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Chandrasekhar Patel Vs. Ukiabati Patel and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 278 of 1975
Judge
Reported inAIR1977Ori82; 42(1976)CLT1277
ActsCode of Civil Procedure (CPC) , 1908 - Order 23, Rule 3
AppellantChandrasekhar Patel
RespondentUkiabati Patel and ors.
Appellant AdvocateS.C. Mohapatra and ;Sankarsan Rath, Advs.
Respondent AdvocateP.V. Ramdas, Adv.
DispositionRevision allowed
Cases ReferredKumari Debi v. Midnapur Zamindari Company
Excerpt:
.....rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - would be borne by the defendant and on defendant's failure to get the properties divided within the stipulated period, the plaintiff no. 1 would get onesnare absolutely in lieu of her maintenance and that on the defendant's failure to get the properties partitioned within 21/2 months the plaintiff would be entitled to have the properties partitioned by a commissioner through court. midnapur zamindari company, air 1919 pc 79 a perfectly proper and effectual method of carrying out the terms of rule 3, order 23, would be for the decree to recite the whole of the agreement and then to conclude within..........therefore record the compromise in so far as they relate to the subject-matter of the suit. the suit is decreed in terms of the compromise in so far as they relate to the suit. the compromise petition in so far as they relate to the claim in the suit do form part of the decree.'4. on 13-3-74 the plaintiffs filed a petition that though defendant no. 1 delivered 25 pudugs of paddy and paid rs. 400/- in cash towards the arrears of maintenance he had not taken any steps for partition of, the movable and immovable properties within the stipulated period and was avoiding to part with a share of the property to the plaintiffs and was concealing his movables with a view to depriving the plaintiffs of their legitimate claim to a share therein. they prayed for appointment of a commissioner for.....
Judgment:
ORDER

P.K. Mohanti, J.

1. This Civil Revision arises in the following circumstances:

2. Opposite party No. 1 is the first wife and opposite parties 2 and 3 are the minor daughters of the petitioner. The opposite parties filed Title Suit No. 64 of 1969 in the court of the Subordinate Judge, Sambalpur claiming future and past maintenance at the rate of Rs. 160/-per month (Rs. 100/- for opposite party No. 1 and Rs. 60/- for opposite parties 2 and 3). They also claimed that the immovable properties described in Schedule A of the plaint should foe charged forrealisation of the decretal dues. The suit was compromised on the terms that all the movable and immovable properties of the defendant-petitioner should be divided into four equal shares. The defendant and his mother together would take one share, his second wife Padmavati one share, his son Radheshyam Patel one share and the plaintiff No. 1 the remaining share to which she would have full title in lieu of her claim for future maintenance. It was also agreed between the parties that within two and half months from the date of compromise the movable and immovable properties of the defendant would be divided and the costs of registration and preparation of map etc. would be borne by the defendant and on defendant's failure to get the properties divided within the stipulated period, the plaintiff No. 1 would get her share partitioned through court by appointment of a Commissioner. As regards past maintenance it was agreed that the defendant-petitioner would deliver 25 Pudugs of paddy and Rs. 400/- in cash within 21/2 months from the date of compromise failing which the plaintiffs would be entitled to realise the same by execution.

3. The order passed by the learned Subordinate Judge on the petition of compromise is quoted below:

'I have perused the terms contained in the compromise petition. There are many matters in the petition which do not relate to the subject-matter of the suit. I would therefore record the compromise in so far as they relate to the subject-matter of the suit. The suit is decreed in terms of the compromise in so far as they relate to the suit. The compromise petition in so far as they relate to the claim in the suit do form part of the decree.'

4. On 13-3-74 the plaintiffs filed a petition that though defendant No. 1 delivered 25 pudugs of paddy and paid Rs. 400/- in cash towards the arrears of maintenance he had not taken any steps for partition of, the movable and Immovable properties within the stipulated period and was avoiding to part with a share of the property to the plaintiffs and was concealing his movables with a view to depriving the plaintiffs of their legitimate claim to a share therein. They prayed for appointment of a Commissioner for preparing an inventory of the movables and for partition and separate possession of the plaintiff No. I. The defendant filed counter contending that the compromisewas unlawful inasmuch as the plaintiff No. 1 being the wife could not claim partition from her husband and that the partition of the joint family properties could not 'be effected behind the back of the other coparceners and that these terms do not relate to the suit.

5. Upon hearing both the parties the learned Subordinate Judge overruled the objections raised by the defendant observing that all the terms of the compromise had been made operative part of the decree and directed for appointment of survey knowing Commissioner for effecting partition. Aggrieved by this order, the defendant has come up in revision.

6. It is urged on behalf of the petitioner that the terms of the compromise regarding partition of movable and immovables are quite foreign to the suit and can only be enforced by a separate suit for partition and not otherwise.

7. Order 23, Rule 3, C.P.C. provides:

'Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement of compromise, or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject-matter of the suit, the Court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith so far as it relates to the suit.'

