Mr. Mohit R. Deshmukh, Advocate for PetitionersMrs v. N. Patil Jadhav, AGP for
Legal Reasoning
1 785-18-WP.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO.785 OF 20181.Vithal Rajaram Dudhbhate,Age: 40 years, Occu: Agriculture,R/o. Jakekoor, Taluka Omerga,District Osmanabad.2.Pratap Rajaram Dudhbhate,Age: 38 years, Occu. Agriculture,R/o. As above… PetitionersVersus1.The District Collector,Collector Office, Main Road,Osmanabad.2.The Tehsildar,Tehsil Office, Main Road,Omerga, District Osmanabad3.Kasturabai Manik Dudhbhate,Age: 70 years, Occu. Household,R/o. Balaji Nagar, Omerga,Taluka Omerga, District Osmanabad4.Shivraj Manik Dudhbhate,Age: 52 years, Occu. Agriculture,R/o. As above5.Dipali Dilip Kokle,Age: 50 years, Occu: HouseholdR/o. Kasar Shirshi, Taluka Nilanga,District Latur6.Sunita Shivputra Pujari,Age: 47 years, Occu. Agriculture,R/o. Shahbad, Taluka Chitapur,District Gulbarg (Karnataka State)7.Shivnand Manik Dudhbhate,Age: 42 years, Occu. AgricultureR/o. Balaji Nagar, Omerga,Taluka Omerga, District OsmanabadSVH 2 785-18-WP.odt8.Ram Mahalappa Dudhbhate,Age: 72 years, Occu. Agriculture,R/o. Shirur, Taluka Aland, District Gulbarg9.Nagarbai Mhadu Dudhbhate,Age: 62 years, Occu. Agriculture,R/o. Jakekoor, Taluka Omerga,District Osmanabad10.Santosh Manik Dudhbhate,Age: 40 years, Occu. Agriculture,R/o. Balaji Nagar, OmergaTaluka Omerga, District Osmanabad…Mr. Mohit R. Deshmukh, Advocate for PetitionersMrs. V. N. Patil Jadhav, AGP for Respondent Nos.1 and 2/StateMr. Akram Inamdar, Advocate h/f Mr. S. S. Kazi, Advocate forRespondent Nos.3 to 10... CORAM : MANJUSHA DESHPANDE, J. RESERVED ON : 07th JANUARY, 2025PRONOUNCED ON : 13th JANUARY, 2025JUDGMENT : 1.Rule. Rule made returnable forthwith. Heard finally withthe consent of the parties.2.By this petition the petitioners are challenging orderdated 27/09/2016, passed by learned Joint Civil Judge, JuniorDivision, Omerga, in Regular Darkhast No.09/2005.3.Petitioners are the original defendants in Regular CivilSuit No.325/1996, filed by respondent Nos.3 to 10. The suit wasdecreed on 31/01/2004, in favour of plaintiffs thereby declaring thatthe plaintiffs and defendant No.1 are entitled for 1/4th share each inthe suit land and the suit house property. It was further declaredthat defendant Nos.2 and 3 (petitioners herein) will be entitled toSVH 3 785-18-WP.odtthe share of defendant No.1. The said decree was challenged beforelearned District Judge, Osmanabad, by the original defendants byfiling Regular Civil Appeal. The appeal came to be allowed wherein itwas held that as per previous partitions the property was alreadygiven in possession of defendant No.1, therefore, there is no causeof action to seek further partition. The judgment and order passedby the District Judge, Osmanabad, was reversed in the secondappeal filed by original plaintiffs thereby maintaining the decreepassed by Trial Court.The decree passed by the trial Court, having beenconfirmed by this Court, was put to the execution before learnedCivil Judge, Junior Division, Omerga, by filing Regular DarkhastNo.09/2005. The decree holders prayed for partition and separatepossession of house property as well as agricultural land in terms ofthe decree. The executing Court passed order on 21/04/2015,observing that, so far as partition of agricultural land is concernedthe separate possession and allotment of share are supposed to beeffected by the Collector or any gazetted officer sub-ordinate tohim. Accordingly, in view of Section 54 of the C.P.C. decree was sentto the Collector for execution. So far as house property is concerned, the Darkhast waskept pending. Subsequent to the passing of the said order inexecution proceedings, the litigating parties entered intocompromise as per the terms which is at Exhibit-64, on 27/09/2016.SVH 4 785-18-WP.odtThe terms of compromise were placed before learned Joint CivilJudge, Junior Division, Omerga, in R.D. No.09/2005. On the sameday executing Court passed order below Exhibit-64 observing that,“All the decree holders, judgment debtors and their advocatesare present before the Court. Parties are identified by theirrespective counsel. They have filed this compromise pursis andadmitted its contents and their signatures and thumbimpressions on it. On verifying the compromise pursis, order ispassed below Exh.1.”4.After verifying the contents of the terms of compromiseand presence of the parties as well as their signatures, learned JointCivil Judge, Junior Division, Omerga, has passed order below Exhibit-1 on 27/09/2016, wherein it is observed that the decree of partitionis regarding the agricultural land B. No.193 admeasuring 2 H 4 Hand house property Chalta No.434, both situated at Jakekur, TalukaOmerga. As far as the agriculture