Execution Case No. 27 of 2017 · The High Court
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI C.R. No. 31 of 2019 Smt. Parwati Devi, wife of Sri Bhagwan Chauhan, Resident of – Godhar, Near Water Board Colony More, P.O. – Kusunda, P.S. – Kenduadih, District – Dhanbad. 1. A. Harikishun Nonia, V E R S U S B. Mohan Nonia [Substituted vide order dated 20.02.2024 after death of Smt. Bigni Devi]` … … Petitioner. Both are sons of Late Harikishun Nonia. 2. Smt. Nagia Devi, wife of Narayan Nonia, All the three are - Residents of – Godhar, Water Board Colony More, P.O. – Kusunda, P.S. – Kenduadih, District – Dhanbad. … … … Opposite Parties. CORAM: HON'BLE DR. JUSTICE S. N. PATHAK For the Petitioner : Ms. Vipul Divya, Advocate For the O. Parties : Mr. Sandip Kumar Burnwal, Advocate Mr. Anil Kumar Singh, Advocate 07/14.06.2024 Heard the parties. 2. Instant revision application is directed against the order dated 05.04.2019, passed in Execution Case No. 27 of 2017, passed by Civil Judge, Junior Division No. 1, Dhanbad whereby the Court below has refused to execute the Decree dated 10.05.2012, passed by Civil Judge, Junior Division No. 1, Dhanbad in Title Suit No. 161 of 2006.
Facts
BRIEF FACTS OF THE CASE 3. Title Suit No. 161 of 2006, dated 16.12.2006 was filed by the petitioner before the Court of Civil Judge (Jr. Division) No. 1, Dhanbad with the following prayer: (a) For declaration of right, title and interest of the plaintiff over the suit land; (b) For a decree for cancellation of registered deed of sale no. 139, dated 09.01.1998 being fraudulent, null and void and illegal in transaction; (c) For a decree for permanent injunction restraining the defendants, their men, agent etc. from interfering with the peaceful possession of the plaintiff over the suit land; 1 (d) For a decree for recovery of Rs.4,000/- towards loss and damage incurred by the plaintiff for demolishing the boundary wall against the defendants and; (e) For a decree for any other reliefs. 4. After filing of the suit, with the intervention of well-wishers, the parties amicably settled their disputes and filed joint compromise petition on 22.03.2012 supported with affidavits from both the sides. On the basis of compromise petition dated 27.04.2012, the suit was decreed vide Decree dated 05.05.2012 signed on 10.05.2012. Thereafter, the petitioner came in possession of the suit land and started living peacefully with her family. 5. It is case of the petitioner that on and from 10.04.2017, the respondents, their sons and other family members started disturbing her peaceful possession over the suit property in various manner. Thereafter, the matter was informed to the Kenduadih Police Station as also to the S.D.M., Dhanbad by the husband of the petitioner. Thereafter, petitioner applied for measurement of her purchased suit land before the office of the Circle Officer, Dhanbad which was registered as Measurement Case No. 34/2017-18 and the land was measured by the Government Amin appointed for the purpose in presence of respondents and a report was prepared with map on 22.09.2017 and submitted before the C.O., Dhanbad on 26.09.2017. Thereafter, the petitioner started to give boundary wall on the suit land which was forcibly stopped by the respondents and others. The matter was duly informed before the Kenduadih Police Station but no action was taken by the police. Thereafter, petitioner filed Execution Case No. 27 of 2017 on 16.11.2017 in the Court of Civil Judge (Jr. Division) No. 1 at Dhanbad for execution of Compromise Decree dated 05.05.2012 and for recovery of possession by evicting the Judgment Debtors/ Defendants from the suit land by due process of law. After service of notice, the respondents/ Judgment Debtor filed objection that he had filed a Title Suit No. 38 of 2006 against the Decree Holder of this case for Declaration of Title and Confirmation of possession etc. on 13.04.2006 before the Court of Civil Judge (Junior Division) No. 1, Dhanbad and in both the suits, compromise petition was 2 filed and the Court below had passed compromise decree in both the suits on 05.05.2012 on the basis of compromise petition. However, vide order dated 05.04.2019, the Court below rejected the Execution Case No. 27 of 2017 stating therein that there is no decree in the name of the Decree Holder which entitles him to recover possession of the schedule property and further held that the Execution petition is not maintainable and hence rejected. Being aggrieved, petitioner has been constrained to knock door of this Court. ARGUMENTS ON BEHALF OF THE PETITIONER:
Legal Reasoning
