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Shyam Sundar Chaudhury and ors. Vs. Judhistir Jena and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 56 of 1980
Judge
Reported inAIR1983Ori187
ActsCode of Civil Procedure (CPC) , 1908 - Sections 47 - Order 23, Rule 3; Code of Civil Procedure (CPC) (Amendment) Act, 1976
AppellantShyam Sundar Chaudhury and ors.
RespondentJudhistir Jena and ors.
Appellant AdvocateR.K. Mohapatra, Adv.
Respondent AdvocateA.K. Padhi and ;B.P. Tripathy, Advs.
DispositionApplication dismissed
Cases ReferredChandra Sekhar Patel v. Ukiabati Patel
Excerpt:
.....case where the only possible compromise under the circumstances can be the surrender to the disputed right for a valuable consideration. 10,000/-.a sum of rupees 4,000/- was adjusted by the sale of the suit lands and the decree was partly satisfied. thus, the facts of that case are clearly distinguishable......of rs. 20,000/- and charging the properties for realisation of the same was extraneous to the subject-matter of the suit and hence it could not be enforced by execution. the executing court by its order dated 7-12-79 overruled the objection on the finding that the provision in the decree for payment of rs. 20,000/- to the plaintiffs was not extraneous to the suit and that the terms of compromise declaring the title and possession of the defendants and directing payment of rs. 20,000/- to the plaintiffs were interconnected. aggrieved by this decision, the plaintiffs-decree holders have come up in revision.4. order 23, rule 3, c.p.c. has been amended by the civil procedure code (amendment) act, 1976, and it now specifically provides that whether or not the subject-matter of the.....
Judgment:
ORDER

P.K. Mohanti, J.

1. This revisional application arises out of an order passed on an objection petition under Section 47, C.P.C. filed by the Judgment-debtors. The short question that falls for consideration is with regard to the question of executability of the decree.

2. The opposite parties as the plaintiffs filed Original Suit No. 247/72-I against the petitioners for a declaration that they are the sole owners in possession of the suit properties. The suit was compromised on the following terms:--

(a) The title of the defendants to the suit properties and their possession over the same be declared.

(b) The defendants would pay a sum of Rs. 20,000/- to the plaintiffs on or before. 31-5-77.

(c) The defendants would pay the aforesaid amount of Rs. 20,000/- out of the compensation money awarded in the Forest Claim Case pending in the High Court and 13.84 acres of land including some of the suit lands would remain charged for realisation of the amount.

(d) On payment of Rs. 20,000/- by the defendants within the stipulated period, the properties would be released from the charge. If, however, the defendants failed to pay the amount within the stipulated period, the plaintiffs would be entitled to realise the same by sale of the charged properties.

3. The suit was decreed on 23-12-75 in terms of the compromise and the compromise petition was made a Part of the decree. The plaintiffs-decree holders filed Execution Case No. 142 of 1978 for realisation of the aforesaid sum of Rs. 20,000/-. The defendants-Judgment debtors filed objection under Section 47, C. P. C contending that the portion of the compromise decree providing for payment of Rs. 20,000/- and charging the properties for realisation of the same was extraneous to the subject-matter of the suit and hence it could not be enforced by execution. The Executing Court by its order dated 7-12-79 overruled the objection on the finding that the provision in the decree for payment of Rs. 20,000/- to the plaintiffs was not extraneous to the suit and that the terms of compromise declaring the title and possession of the defendants and directing payment of Rs. 20,000/- to the plaintiffs were interconnected. Aggrieved by this decision, the plaintiffs-decree holders have come up in revision.

4. Order 23, Rule 3, C.P.C. has been amended by the Civil Procedure Code (Amendment) Act, 1976, and it now specifically provides that whether or not the subject-matter of the agreement, compromise or satisfaction is identical with the subject-matter of the suit or not, if it is between the parties and the compromise is a lawful one, the Court shall record the same. The words used in Rule 3 of Order 23, prior to its amendment in 1976, were 'shall pass a decree in accordance therewith so far as it relates to the suit.' By the Amending Act these words were substituted by the words 'shall pass a decree in accordance therewith so far as it relates to the parties to the suit, whether or not the subject-matter of the agreement, compromise or satisfaction, is the same as the subject-matter of the suit.' Under the amended rule the Court can pass a decree in terms of the agreement even though it includes matters not relating to the subject-matter of the suit provided that such extraneous matters relate to the parties to the suit, prior to the amendment there was a conflict of decisions as to whether the Executing Court could refuse to execute the decree where it gave effect to the terms of a compromise which did not relate to the suit. But after the amendment the position has been clarified and such a decree will now be executable. The amended provisions are however not applicable to the present case. According to Section 97 (2)(a) of the C. P. C (Amendment) Act. 104 of 1976 the amendment as well as substitution made in Order 23 of the First Sch. by Section 74 shall not apply to any suit or proceeding pending before the commencement of the said Section 74. By a notification published in the Gazette of India dated 14th Jan 1977, Part II, Section 3(i), the Central Government, in exercise of the powers under Sub-section (2) of Section 1 of the Amending Act has fixed the 1st Feb. 1977 as the date on which the provisions of the said Act, except Sections 12, 13 and 50 would come into force. In the present case, the decree under execution having been passed on 23-12-1975 is governed by the old rule.

