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Prasanna Kumari Debi Vs. Sris Chandra Majumdar and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in33Ind.Cas.344
AppellantPrasanna Kumari Debi
RespondentSris Chandra Majumdar and ors.
Cases ReferredHuddersfield Banking Co. Ltd. v. Henry Lister
Excerpt:
execution - decree, variation of, by execution court in light of subsequent events, legality of--consent decree, degree of validity of. - .....that if, on a future occasion, the thak map was relayed, the way would lie towards the east of the thak line, that is, the western boundary of the way would coincide with the thak line, which, it was added, was proof of the title and possession of the appellant. but though this decree was made on the 12th january 1901, the decree-holders did not prosecute their successive applications for execution to the final stage of delivery of possession; four applications were practically infructuous, and the present application was made on the 11th january 1913, that is, on the last day of the twelfth year from the date of the decree, within which application for execution is permissible under section 48 of the civil procedure code. a controversy has now arisen between the parties as to how this.....
Judgment:

Asutosh Mookerjee, J.

1. This is an appeal by the judgment debtor against an order made in proceedings in execution of a consent decree dated the 12th January 1901. The respondents sued the appellant for establishment of their alleged right of way over a tract of land towards the west of her tank. During the pendency of the suit the parties came to terms and a decree was made by consent. The substance of the decree was that the respondents were allowed a pathway, two-and-a-half cubits wide, (eighteen inches to the cubit) towards the east of the western most boundary of the land then in possession of the appellant. The decree specified, in the alternative, that if, on a future occasion, the thak map was relayed, the way would lie towards the east of the thak line, that is, the western boundary of the way would coincide with the thak line, which, it was added, was proof of the title and possession of the appellant. But though this decree was made on the 12th January 1901, the decree-holders did not prosecute their successive applications for execution to the final stage of delivery of possession; four applications were practically infructuous, and the present application was made on the 11th January 1913, that is, on the last day of the twelfth year from the date of the decree, within which application for execution is permissible under Section 48 of the Civil Procedure Code. A controversy has now arisen between the parties as to how this decree is to be executed. The decree-holders contend that they are entitled to have the decree executed according to the present possession of the appellant. They have been driven to put forward this contention, because during the dozen of years that have elapsed since the decree was made, persons not bound by the decree have encroached on the land over which the way, if demarcated according to the possession of the appellant in 1901, would lie. The Court of first instance gave effect to the contention of the decree-holders and that order has been affirmed on appeal by the District Judge. In our opinion, this view is manifestly incorrect.

2. The decree must be executed as made, and cannot be varied by the execution Court in the light of subsequent events: Madan Mohan Nath Sahi v. Bhikhar Shahu 15 Ind. Cas. 719 : 16 C.L.J. 517. This principle applies with special force to a consent decree of the description now before us. As was well observed in Huddersfield Banking Co. Ltd. v. Henry Lister & Son Ltd. (1895) 2 Ch. 273 : 64 L.J. Ch. 523 : 12 R. 331 : 72 L.T. 703 : 43 W.R. 567, a consent decree has precisely as much validity as and no greater validity than the agreement between the parties which receives judicial sanction. Here the agreement between the parties was that the defendant (now judgment-debtor-appellant) would allow the plaintiffs (now decree- holders-respondents) a pathway according to the title and possession as they existed at the time when the agreement was made. The Court gave effect to this arrangement and the decree-holders are entitled to the full benefit thereof, but to nothing beyond. Yet they have made no attempt to establish by evidence how the possession stood at the time of the decree and have, on the other hand, claimed, contrary to the decree, a way according to present possession. In this view, the Court would be amply justified to dismiss the application for execution. But we are prepared to give the decree-holders the alternative relief contemplated by the decree, specially as the judgment-debtor does not object to the adoption of that course, namely, that the way should run towards the east of the western thak line, as relayed by the Commissioner. No exception was taken to the report of the Commissioner by the decree-holders; an objection was, no doubt, preferred by the judgment-debtor, but it was subsequently abandoned. Consequently the position is that the decree-holders may be given a pathway towards the east of the thak line; the breadth of the way will be two and a half cubits and eighteen inches will be taken as the measure of a cubit. If, when the way is demarcated, it is found to run over land which has been obstructed by the judgment-debtor herself, the obstruction will be removed. But if the obstruction has been erected by persons who are strangers to the decree and are not bound thereby, the decree-holders must be left to their remedy against such persons by a suit properly framed for the purpose. It has been pressed upon us very earnestly on behalf of the respondents that this view is likely to embarrass the decree-holders. We are not satisfied that there will be any real hardship to them; but if there is any, they themselves are entirely to blame for the result of their inaction during a period of more than twelve years after the decree.

3. The result is that this appeal is allowed, the order of the District Judge set aside and an order made in terms of this judgment. Each party will pay his own costs throughout these proceedings.


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