Mr. Lakshman Saran Sinha, appearing for the objectors, on the other hand, contended that the executing court had no jurisdiction to take additional evidence to find out the properties in suit. I do not find any force in this contention of Mr. Sinha inasmuch as the executing court is certainly entitled in law to take such steps to effect delivery of possession in terms of the decree under execution. "Such steps" would not amount to taking any additional evidence in the matter but would amount simply to ascertain and fix up the identity of the property in terms of the decree itself.Print Page
Patna High Court
Patna High Court
Smt. Lalmuni Devi And Ors. vs Shiv Shanker Tiwary And Ors. on 27 February, 1980
Equivalent citations: AIR 1980 Pat 184
Bench: H L Agrawal, C S Sinha
1. This is an appeal under Section 47 of the Civil P. C. by the decree holders and arises out of an order passed on an objection petition filed by the judgment-debtors-respondents first party, in the execution court, objecting to the delivery of possession of a house in pursuance of a compromise decree between the parties.
2. It appears from the facts stated in the compromise decree that the decree-holder Bhagwat Prasad Tiwary, ancestor of the appellants, and Saryug Tiwary, respondent second party, besides being members of a joint family which possessed various landed properties at various places, were also carrying on certain business in partnership. It further appears that some dispute having arisen between the parties, Saryug Tiwary instituted a suit in the year 1964 on the original side of the Calcutta High Court for various declarations and dissolution of some business. In that suit a compromise decree was passed on 29-2-1968. In accordance with the said compromise, properties mentioned in Part II in Schedule A were allotted to Bhagwat Tiwary and those mentioned in Part I of the said schedule to Saryug Tiwary. Some properties, however, were left joint. The two houses, one situated in the town of Calcutta and the other in the village home of the parties at Manpura in the district of Saran, were incorporated in the said compromise decree. Whereas the Calcutta house was allotted to the branch of Saryug Tiwary being described in Item No. 71, the ancestral house in village Manpura was allotted to the branch of Bhagwat Tiwary. It was described in Item No. 46 of the relevant schedule as follows :--
"A pucca brick built house at village Manpura P.S. Ravelganj, District Chapra (Saran)"
It is not disputed that this house property was not originally included in the suit but formed part of the compromise by consent of the parties. The decree, however, was registered. The respondents first party who are none else than the sons and wife of Saryug Tiwary, besides being parties to the suit were also parties to the compromise having signed the compromise on their own behalf, but it was stated that they were merely benamidars and had no interest in the properties. After the compromise decree was duly registered, the decree-holders got it transmitted to Chapra for effecting delivery of possession of the aforesaid item No. 46, namely, the ancestral house which lay within the territorial jurisdiction of the court below. The decree was accordingly transferred and Execution Case No. 14 of 1978 was registered in the Court of the First Subordinate Judge at Chapra. The respondents first party in their objection petition raised the following objections: (1) The property as mentioned in the decree was vague and unidentifiable, (2) it was not the subject matter of the suit, (3) the Calcutta High Court had directed for execution of the decree only against Saryug Prasad Tiwary (defendant No. 1) and not against his heirs and (4) the compromise decree was only declaratory in nature and no delivery of possession could be effected under such decree.
A rejoinder was filed on behalf of the appellants controverting the pleas of the objectors. The executing court, however, allowed the objection petition and recorded the following findings: (1) The decree was vague as the property in question was not identifiable and (2) in view of the direction of the Calcutta High Court the decree could not be executed against the respondents first party. The other objections that the property having not formed part of the suit, could not be included in the decree and the nature of the decree was merely declaratory and unexecutable were rejected. These points were, however, also strongly pressed by Mr. Lakshman Saran Sinha, appearing for respondents first party before us.
