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Brij Lal Vs. Roshan Lal and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtHimachal Pradesh High Court
Decided On
Case NumberE.S.A. No. 10 of 1975
Judge
Reported inAIR1980HP13
ActsCode of Civil Procedure (CPC) , 1908 - Section 47
AppellantBrij Lal
RespondentRoshan Lal and ors.
Appellant Advocate R.N. Malhotra and; P. Malhotra, Advs.
Respondent Advocate R.K. Sharma, Adv.
DispositionAppeal dismissed
Cases ReferredMt. Bilas Devi v. Bansidhar Sahu
Excerpt:
property - possession - x owner in possession of disputed property - filed suit against appellant for injunction and declaration with respect of certain land for restraining him to raise any construction - compromised reached between parties - after passing of decree in his favour x filed an execution petition - appeal - appellant contended that decree is only declaratory decree and cannot be executed - on basis of evidence it can be concluded that appellant agreed to part with land upon which he had made constructions in return for certain amount - pleadings of parties show that x was to get ownership and possession of property - appeal dismissed. - .....possession by removal of the structures from the disputed land at the time of the decision of the suit. this suit was filed in the year 1963 and was decreed by the sub judge, hamirpur, on 31st august, 1966. according to the decree-sheet, exhibit dh-2, it was ordered that 'on payment of rs. 5130-78 paise to the defendant or on its deposit for payment, the plaintiff shall become the absolute owner of the disputed shop and to two marlas of land belonging to the defendant, failing payment or deposit within two months from today (i.e. 31-8-196(6) the suit shall stand dismissed in accordance with the agreement between the parties'. the parties were left to bear their own costs. the compromise between the parties was arrived at on 21-12-1965 vide ex. dh-1. by virtue of this compromise a local.....
Judgment:

Vyom Prakash, J.

1. This Execution Second Appeal has been filed by Brij Lal against the order of the District Judge, Hamirpur dated 13th June, 1975, whereby the appeal of Brij Lal was dismissed and the order, dated 30th October, 1973, passed by the Sub-Judge, Hamirpur dismissing the objections of Brij Lal judgment-debtor, was affirmed.

2. The brief facts of the case are that one Waziru Ram filed a suit against Brij Lal for a declaration and injunction with respect to khasra No. 604, measuring 8 marlas in Tika Gaura Manjhala, Tehsil Hamirpur. Out of this 8 marlas. 6 marlas was banjar qadim and 2 marlas was shown as a shop. The suit was for a declaration that Waziru Ram plaintiff was owner inpossession of the disputed property and that Brij Lal defendant had no right to raise any construction, etc. on this property and also for an injunction restraining him from interfering in any manner with this property. The suit was also for possession of the land upon which the defendant is found to be in possession by removal of the structures from the disputed land at the time of the decision of the suit. This suit was filed in the year 1963 and was decreed by the Sub Judge, Hamirpur, on 31st August, 1966. According to the decree-sheet, Exhibit DH-2, it was ordered that 'on payment of Rs. 5130-78 paise to the defendant or on its deposit for payment, the plaintiff shall become the absolute owner of the disputed shop and to two marlas of land belonging to the defendant, failing payment or deposit within two months from today (i.e. 31-8-196(6) the suit shall stand dismissed in accordance with the agreement between the parties'. The parties were left to bear their own costs. The compromise between the parties was arrived at on 21-12-1965 vide Ex. DH-1. By virtue of this compromise a local commissioner was appointed to assess the market value of the shop. After this assessment of the market value by the local commissioner, which was confirmed by the court, the decree, was passed on 31-8-1966 vide Ex. DH-2. It is also admitted by both the parties that the decree and the compromise were got registered by the plaintiff on 27th May. 1968 vide Ex DH-3. It is also admitted by the parties that a sum of Rs. 5130-78 paise for payment to Brij Lal defendant was deposited by the plaintiff within the prescribed period as ordered in the decree-sheeet, dated 31-8-1966. After the passing of the decree and the deposit of the amount of Rs. 5130-76 paise, the decree-holder seems to have filed an execution petition, being No. 214 of 1966, but the same appears to have been dismissed as unsatisfied on 5-10-1967. Thereafter the decree-holder Waziru Ram filed another execution petition, being No. 30 of 1968 out of which the present appeal has arisen. Notice of this application was given to the judgment-debtor (Brij Lal) who took various objections regarding the executability of the decree and upon these objections of the judgment-debtor, the following issues were framed:

'1. Whether any decree for possession of the property in dispute has been passed in favour of the decree-holder?

2. If so, whether the same is not executable?

3. Whether any previous order passed by the Court operates as a res judicata on issues 1 and 2?

4. Relief.

Later on another additional issue was framed which reads as:

'3-A Whether the judgment-debtor has carried out any repairs bona fide and thus made improvements in the shop. If so, of what value and whether he is entitled to get the same from the decree-holder before parting with possession of the property in suit?

3. The Court of Sub Judge dismissed the objections of the appellant vide its order dated 30th October, 1973 and the appeal of the present appellant was also dismissed by the District Judge Hamirpur on June 13, 1975.

