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Veersingh and ors. Vs. Gurdanamal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Revision No. 11 of 1979
Judge
Reported in1979WLN(UC)68
AppellantVeersingh and ors.
RespondentGurdanamal
DispositionApplication dismissed
Cases Referred and Banwarilal Sharma v. Ram Swaroop
Excerpt:
.....show that because of the compromise, satisfaction/adjustment of the decree has taken place and the decree-holders are not entitled to execute the decree.;revision dismissed - section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - appellant was arrested on 30.11.1998 when the 1986 act was in force and under clause (h) of section 2 a juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years - it is with the enactment of the juvenile..........dated november 17, 1978 by which he dismissed their application dated august 1, 1978.2. the decree-holders obtained a decree for ejectment against the judgment-debtor (non petitioner) on october 30, 1972. appeal against that decree was dismissed by the learned additional district judge no. 2, jodhpur on may 20, 1974. thereafter, the judgment-debtor preferred a second appeal in this court. the appeal was dismissed on the basis of the compromise entered into between the decree-holders and judgment-debtor by which the latter was allowed time upto december 31, 1977 to vacate the shop in suit. the judgment debtor failed to vacate the shop as agreed to by him and, therefore, the decree holder submitted on execution application. the judgment debtor submitted an application on january 28,.....
Judgment:

S.K. Mal Lodha, J.

1. This revision by the decree-holders is directed against the order of the Additional Civil Judge, Jodhpur dated November 17, 1978 by which he dismissed their application dated August 1, 1978.

2. The decree-holders obtained a decree for ejectment against the judgment-debtor (non petitioner) on October 30, 1972. Appeal against that decree was dismissed by the learned Additional District Judge No. 2, Jodhpur on May 20, 1974. Thereafter, the judgment-debtor preferred a second appeal in this Court. The appeal was dismissed on the basis of the compromise entered into between the decree-holders and judgment-debtor by which the latter was allowed time upto December 31, 1977 to vacate the shop in suit. The judgment debtor failed to vacate the shop as agreed to by him and, therefore, the decree holder submitted on execution application. The judgment debtor submitted an application on January 28, 1978 under Order XXI, 2 and Section 151 CPC stating therein that on December 30, 1977, a written compromise was entered into between the parties and the principal condition in that compromise was that from January 1,1978 the judgment-debtor would pay tent of the shop in dispute @ Rs. 225/- per month and the decree-holders would not execute the decree and dispossess the judgment-debtor. It was stated that it was agreed that the decree-holders would accept the decree as having been satisfied. According to the judgment-debtor, the compromise so reduced in writing was retained by the decree-holders and he was told that this would be filed in the court and would be got verified. The decree-holders did not do this and levied execution against the judgment-debtor. During the pendency of the application preferred by the judgment-debtor, the decree holders submitted an application under Section 151, CPC on August 1, 1978 con-tending that the compromise in writing dated December 30, 1977 about which the judgment-debtor has made a mention was, in fact, about the creation of a fresh tenancy between the parties which amounts to a lease deed and as the alleged agreement, even according to the judgment-debtor is unregistered and, therefore, it cannot be admitted in evidence and as such, secondary evidence in respect of it is not admissible which the judgment-debtor is attempting to lead. After hearing arguments, the learned Additional Civil Judge, Jodhpur, expressed his doubt whether the compromise in writing; relied on by the judgment-debtor can be called a lease-deed. He was, however, of the opinion that on the basis of the application which was submitted by the judgment-debtor under Order XXI, Rule 2, and Section 151, CPC it is only to be determined whether on the basis of the compromise, the decree was satisfied or not. In these circumstances, he repelled the contentions raised on behalf of the decree holders and dismissed the application of the decree-holders dated August 1, 1978. Against this order, the decree-holders have filed this revision.

