HARIDAS CHETTIAR Vs. RAJESWARY

JUDGEMENT

(1.) The revision petitioners are the decree-holders in EP No. 237/2010 in OS No. 289/2003 on the files of the Additional Sub Court, N. Paravur. The above Execution Petition was filed by them for realisation of an amount of Rs. 1,50,000/- with interest @ 12% per annum from the date of decree due under a compromise decree. As per the terms of compromise, the respondent herein is liable to pay a sum of Rs. 1,50,000/- to the revision petitioners provided that the respondent herein obtained possession over 1/10th share in the property involved in OS No. 399/2003 which was pending before the Sub Court, Paravur. Further, it was stipulated that if the respondent herein is refusing to pay the said amount of Rs. 1,50,000/- to the revision petitioners, she is liable for paying interest @ 12% per annum from the date on which she got exclusive possession over 1/10th share of the property in OS No. 399/2003. In the above execution petition, the petitioners have sought for realisation of the above mentioned amount of Rs. 1,50,000/- with interest @ 12% per annum from the date of decree. The respondent contended that the execution petition itself is a premature one and the same is opposed to the terms of compromise decree. Unless and until the respondent obtains 1/10th share in the property involved in OS No. 399/2003, which is pending before the Sub Court, Paravur, the petitioners/decree-holders are not entitled to realise the said amount by executing the decree. After considering the objection raised by the respondent herein, the execution Court accepted the objection and dismissed the execution petition as premature one. The legality and regularity of the above order is under challenge in this revision petition.

(2.) The learned counsel for the revision petitioners advanced arguments in support of the contentions raised in the revision petition. The learned counsel mainly contented that the execution Court ought to have seen that the condition requiring obtaining of 1/10th share by the judgment-debtor, which stand outside the scope of the present suit, cannot be taken as a factor regulating execution of the decree passed in the present suit. The clause relating to 1/10th share as a condition regulating the payment of Rs. 1,50,000/- is not liable to be considered, for the execution of the decree for money. According to the revision petitioners, the agreement entered into between the parties is an uncertain agreement and the decree is executable insofar as the petitioners are concerned. So long as the decree recognised the liability of the judgment-debtor, it cannot be held that the execution petition is a premature one.

(3.) Per contra, the learned counsel for the respondent advanced arguments to justify the finding of the Court below that the execution petition is a premature one. It is submitted that the parties to the decree are bound by the terms of the decree and execution Court cannot go behind the decree. The matters relating to the parties which are not subject-matter of the suit and falling outside the scope of the decree also can be included in the compromise and the decree passed thereunder. So, inclusion of the clause relating to 1/10th share in the subject-matter of another suit OS No. 399/2003 is proper and justifiable. Therefore, the revision petitioners are liable to give exclusive possession over 1/10th share in property to the respondent and unless and until the said share is given to the respondent, the revision petitioners are not entitled to claim Rs. 1,50,000/- from the respondent, under the decree. In short, the decree becomes enforceable, when the respondent gets 1/10th share in the property.