Skip to content


Shital Prasad Vs. Dhan Kumar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberEx. Second Appeal No. 1533 of 1973
Judge
Reported inAIR1974All175
ActsCode of Civil Procedure (CPC) , 1908 - Sections 47, 100 to 101 and 141 - Order 21, Rules 2 and 15 - Order 23, Rule 3
AppellantShital Prasad
RespondentDhan Kumar and ors.
Appellant AdvocateK.M. Dayal, Adv.
Respondent AdvocateL.D. Joshi, Adv.
DispositionAppeal dismissed
Excerpt:
.....non-framing of the issues is concerned, it is well settled that section 141...........this execution second appeal is by the judgment debtor. the facts in brief are as follows: the decree-holders respondents had a decree in their favour passed in original suit no. 1225 of 1950 for possession over certain land after demolition of the constructions raised by the judgment-debtor on the said land. the judgment-debtor-appellant, shital prasad, filed objection 3-c dated 2-2-1972, paper no. 162 in misc. case no. 37 of 1972. the objection purported to be under order xxi, rule 2 read with section 47, c.p.c. the said judgment-debtor claimed certification of adjustment of decree and also challenged the maintainability of the execution application on the ground that all the heirs of a deceased decree-holder, jugmandar das, had not been brought on re-cord in the execution.....
Judgment:
ORDER

M.P. Mehrotra, J.

1. This execution second appeal is by the judgment debtor. The facts in brief are as follows: The decree-holders respondents had a decree in their favour passed in original suit No. 1225 of 1950 for possession over certain land after demolition of the constructions raised by the judgment-debtor on the said land. The judgment-debtor-appellant, Shital Prasad, filed objection 3-C dated 2-2-1972, Paper No. 162 in Misc. Case No. 37 of 1972. The objection purported to be under Order XXI, Rule 2 read with Section 47, C.P.C. The said judgment-debtor claimed certification of adjustment of decree and also challenged the maintainability of the execution application on the ground that all the heirs of a deceased decree-holder, Jugmandar Das, had not been brought on re-cord in the execution application. It was alleged in this objection that on 19-1-1972 at about 11-00 A.M. when the Amin along with one of the decree-holders, Dhan Kumar, four constables and Thanedar etc. reached the spot, a talk about compromise started between the parties with the help of Shahjad Rai and Lala Ram Chander alias Jado Ram and it was, agreed at that time that with the help of the said Shahjad Rai and Lala Ram Chander alias Jado Ram the parties would settle the matters themselves. Therefore, the Amin went back without effecting delivery of possession. Subsequently, on the said date at about 3-00 P.M. the parties and the said Shahjad Rai and Lala Ram Chander alias Jado Ram, all assembled together and the decree in question was agreed to be adjusted on the conditions set out in the said compromise 3-C dated 2-2-1972. It is not necessary to set out the details of the terms of adjustment. Broadly, it may be stated that the parties are alleged to have agreed that the constructions were not to be demolished by the decree-holders and the latter also agreed not to take possession of the land standing beneath the said construction and the decree-holders are also alleged to have agreed that the said land would become the sole property of the judgment-debtor. A sum of Rs. 7,000/- was agreed to be paid to the decree-holders by the judgment-debtor, in respect of the said land the claim of whose possession was being given up by the decree-holders. It was alleged in the said objection that the sum of Rupees 7,000/- was agreed to be kept with Shahjad Rai and it was agreed between the parties that within a period of 3 or 4 days the parties would go to the court, have the compromise and adjustment certified and then the said sum of Rs. 7,000/- would be paid to the decree-holders before the Presiding Officer of the court. It was also alleged that in fact the said compromise was acted upon and, inter alia, portions of land were taken possession of by the decree-holders and certain constructions were also raised by the decree-holders in pursuance of the said adjustment or compromise. The judgment-debtor appellant alleged that subsequently the decree-holders began to resile from the compromise and hence the said objection-cum-application under Order XXI, Rule 2, C.P.C. read with Section 47, C.P.C. was moved. The objection under Section 47, C.P.C. was raised in the said paper 3-C to the effect that because of the non-substitution of the heirs of a deceased decree-holder, Jugmandar Das in the execution application, the latter was not maintainable.