land is considered, the decreeshall be executed by the District Collector, Osmanabad, since thecivil Court has become functus officio regarding the agricultural landafter passing of the decree. Hence, only thing which can be done isto send the decree to District Collector as per Section 54 of C.P.C.The compromise before this Court to the extent of agricultural landshall not be legal. However, compromise to the extent of houseproperty Chalta No.434 is legal and valid and seems to be voluntary.Hence, admitted. The execution proceeding is disposed of in termsof compromise to the extent of house property Chalta No.434,situated at Jakekur. Accordingly, the decree is sent to the DistrictSVH 5 785-18-WP.odtCollector, Osmanabad, for execution of decree regardingagricultural land B.No.193 adm. 2 H 4 R.5.It is the contention of learned advocate for petitionerthat he is aggrieved by the said order passed by the executingCourt, since it is not in accordance with the terms of compromisewhich are placed on record by the parties to the suit. It iscategorically mentioned in clause 2 of the terms of compromise thatlegal heirs of decree holder No.1 i.e. decree holder Nos.1A to 1F,decree holder No.2 who had expired as well as legal heirs of decreeholder No.3, have relinquished their share in the agriculturalproperty Gut No.193 admeasuring 2 H 4 R, and the house propertyChalta No.434, permanently in favour of judgment debtor Nos.2 and3.6.Similarly in terms clause No.3 of the terms ofcompromise, it was decided that judgment debtor Nos.2 and 3would pay amount of Rs.18,51,000/- to the legal heirs of decreeholder No.1 as well as legal heirs of decree holder Nos.2 and 3. It isfurther clarified that since there were three decree holders, each ofthem would get 1/3rd share and accordingly, the decree holder Nos.1and 2 have been paid Rs.6,17,000/- each and since decree holderNo.3 had expired his legal heir i.e. defendant No.3A Nagarbai wasalso paid Rs.6,17,000/-. It is further mentioned that legal heirs ofdecree holder No.1 i.e. decree holder Nos.1A to 1F and legal heirs ofdecree holder Nos.2 and 3 have relinquished their rights in favour ofSVH 6 785-18-WP.odtjudgment debtor Nos.2 and 3.7.It is the contention of learned advocate for petitionerthat in spite of the clear terms of compromise entered between theparties, the executing Court has failed to pass a decree inaccordance with the terms of compromise. To the contrary itobserved that since the Civil Court has become functus officioregarding the agricultural land after passing of decree, the onlyrecourse available would be to send the decree to District Collectoras per Section 54 of C.P.C., for execution in respect of agriculturalland. The execution proceeding is disposed of in terms of thecompromise to the extent of house property only.8.The learned advocate for petitioners submits that, theCivil Court does not become functus officio after passing of thedecree. According to him, even after the Civil Court sends decree forapportionment of shares to the Collector as per Section 54 of C.P.C.,it can verify if the Collector has acted in accordance or in contraryto the decretal mandate. Even otherwise, according to him, whenthe terms of compromise were entered into between the parties, theearlier order of the executing Court dated 21/04/2015 was notimplemented by the Collector till the date of passing order in termsof the compromise dated 27/09/2016. Hence, according to learnedadvocate for petitioner the Joint Civil Judge, Junior Division, Omerga,ought to have modified the decree in terms of compromise enteredinto between the parties and thereafter send a fresh decree to beSVH 7 785-18-WP.odtexecuted by the District Collector as per Section 54 of C.P.C.According to him, it is not within the power of executing Court totamper with the terms of compromise entered into between theparties, unless it is contrary to the provisions of law. It is pointed outby him that as against the shares of the decree holders, it wasdecided that total amount of Rs.18,51,000/- was to be given to allthe decree holders in lieu of their share and accordingly each ofthem has already been paid Rs.6,17,000/-, which was accepted andacknowledged by decree holders by attesting their thumbimpression as well as acknowledging it by their signatures on theterms of compromise. Moreover, learned Joint Civil Judge, JuniorDivision, has also passed order below Exhibit-64, wherein it isobserved that all the decree holders and judgment debtors and theiradvocates are present before the Court and they are identified bythe respective counsels and the contents of the compromise pursishas been admitted by them, by attesting their signature and thumbimpression on it. It is only after verifying the