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Sushila Devi Vs. Girdhari Lal and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtDelhi High Court
Decided On
Case NumberCivil Revision Appeal No. 334 of 1971
Judge
Reported inILR1972Delhi867
ActsCode of Civil Procedure (CPC), 1908 - Sections 115
AppellantSushila Devi
RespondentGirdhari Lal and ors.
Advocates: Bhartinder Singh and; R.L. Tanuja, Advs
Cases ReferredHemanfa Kuman Devi v. Midnapur Zainindari Co. A.I.R.
Excerpt:
.....did not specify as to how they had had this opportunity. the learned judge further held that in view of the fact that there should have been separate applications against each of the judgment-debtors, he dismissed the application under order 21 rule 32 civil procedure code together with the execution application as unsatisfied. (6) aggrieved by the said order, the petitioner-decree holder has filed a revision in this court and has urged that the order of the court below suffers from a jurisdictional error and learned judge has failed to exercise the jurisdiction vested in him......he dismissed the application under order 21 rule 32 civil procedure code together with the execution application as unsatisfied. (6) aggrieved by the said order, the petitioner-decree holder has filed a revision in this court and has urged that the order of the court below suffers from a jurisdictional error and learned judge has failed to exercise the jurisdiction vested in him. the learned counsel has submitted that the decree was for delivery of possession and it related to the subject matter of the suit and as such it was fully executable as passed. (7) the counsel for the respondent has controverter the contentions of the petitioner and he has also raised a preliminary objection that the dismissal of the application of the decree-holder amounted to an order relating to.....
Judgment:

B.C. Misra, J.

(1) This revision petition under section 115 of the Code of Civil Procedure has been. filed on behalf of the plaintiff decree holder and is directed against the order of the execution court dated 22nd February, 1971, by which the learned Judge lias refused the application of the decree-holder for action under Rule 32 or order Xxi of the Code of Civil Procedure and has further directed him to file separate applications against the judgment-debtors.

(2) The facts giving rise to this revision petition arc that the petitioner in this revision instituted a suit on 30th November, 1965 against 7 defendants on the allegations that the plaintiff was the owner of a plot of land situated in Shakti Nagar, Delhi which had been purchased by her on 15th March 1955 and that after the purchase, she had on his request allowed defendant No. 1, who was a washerman, permission to use the plot of land in dispute for the purposes of drying up his laundry and thereafter he put up Shuntis and Chappers and also allowed defendant No. 2 to 7 to put up structures and use the land and that subsequently the plaintiff withdrew the permission and asked the defendants to discontinue the use of the land and remove their material and structures. The relief claimed by the plaintiff in the suit was a mandatory injunetion directing defendant Nos. I to 7 to remove the existing Jhuggies and material from the plot of land in dispute and to discontinue their respective use of the same. The suit was contested and was dismissed by the court of first instance by a decree dated 4th March. 1968.

(3) Aggrieved by the said decree, the plaintiff appealed to the Court of the Senior Sub Judge. The appeal came up for hearing on 7th December, 1948 when. a compromise was recorded between the parlies. Statements were made on behalf of the defendants as well as their counsel and by the attorney of the plaintiff-appellant and his counsel to the effect that the uppeal of the plaintiff be allowed and the plaintiff would pay Rs. 700.00- to the defendant-respondents Girdhari Lal, Jagan Nath and Maharaj Din by 1st January, 1969 after which the decree would be executable and the respondents would deliver vacant possession of the disputed land by removing the super-structures etc. With regard to Ram Singh, defendant respondent the compromise was that no amount would be paid to him but the decree against him would not be executable till 7th October, 1969. In view of the statements of the parties the appellate court passed the following order :-

'As per statements of respondents 1, 2, 3 and 6 and general attorney of the appellant and their counsel, the appeal is accepted, the judgment and decree of the learned trial court is set-aside and the decree for mandatory in junction directing respondents 1, 2, 3 and 6 to deliver back possession, of the disputed premises after removing the super-structures there from is passed in favor of the plaintiff-appellant and against the defendant-respondents 1, 2, 3 and 6 subject to the terms of the compromise. The parties are left to bear their own costs throughout.'