2. The decree-holders respondents filed their reply 7-C to the said 3-C. They flatly denied that there was any adjustment or compromise between the parties. They admitted that on 19-1-1972 when the Amin reached the spot for effecting delivery of possession, the judgment-debtor did suggest to Dhan Kumar, one of the decree-holders, that there should be an attempt to have the matter compromised and Dhan Kumar did agree that such an attempt should be made. Therefore, the Amin went back without effecting delivery of possession. However, it was denied that subsequently any adjustment or compromise was reached between the parties and, therefore, on 22-1-1972 the decree-holders moved in the execution court stating that the talks between the parties for a compromise did not fructify and, therefore, proceedings for the delivery of possession should be re-started. In para 9 of the said application the decree-holders contended that the alleged adjustment or compromise was said to have been reached between the judgment-debtor and one decree-holder and such a compromise or adjustment would be legally ineffective as it was not a compromise or adjustment with the entire body of the decree-holders.

3. The parties subsequently led evidence in the execution court in support of their respective contentions. The execution court rejected, the judgment-debtor's objection-cum-application under Section 47, C.P.C. and Order XXI, Rule 2, C.P.C. on the short ground that when there was a decree jointly in favour of several decree-holders only one decree-holder could not enter into an adjustment or compromise with the judgment-debtor on behalf of the other decree-holders. The objection under Section 47 was held to be untenable as the heirs of the deceased decree-holders, Jugmandar Das, had been brought on the record.

4. The judgment-debtor thereafter filed an appeal in the lower appellate Court and the said court after an exhaustive and detailed examination of the evidence on the record and taking into consideration the circumstances of the case held that the oral adjustment or compromise alleged to have been arrived at between the parties lacked foundation. The said court has given good reasons for discarding the version of the judgment-debtor about the alleged adjustment or compromise between the parties. The judgment-debtor, Shital Prasad, made conflicting statements on such a major point as the payment of the sum of Rs. 7,000/- alleged to be agreed between the parties to be paid to the decree-holders for giving up their right of possession over the land beneath the constructions of the judgment-debtor. While in his objection 3-C the judgment-debtor stated that the sum of Rs. 7,000/-was kept with Shahjad Rai and was to be paid to the decree-holders at the time of the certification of the compromise, in his oral statement in the court he stated that the said sum was then and there paid to Dhan Kumar through Shahjad Rai on 19-1-1972 at 3-00 P.M. when the parties sat together along with the aforesaid Shahjad Rai and Ram Chander alias Jado Ram. There were other circumstances also which discredited the version of the judgment-debtor and the same have been discussed in the judgment of the lower appellate court. The appeal was, therefore, dismissed by the said court.

5. On behalf of the judgment-debtor in this execution second appeal, his learned counsel, Shri K.M. Dayal, has, in the main, made a grievance of the fact that in the execution court no issues were framed and the non-framing of the issues has caused prejudice to the judgment-debtor appellant. Further, his contention is that the execution court did not go into the factum of compromise but merely rejected the version of the judgment-debtor on the ground that one decree-holder out of several decree-holders could not enter into a compromise or adjustment binding upon the general body of decree-holders. The learned counsel's point is that if the execution court would have gone into the merits of the case then his client would have got a re-examination of the said findings of the execution court done by the lower appellate court. He further contended that from the facts on record it should be held that Dhan Kumar had authority from the co-decree-holders to act on their behalf and hence the compromise was binding upon them.

6. Shri L.D. Joshi, learned counsel for the decree-holders, respondents, in reply, has contended that the mere fact that Dhan Kumar, one of the decree-holders, was doing Pairavi on behalf of other decree-holders in the execution Court did not lead to the inference that he had an authorization from the other decree-holders to agree to a curtailment of the rights of the decree-holders under the decree in question. In law, therefore, there was no such implied authority and, in fact, no such authorisation was alleged by the judgment-debtor in his application-cum-Objection under Order XXI, Rule 2, C.P.C. and Section 47, C.P.C. Shri Joshi drew pointed attention to para 9 of the decree-holders' reply 7-C wherein it was clearly stated that the alleged adjustment or compromise with only one of the decree-holders out of several decree-holders did not bind other decree-holders. In this contention attention was drawn to Order XXI, Rule 15, C.P.C. which authorises one of the joint decree-holders to apply for the execution of the whole decree for the benefit of the entire body of the decree-holders. Shri Joshi contended that this provision is for the benefit of the decree-holders but it does not enable one of the decree-holders to act in derogation of the decree or to the curtailment of the rights of the decree-holder under a joint decree. Shri Joshi in this connection placed reliance on Dhondhey Prasad v. Sewak : AIR1954All739 . Head Note (d) of the said casa lays down as under :

'It is not open to one of the two joint decree-holders of a decree to certify satisfaction of the whole decree so as to bind the other decree-holder although he can certify satisfaction in respect of his own interest in the decree.'

