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Bimal Kumar Gayen and ors. Vs. Amiya Gopal Mondal and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKolkata High Court
Decided On
Case NumberA.F.A.O. No. 69 of 1965
Judge
Reported inAIR1975Cal387,79CWN1031
ActsCode of Civil Procedure (CPC) , 1908 - Section 47 - Order 23, Rule 3
AppellantBimal Kumar Gayen and ors.
RespondentAmiya Gopal Mondal and ors.
Appellant AdvocateShyama Charan Mitter and ;Amar Nath Roy Choudhury, Advs.
Respondent AdvocatePadmabindu Chatterjee and ;Abja Keshab Chatterjee, Advs.
DispositionAppeal dismissed
Cases ReferredVishnu v. Ramchandra
Excerpt:
- .....from the disputed tank or otherwise interfering with his possession and enjoyment thereof. this suit was decreed on a solenama entered into by and between the plaintiff andthe contesting defendant no. 1. the material provisions of the solenama broadly are as follows : '(a) the plaintiff admits the disputed tank to be the khas property of defendant no. 1. (b) the defendant no. 1 grants lease of the disputed tank to the plaintiff for a period of seven years at an annual rent of rs. 750/-. (c) on the expiration of chaitra, 1369 b. s. the plaintiff will vacate the disputed tank and make over peaceful possession thereof to the defendant no. 1 and in default the defendant no. 1 will be entitled to recovery of possession of the said tank in execution of the decree. (d) if the defendant no......
Judgment:

Salil Kumar Datta, J.

1. The only point in this appeal is whether the decree is executable.

2. The plaintiff judgment-debtor filed the Title Suit, being Title Suit No. 231 of 1956, praying for permanent injunction restraining the defendants from dispossessing him from the disputed tank or otherwise interfering with his possession and enjoyment thereof. This suit was decreed on a solenama entered into by and between the plaintiff andthe contesting defendant No. 1. The material provisions of the solenama broadly are as follows :

'(a) The plaintiff admits the disputed tank to be the khas property of defendant No. 1.

(b) The defendant No. 1 grants lease of the disputed tank to the plaintiff for a period of seven years at an annual rent of Rs. 750/-.

(c) On the expiration of Chaitra, 1369 B. S. the plaintiff will vacate the disputed tank and make over peaceful possession thereof to the defendant No. 1 and in default the defendant No. 1 will be entitled to recovery of possession of the said tank in execution of the decree.

(d) If the defendant No. 1 fails to use the tank for his own exclusive business purpose (rearing fish spawns), then the plaintiff will be entitled to further lease for such terms and conditions as may be agreed.'

It appears that the suit was decreed on the aforesaid solenama against the defendant No. 1 and the solenama was made a part of the decree. The decree was subsequently registered.

3. The defendant No. 1 transferred his interest in the suit property to the appellant before us who put the said decree in execution in Title Execution Case No. 60 of 1963. The judgment-debtor-respondent No. 1 filed an objection under Section 47 of Code of Civil Procedure contending that the decree was not executable giving rise to Misc. Case No. 57 of 1964. The learned Munsif overruled the objection against the execution of the decree and dismissed the Misc. Case. On appeal the learned Appellate Court allowed the objection and dismissed the execution case. The present appeal is against this decision.

4. Mr. Shyama Charan Mitter, learned Advocate appearing for the appellant, has contended that the appellate court's judgment was vitiated by misconception of the terms of the decree. It was held by the said court that there was no stipulation that the decree-holder would be entitled to recovery of possession of the suit tank by execution of the decree in the event amicable possession was not delivered on the expiry of the agreed period. Mr. Mitter drew my attention to the express provisions of the decree which provided that in the event of the failure of the judgment-debtor to make over peaceful possession thereof the defendant No. 1 would be entitled to recovery of possession in execution of the decree. In view of the erroneous misreading of the provisions of the decree, it was submitted that the judgment under appeal should be set aside.

5. The court's power to record a compromise and pass a decree on such compromise has been provided in Order 23, Rule 3 of the Code of Civil Procedure. The provisions of the said rule are 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.'