3. I will first consider the argument regarding the vagueness of the decree. Mr. Kailash Roy, learned counsel appearing for the appellants, invited our attention to the statements made in the objection petition filed by the respondents first party. In para 11 of the objection petition it is stated that in village Manpura, the ancestral village home of the parties, over plot No. 1133 two houses were situate, one being towards the north and the other towards the south, but their area was not identified. They also delineated the two houses aforesaid in a sketch map appended to their objection petition. Mr. Kailash Roy contended that one of the aforesaid houses was pucca and the other was kacha and in this view of the matter, when item No. 46 described the property that what was allotted to the decree-holder was "a pucca brick built house", the property became obviously identifiable and absence of other particulars with reference to its plot number and boundary etc. did not matter as the description in para 19 of the compromise petition and in serial No. 46 of the schedule referring the house as pucca brick built house, was sufficient for identifying the same. Learned counsel indicated his willingness and readiness for appointment of a pleader commissioner if it was thought so necessary by the executing court to find out the physical features of both the houses so as to examine as to whether the above description, namely, "pucca brick built house" was by itself sufficient to exclude the other house unmistakably. He also contended that the description of the house allotted to Saryug Tiwary in serial No. 71 of his schedule was also described in brief as "premises No. 6, Mot Lane, Calcutta-13".
4. Mr. Lakshman Saran Sinha, appearing for the objectors, on the other hand, contended that the executing court had no jurisdiction to take additional evidence to find out the properties in suit. I do not find any force in this contention of Mr. Sinha inasmuch as the executing court is certainly entitled in law to take such steps to effect delivery of possession in terms of the decree under execution. "Such steps" would not amount to taking any additional evidence in the matter but would amount simply to ascertain and fix up the identity of the property in terms of the decree itself.
5. Now I proceed to consider the other objection, namely, that the decree was unexecutable against the respondents first party in view of the directions of the Calcutta High Court - an objection which has been upheld by the executing court. In my view, this objection of the objectors also is devoid of any substance. The executing court has referred to the compromise petition where a statement had been made that respondents first party had no right in the properties in question. In the execution application in the column "against whom to be executed" no doubt the decree-holders described respondents 1st party also as the parties concerned. It has already been said that they were also parties to the compromise decree. Saryug Tiwary was also named in this column of the execution application. The respondents first party having already taken a position in the decree court that they were benamidars or for that matter had no right to the properties in question, on their own stand, they had hardly any right to file an objection to the delivery of possession of the house in question under Section 47 of the Civil P. C. Objection, if any, could be filed only by Saryug Tiwary. At one time I had thought that in view of the fact that Saryug Tiwary had kept back, I should not proceed to consider the other objections on merits, but having found that Saryug Tiwary was also impleaded as an opposite party to the miscellaneous case which was registered by the executing court on the objection petition, and he being also a party in this Court in order to cut short the litigation, in my view it would be desirable to dispose of the other questions also which have been pressed on behalf of the respondents first party by Mr. Lakshman Saran Sinha for our consideration, as already indicated above.
6. I would first take up the objection that the house in question was not the subject matter of the suit and, therefore, the decree was not executable. It cannot be disputed as a proposition of law that a compromise can be effected in a suit "in respect of the whole or in part of the subject matter of the suit" only as envisaged in Rule 3 of Order 23 of the Code as it stood prior to its amendment in the year 1976. However, where a compromise included matters extraneous to the suit it was not altogether unlawful and the decree was still executable with respect to the matters that related to the suit (see Munshi Ram v. Banwari Lal AIR 1962 SC 903). In order to make the compromise enforceable the requirement of Section 17 (2) (vi) of the Registration Act was to be complied with According to this provision, the decrees or orders expressed to be made on a compromise and comprising immoveable property otherwise than that which is the subject matter of the suit or proceeding have to be registered if such decrees or orders come within the purview of Section 17 (1) of the Registration Act. In the case of Ramjanam v. Bindeshwari Bai (AIR 1951 Pat 299) which was referred with approval in the case of Jagdish Chandra Sinha v. Kameshwar Singh (AIR 1953 Pat 178), it was held as follows :