It is common ground that the plaintiff-petitioner deposited the amounts mentioned in the compromise in the court by the prescribed date and the concerned defendants withdrew the said amount but they never removed their super-structures nor vacated the piece of land li may be noted that the compromise before the appellate court was confined to only 4 persons who are respondents before me while the other 3 of the original defendants had vacated and delivered the possession of their respective portions of the land to the plaintiff.

(4) On the failure of the respondents who had withdrawn the amount deposited in the court in pursuance of the compromise, the petitioner decree-holder filed an application for execution of the decree on 9th October. 1969 in which she prayed that the decree may be executed against the judgment-debtors under Order 21 Rule 32 of the Code of Civil Procedure and a warrant for delivery of possession was sought, to be taken out against the judgment-debtors. This application was contested by the respondents-herein.

(5) Trie execution court held that the compromise for delivery of possession contained in the decree was extraneous to the suit for mandatory injunction and so it could not be executed. The lower court further held that there was nothing on the record to show that the judgment-debtors had not had the opportunity to obey the decree and had willfully failed to obey it as the application moved by the decree-holder did not specify as to how they had had this opportunity. He further held that since there was no allegation in the application about willful disobedience of the terms of the decree, he did not allow the parties an opportunity to produce the evidence. The learned Judge further held that in view of the fact that there should have been separate applications against each of the judgment-debtors, he dismissed the application under Order 21 Rule 32 Civil Procedure Code together with the execution application as unsatisfied.

(6) Aggrieved by the said order, the petitioner-decree holder has filed a revision in this Court and has urged that the order of the court below suffers from a jurisdictional error and learned Judge has failed to exercise the jurisdiction vested in him. The learned counsel has submitted that the decree was for delivery of possession and it related to the subject matter of the suit and as such it was fully executable as passed.

(7) The counsel for the respondent has controverter the contentions of the petitioner and he has also raised a preliminary objection that the dismissal of the application of the decree-holder amounted to an order relating to execution and satisfaction of the decree within the meaning of section 47 of the Code and as such an appeal and the revision was not maintainable. He has cited Shivdhari Gopal. & others v. Anant Poddar and, other, : AIR1971Pat121 , to support his contention that the order passed under clause I of Rule 32 of order 21 of the Code ordering attachment of the moveables had been passed in execution of decree under section 47 of the Code and was, thereforee, appealable. In my poinion the order passed by the court below is in the nature of an interlocutory order. It has dismissed the application's under order 21 Rule 32 on the ground that the facts related to willful disobedience had not been mentioned in the application and has dismissed the execution application on the ground that he has directed separate applications to be filed against each of the judgment-debtors. In this order he has observed that the decree is not executable by delivery of a warrant of possession. This order is not final and no appeal will lie, in the circumstances of this case, to this Court. The revision is. thereforee, competent and the jurisdictional infirmity of the court below must be corrected at the earliest opportunity

(8) The main question for consideration is whether the compromise in dispute is extraneous to the subject of a suit. The relevant provisions of law is contained in Rule 3 of Order 23 of the Code. where it is provided that where it is proved to the satisfaction of the Court that this suit had been adjusted wholly or in part by any lawful agreement or compromise;-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. The objection raised on behalf of respondents is that the decree for delivery of possession is without jurisdiction. A reference to the claim of the plaintiff mentione0d above shows that the subject matter in dispute was a plot of land and the relief claimed by the plaintiff was mandatory injunction directing the defendants to remove their respective structures and to discontinue their use of the plot of the land. A mandatory injunction in respect of these two reliefs relating to the plot of land in dispute could properly be granted and the view of the High Court of Punjab (which has so far been followed in this Court) is that a decree for permanent injunction can be granted against a licensee to vacate the immovable property in dispute. These was so held by Tek Chand J. in Pooran Chand v. Malik Mukhbain Singh 1963 Pun LR 490(2). In this authority Tek Chand, J. has relied upon an earlier authority of the same High Court by Falshaw, J. in Messrs Delhi Gate Service Private Limited v. Messrs Caltex (India) Limited, New Delhi, (1962 Pun R 559, in which two authorities of the High Court of Calcutta in Prabirendra Nath Nanday and another v. Narendra Nath Nanday : AIR1958Cal179 and Sisir Kumar and others v. Susil Kumar Dutta, : AIR1961Cal229 , have been followed. As mentioned above that the authority of the High Court of Punjab has so far been followed in this Court and so it is obvious that a mandatory injunction can, in view of the authority prevalent up to now, be granted directing the defendants to vacate the premises.