It appears from the above provisions that the Court is entitled to record a compromise when a suit is adjusted wholly or in part by any lawful agreement or compromise. This obviously Indicates that the suit can be adjusted by lawful agreement or compromise only in respect of matters connected with or embraced within such proceeding and not of matters extraneous to it. The decree to 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.

6. The Courts however have not taken a uniform view in regard to the enforcibility of a consent decree when such decree embraces matters which do not relate to the suit. As has been noticed by Mulla, according to Allahabad and Madras decisions such terms can be enforced in execution of a decree and it is not open to the party against whom the decree is sought to be executed to object to the decree on the ground that it contains matters foreign to the suit. Our High Court has said that such terms cannot be enforced in execution of a decree but they may be enforced as a contract by a separate suit. In Jasimuddin Biswas v. Bhuban Jelini, (1907) ILR 34 Cal 456, it was held that though the compromise contained provisions about execution of a kabulivat and patta by the parties the Court executing that decree would not have been empowered under it to compel the defendants to execute a kabuliyat in favour of the plaintiff or to accept a lease on the terms agreed to. At the same time the Court observed that there was no reason for not passing a decree for damages or rent at the rate agreed to by the parties in the compromise decree in a subsequent suit instituted for recovery of rent. In Hemanta Kumari v. Midnapur Zamindari Co., 24 Cal WN 177 = (AIR 1919 PC 79) it was observed as follows :--

'..... a perfectly proper andeffectual method of carrying out the terms ofthis section (similar to Order 23, Rule 3) would be for the decree to recite the whole of the agreement and then to conclude with an order relative to that part that was the subject of the suit, or it could introduce the agreement in a schedule to the decree; but in either case, although the operative part of the decree would be properly confined to the actual subject-matter of the then existing litigation, the decree taken as a whole would include the agreement. ..... it maybe that as decree it was incapable of being executed outside the lands of the suit, but that does not prevent it being received in evidence of its contents.'

In interpreting this judgment it was held in Vishnu v. Ramchandra, AIR 1932 Bom 466 that while it will be proper for the decree to recite the whole agreement, the operative part of the decree should be confined to the subject-matter of the suit and any agreement forming the consideration of the compromise as to matters extraneous to the suit can be enforced in a separate suit.

7. In this case before us the plaintiff instituted a suit for injunction restraining the defendant No. 1 from interfering with his possession of the suit property held under his tenancy. In this suit, as we have seen, the terms of the compromise contained an admission by the plaintiff of the title of the defendant No. 1 to the suit land with a further grant of lease to the plaintiff by the said defendant with provision for recovery of possession in certain eventualities. These terms, viz., creation of a lease and the provisions for recovery of possession clearly in my opinion were outside the ambit of the suit although they formed a concluding agreement between the parties and it is also to be noted that this decree was duly registered. In this view of the matter though the plaintiff was liable to deliver vacant possession to the defendant No. 1 under certain conditions this provision could not be the operative provision of a decree in the suit which was brought by the plaintiff for reliefs claimed for his benefit. Under the provisions of the compromise the plaintiff became a judgment-debtor while the defendant No. 1 became the decree holder although the plaintiff came to court as a suitor to protect interference with his possession of the suit property. I am, therefore, of the opinion that these provisions regarding the lease as also of the recovery of possession of the suit property in certain contingency were clearly extraneous to the suit and could not be enforced in execution of the decree though they could form the basis of a separate suit on a concluded and binding agreement.

8. The mere fact that the terms of the compromise provide for execution of the decree will not per se enable defendant No. 1 to execute the decree if it is otherwise inexecutable in law. It may be noted in this connection that although the appellate court's reasoning for allowing the appeal was the absenceof the provisions for execution in the compromise petition the court also entered into the question of extraneous matters incorporated in the decree and the conclusion was against the decree-holder.

9. In the above state of affairs, I am of opinion that the decree was clearly inexecutable so far as it sought to recover possession of the disputed tank and the appellate court was justified in dismissing the execution case.

10. For these reasons this appeal fails and is dismissed.

11. There will, however, be no order for costs.

12. Leave under Clause 15 of the Letters Patent is asked for and is granted.


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