3. On January 8, 1979, learned Counsel for the petitioners was directed to submit a copy of the application dated January 28, 1978 filed by the judgment-debtor in the executing court. In pursuance of that, the learned Counsel submitted a copy of the application filed by the judgment-debtor today. In that application, the details of the compromise are mentioned as under:

,- ;g fd enqb;ku o Jh HkS:ey oYn xq:nkuk ey fMdzhnkjku dks fnukad 1&1&78 ls fooknxzLr nqdku dk fdjk;k :0 225 izfr ekg ls vnk djsxs] en;wu o HkS:ey bl nqdku es Loa; O;kikj djsxs o pkgsxs rks fdlh dks Hkh Hkkxhnkj j[k ldsxs A

Ckh- ;g fd fMdzhnkjku bl fMdzh dh btjk; ugh djkosxs] u csn[ky djkosxs o fMdzh dh lUrqf'V ^lsfVlQsD'ku^ 'kqekj djsxs A

Lh- ;g fd fMdzhnkjku bl ckcr vnkyr es fy[kdj is'k dj nsxs A;g jkthukek fnukad 30&12&1977 dks fyf[kr es fMdzhnkj o en;wu ds chp gks x;k o bl rjg fMdzh ,MtLV dh tkdj lsfVQkbZ 'kqekj dh xbZ A

It was stated in that application that because of the compromise, there has been a satisfaction/adjustment of the decree and as such, decree-holders are not entitled to execute the decree. It was also mentioned that the original document pertaining to compromise would be got summoned from the decree holders In these circumstances, the judgment debtor prayed in the application that the compromise may be certified. The contention of the learned Counsel appearing for the decree-holders-petitioners is that the alleged compromise amounts to a lease-deed and as admittedly this was neither duly stamped nor registered, it will not be admissible in evidence and no secondary evidence can be led to prove the alleged lease In support of his argument, learned Counsel placed reliance on Ram Kunar Das v. Jagdish Chandra Leo etc. : [1952]1SCR269 , Jupudi Kesava Rao v. Pulauarathi Venkata Subbarao and other : [1971]3SCR590 and Banwarilal Sharma v. Ram Swaroop 1974 RLW 125. The executing court has specifically stated in the order under revision dated November 17, 1978 that what it has to determine is merely to record a finding whether any compromise was arrived at between the parties on December 30, 1977 by which the decree was taken to have been satisfied and that such a compromise does not require to be registered according to law. It is necessary to quote the following portion from the cider under revision:

bl dk;Zokgh es bl U;k;ky; es uk rks ;g ns[kuk gS vkSj uk r; djuk gS fd vk;k i{kdkjks ds e/; dksbZ ubZ fdjk;snkjh dk;e gqbZ ;k ugh vkSj ;fn gqbZ rks mldh D;k 'krZ Fkh tks mtz fMdzhnkj us bl dk;Zokgh es mBk;s gS os bl dk;Zokgh es foosnu ;ksX; gS esjh jk; es ugh gS A ;g mtz fMdzhnkj rHkh cSBk ldrk gS tcfd en;qu U;k;ky; es u;h fdjk;snkjh fdlh fookn es lkfcr djuk pkgs

The written compromise is said to have taken place on December 30, 1977 and it was kept with the decree-holders. In the application under Order XXI, Rule 2 and Section 151, CPC which was submitted in the executing court on January 28, 1978, the judgment -debtor has mentioned that the original document will be got summoned from the decree- holder. The judgment debtor has merely prayed in the application that the compromise entered into between the parties may be certified. Order XXI, Rule 2(A) amongst others provides that no adjustment shall be recorded at the instance of the judgment debtor unless the adjustment is proved by documentary evidence or it is admitted by or on behalf of the decree-holder in his reply given under sub-r (2) of Rule 1 or before the Court. The learned Counsel for the decree-holders submitted that the decree holders have denied that any compromise in writing was arrived at between the parties on the terms and conditions mentioned in the application dated January 28, 1978. In these circumstances, while passing the order under revision or ordering for an enquiry in respect of the question whether the decree should be considered to have been satisfied/adjusted, the executing court has not exercised its jurisdiction illegally or with material irregularity. It is abundantly clear from the order that the learned Judge has clearly noted in his order that in these proceedings, the court is neither to see nor to determine whether a new tenancy has come into existence or not & if it had come into existence, then what are its terms? The executing court shall record only that evidence relating to the question whether the decree has been satisfied i adjusted or not which is permissible in law. It is open to the judgment-debtor to show that because of the compromise, satisfaction/adjustment of the decree has taken place and the decree-holders are not entitled to execute the decree.

11. For the aforesaid reasons, the revision application has no force and it is accordingly rejected summarily.


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