(9) It is true that the relief claimed by the petitioner in the suit was not an order for delivery of possession of the land to the petitioner and she had only claimed a mandatory injunction directing the respondents to remove their super-structures and discontinue the use of the plot of land. The compromise decree passed by the appellate court in terms, however, directs the respondents to deliver back the possession of the premises in dispute to the decree-holder after removing the structures. There is no doubt that the compromise decree is for delivery of possession and the warrant for the said purpose can be issued in pursuance of the decree.

(10) The contention of the counsel for the respondent is that although the compromise decree directs delivery of possession, it is extraneous to the suit. I am unable to accept the said submission. The property in dispute was the plot of land mentioned in the plaint and the compromise of the parties also related to the same, and not to any extraneous matter. In the plaint the relief claimed was a mandatory injunction directing the defendants to demolish the super-structure and not to use the land in dispute.

(11) The compromise decree granted the rilef which was not envisaged in the plaint, and it directed delivery of vacant possession of the land in dispute to the plaintiff on the payment of the consideration amount mentioned in the decree. The alteration, thereforee, made by the decree related only to the relief and not to the subject matter of the unit. Merely because the relief granted by the compromise decree in respect of the subject matter of the suit is different from in exercise of the one claimed in the suit is no ground for holding that the compromise is extraneous to the suit. The law on the subject was laid down by the High Court of Calcutta in Gobinda Chandra Pal v. Dwarka Nath Pal: I.L.R. 35, Cal 837, where at page 841 the Division Bench observed as follows:-

'THEquestion whether any particular terms of a petition of compromise incorporated in a decree, made under the power given by section 375 of the Code of Civil Procedure, relates to the suit or is covered by its subject matter must be decided from the frame of the suit, the relief claimed, and the relief allowed by the decree on adjustment by lawful agreement. The mutual connection of the different parts of the relief granted by a consent decree is an important element for consideration in each case in deciding whether any portion of the relief is within the scope of the suit. No hard-and-fast rule can be laid down, each case being governed by its own facts.'

(12) This authority has been consistently followed. The High Court of Calcutta in Byomkesh Mukherjee v. Bhupendra Narayan Sinhu Bahadar and another : AIR1948Cal179 Co, reiterated the said observations. So did the High Court of Patna (Das and Sarjoo Parsad JJ.) in Ramjanam Tewary and another v. Bindeshwari Bai, : AIR1951Pat299 . The High Court of Bombay came to the same conclusion in different words in Shainhusing Sujansing Thakor v, Manilal Vadilal Gandhi, A.I.R. 1932 Bom 47, and in Umiashankar Narunji v. Shivshankar Prabhashankar. A.I.R. 1944 Bom 239.

