaries to the

giving effect to the fiction. But in so construing the fiction it is not to be

extended beyond the purpose for which it is created or beyond the

language of the section by which it is created. It cannot also be

extended by importing another fiction. In this connection we may

profitably refer to two decisions of this Court. In the case of CIT Vs

Shakuntala (AIR 1966 SC 719) a three-Judge Bench of this Court

speaking through S.K. Das,J., made the following pertin ent

observation in paragraph 8 of the Report :

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“The question here is one of interpretation only and that

interpretation must be based on the terms of the section.

The fiction enacted by the Legislature must be restricted

by the plain terms of the statute.”

In another case reported in the same volume at page 870, namely, CIT

V Moon Mills Ltd (AIR 1966 SC 870) another three- Judge Bench of

this Court speaking through Subha Rao,J., observed in para 8 of the

Report in connection with the provision creating such legal fictions as

under :

“The fiction is an indivisible one. It cannot be enlarged by

importing another fiction..”

… … …” (emphasis supplied)

46. Applying the aforesaid principles of construction to Section 57 of RERA

2016, as noted above, the legislative purpose becomes explicitly clear: the

orders passed by the Appellate Tribunal shall be executable by the Appellate

Tribunal as if it were a decree of a civil Court. The purpose is to make the

orders executable and for that purpose clothe the order with the character of a

decree and empower the Appellate Tribunal with the powers which the civil

Court would exercise in the execution of the decree. If this is the plain

construct of Section 57 of RERA 2016, I find it difficult to accede to the

submission of Mr. Vakil that the execution of decree by resorting to the mode

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prescribed under the sub-Rule (5) of Rule 32 of Order XXI of the Code would

amount to expanding the scope of the fiction beyond the terms of Section 57.

47. At this juncture, it is necessary to note that the Parliament despite

providing measures in RERA 2016 itself for enforcement of certain orders,

designedly conferred the power of the executing Court on the Appellate

Tribunal to execute its own orders.

48. Section 40(2) provides that if there is a non-compliance of any order or

directions issued by the Authorities under RERA 2016, including the Appellate

Tribunal, then such order or direction shall be enforced in such manner as

may be prescribed. Rule 4 of the Maharashtra Real Estate (Regulation And

Development) (Recovery of Interest, Penalty, Compensation, Fine Payable,

Forms Complaints And Appeal, Etc) Rules, 2017, provides that the order

made by the Appellate Tribunal under Section 40(2), shall be enforced by the

Appellate Tribunal in the same manner as if it were a decree or order made by

the principal civil Court of original jurisdiction in a suit. The later part of the

Rule again empowers the Appellate Tribunal to transmit the order for

execution to the principle civil Court. Section 64 of RERA 2016, empowers the

Appellate Tribunal to impose penalty if any promoter fails to comply with, or

contravenes any of the orders, decisions or directions of the Appellate

Tribunal.

49. The power to execute the order under Section 57, desp ite the

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availability of aforesaid measures for enforcement of the orders passed by the

Appellate Tribunal, underscores the fact that the Parliament intended to equip

the Appellate Tribunal with requisite powers to achieve the legislative object.

Therefore, the submission of Mr. Vakil that the power conferred on the

Appellate Tribunal under Section 57 of the RERA 2016 is required to be

construed in a restricted sense cannot be countenanced.

50. In my considered view the Appellate Tribunal can exercise all the

powers which the civil Court can exercise while executing its decree unless

the said provisions are inconsistent with the provisions of RERA 2016, which

have been given overriding effect under Section 89 of the RERA 2016.

51. This takes me to the nature of the powers exercised by the civil Court

while executing the decree, especially the decree for specific performance of

the contract.

52. Section 51 of the Code provides that, subject to such conditions and

limitations as may be prescribed, the Court may, on the application of the

decree-holder, order execution of the decree by following modes.

“(a) by delivery of any property specifically decreed;

(b) by attachment and sale or by the sale without attachment of any

property;

(c) by arrest and detention in prison for such period not exceeding

the period specified in section 58, where arrest and detention is

permissible under that section;

(d) by appointing a receiver; or

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(e) in such other manner as the nature of the relief granted may

require:

… … ...”

53. Rule 30 to 36 of Order XXI of the Code under the caption, “Mode of

execution” provide specific modes of execution of the decrees of different

nature, like a money decree, decree for specific movable property, a decree

for immovable property etc. Rule 32 of Order XXI of the Code makes

provisions for the execution for decree for specific performance, for restitution

of conjugal rights, or for an injunction.

54. Sub-Rule (1) of Rule 32 of the Code provides that a decree for specific

performance may be executed by detention of the Judgment Debtor in civil

prison or by attachment of his property or by both. Sub-Rule (5) of Rule 32 of

the Code, with which we are primarily concerned in these Appeals, reads as

under.