compromise pursisorder is passed below Exhibit-1.9.Learned advocate for petitioners, in support of hiscontention, relies on Order 23 Rule 3 of C.P.C., which governs thecompromise of suit, which reads thus,“3. Compromise of suit - Whether it is proved to thesatisfaction of the Court that a suit has been adjusted wholly orin part by any lawful agreement or compromise (in writing andsigned by the parites), or where the defendant satisfies theplaintiff in respect of the whole or any part of the subject matterSVH 8 785-18-WP.odtof the suit, the Court shall order such agreement, compromise orsatisfaction to be recorded, and shall pass a decree inaccordance therewith [so far as it relates to the parties to thesuit, whether or not the subject matter of the agreement,compromise or satisfaction is the same as the subject matter ofthe suit].[Provided that where it is alleged by one party and denied by theother that an adjustment or satisfaction has been arrived at, theCourt shall decide the question; but no adjournment shall begranted for the purpose of deciding the question, unless theCourt, for reasons to be recorded, thinks fit to grant suchadjournment.]”10.Learned advocate for petitioners has relied on thejudgment of the High Court of Kerala in R.P. No.507/2014, wherein itis held that, once the Court finds that the agreement or compromiseis lawful, it shall record the same and pass a decree in termstherewith. The only inquiry contemplated by the Court when theparties compromise a matter is regarding the lawfulness of thecompromise or agreement. If that is found to be in the affirmative,the Court has no option, but to record the same and pass a decreein tune with the compromise or agreement. It is incumbent on theCourt to make the compromise or agreement itself a part of thedecree.11.In the impugned order the executing Court hasobserved that Civil Court has become functus officio regardingagricultural land after passing of decree and has accepted the termsof compromise only to the extent of house property, which iscontrary to the terms of compromise, when, in fact, the terms ofcompromise were in respect of agricultural land as well as houseSVH
Legal Reasoning
9 785-18-WP.odtproperty. The decree holders have accepted the monetarycompensation by relinquishing their share in the agricultural land aswell as house property in favour of the judgment debtors. Oncehaving accepted the amount in lieu of their share in the houseproperty as well as agricultural properties, the executing Court hastotally lost sight of the fact and thus has travelled beyond the termsof compromise and passed the impugned order.12.The learned advocate for respondent Nos.3 to 10 hasopposed the writ petition by filing affidavit dated 25/10/2023.Though this writ petition has been filed in the year 2018 and noticeswere issued on 22/01/2018, reply affidavit was not filed byrespondent Nos.3 to 10 during the intervening period. It is only aftera long gap of five years the affidavit has been filed by respondentson 25/10/2023.13.In the reply affidavit, it is contended that thecompromise was recorded in respect of house property only and itwas not in respect of agricultural land. It is the contention ofrespondents that petitioners have deceived respondents by notkeeping their word ‘to pay Rs.9,51,000/-’ as agreed between theparties. Though it was decided that amount of Rs.18,51,000/- wouldbe paid to defendant Nos.2 to 8, however, only an amount ofRs.9,00,000/- is received by respondents. In case the petitioners areready to make residual payment of Rs.9,51,000/- only in thateventuality respondent Nos.2 to 8 are ready to compromise theSVH 10 785-18-WP.odtmatter, failing which there cannot be any compromise.14.Learned advocate for respondent Nos.3 to 10 has alsorelied on communication dated 12/05/2017 addressed to theTahsildar, Omerga, by respondent Nos.3 to 10, objecting to theexecution filed before the Collector, Osmanabad, under Section 54of the C.P.C., contending that they have not received full amount asagreed in the terms of compromise. According to him immediatelyafter the compromise was entered between the parties he has filedobjection before the Tahsildar.15.However, the fact remains that Tahsildar is merelyimplementing the decree and is not the competent authority who iscapable of entertaining objection raised by the respondents. If at allthe respondents/decree holders had any objection as regards thecompromise pursis presented in the Court, they should have filedproper proceedings objecting to the same. 16.The learned advocate for respondent admits that tilldate the respondents have not filed any objection or proceedingsagainst the terms of compromise. They have not raised any disputeagainst the terms of compromise which was verified by thecompetent Court. Hence, the reliance placed by learned advocatefor respondents on the communication addressed to the Tahsildardated 12/05/2017 is of no assistance to them. Though therespondents have objected to the terms of compromise, in theirreply affidavit they admit to have received part amount ofSVH