execution is not maintainable. There is no dispute that in the instant case both the parties had mutually consented and agreed to compromise the matter on the terms enumerated in Clauses of the compromise petition. 6 13. From the foregoing facts and reasons, it is apparent that the compromise decree would be executable hence, the parties cannot resile from the terms of the clause. It is canvassed that the principles laid down in the case of Pushpa Devi Bhagat (Supra) does not support the contention of the respondent, on the contrary, it lends impetus and credence to the proposition that the compromise decree was executable. In the backdrop of settled proposition and the materials on record, it appears that indisputably both the parties on mutual consent had agreed that the compromise decree would be executable. Since the terms and conditions of the compromise were not given effect to in letter and spirit, therefore, the petitioner levied the execution case in the court below. Such an occasion arose due to non-implementation of terms and conditions of compromise compelling the petitioner to take recourse of law for execution of the decree by the court of law. 14. For the foregoing reasons and discussions made hereinabove, the decisions relied upon by the learned counsel for the parties, it fortifies the settled proposition that the compromise decree is enforceable by levying of execution as contemplated in first part of Order 23 Rule 3 of Civil Procedure Code. As a sequel thereof, it is apparent that the impugned order suffers from illegality or impropriety and call for interference. 15. Having heard counsel for the parties and considering facts and circumstances of the case, this application stands allowed. The impugned order dated 05.04.2019, passed in Execution Case No. 27 of 2017, passed by Civil Judge, Junior Division No. 1, Dhanbad is hereby quashed and set aside. The Court below is directed to execute the Decree dated 10.05.2012, passed by Civil Judge, Junior Division No. 1, Dhanbad in Title Suit No. 161 of 2006. 16.
Arguments
6. Ms. Vipul Divya, learned counsel appearing on behalf of the petitioner argues that the Compromise petition filed before the Court below clearly speaks as under: (i) Clause-b speaks that the parties shall maintain good relations between themselves and will not disturb over possession of the land in dispute mentioned in the Schedule of the plaint and not by any claim in any manner whatsoever in future; (ii) Clause-c speaks that the compromise petition shall be a part of Decree; (iii) Clause-d speaks that the parties have entered into compromise without any undue influence or pressure from anybody and they have entered into the compromise out of their free will and consent. The plaintiff shall possess the suit land peacefully and the defendants shall not in any manner disturb or initiate case against them. (iv) Clause-e speaks that the parties do not want to proceed with the case any further in view of mutual compromise. 7. Ms. Vipul Divya, learned counsel representing the petitioner argues that the Court below has erred in refusing to exercise his jurisdiction to pass necessary order for execution of the Decree dated 10.05.2012, passed by Civil Judge, Junior Division No. 1, Dhanbad in Title Suit No. 161 of 2006. Learned counsel further argues that the compromise decree is perfectly executable decree, more so when the learned court below has drawn a decree on the basis of consent of both the parties. Learned counsel further argues that the impugned order dated 05.04.2019, passed 3 in Execution Case No. 27 of 2017 is bad in law as well as facts and the same is fit to be quashed and set aside. The Court below has erred in not exercising his discretion conferred under Section 47 of the Code of Civil Procedure in the matter of issue deciding executability of the Decree. The provisions made in Section 47 of the Code of Civil Procedure is wide worded and the same has been designed to prevent manifest injustice. The Court below has erred in not taking into account that the respondents were interfering and disturbing the petitioner with peaceful possession of the suit property even though acknowledging the same. The Court below should have considered that the Decree dated 05.05.2012 in Title Suit No. 161 of 2006 was a consent Decree and Compromise Petition being part of the Decree should have been followed. The petitioner has duly informed the Kenduadih Police Station about the continuous disturbance, threatening and falling of the boundary wall by the respondents and the same was brought in record before the Court below but the same has not been considered by the Court below. Instead of deciding the issue in Execution Case No. 27 of 2017 in light of Compromise Decree, the Court below committed illegality in disposing off the Execution petition in a casual manner. 8. To buttress her arguments, learned counsel places heavy reliance upon the Judgment rendered in the case of Rajendra Chaturvedi Vs. Geeta Ojha and others reported in 2018 SCC OnLine Jhar 2140 and further draws attention towards para-10 and 13 thereof. ARGUMENTS ON BEHALF OF THE RESPONDENTS 9. Mr. Sandip Kumar Burnwal, learned counsel representing respondents argues that the respondents as well as the petitioner had filed Title Suits i.e. Title Suit No. 38 of 2006 and Title Suit No. 161 of 2006 respectively. However, both the parties settled their disputes amicably with the intervention of their well wishers outside the Court and filed compromise petition on 22.03.2012 in both suits. Thereafter, the Court below made two Decree on the ground of their compromise petition. Thereafter, both the parties filed respective execution case i.e. Execution Case No. 27 of 2017 filed by the petitioner and Execution Case No. 7 of 2019 by the respondents. Both the execution case stood rejected vide order 4 dated 05.04.2019 being not maintainable. Learned counsel submits that the instant revision petition has no merits and the same is fit to be dismissed. The petitioner has tried to make out a false case and the same has rightly been turned down by the Court below. 