Gulshan Kumar & Ors. v. Sushil Kumar

defendant filed counter-claim. The trial Court dismissed the suit filed by petitioners and decreed the counter-claim filed by respondent. Petitioners preferred first appeal against judgment and decree of the trial Court. During pendency of the first appeal, parties effected compromise Annexure P-3. In terms of the compromise, the appeal was disposed of by first appellate Court vide judgment and decree dated 16.02.2008. There was agreement to sell between the parties. The said agreement was regarding sale of 7 kanals 11 marlas land i.e 151/511 share of 25 kanals 11 marlas land. According to compromise Annexure P-3, out of 7 kanals 11 marlas land in suit, petitioners were entitled to retain 60% western portion thereof as owners whereas the remaining 40% eastern portion was given to respondent, who as per compromise paid Rs.5,00,000/- as price thereof to the petitioners. 40% eastern portion of the respondent abutted a passage of 2 karams width lying on northern side of the said portion of the respondent. Since the petitioners failed to comply with the decree even after receiving the sale consideration of Rs.5,00,000/- in terms of compromise, respondent was forced to file execution petition. In the execution petition, petitioners/judgment debtors filed objections alleging that decree dated 16.02.2008 Annexure P-4 passed by the first appellate Court is not executable as C.R. No.6296 of 2010 (O & M) 3 major part of the disputed land has been acquired by State Government. The decree-holder had purchased only share in the land and, therefore, acquisition of land affected his share as well. Decree-holder respondent resisted the objections and pleaded that specific eastern portion being 40% of the suit land was given to the decree-holder and the same has not been acquired. The judgment debtors have already received the remaining sale consideration of Rs.5,00,000/-, but in spite thereof, they did not execute necessary sale deed. Only land measuring 3 kanals of Killa No.24/6/1/2 out of 25 kanals 11 marlas land has been acquired by the State Government and the same does not affect the share of the respondent as given in compromise decree Annexure P-4. Various other pleas were also raised. Learned Executing Court vide impugned order dated

20.09.2010 Annexure P-10 dismissed the objections filed by the judgment debtors in the execution petition and as a consequence thereof, the executing Court vide separate order of even date Annexure P-11, appointed Commissioner to execute sale deed in terms of the compromise decree. Feeling aggrieved, judgment debtors have filed the instant revision petition. I have heard learned counsel for the petitioners at length and perused the case file. Learned counsel for the petitioners vehemently contended that the petitioners are only share-holders and, therefore they could not transfer specific portion to the decree-holder- respondent. The contention does not lie in the mouth of the petitioners in view of compromise Annexure P-3 admittedly effected C.R. No.6296 of 2010 (O & M) 4 by the petitioners. In fact, pursuant to the said compromise, the petitioners had even received balance sale consideration of Rs.5,00,000/- from the respondent. However, in spite thereof, the petitioners turned dishonest and did not execute the requisite sale deed pursuant to compromise. Learned counsel for the petitioners also contended that agreement Annexure P-2 in favour of respondent-decree-holder pertained to share of one Siri Bhagwan as well and petitioners have no right to transfer the said share to the respondent. The contention is distorted and result of sheer dishonesty of the petitioners. While entering into the compromise, the petitioners were aware of the said position regarding share of Siri Bhagwan in the joint land. However, as per compromise, entire suit land measuring 7 kanals 11 marlas (which included share of Siri Bhagwan) was not given to respondent- decree-holder. On the contrary, only 40% of 7 kanals 11 marlas suit land was given to respondent under the compromise. The said 40% share fell within the share of petitioners themselves and was not in excess of their share in the total joint land. Learned counsel for the petitioners also contended that 3 kanals land out of 25 kanals 11 marlas land had been acquired by the State Government subsequent to the compromise and, therefore, respondent-decree-holder too should contribute proportionately towards the acquired land. The contention cannot be accepted because specific portion was given to respondent-decree-holder in terms of the compromise. Acquired land does not fall in that portion. Consequently, the respondent is not liable to contribute towards the land acquired by the State Government. In fact objections have been C.R. No.6296 of 2010 (O & M) 5 filed in view of the acquisition as the acquisition was from the share of the petitioners and other landowners and by way of dishonesty, the petitioners want to reduce the share of respondent-decree-holder. If the petitioners had honestly executed the sale deed pursuant to compromise decree, the objections would not have arisen because the compromise decree is dated 16.02.2008 whereas acquisition of land allegedly took place in October, 2008 and even the execution petition had been instituted on 09.06.2008 i.e much prior to the acquisition. The entire exercise by the petitioners is sheer result of their dishonesty. They want to resile from the compromise Annexure P-3 and want to wriggle out the compromise decree Annexure P-4, although after passing of the decree, the respondent honestly paid the amount of Rs.5,00,000/- to the petitioners as per compromise. Learned counsel for the petitioners contended that in appropriate cases, the executing Court can take into consideration pleadings and proceedings leading to the decree, as observed by Supreme Court in the case Bhavan Vaja and others versus Solanki Hanuji Khodaji Mansang and another, AIR 1972 Supreme Court 1371. It was also contended that the Executing Court can go behind the decree and can take into consideration subsequent events, as held by Hon'ble Supreme Court in the case of M/s M. Laxmi and Co. versus Dr. Anant R. Deshpande and another, AIR No.1973 Supreme Court 171. However, these propositions of law do not come to the rescue of the petitioners in any manner. Compromise Annexure P-3 has been taken into consideration. The C.R. No.6296 of 2010 (O & M) 6 said compromise was entered into by the petitioners with their eyes open. At that time, the petitioners were aware of the entire factual position including contents of agreement Annexure P-2 as well as share of Siri Bhagwan in the joint land. Not only that, even after entering into compromise, the petitioners received Rs.5,00,000/- from the respondent, but still the petitioners want to resile from the compromise. Subsequent event of acquisition of land has also been taken into consideration, but the said acquisition does not effect the portion of respondent-decree-holder given to him under the compromise. It may be added that objections regarding share of Siri Bhagwan can be raised by Siri Bhagwan and not by the petitioners. Moreover, execution of the decree would not effect the share of Siri Bhagwan because 40% share of the suit land to be given to respondent-decree-holder would be out of the share of the petitioners. For the reasons aforesaid, I find no merit in the instant revision petition. The impugned orders of the trial Court do not suffer from any illegality or jurisdictional error. On the contrary, objections filed by the petitioners are result of sheer dishonesty. The objections are completely frivolous and meritless and have been rightly dismissed by the Executing Court. The petitioners entered into compromise and got benefit of the compromise by receiving Rs.5,00,000/- from the respondent. Pursuant to compromise, the respondent also gave up his claim for 60% of the suit land. However, nevertheless, the petitioners gracefully and honestly did not execute the sale deed in favour of respondent-decree-holder pursuant to the compromise. The instant revision petition is completely frivolous and C.R. No.6296 of 2010 (O & M) 7 meritless. Such frivolous, meritless and vexatious litigation has to be curbed by imposing exemplary costs on such litigant. Accordingly, the instant revision petition is dismissed in limine with costs of Rs.15,000/- to be deposited with the Registry of this Court. If the costs amount is not deposited within one month from today, then the case shall be listed for this purpose. ( L. N. MITTAL ) JUDGE

28.09.2010. A. Kaundal