Shri Joshi further relied on Mihir Bose V. Jobeda Khatun, (1959) 63 Cal WN 570. wherein it is laid down that

'An adjustment of a joint and indivisible decree for Khas possession, by some out of the entire body of the decree-holders neither bona fide nor valid in law.'

7. Shri Joshi lastly rebutted the other contentions raised by Shri K.M. Dayal.

8. After having heard learned counsel for the parties, I hold that this appeal lacks merit. Firstly, it is concluded by findings of fact arrived at by the lower appellate court after a detailed examination of the evidence on the record It will be recalled that the judgment-debtor was alleging an oral compromise or adjustment. The lower appellate court has rightly observed that in a situation where the parties have been at litigation for a long duration starting from 1950 and where the litigation frequently continued up to the stage of this Court in the shape of appeals and revisions, one would have expected as a matter of ordinary prudence that if there was a real compromise or adjustment between the parties, the same would have been reduced to writing The mere fact that the Amin admittedly returned on 19-1-1972 without effecting delivery of possession coupled with the fact that there was an attempt between, the parties to arrive at a settlement does not lead to the inference that, in fact. a compromise or settlement was reached between the parties That is at pure question of fact and the finding of the lower appellate court is final on the said question.

So far as the non-framing of the issues is concerned, it is well settled that Section 141. C.P.C. which lays down that the procedure provided in thus Code in regard to suits shall be followed as far as can be made applicable in all proceedings of civil jurisdiction, does not apply to execution proceedings. The law to the said effect was laid down by the Privy Council in Thakur Prasad v. Faqirullah, (1894) ILR 17 All 106 (PC) and the Supreme Court in D. Bhushayya v. K. Ramakrishnayya : [1963]2SCR499 has affirmed the said view. Therefore, it was no1 obligatory for the execution court to frame issues in the instant case. More-over, the Supreme Court has emphasised in more than one case vide Md. Umar-saheb v. Kadalaskar : [1969]3SCR966 : Kameswaramma v. Subba Rao : [1963]2SCR208 and Nagubai v. B. Shama Rao : [1956]1SCR451 , that if in spite of the non-framing of an issue, the parties have led the necessary evidence and have not been prejudiced then the trial is not vitiated and the decision of the trial court will not be interfered with. In the instant case, it has not been disclosed how the judgment-debtor was prejudiced with the non-framing of issues. The real issue involved between the parties related to the factum and terms of the compromise alleged by the judgment-debtor and denied by the decree-holders. The judgment-debtor on that footing examined himself and other witnesses in support of his version. On behalf of the decree-holders. Dhan Kumar, entered the witness-box and denied the alleged compromise of adjustment On a consideration of the evidence on the record the lower appellate court held that there was no such adjustment or compromise between the parties as alleged by the judgment-debtor.

In that view of the matter the other question about the implied authority of Dhan Kumar, one of the decree-holders to act on behalf of the other decree-holders, really does not arise. However, on the said question also it seems the contention on behalf of the decree-holders respondents is correct. The mere fact that Dhan Kumar was doing Pairvi in the execution proceedings on behalf of the other decree-holders cannot lead to the inference that he was also entitled to agree to variations or a curtailment of the rights of the decree-holders under the decree. One out of several decree-holders needs to have special, specific authorisation from the other decree-holders to enter into a compromise or adjustment on behalf of the other decree-holders. No such specific authorisation in favour of Dhan Kumar was alleged by the judgment-debtor in his application-cum-objection 3-C under Order XXI, Rule 2, C.P.C. and Section 47. C.P.C. In the witness box also Shital Prasad did not, allege that there was such a specific authorisation in favour of Dhan Kumar by the other decree-holders to enter into the alleged compromise or adjustment. The interpretation which has been placed on behalf of the decree-holders respondents on Order XXI. Rule 15, C.P.C seems to be correct It is not a provision which entitles one of the decree-holders, maintaining the execution application on behalf of the entire body of decree-holders, to agree to a variation or curtailment of the rights of the decree-holders under the decree. The said provision is for the benefit of the decree-holders, not in derogation of their rights. This, in brief, meets the point of the learned counsel for the appellant, that the affidavits and papers on the record of the execution court disclose that Dhan Kumar alone was acting on behalf of the entire body of decree-holders. Various papers such as Papers Nos. 121, 122, 132 and 133, 168, 170 and 184 etc, have been placed before me in this connection which undoubtedly show that Dhan Kumar was the decree-holder who was really looking after the execution case on behalf of the entire body of the decree-holders. That fact did not clothe Dhan Kumar with any authority to enter into the kind of adjustment or compromise as is alleged to have been arrived at between the parties.

9. In the result, the appeal is dismissed with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //