KURIAKKO Vs. PYLEE

JUDGEMENT

(1.) The main question raised in this second appeal is one of limitation. The question arises in execution. The facts relevant for the purpose of this appeal are the following. The decree in this case was passed on 16-12-1102 After declaring the plaintiff's title to the suit property, the decree directed him to pay a sum of Rs. 448 chs. 4 cash 6 to the defendants towards the value of the building and other items of improvements existing on the property and to recover possession of the property from them with future mesne profits at the rate of 30 fanams per year. While this decree was being executed, the parties entered into a compromise the terms of which were incorporated in the petition filed by them in Court (CMP No. 14901) on 30-11-1115. That petition was signed by the plaintiff decree holder and his Vakil and also by the additional 8th defendant on her behalf as also on behalf of her minor children who were additional defendants 4 to 7. The vakil for these defendants also signed the compromise petition. As per the said compromise the balance amount payable by the decree holder to the defendants after setting off the mesne profits and costs due to them, against the amount directed to be paid as value of improvements to them, was fixed at Rs. 182. The parties had also agreed that out of this amount a sum of Rs. 107 is to be treated as value of the building and that defendants 4 to 8 would remove the building at their own cost within a period of one year from the date of the compromise. Another term in the compromise was that the decree holder was to pay the balance of Rs. 75 to defendants 4 to 8 on or before 30-12-1116 and that on payment of such amount, the defendants were to remove the building from the property. It was also stipulated that in case the decree holder were to sustain any loss or damages on account of the 2nd defendant, who did not join the compromise and whose whereabouts were unknown, defendants 4 to 8 and their assets inclusive of the building in the plaint property were answerable for such damages. It was also mutually agreed by the parties that defendants 4 to 8 will not cut and remove any trees from the property and that they will also be not liable for any mesne profits subsequent to the date of the compromise. After setting out these terms in the compromise petition, the prayer made therein was that the petition may he recorded Accordingly the executing Court on the very same day recorded the compromise petition. It was clear from the compromise petition that the decree holder did not want to proceed with the execution of the decree on the basis of the execution petition that was pending at that time and hence that petition was also dismissed on 30-11-1115 itself. However the parties failed to comply with the terms embodied in the compromise petition dated 30-11-1115.

(2.) On 9-5-1121 the decree holder filed the present execution petition as a fresh and substantive petition for recovery of possession of the property from the defendants with arrears of mesne profits from the year 1116 onwards The amount of such mesne profits was sought to be set off out of Rs. 50 which was mentioned as the amount due to defendants 4 to 8 under the compromise dated 30-11-1115. To support this prayer the decree holder is seen to have incorrectly stated in his execution petition the terms of the compromise. He has stated that the amount agreed to be paid to defendants 4 to 8 after a mutual set off of the amounts provided for in the decree, was Rs. 50, that these defendants had agreed to remove the building from the property on or before 30-12-1116 and then to receive the sum of Rs 50 from the decree holder end that they will be entitled to recover Rs. 25 after a period of 7 years in case nothing is heard about the 2nd defendant during that period. The compromise petition does not lend support, to this statement in the execution petition. On getting notice of this petition the 4th defendant entered appearance and resisted execution, contending that the petition was barred under S.48 of the Code of Civil Procedure and that the compromise entered into between the decree holder and the 5th defendant is vitiated by fraud and collusion and that it is not binding on him. The executing Court repelled the plea of limitation raised by the 4th defendant but upheld his contentions that the compromise relied on by the decree holder is not binding on the 4th defendant. The execution petition was held to be unsustainable and it was therefore dismissed On appeal by the decree holder the lower appellate Court decided both the points against the 4th defendant and in favour of the decree holder. The 4th defendant his therefore preferred this second appeal.

(3.) As already stated, the present execution petition dated 9-5-1121 is a fresh and substantive petition. There is no prayer in the petition that it may be treated as a continuation of any prior pending execution petition. No such claim could also be urged in view of the fact that there is no other execution petition pending disposal. When the compromise petition was filed jointly by the decree holder and defendants 4 to 8 on 30-11-1115 the execution petition that was then pending was dismissed. The order dismissing that petition was a final order judicially disposing of that petition and hence it cannot be said that the said petition could be revived or continued. Since the decree in the case was passed on 16-12-1102, the present execution petition dated 9-5-1121 is obviously beyond 12 years from the date of the decree and as such it is prima facie barred under S.48 of the Code of Civil Procedure. But it is contended on behalf of the decree holder that the compromise petition filed before the executing Court on 30-11-1115 and recorded by that court on the same day had the effect of modifying the decree in the case and to substitute a new decree in its place and that therefore the 12 years' period contemplated by S.48 Civil Procedure Code, has to be computed from 30-11-1115 as per clause (1) (b) of that section. In support of this position reliance la placed on the ruling of the erstwhile Travancore High Court in Kesava Pillai v. Krishnan (1949 Travancore Law Reports 185) where it was laid down as follows:-