(13) The High Court of Lahore in Lal Singh v. Mohan Singh and anothers. A.I.R. 1934 Lah 623 held that 'where demolition of the wall not in suit was the consideration for the abandonnient by the plaintiff of his right to have the wall in suit demolished the compromise with regard to the wall not in suit should be deemed to relate to the suit within the meaning of O.23, R. 3'. The High Court of Andhra Pradesh in Seth Harak Chandas v. Hyderuhad State Bank, Hyderabad, : AIR1960AP56 after considering a large number of authorities and reiterating the rule of law stated in 35 Calcutta, mentioned above, observed specilieally. 'the relief granted in a compromise decree need not be contined to the relief prayed for in the plaint.' A case came up lor consideration before the Supreme Court which supports the plea I have taken in this case. In Haji T.J. Abdul Shakoor and others v. Bijai Kmnur Kapnr and others, : AIR1964SC874 . The facts were that a mortgage suit for recovery of mortgage-deed had been instituted. The question raised was that the compromise decree for recovery of the mortgage-deed which was compromised and a decree upon compromise .directed the sale of the property to the plaintiff in full satisfaction of the mortgage-deed and the mortgager agreed to execute a regular sale-deed. One of the questions raised was that the compromise did not relate to the suit. This question had been strongly agitated in the courts below but was not pressed in the appeal before the Supreme Court. The Court. however, made observations to the effect that the Judges of the High Court were right in the view that they had taken that the terms of the compromise related to the suit; the property which was to be conveyed consisted entirely of property included in the mortgage and which was thereforee liable to be sold in execution of the mortgage decree which was the relief sought in the plaint; there was, thereforee nothing which was outside the scope of the suit; besides all this, the conveyance was the consideration turn the compromise, in these circumstances the appellant before the Court had rightly not pressed the point. This would show that the relief granted by the compromise decree and claimed in the suit are not the deciding factors for determination whether the compromise relates to the suit and if the subject matter is otherwise same and the relief granted by the compromise decree .is in excess of the one claimed in the suit. it would be a validly executable compromise decree. But another hypothesis the provisions for compromise decree would be wholly redundant, if the compromise was confined to the claim in the suit.

(14) The learned counsel for the respondent has cited Kanmal and others v. Hukam Chand A.I.R. 1966 Rai 178 and Trilok Kapur v. Davaram Gupta, : AIR1967Cal541 . There is nothing in the said authorities contrary to the view I am taking in this case. The said authorities lay down that if the subjcet matter of a compromise decree is extraneous to the suit then the same cannot be enforced in execution. There is quarrel with the said proposition of law. But whether a particular clause relates to the suit or not is a question of fact in the circumstances of each case.

(15) The learned counsel has strongly relied on a decision of Privy Council in Hemanfa Kuman Devi v. Midnapur Zainindari Co. A.I.R. 1919 PC 79. The rule of law laid down therein is again unexceptional although it has led to the amendement of the Registration Act. One of the observations made in the Privy Council case, I want to use strongly against the judgment-debtor respondents in this case. The Judicial Committee observed that party to a compromise cannot take advantage of a part of it and resist the facts as to the rest. In the circumstances of this case the respondents have withdrawn the amount of consideration of Rs. 700.00 each which had been deposited by the plaintiff-petitioner in pursuance of the compromise decree within the time prescribed and having done so, they arc contrary to the dictum of the Privy Council, resisting the enforcement of their obligations under the compromise decree.

(16) I may mention that in this revision, I am not deciding as to whether in a suit for mandatory injunction a warrant for delivery of possession can or cannot be issued as a matter of law. The compromise decree in this case in terms directs delivery of possession by the defendants to the plaintiff and I have found that the same relates to the subject-matter of the suit and is, thereforee.. executable

(17) As a result, I allow the revision and set aside the order of the Court below and I hold that the warrant for possession can be issued in favor of the decree-holders against judgment-debtors-respondent in respect of the property in dispute. The lower Court has directed the decree-holder to file separate applications against the judgment-debtors and to show to the satisfaction of the Court that they had tailed to obey the decree willfully and the Court has dismissed the execution application presumably for satistical reasons. 1. thereforee. restore the execution application to its original number and direct the Court below to proceed with the case according to law. As a matter of law. it is not necessary that there should be separate execution applications against each judgment-debtor when the decree passed is one. The Court can treat the objections of each judgment-debtors separately if it finds it more convenient to do so. The judgment- debtors had to obey the decree long time ago and they have had ample opportunity to obey it, but if the same be disputed by the judgment-debtors, this question can be tried by the Court according to law, The parties arc directed to appear before the Court below on 6-12-71. The costs of this revision will abide by the result of the proceedings in the Court below.

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