Palwinder Singh v. Rakesh Singh

Hon'ble Mr. Justice Ajay Tewari Present: Mr.Rajiv Joshi, Advocate for the petitioner. ****

1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Ajay Tewari, J. This petition has been filed against the order of the learned Executing Court dismissing the last in a series of objections filed by the petitioner-Judgment debtor and ordering attachment of his property. The respondent-decree holder had filed suit against the petitioner for mandatory injunction directing him to vacate the house in dispute. In the said suit compromise dated 14.8.99 was arrived at between the parties. As per the said compromise the petitioner was allowed 5 years rent free stay in the house in dispute. It was further stipulated that the petitioner would hand over the vacant possession of the house in dispute to the respondent-decree holder on or before 15.08.2004. It was further stipulated that in default of the same the petitioner would be liable to pay Civil Revision No. 2580 of 2010(O&M) 2 Rs.5000/- per month as occupation chargers from the date of the compromise till the date of vacation. The suit was decreed by judgment and decree dated 20.8.1999 and the compromise was made a part of the decree. Since the petitioner did not hand over the vacant possession of the house on or before 15.8.2004 the respondent moved the instant execution petition for seeking possession as well as for use and occupation charges w.e.f. 16.8.2004 till vacation. As per the impugned order possession was handed over to the respondent through court process on 26.10.2005. Thus the petitioner was liable to pay use and occupation charges from

16.8.2004 to 26.10.2005. It is for the recovery of this amount that the attachment of the property of the petitioner was sought and it was further in objections filed by the petitioner-JD thereto that the impugned order has been passed and , as mentioned above, the objections have been rejected and attachment has been ordered. Learned counsel for the petitioner has drawn my attention to a clause of the compromise wherein it was mentioned as follows:- “......... It has further been agreed between the parties that if the possession is not delivered by the defendant no.1 to the plaintiff on or before 15.8.2004 then in that eventuality the defendant no.1 will pay a sum of Rs. 5000/- per month as use and occupation charges w.e.f. the date of compromise to the plaintiff. In that eventuality the plaintiff would be entitled to recover the amount of use and occupation after 15.8.2004 w.e.f. the date of this compromise and the defendant will be stopped from rasing any legal objection of limitation Civil Revision No. 2580 of 2010(O&M) 3 etc.” Learned counsel has particularly pressed on the last portion of the above mentioned clause and stated that since this compromise barred the petitioner from taking the plea of limitation, it was an illegal contract. In the first instance any such plea could have been filed only in review of the judgment or in appeal against the same. Such a plea cold not be taken up in execution. Apart from this, this plea may have been available to the petitioner in case the respondent-decree holder had moved the Court more than three years after the date when the cause of action was to accrue, viz.15.8.2004, and also sought protection from limitation by relying upon the impugned clause. As noticed above the respondent-decree holder moved the application in the execution immediately after the expiry of the prescribed period on 16.8.2004. In the circumstances the said clause became academic. In this situation it would not be required of any Court to enforce this clause. As mentioned above, this would have assumed importance only if the application had been filed by the decree holder beyond a period of three years. Learned counsel has relied upon Bhagwati Prasad v. Chatrapal and others reported as AIR(34) 1947 Allahabad 38 in support of his arguments. In that case a suit was filed beyond three years after the default and reliance had been sought to be placed on a clause which barred the defendant from raising the plea of limitation. It was in those circumstances that it was held that a contract avoiding the law of limitation cannot be enforced. To the similar effect is another judgment in Jawahar Lal v. Mathura Prasad and another reported as AIR 1934 Allahabad 661 wherein the Full Bench of the Allahabad High court held as follows:- “........Parties cannot by contract alter the statutory period of Civil Revision No. 2580 of 2010(O&M) 4 limitation. Nor can they alter the statutory starting point of limitation. When the statute lays down that in certain circumstances, time will begin to run from the date “when the default is made” it is not open to the parties to agree that the creditor may simply ignore the default and, if he does so that will not begin to run until the expiry of the stipulated period..............” In the present case the statutory period of limitation has not been sought to be enlarged. Thus, it cannot be held that the compromise was illegal. Learned counsel has further argued that by way of this agreement the respondent-decree holder was able to recover the amount which otherwise he could have recovered only by way of filing a suit for recovery and this agreement being contrary to the provisions of the Court Fees Act was illegal on that account. The learned Executing Court has found that that clause of the compromise under which the petitioner had agreed to pay for the use and occupation charges and default of payment by the stipulated date had been incorporated in the decree itself. Thus once the decree had been passed it was not necessary for the respondent to file a separate suit. Apart from that, Order 23 Rule 3 CPC itself envisages that a compromise can be arrived at about a matter which may not be the same as the subject matter of the suit. In the circumstances this argument of learned counsel for the petitioner also has to fail. Resultantly this petition is dismissed. Since the main case has been decided, the pending Civil Misc. Applications, if any, stand disposed of. April 22, 2010 sunita (AJAY TEWARI) JUDGE