10. To buttress his arguments, Mr. Sandip Kumar Burnwal, learned counsel appearing on behalf of the respondents relies upon para-7 of the Judgment rendered in the case of Bihar State Sunni Waqf Board Vs. Syed Bashiruddin ashraf and others reported in AIR 1985 PAT 52. FINDINGS OF THE COURT 11. From the averments made in the instant revision petition and the arguments advanced by learned counsel for both the sides, it appears that the suits filed by both the parties stood closed in view of compromise arrived at between them. It is an admitted fact that both the parties had mutually consented and agreed to compromise the matter on the terms enumerated in clause D and E of the compromise petition. Before going into the merits of the case, it would be appropriate to quote para-10 and 13 of the Judgment rendered in the case of Rajendra Chaturvedi (Supra) which reads as under: Heard. On plain reading of the provisions of Order 23 “10. Rule 3, it is explicit that the provision is in two parts. This has been succinctly and eloquently analysed and discussed by the Supreme Court in the aforesaid decision cited and relied on by both the parties. The first part applies where the parties to the suit enter into a lawful compromise to which they are signatory stating that they have settled their differences. However, if the compromise is not acted upon then the compromise decree becomes executable to enforce the terms and condition of the compromise. The second part, however, shall apply in a case where the claim of the plaintiff stands satisfied and no further step or action is required to be taken by the parties in terms of the compromise. At this stage, it is pertinent to reiterate the settled principles that a compromise decree, it is trite, remains valid unless it is set aside. It would be binding on the parties. Although, the principles of res judicata stricto sensu would not apply, the principles of estoppel would. As is evident in the instant case, a compromise decree was passed and it is well-settled that the validity of a compromise decree flows from the consent of the parties, therefore, the effect of the compromise decree and the terms and conditions agreed to and incorporated by the parties cannot be ignored by the parties. … … 13. In the backdrop of the settled proposition and the 5 terms of land/property as per materials on record the contention of learned counsel for the petitioner that the decree was not executable is not sustainable for the simple reason that indisputably both the parties on mutual consent had agreed that the compromise decree would be executable and it was with such intent and object that clause 4 was categorically inserted as one fo the terms and conditions in the compromise decree. Since the terms and conditions of the compromise were not given effect to in letter and spirit, therefore, the opposite party levied the execution case in the court below with a prayer that he be put in ‘Khas’ possession of the portion of the scheduled the compromise. Evidently, such an occasion arose due to non-implementation of the terms and conditions of compromise compelling the opposite party to take recourse of law for execution of the decree by the court of law with the prayer to put him in Khas (physical) possession of the schedule land. In this context it is evident to state that if the petitioner’s contention is accepted that the opposite party/ plaintiff is in ‘khas’ possession of the portion of the schedule land in accordance with terms of the compromise, then there is no justification or plausible explanation forthcoming on petitioner’s part regarding the cause of objection or resistance offered by him for levying of execution for satisfying terms and conditions of the compromise. In the emergent facts, the inference can be drawn to the said compromise was never acted upon and only remained on paper and the possession of the opposite party was merely symbolic.” In the case of Mahalaxmi Cooperative Housing Society Limited Vs. 12. Ashabhai Atmaram Patel reported in (2013) 4 SCC 404, the Hon’ble Supreme Court in para-40, has referred to the decision rendered in Pushpa Devi Bhagat Vs. Rajinder Singh reported in (2006) 5 SCC 566, and the provision of Rule 3 Order 23 have been analysed and exhaustively discussed. It has been observed that Order 23 Rule 3 contains two parts – the first part refers to the situation where an agreement or compromise is entered into in writing and signed by the parties and the Court being satisfied that the said suit has been adjusted either wholly or in part on the terms and conditions of the agreement can pass a decree and such a decree is executable. The second part contemplates that when the plaintiff apprises the court that the defendant has satisfied his claims with respect to the subject matter of compromise and no obligation for performance survives by either of the parties, then the enforcement or levying of an
Decision
Pending I.A., if any, also stands disposed of. (Dr. S.N. Pathak, J.) 7