MOHD IQBAL Vs. MOHD AAMIN

JUDGEMENT

(1.) ON 25. 02. 1991 statements of the plaintiff and the defendant were recorded in Court. The statements were to the effect that the parties have amicably settled out of Court and an agreement has been arrived at dated 25. 02. 1991.

(2.) AN application under Order 23 Rule 3 of the Code of Civil Procedure, 1908 was filed and was taken up on 25. 02. 1991 itself. Along with the application the agreement dated 25. 02. 1991 was also annexed as Annexure a thereto. Upon hearing the counsel for the parties and after recording the statements of the plaintiff and the defendant and recording that both the parties had undertaken that they would be bound by the terms of the compromise as recorded in the said agreement dated 25. 02. 1991 (Ext. P-2), this Court granted permission to the plaintiff to withdraw the suit. The suit was dismissed as withdrawn and the Court directed that the parties shall be bound by the terms of the compromise Ext. P-2. It was a term of the compromise that the land in question would be handed over by the defendant to the plaintiff for the purposes of construction and that the defendant would get 6% of the built up area after the construction is done. It was also a term of the settlement/ agreement arrived at between the parties that if the construction is abandoned for any reason whatsoever, then the plot measuring 435 sq. yds. shall revert to the defendant and the agreement dated 25. 02. 1991 would become null and void. Thereafter, the defendant would be free to use the land according to its desire.

(3.) THE present execution petition was filed on the premise that no construction whatsoever had been carried out at the plot in question and in terms of the settlement/ agreement and in particular Clause 10 thereof, the property was to revert to the defendant in the suit. On 12. 03. 2004 after hearing the objections raised by the judgment debtor, this Court was of the view that since the suit was dismissed as withdrawn, there was no decree in favour of any of the parties and consequently the question of entertaining the execution petition on the basis of Clause 10 of the agreement did not arise. The Court was of the view that Clause 10 of the said agreement constituted a new contract between the parties and that no decree had been passed by the Court in terms of Clause 10 against the judgment debtor. As a result of this, the execution petition was found to be not maintainable and was dismissed. Liberty, however, was granted to the decree holder to seek other remedies on the basis of the aforesaid Clause 10 of the agreement in accordance with law. Being aggrieved by the said dismissal of the execution petition, the applicant/ decree holder filed an appeal being EFA (OS)13/2004. That appeal was disposed of by a Division Bench of this Court on 18. 11. 2005. The Division Bench was of the view that when the order dated 25. 02. 1991 was passed by this Court permitting withdrawal of the suit, the court was conscious of the fact that the suit had been withdrawn in view of the compromise which had been placed on record. The Division Bench specifically note that it is because of that that the Court had directed that the parties would be bound by the terms of the compromise. Consequently, the Division Bench concluded that the observation of the Executing Court that Clause 10 of the agreement was a new agreement between the parties, did not appear to be correct. As a result of this conclusion, the Division Bench set aside the impugned order and remanded the case back to the Executing court to decide the execution petition afresh in the light of the observations made by the Division Bench.