Decision
11 785-18-WP.odtRs.9,00,000/- and according to them they have not yet receivedbalance amount of Rs.9,51,000/-. The said affidavit is contrary tothe terms of compromise entered into and acknowledged by theparties in the compromise they admit to have received the entireamount. So also, fact remains that till date decree holders have notfiled any legal proceedings disputing or objecting to the terms ofcompromise.17.Thus, the only ground raised by respondents to opposethe prayers in the writ petition is that, they have not received theentire amount as per the terms of compromise. Hence, they areopposing the prayer of the petitioners.18.Respondent Nos.1 and 2 State authorities have alsofiled affidavit of Naib Tahsildar, Omerga, District Osmanabad.Execution in respect of agricultural land B.No.193 admeasuring 2 H4 R. According to him, the authority cannot go beyond the decree asthey are bound by the orders passed by the Civil Court.19.Hence, taking into consideration the order dated27/09/2016, passed by the executing Court, respondent No.2 hasrefused to accept the request of petitioner to stop or defer theexecution of decree and has rejected the application of thepetitioner. record compromise. According to him, map was preparedto effect partition and it was sent to the circle officer to deliveractual possession as per the decree. The circle officer has issuednotices to the concerned parties, which the petitioners have refusedSVH 12 785-18-WP.odtto accept. Therefore, the circle officer prepared panchanamaregarding non-acceptance of notices on 22/09/2017. After dulyserving notices and following the prescribed procedure the circleofficer has handed over possession to the original plaintiffs in R.C.S.No.325/2019 on 26/09/2017 and accordingly the Taba Pawati is alsoprepared. 20.The sum and substance of the affidavit is that therevenue authorities have executed part of the decree regardingagricultural land on 26/09/2017 itself.21.I have heard the respective parties. After hearing thesubmission, as well as going through the documents placed onrecord, it is undisputed that terms of compromise were entered intobetween the parties to the suit and according to the terms ofcompromise the decree holders were in receipt of certain amount.After receiving the same, they had agreed to permanently relinquishtheir share in the house property as well as the agricultural land infavour of judgment debtors. There is a categorical declaration givenby the decree holders that, they had relinquished their share infavour of judgment debtor Nos.2 and 3 in lieu of the amountreceived by them. Having acknowledged the terms as stated hereinabove, by affixing their signatures and thumb impressions whichwas further verified by the executing Court on the very same dayi.e. 27/09/2016, the Executing Court had no other alternative but topass a decree in terms of compromise, entered between the parties.SVH 13 785-18-WP.odt22.In spite of the unambiguous terms of compromise theexecuting Court has, failed to pass fresh decree in terms ofcompromise as contemplated under Order 23 Rule 3 of C.P.C. On thecontrary it is observed that, Civil Court has become functus officioregarding the agricultural land after passing of decree. The saidobservation of the executing Court is contrary to what iscontemplated under under Order 23 Rule 3 of the C.P.C. The onlyoption with the executing Court was to pass a fresh decree inaccordance with the compromise terms entered into between theparties. However, the executing court has committed grave error inholding that the compromise to the extent of agricultural land wouldnot be legal. The terms of compromise are very much clear andunambiguous which provides that the decree holders had alreadyreceived an amount in lieu of their shares. Therefore, it was notopen for the executing Court to bifurcate the terms of compromiseby allowing compromise only to the extent of house property andsending the part of decree to the District Collector.23.Learned advocate for petitioners while challenging theorder passed by the executing Court has placed reliance on thejudgment of this Court in Mahadu Alias Mahadeo Baji BhosaleVs. Appaji Gunbarao @ Ganpatrao Bhosale, reported in 2003(2) Mh.L.J. 216, wherein it is observed that:-“8. Having heard the learned Counsel for the petitioner, I findthat the learned District Judge could not have dismissed theappeal on the ground that