K N MEMANI Vs. BRIG NIRMALENDU GHOSH

JUDGEMENT

(1.) This is an unusual application seeking withdrawal of the decree dated 15th March, 1990 and seeking declaration that the compromise Ex. C-1 entered in between the parties stands rescinded.

(2.) . The brief facts are that a compromise application was moved on 12th March, 1990 and that the matter (S. No. 213/83) was disposed of on 15th March, 1990 in terms of the compromise Ex. C-1. According to the judgment-debtor/applicant, the plaintiff did not pursue the proceedings under Section 145, Code of Criminal Procedure in respect of property in suit despite several letters. Since the judgment-debtor felt that decree holder was not taking any action and was not interested, the judgment-debtor terminated the agreement and conveyed thatjudgment-debtor was free to deal with the property. The judgment-debtor also expressed his willingness to refund the amount received by him. He had sold the property to M/s. Sri Ram Housing Finance and Investment India Ltd. Sub-Divisional Magistrate passed the order of de-sealing on 7th November, 1996. The decree, holder taking advantage of the decree filed the execution application. Receiver was appointed and on 8th November, 1996, the Receiver has taken possession. The sole ground to move the application is that the decree holder has harassed the applicant/judgment-debtor for a period of six years as he neither took any action in proceeding under Section 145 of the Code of Criminal Procedure to get the property released nor paid any amount to the judgment-debtor. The decree-holder had wrongfully been holding the amount due to the judgment-debtor under the aforesaid compromise agreement. The decree holder was not ready and willing to perform his part of obligation and did not show any readiness and willingness to complete the transaction after the compromise agreement entered and recorded between the parties before this Court. Consequently, he is not entitled to any relief and the decree dated 15th March, 1997 is liable to be withdrawn.

(3.) . I have heard learned Counsel on the application at length. There does not appear any dispute that in terms of Ex. C-l, the settlement, a sum of Rs. 2 lacs was to be paid "after the plaintiff is put into vacant peaceful possession of the property by the defendant." Out of this Rs. 2 lacs, Rs. 50,000.00 had already been paid. "Balance of Rs. 2 lacs was to be paid to the defendant at the time of execution of the registration of the sale deed." The defendant had executed a power of attorney to file all necessary applications to the L&DO. Admittedly, none of the terms of Ex. C-1 quoted in the application indicates that the plaintiff would be pursuing the matter before the Sub-Divisional Magistrate. He was supposed to pursue the application for permission of L&DO to transfer the property in terms of Clause (iii) of the compromise. Admittedly the plaintiff/D.H. had not been put in possession of the house as the proceedings under Section 145, Code of Criminal Procedure were pending. There is no reference to the proceedings under Section 145, Code of Criminal Procedure in the compromise application (IA No. 2089/89) dated 12th March, 1990. No breach of any of the terms in Ex. C-1 is alleged. It is not a case where application for any specified reason under Order 47, Code of Civil Procedure to review compromise decree dated 15th March, 1990 has been filed. Neither mistake, nor misrepresentation, nor fraud, nor undue influence, nor coercion has been alleged, nor can possibly be alleged. About six years have passed. Review application would obviously not lie in these circumstances.