“ 32. Decree for specific performance for restitution of conjugal

rights, or for an injunction.—

(5) Where a decree for the specific performance of a contract or for an

injunction has not been obeyed, the Court may, in lieu of or in addition to

all or any of the processes aforesaid, direct that the act required to be

done may be done so far as practicable by the decree-holder or some

other person appointed by the Court, at the cost of the judgment-debtor,

and upon the act being done the expenses incurred may be ascertained

in such manner as the Court may direct and may be recovered as if they

were included in the decree.

[Explanation.—For the removal of doubts, it is hereby declared that the

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expression “the act required to be done” covers prohibitory as well as

mandatory injunctions.]”

55. It would contextually relevant to note that Clause (e) of Section 51 of

the Code provides a residuary mode of execution of decree, namely, in such

other manner as the nature of the relief granted may require. In a sense, sub-

Rule (5) of Rule 32 of the Code is an amplification of residuary mode of

execution of the decree by empowering the executing Court to direct the

specific performance by appointing another person at the cost of Judgment

Debtor.

56. The text of sub-Rule (5) of Rule 32 of the Code makes it clear that the

said mode of execution is discretionary. The said mode of execution can be

resorted to in lieu of or in addition to all or any of the processes, namely

attachment and sale of the property and detention of the Judgment Debtor in

civil prison. The Explanation makes it clear that the sub-rule covers in its

sphere both prohibitory and mandatory orders.

57. The purpose of sub-Rule (5) of Rule 32 of the Code is to give meaning

and effect to a decree passed by the Court. If the Judgment Debtor willfully or

otherwise disables himself from performing the obligations under the decree,

especially in case of a decree for specific performance, neither the executing

Court can be rendered powerless nor the Decree Holder can be rendered

remediless. It is to address such a contingency, sub-Rule (5) of Rule 32 of the

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Code, empowers the executing Court to execute the decree de hors the

disobedience on the part of the Judgment Debtor.

58. This propels to me to the thrust of the submission on behalf of the

Respondents that in the instant case in view of Clause (iv) of the order

passed by the Appellate Tribunal dated 30

th

June 2022 (extracted above), the

only recourse available to the allottees is to invoke the provisions contained in

Section 7 of RERA 2016.

59. Sections 7 and 8 are subsumed under Chapter II dealing with

registration of real estate project. Section 3 makes the prior registration of the

project mandatory. Section 4 makes provision in regard to application for

registration of real estate project. Section 5 empowers the Authority to grant

registration or reject the application for registration. For the reasons specified

in Section 6, the Authority may grant extension of registration.

60. Section 7 empowers the Authority either on receipt of a complaint or

suo motu or on the recommendation of the competent authority to revoke the

registration granted under Section 5 upon satisfaction of the occurrence of the

events specified in Clauses (a), (b) and (c).

61. Section 8 of RERA 2016 casts an obligation on the Authority to take

measures consequent upon lapse or revocation of registration.

62. A plain textual reading of the provisions contained in Chapter II makes it

explicitly clear that the power to revoke the registration is primarily regulatory

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in nature. Clauses (a) to (c) of Section 7 of the RERA, 2016 do not envisage

the revocation of registration as a mode of execution of the decree. In

contrast, Chapter III of RERA 2016 makes provision for the function and

duties of the promoter. It is in pursuance of the provisions contained in

Chapter III, the Appellate Tribunal has directed the promoter to complete the

project. If the revocation of registration was to be provided as a panacea for

the disobedience of the orders passed by the Authorities under the RERA

2016, the Parliament would not have made multiple provisions for

enforcement of the orders passed by the Authorities under the Act.

63. The submissions of Mr. Vakil premised on the consequence that entail

the revocation of registration, under Section 8 of RERA 2016, cannot be

acceded to unreservedly. Undoubtedly, Section 8 empowers the Authority to

take necessary action including the carrying out the remaining development

work by competent authority or by the association of the allottees or in any

other manner, as may be determined by the Authority, and the second proviso

to Section 8 provides the association of allottees the first right of refusal for

carrying out the remaining development works. However, these provisions

which operate in a completely different sphere cannot be conflated with the

provisions which empower the Appellate Tribunal to execute its own order.

64. As there is no conflict between the provisions contained in Sections 7

and 8, and Section 57, read with the provisions contained in Order XXI of the

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Code, the principle sought to be pressed into service by Mr. Vakil that, in view

of the dichotomy between the provisions of the general law and the provisions

of the special law, the special law prevails, is not attracted in the fact-situation

at hand. The maxim, generalia specialibus non derogant has no application

to the situation at hand.