5. Before the amendment. Order 23 Rule 3, C. P. C. stood as follows:--

'Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or 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.'

Under the above rule, the Court is competent to pass a decree in accordance with the compromise 'so far as it relates to the suit' and if the decree so passed by the Court comes within the ambit of Rule 3, it would be an executable decree, A suit may be adjusted on the terms of a compromise which may relate to the suit or which may not relate to the suit. If the terms do not relate to the suit, the compromise, though lawful and binding on the parties shall remain only a contract between the parties. The rights of the parties arising out of such a contract will not be the subject-matter of the decree, but will have to be worked out by a separate suit.

6. The question for consideration is whether the impugned portion of the decree is one which relates to the suit. The expression 'so far as it relates to the suit' is comprehensive enough to include matters which formed a consideration and are thereby intimately connected with the subject-matter of the suit. Where a term of compromise relating to matters outside the scope of the suit forms a consideration for the agreement as to the subject-matter of the suit, the entire compromise must be recorded and a decree passed in terms thereof as relating to the suit whether they otherwise relate to the subject-matter of the suit or not.

In Maharani Devi v. Ram Adhar Panday, AIR 1962 All 20 the Court held that the words 'so far as it relates to the suit' should be interpreted liberally and according to common-sense so that the right to compromise is not defeated in case where the only possible compromise under the circumstances can be the surrender to the disputed right for a valuable consideration.

In Ramjanam Tewary v. Bindeshwari Bai: AIR 1951 Pat 299 it was held as follows fat p. 304):--

'.........There is a large body of authority to show that where a compromise relating to matters outside the scope of the suit is a part of the consideration for the agreement as to matters in suit, the entire compromise as an integral whole must be recorded and decreed as relating to the suit whether they otherwise relate to the suit or not..........'

This decision was referred with approval in Jagdish Chandra Sinha v. Kameshwar Singh, AIR 1953 Pat 178 and in Lalmuni Devi v. Shiv Shankar, AIR 1980 Pat 184.

In Patel Chaturbhai Nanabhai v. Patel Mohanbhai, AIR 1972 Guj 217 a suit was filed for partition of the suit properties and the parties arrived at a compromise. One of the terms of the compromise was that the plaintiff had to pay to the defendant a sum of Rupees 2,002,00 on the occasion of the marriage of the defendant's son and daughter, when the defendant sought to execute the compromise decree objection was taken that the decree was extraneous to the suit. Repelling the contention the Court relied on the following observations made in an earlier decision (at p. 226):--

'The expression 'so far as it relates to the suit' has been given a wide interpretation so as to include matters which form a consideration and are thereby intimately connected we the subject-matter and the Court need not confine operative part of the decree only to what is strictly speaking the subject-matter of the suit as seen from the frame of the suit or the reliefs claimed.'

In Ramaswamy Nayudu v. K.N.S. Subbarava Thevar, AIR 1925 Mad 1101 their Lordships on a review of the authorities held that the words 'so far as it relates to the suit' cannot be said to have reference only to the subject-matter of the suit. The language used is wide and general and it is obvious that it would be highly inconvenient if the parties should not be allowed to settle their disputes or such lawful terms as they might agree to, without being restricted to such relief as one of the parties had chosen to claim in the plaint. The terms in a rezinama decree which form consideration for the compromise of the suit must be deemed to be part of the decree and can be enforced in execution proceedings. A decree passed on a compromise cannot be regarded as ultra vires simply because it goes beyond the subject-matter of the suit and contains other conditions. If those other conditions are the consideration for compromise of the subject-matter of the suit, they must be incorporated in the decree.