4. In the present appeal before me the learned counsel for the appellant (judgment-debtor) assailed the findings of the lower court on issues Nos. 1 and 2 only. Shri R. N. Malhotra, the counsel for the appellant contended that the decree dated 31-8-1966 is only declaratory decree and as such the same is not executable and the next argument of the learned counsel was that this decree pertains to a matter which is extraneous to the suit and as such the same cannot be enforced in the execution proceedings. The learned counsel referred to the wordings of the copy of the decree-sheet Ex. DH-2 and contended that this is not a decree for possession and as such the possession of the property which was to be obtained by the decree-holder on payment of Rs. 5130-78 palse cannot be obtained by execution and that the decree-holder can seek his remedy by filing a regular suit to enforce the compromise and the decree. In support of his contention the learned counsel cited AIR 1951 SC 189, P. V. Ramaswami Aiyengar v. T. N. V. Kailash Thevar, which lays down that the executing court has no power to go beyond the terms of the decree and that the executing court cannot make out a new decree for the parties under the guise of the interpretation of the decree. The learned counsel frankly conceded that in view of the law laid down in Bhavan Vaja v. Solanki Hanuji Khodaji Mansang (AIR 1972 SC 1371) the executing court has a power to construe a decree in the light of various circumstances leading up to the decree.

5. The learned counsel for the respondents contended that in this particular case the decree was passed on the basis of a compromise and as such it is the bounden duty of the Court to enforce the terms of the compromise as the real intention of the parties was to shorten the litigation by compromising the suit. It was further contended by the respondents' counsel that in view of the law laid down in Bhavan Vaja case (supra) the executing court can look into the pleadings of the parties and the settlement and the compromise Exhibit DH-1 to find out the real meaning of the decree Exhibit DH-2. It was also contended that the said decree was duly registered vide order Exhibit DH-3, dated 27-5-1967.

6. I have considered the contentions of the counsel for the parties and have also gone through the record of the case and the documents produced by the parties in this objection petition. If one looks to the intention of the parties at the time of their compromise, which is apparent from different circumstances and documents referred to above, then it is clear That the parties agreed to enter into a compromise to the effect that the judgment-debtor (defendant-Brij Lal) agreed to part with two marlas of land belonging to him and upon which he had made constructions in favour of the plaintiff. Waziru, who was the predecessor-in-interest of the present respondents and in lieu of this the judgment-debtor (defendant) agreed to receive Rs. 5,130-78 paise which was the market value of the property of the defendant as assessed by the local commissioner. The plaintiff, Waziru Ram was to become the absolute owner of this property on payment of Rs. 5130.78 paise. It was further agreed between the parties to the litigation that if the amount of Rs. 5130.78 paise is not paid within the stipulated period of 2 months then the whole of the plaintiffs' suit was to be dismissed.

7. A close scrutiny of Exhibit DH-1 and Exhibit DH-2 and the pleadings of the parties clearly show that the decree-holder (plaintiff) who was the predecessor-in-interest of the present respondents was to become the full-fledged owner of the property on payment of Rs. 5130.78 paise and that the judgment-debtor (defendant) was to lose all interests in this property. The words to the effect that the plaintiff shall become the 'absolute owner' of the property clearly mean that the plaintiff was to get the possession and ownership of the property and that the defendant (judgment-debtor) was to lose all rights in this property. If this is so, then definitely the plaintiff could get the possession of the property for which the consideration of Rs. 5130.78 paise was to be paid by him. The statement of the judgment-debtor Brij Lal, dated 22-11-1968, is also very significant where he admits that he was to receive Rs. 5130.78 paise within two months and thereafter Waziru Ram decree-holder (plaintiff) was to get the shops. The present decree, dated 31-8-1966 has to be enforced and interpreted in a manner, that the litigation between the parties is shortened and for this purpose the real intention of the parties can be gathered from the various facts and circumstances of the case which led to the passing of this decree as has been laid down in Bhavan Vaja case (supra).

8. In view of this discussion, I do not agree with the first contention of the learned counsel for the appellant that the decree is not executable and that the possession could not be delivered by the executing court by virtue of this decree.

9. The other contention of the counsel for the appellant that the decree does not relate to the matters in controversy in the suit is also without any force. In this particular case, the decree-sheet has been registered and so there is no question of the invalidity of the decree on that score. The decree in the case is based upon a settlement arrived at between the parties and if during the course of the settlement the plaintiff or the defendant has given up a part of the claim and has included some other part of the property to settle the dispute then it cannot be said that such a decree is with respect to a matter extraneous to the suit. A similar view was taken in Lal Singh v. Mohan Singh (AIR 1934 Lah 623) and Gurbax Rai v. Man Singh (AIR 1952 Punj 155). Moreover the courts are always in favour of construing a compromise in a manner which tends to shorten the litigation and the court will always resist any attempt on the part of any of the parties to construe the decree in such a way as to multiply litigation as has been held in Mt. Bilas Devi v. Bansidhar Sahu (AIR 1951 Pat 459).

10. I cannot subscribe to the view that the respondents-decree-holders should be dragged to a separate suit in spite of the fact that they have deposited the money in accordance with the settlement/compromise and the decree arrived at between the parties in the litigation in the suit between them. The counsel for the parties have also admitted that the possession of the property has already been delivered to the decree-holders-respondents in execution of the decree, who was admittedly the owner of the property. No other point was urged before me.

11. The result of the above discussion is that the appeal fails and the same is hereby dismissed. In the peculiar circumstances of the case the parties are left to bear their own costs.


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