"The question whether a particular term of a compromise relates to the subject matter of the suit has to be answered on the frame of the suit, the reliefs claimed and the matter which arose for decision in the case on the pleadings of the parties. The term is comprehensive enough and if the compromise relates to all those matters which fell to be decided in the case, it could not be said that any part of the compromise was beyond the subject matter of the suit. There is a large body of authority to show that where a compromise relating to matters outside the scope of the suit is a part of the consideration for the agreement as to matters in suit, the entire compromise as an integral whole must be recorded and decreed as relating to the suit whether they otherwise relate to the suit or not." Considering the question Sarjoo Prosad, J., who delivered the Judgment for the Bench in Jagdish Chandra Sinha's case (supra), with reference to a large number of authorities said that the test in such a case was whether the matters in the compromise were so mixed up that it was impossible to separate the part which exclusively related to the suit and another part which did not relate to the same. If it was found that the two parts were severable, then the operative part of the decree would have to be confined to the matters which relate to the suit on the terms of Rule 3 itself. If, on the other hand, they could not be severed from each other, they stood or failed together, in that case the whole compromise would constitute the operative part of the decree and would be liable to be dealt with in execution. The recording of the compromise would be legal and the question as to what extent the executing court would have jurisdiction to deal with the terms of the compromise decree, would fall for consideration in that court. Reading the compromise decree in question as a whole it is not possible to hold that allotment of the ancestral house to the decree-holder and the Calcutta house to the judgment-debtor was not the consideration for the agreement between the parties to the suit. The compromise, therefore, having been found by the decree court to be lawful and incorporated in the decree of the court, after its due registration the decree against the property becomes executable and the executing court could not refuse to execute the decree in such a case. Their is sufficient support for this view from the case of Jagdish Chandra Sinha (supra). Although there seems to be a conflict of decisions amongst the various High Courts on this point, the amendment of 1976 makes the position all the more clear and comprehensive. In Rule 3 for the expression "in respect of whole or any part of the subject matter of the suit'' it has been provided "so far as it relates to the parties to the suit whether or not the subject matter of the agreement, compromise or satisfaction is the same as the subject matter of the suit". Under the present rule, therefore, as amended, the court can clearly pass a decree in terms of the agreement even though it includes matters not forming the subject matter of the suit provided that such extraneous matters related to the parties to the suit. Although clauses of Section 97 of the 1976,Amendment Act do not make the amendment applicable to any suit or proceeding pending at the time of commencement of the amending provision, on the other reasonings already stated a little earlier I have no doubt in my mind that the inclusion of the property in question formed integral part of the compromise between the parties and, therefore, the compromise decree on being registered became fully executable in law. Although the case of Jagdish Chandra Sinha (supra) is a corollory, as it was held in that case that the properties forming part of the compromise were not outside the scope of the suit, the principle is supported that if the properties are so then the compromise in order to be lawful, has got to be registered. The requirement of a registration is obviously called for to make the compromise legal and enforceable. The parties to this case, as already said earlier, have taken this precaution and, therefore, it cannot be contended that the decree is unexecutable on account of incorporating any property outside the suit.
7. Now remains for consideration a very small question as to whether it was necessary for the decree-holders to apply for a final decree or whether the compromise decree which finally allotted specific properties to the parties was executable by itself. It was not disputed before us that in a suit more than one final decrees can be prepared. Having examined the terms of the agreement, 1 find that allotment has been made to the parties in a clear manner of the various assets except only those which were agreed to be left as joint. In such a situation it is clear that no final decree need be drawn up. The preliminary decree as such simply declares the interest of the parties and until a final decree is drawn up, it is not possible to fix up the interest of the parties concerned in any specific property. It is, therefore, clear that until that stage comes the perliminary decree cannot be executed. The position stands entirely different where the parties make final allotments by a compromise. In such a situation nothing remains pending to be dealt with in the final decree. The compromise decree takes the position of consolidated preliminary and final decree. In such a case the view that final decree is not required to be drawn up finds support from the decision in Raghubir Sahu v. Ajodhya Sahu (AIR 1945 Pat 482).
8. I would accordingly allow this appeal, overrule the objections raised on behalf of the respondents first party and direct the executing court to proceed with the execution of the decree in question, subject to the observations made above, namely, that it would appoint a pleader commissioner at the cost of the appellants to find out the physical feature of the two houses standing on plot No. 1133 so as to examine as to whether the decree can be worked out and item No. 46 of the schedule allotted to the decree-holders can be ascertained without any vagueness and if that be so, then the court below will proceed to deliver possession over the said house in question. In the circumstances, however, I shall leave the parties to bear their own costs.
Chaudhary Sia Saran Sinha, J.
9. I agree.