the Civil Court becomes functus officioSVH 14 785-18-WP.odtafter it sends the decree for partition and cannot in anycircumstances consider whether the Collector has effectedpartition in accordance with the decretal mandate. The relianceby the learned District Judge on the decision in the case ofLachhiram Jasram (supra) is misplaced. In the case before theNagpur High Court the Applicant had applied under section 54and Order XX, Rule 18 of the Code of Civil Procedure to the Courtfor issuing direction to the Collector to the effect that thepartition should be effected in a certain manner, in particular, soas to allot as far as possible entire holdings to the share of theplaintiff. This application has been dismissed. On this fact theHigh Court took the view that the discretion as to the manner inwhich the partition is to be held lies wholly with the Collector andthe Civil Court is functus officio after it declares the shares of theparties and beyond that it is not concerned with that. The Courtobserved that in fact the suit terminates so far as the Civil Courtis concerned on the passing of the preliminary decree affectingany estate assessed to the payment of revenue to the Crown.These observations were made obviously where anticipatorydirections to the Collector were sought to require him to effectpartition in a particular manner. This case is not an authority forthe proposition that if the Collector has effected partitioncontrary to the decretal mandate his action is immune from thechallenge before a Civil Court. On this question a Division Benchof this Court in Ningappa Balappa and Others v. AbashkhanGouskhan, AIR 1956 Bombay page 345, observed as follows :-- "5. It is true that it has been held in several cases that the Courtis not entirely deprived of controlling the action taken by theCollector. But this control is very limited. It is to be exercisedonly if the Collector contravenes the decretal order ortransgresses the law relating to partition or refused to executethe decree. See the cases cited at p.228 of Sir Dinshaw Mulla 'sCode of Civil Procedure, 12th Edition." 9. Therefore, the learned District Judge could not havedismissed the appeal on the ground that the Civil Court had nojurisdiction to see if the Collector had acted in accordance orSVH 15 785-18-WP.odtcontrary to the decretal mandate.”24.The question that arise before this Court is that,whether the executing Court can travel beyond the terms ofcompromise entered between the parties and issue decree only inrespect of part of the property which is not contemplated in theterms of compromise. Admittedly, in the present matter R.D.No.09/2005 was pending before the executing Court, and orderdated 21/04/2015 was passed by the Civil Judge Junior Division,Omerga, who has sent decree to the Collector for execution as perSection 54 of the C.P.C. in respect of agricultural property to allotshares as per decree and Darkhast in respect of house property waskept pending. The parties to the suit, even during execution havingconsciously and willingly entered into compromise and the terms ofcompromise being placed before the executing Court, the executingCourt was bound to issue modified decree in terms of thecompromise.25.Though the terms of compromise clearly containedclause No.2 wherein the legal heirs of decree holder No.1, decreeholder No.2 and legal heirs of decree holder No.3 have relinquishedtheir shares in respect of agricultural land as well as house propertyin favour of judgment debtor Nos.2 and 3, the relinquishment wasmade in lieu of the amount of Rs.6,17,000/- each received by themfrom judgment debtor Nos.2 and 3. Parties to the compromise werepersonally present and they have acknowledged the contents ofSVH 16 785-18-WP.odtterms of settlement before the executing Court, which was verifiedand order below Exhibit-64 has been passed.26.Hence, once having acknowledged the receipt ofamount in lieu of relinquishment of shares in agricultural land andhouse property, it was beyond the power of the executing Court tosend the decree to Collector under Section 54 of the C.P.C. forexecution in respect of agricultural land only. 27.Therefore, in view of the conspectus of the matter theimpugned order passed by the Joint Civil Judge, Junior Division,Omerga, deserves to be quashed and set aside by remanding thematter back to the executing Court.28.In the result, the order dated 27/09/2016 passed belowExhibit-1 in Regular Darkhast No.09/2005 is quashed and set asideand it is directed to the executing Court to record and give effect tothe compromise as per Exhibit-64 and accordingly pass the modifieddecree in terms of compromise.29.Rule is made absolute. Writ petition is, accordingly,disposed of. (MANJUSHA DESHPANDE, J.)SVH