7. The question whether a term of the compromise relates to the suit or not has to be answered on a consideration of the nature of the suit, the issues involved in the suit, the reliefs claimed in the suit and the reliefs given by the compromise. On a totality of all these considerations one can arrive at the conclusion whether the terms of a compromise relate to the suit or not.

8. On a reference to the pleadings in O. S. No. 247 of 1972, it appears that the suit lands originally belonged to the defendants. The plaintiffs purchased the same in execution of a money decree obtained by them against the defendants and took delivery of possession. Subsequently the suit lands vested in the State Government on abolition of the estates. The defendant No. 1 got the suit lands settled in his name under Sees. 6 and 7 of the Orissa Estates Abolition Act, The plaintiffs alleged that the defendant No. 1 surreptitiously and fraudulently got the lands settled in his name and on being asked about the same, all the defendants executed an agreement stipulating to execute a deed of 'Nadabi' for the suit lands in favour of the plaintiffs, but on various pretexts deferred execution of the Nadabi deed. Upon these allegations the plaintiffs prayed for a declaration that they were the owners in possession of the suit lands. The defendants admitted in their written statement that the plaintiffs had obtained a decree against them and had levied execution for realisation of a sum of about Rs. 10,000/-. A sum of Rupees 4,000/- was adjusted by the sale of the suit lands and the decree was partly satisfied. The plaintiffs threatened the defendant No. 1 to proceed against him for realisation of the balance decretal dues. Under threat and coercion the defendants put their signatures on a blank stamp paper which might have been converted into an agreement for execution of a Nadabi deed. The defendants denied the Plaintiffs' title and claimed to be in possession of the suit lands. On the aforesaid pleadings, the main question for consideration was whether the plaintiffs had title and possession over the suit lands. Under the terms of the compromise the plaintiffs surrendered their claim of title to the suit lands in favour of the defendants and agreed to receive a sum of Rs. 20,000/- from the defendants. If the plaintiffs merely relinquished their claim of title in favour of the defendants unconditionally then the suit should have been withdrawn or the parties should have agreed that the suit should be dismissed. But this was not so. On the contrary, the defendants were required to pay Rs. 20,000/- obviously as a consideration for relinquishment of title by the plaintiffs. AS indicated earlier, the plaintiffs had purchased the suit lands in execution sale for a sum of Rs. 4,000/- only and the balance decretal dues were outstanding against the defendants. Having purchased the lands in court-sale before the vesting of estates, the plaintiffs would not have agreed to give up their title in favour of the defendants without realising their decretal dues. On a reading of the pleadings and the compromise petition it is not possible to hold that payment of Rs. 20,000/- was not the consideration for the agreement between the parties as to the subject-matter of the suit In my opinion, the term regarding payment of Rs. 20,000/- by the defendants formed a consideration for the relinquishment of title by the plaintiffs. On a perusal of the terms of compromise, there remains no doubt that the parties intended to treat the compromise decree as executable. The decree does not even remotely suggest that it intended to relegate the parties to the remedy of a regular suit for enforcement of the term regarding payment of Rs. 20,000/-. Its plain intention was to execute it. The court below was therefore justified in holding that the compromise decree is executable.

9. Mr. R. K. Mohapatra, the learned counsel appearing for the petitioners relied on a decision of this Court to Chandra Sekhar Patel v. Ukiabati Patel, AIR 1977 Orissa 82 in support of his contention that the term of the compromise for payment of Rs. 20,000/- to the plaintiffs is extraneous to the suit and is only an agreement to be enforced by a separate suit. In that case the plaintiff No. 1 was the first wife and plaintiffs 2 and 3 were the minor daughters of the defendant. They filed the suit claiming future and past maintenance. The suit was compromised on the terms that all the movable and immovable properties of the defendant would be divided into four equal shares. The defendant and his mother together would take one share, his second wife one share, his son 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. The mother, the son and the second wife of the defendant were not parties to the suit. There was no specific agreement that the partition would be effected by appointment of a commissioner in that very suit. On a consideration of the pleadings and the terms of the compromise the Court held that it could scarcely be the intention of the parties that the question of partition and allotment of shares would be decided in that suit in the absence of the other co-sharers, namely, the defendant's mother, his second wife and sons. Accordingly it was held that the term regarding partition of the properties among the members of the defendants family did not relate to the suit and could not be enforced in execution of the compromise decree. Thus, the facts of that case are clearly distinguishable.

10. In view of my above findings. I would maintain the order of the court below and dismiss the revisional application with costs.


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