8. In view of the rival contentions of the parties it is necessary to examine the frame of the suit, the reliefs claimed and the reliefs allowed by the decree on adjustment and from such examination to ascertairi whether the terms sought to be enforced related to the suit. From the narration of facts it would appear that the suit was for maintenance and the plaintiffs prayed for the decree being passed for the amount of maintenance charging certain properties for the realisation of the decretal dues. With regard to the claim of past maintenance the parties agreed by the terms of compromise that the defendant would deliver 25 pudugs of paddy and pay Re. 400/- In cash within 21/2 months from the date of compromise failing which the plaintiffs would be entitled to realise the same by execution. As regards the future maintenance the agreement was that on partition of all the movable immovable properties of the defendant into four equal shares the plaintiff No. 1 would get onesnare absolutely in lieu of her maintenance and that on the defendant's failure to get the properties partitioned within 21/2 months the plaintiff would be entitled to have the properties partitioned by a Commissioner through court. There was no specific agreement that the partition would be effected by appointment of a Commissioner in the present suit. It could scarcely be the intention of the parties that the question of partition and allotment of shares would be decided in the present suit in the absence of the other co-sharers, namely, the defendant's mother, his second wife and sons. The term regarding partition of the properties among the members of the defendant's family, in my opinion, was outside the scope of the suit and could not be enforced in execution of the compromise decree. By the compromise the parties merely agreed to a declaration of the plaintiff No. 1's right to have 1/4th share in the movable and immovable properties in lieu of her maintenance. The rights of the parties arising out of such a declaration will not be the subject-matter of the decree but will have to be worked out separately, in fact, the court decreed the suit in terms of the compromise petition in so far as they related to the suit. On a careful analysis of the reliefs claimed in the suit and the terms of compromise, I am of the view that the term regarding partition did not relate to the suit.

9. Where a compromise decree contains terms that do not relate to the suit, there is a conflict of opinion whether such terms can be enforced in execution. While Allahabad, Madras and Andhra Pradesh High Courts have taken the view that such terms can be enforced in execution, the High Courts of Bombay and Calcutta have laid down that such terms cannot be enforced in execution of the decree but they may be enforced as a contract by a separate suit. In AIR 1967 Cal 541 (Trilok Chand Kapur v. Dayaram Gupta) a Division Bench of the Calcutta High Court disssented from the views expressed by Andhra Pradesh High Court in AIR 1960 Andh Pra 56 (Harak Chandas v. Hyderabad State Bank) and the Allahabad High Court in AIR 1933 All 649 (FB) (Shyam Lal v. M. Shyamlal) and held as follows:

'If a contract embodied in the compromise petition does not relate to the suit, then such a contract does not become executable as a decree, merely because of its fortuitous embodiment in theoperative part of the decree. The person against whom such a contract is sought to be enforced, by process of execution, may justly object to the execution and try to stop such abuse of the process of the court.'

10. In AIR 1975 Cal 387 (Bimal Kumar Gayen v. Amiya Gopal Mondal) it was held as follows:

'...... the suit can be adjusted bylawful agreement or compromise only in respect of matters connected with or embraced within such proceeding and not of matters extraneous to it. The decree Ho be passed is to be in accordance with such compromise or agreement in so far as it relates to the suit. If however a compromise or agreement is entered into on matters relating to the suit as also on matters beyond the scope and ambit of the suit forming the consideration of the compromise, the court may pass a decree recording such compromise or agreement but the decree will in effect be in so far as it relates to the suit and will be operative and executable to that extent. In respect of matters extraneous to the suit, the provisions of the decree will be and amount to an agreement between the parties binding and conclusive on them, to be enforced in a separate suit or proceeding, if considered necessary by any of the parties.'

In AIR 1932 Bom 466 (Vishnu Sitaram Auchat v. Ramachandra Govind Joshi) their Lordships observed as follows:

'According to the decision in He-manta Kumari Debi v. Midnapur Zamindari Company, AIR 1919 PC 79 a perfectly proper and effectual method of carrying out the terms of Rule 3, Order 23, would be for the decree to recite the whole of the agreement and then to conclude within an order relative to that part that was the subject of the suit or to introduce the agreement in a schedule to the decree, but the operative part of the decree should be confined to the subject-matter of the suit. The operative part of the decree so confined to the subject-matter of the suit can be enforced as between the parties to the suit under Section 47, Civil P. C. Any agreement as to matters extraneous to the suit can be enforced in a separate suit.'

11. I find myself in respectful agreement with the Bombay and Calcutta views, because according to Order 23, Rule 3, C.P.C. it is the adjustment or compromise of the suit before the courtthat has to be recorded and a decree has to be passed according to it. Any reference in the compromise to matters extraneous to the suit would be an agreement and not a compromise in the suit and the proper thing for the parties in such circumstances is to enforce the agreement by a separate suit. I therefore hold that the term of compromise regarding' partition of the movable and immovable properties of the defendant which did not relate to the suit can only be enforced by a separate suit and not by execution.

12. In the result, the Civil Revision is allowed and the order of the learned Subordinate Judge is set aside. Parties to bear their own costs of this Civil Revision.


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