The suit was filed by an unregistered society. The oral evidence was led accordingly by plaintiff in capacity of chief promoter. No documentary evidence was filed to prove that the suit was filed by unregistered society but whatever the documentary evidence were filed by plaintiff chief promoter was contradictory to his oral submissions. After recording the evidence the TC, held the Agreenent for sale and further transactions in individual capacity of plaintiff. However, instead of dismissing suit considering the plaintiff is unregistered society, the Court decreed the suit in favour of plaintiff. Appeal filed by aggrieved defendant challenging the individual capacity as held in finding but the said appeal was disposed off for non-prosecution. Thus the decree reached finality. The said decree was filed for execution mentioning two alternative prayers (1) the sale deed be executed as per the Agreement for sale, [wherein the cause title stands in plaintif's name followed by capacity and name of unregistered society]. (2) the sale deed be executed in individual capacity of plaintiff by omitting the name of Society from cause title, as held In judgment by the TC holding Agreement for sale and all transactions occured thereafter purely of plaintiff in his individual capacity and in between him and defendant alone and Not on behalf of Society. As per JD's objection, the suit was decree in favour of Society and not in individual capacity, hence cannot be executed individually. It is pertinent to note that All members who were in that Society, terminated their right and interest acquired in Agreement for sale and Suit property in a illegal settlement made out of Court in between Org. Def and other persons, during the lis pendency. Considering the termination now the plaintiff alone remaining in that unregistered Society as a member and as a chief promoter or only litigant in individual capacity. the question in pursuance of above brief please reply to : "Whether prayers are correct as mentioned in Execution Petition (please ref Para 2 above) or require any specific amendment? Whether decree is enforceable considering the error of Trial Court, either on Law or on Fact?
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it is necessary to peruse prayers in suit filed by plaintiff and orders passed by trial court to advice .
2) if suit filed by society then suit cannot be decreed in favour of individual
3) decree cannot be enforceable by plaintiff in his individual capacity
Even though your question is genuine but it appears you have lost your opportunity in the appeal because it was dismissed for default for non prosecution.
Therefore it is better that you approach the appellate court with an application to restore the appeal by setting aside the dismissal order and also file a delay condone petition for the delay in restoring the appeal.
In execution petition, you may not be able to stop the plaintiff to execute the orders passed by the trial court and confirmed by the appellate court
There cannot be two prayers in alternative in a RD for execution of decree. The RD is liable to be dismissed. But the second RD with correct prayer can be filed by the decree holder. There is no bar on successive RDs.
yes it's correct if it would be not correct then court would have pointed the same in judgement along with objections from defendant
Yes it is enforceable. Error of court can be corrected
Dear client,
Based on the information provided, it appears that there are some discrepancies between the oral and documentary evidence presented in the case, particularly regarding the status of the plaintiff as an unregistered society. Despite this, the court decreed the suit in favor of the plaintiff, which has now become final.
Regarding the execution of the decree, it seems that there are two alternative prayers mentioned in the execution petition. The first prayer seeks to execute the sale deed as per the Agreement for Sale, wherein the plaintiff's name is followed by the name of the unregistered society. The second prayer seeks to execute the sale deed in the individual capacity of the plaintiff by omitting the name of the society from the cause title.
However, the objection raised by the JD is that the suit was decreed in favor of the society and not in the individual capacity of the plaintiff. Therefore, it may not be possible to execute the decree individually.
Without further information and details about the specific laws and regulations in the jurisdiction where the case was filed, it is difficult to provide a definitive answer. It is recommended that you consult with a legal expert who can review the details of the case and advise you on the best course of action, including whether any specific amendments to the prayers in the execution petition may be required.