65. In any event, the exercise of the power under Rule 32(5) of Order XXI

is discretionary in nature. The Appellate Tribunal may or may not lend its

assistance to the execution of the decree under sub-rule (5) of Rule 32,

having regard to the facts of the given case. For instance, if the grievance of

the allottee is that though the project is complete, yet the promoter has not

provided the amenities, the Appellate Tribunal may exercise the discretion to

execute the remaining work of providing the necessary amenities by

appointing an appropriate agency. In contrast, if the project is at the nascent

stage, the Appellate Tribunal may not be persuaded to en trust the

development of the project to an individual allottee. However, this difficulty in

the practical application of sub-rule (5) of Rule 32 of Order XXI cannot be a

barometer to hold that a allottee is not entitled to seek the assistance of the

Appellate Tribunal in the matter of execution of the decree in the manner

provided under Rule 32(5) on account of the provisions contained in Section 7

of the RERA, 2016.

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66. I find substance in the submission of Mr. Chhabria that the liberty

granted to the allottees in Clause (iv) of the order dated 30

th

June 2022 to

seek revocation of registration of the project does not foreclose the right of the

allottees to seek the execution of the decree in accordance with the

provisions of RERA 2016 and the Code.

67. If the submission on behalf of the Respondent that, the only course

available to the allottees is to invoke Section 7 of RERA 2016 is taken to its

logical corollary then the very execution petition for execution of the order

passed by the Appellate Tribunal would become untenable. It is pertinent to

note that, by the impugned order, the Appellate Tribunal has permitted the

amendment to execute the decree by attachment of the property and arrest of

the Judgment Debtor. If the reasoning of the Appellate Authority that recourse

to sub-Rule (5) of Rule 32 of the Code is impermissible is accepted, then a

fortiori the recourse to the mode of execution by the arrest of the Judgment

Debtor would also be not available.

68. Another factor which bears upon the determination whether to foreclose

the option to execute the decree by resorting to Rule 32(5) of Order XXI is the

nature of the proceeding under Section 7 of the RERA, 2016. The allottee

would be required to again approach the Authority after having obtained an

order from the Appellate Tribunal and commence a fresh proceeding before

the Authority, with all the travails and vicissitudes of the fortunes in litigation,

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first before the Authority and then in appeal before the Appellate Tribunal. If

such an interpretation is adopted, the allottee would be left in the lurch despite

being armed with an order passed by the Appellate Tribunal and that would

frustrate the very object of RERA, 2016.

69. Thus the submission of Mr. Vakil that the provisions contained in

Section 7 of RERA, 2016 prescribe the manner of executing the decree of the

present nature, where the promoter is directed to complete the construction

and deliver the possession and the said direction cannot be enforced in any

other manner, does not merit acceptance. The rule enunciated in Taylor v.

Taylor

9

and followed in Nazir Ahmad vs. King Emperor

10

, that where a

power is given to do a certain thing in a certain way, the thing must be done in

that way or not at all, reiterated in the case of Meera Sahni v. Lieutenant

Governor of Delhi

11

, on which reliance was placed by Mr. Vakil, has no

application to the controversy at hand.

70. Undoubtedly, if an order of revocation of registration is passed, then the

carrying out of the remaining development work can only be in the manner

prescribed under Sections 7 and 8 of the RERA, 2016. Those provisions will,

however, have no application where the order passed by the Appellate

Tribunal is put to execution under Section 57 of RERA, 2016. I must hasten to

add that the Appellate Tribunal retains the discretion in the matter of the

9 (1875) 1 Ch D 426.

10 (1936) 63 IA 372; AIR 1936 PC 253 (2).

11 (2008) 9 SCC 177.

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manner of execution of the order.

71. For the forgoing reasons question Nos. (i) and (ii) are answered in the

affirmative. And question No. (iii) is answered as under:

(a) The remedy of execution of the order passed by the Appellate

Tribunal as a decree is independent of the remedies under Sections 7

and 35 of RERA 2016.

(b) The Appellate Tribunal has the discretion in the matter of the

manner of the execution of the decree.

(c) In a given case, the Appellate Tribunal may exercise the power to

execute the decree in the manner provided under Order XXI Rule

32(5).

72. Hence, the following order :

: O R D E R :

(i) The Appeals stand allowed.

(ii) The impugned order stands quashed and set aside.

(iii) The applications for amendment in the Execution Application

Nos.13 of 2023, 14 of 2023, 15 of 2023, 16 of 2023 and 17 of 2023

stand allowed.

(iv) The applicants-allottees in the respective Applications shall carry

out the necessary amendment within a period of three weeks from the

date of uploading of this judgment and serve its copy on the

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Respondent within one week thereafter.

(v) The Appellate Tribunal is requested to decide the execution

applications on their own merits and in accordance with law, as

expeditiously as possible.

(vi) In view of disposal of the Appeals, all Interim Applications also

stand disposed.

No costs.

( N.J.JAMADAR, J. )

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