THOMAS E P Vs. K C SIVADASAN

JUDGEMENT

(1.) The revision is directed against the order dated 09/03/2007 in EP No. 23 of 2006 in OS No. 33 of 2002 passed by the learned Munsiff, Erattupetta. The judgment debtor in the above execution petition is the revision petitioner, and the decree holder, the respondent. The decree executed in the proceedings was a compromise decree passed in a suit for perpetual prohibitory injunction. Petitioner / judgment debtor instituted the above suit to restrain the respondent / defendant from evicting him forcefully from the plaint schedule building. The respondent resisting the suit claim contended that the registered sale deed in respect of the plaint schedule property was executed in favour of the plaintiff / judgment debtor / revision petitioner as a security towards a loan transaction for a sum of Rs.One lakh on an agreement to reconvey the property on discharge of the debt within the time provided. The parties entered into a compromise in the suit by which petitioner / plaintiff agreed to execute a sale deed in respect of the plaint property in favour of the respondent / defendant subject to payment of the sum stated within the time fixed. Compromise stipulating the terms thereunder was accepted by the Court and the suit was decreed in terms thereof. The terms of the compromise provided for payment of the sum agreed upon for reconveyance of the property on or before 25/10/2004. The respondent moved the execution petition on the basis of the compromise decree contending that there was default on the part of the petitioner / plaintiff to execute the sale deed. The execution sought for was resisted by the petitioner imputing default on the part of the respondent / decree holder. He also raised objections that the Court had no jurisdiction to entertain the execution petition as the amount fixed under the decree was beyond its pecuniary limits, that the decree has become inexecutable by lapse of time since the time fixed under the compromise for payment was over, and that the charges subsisting over the property had been cleared by the petitioner / plaintiff expending substantial sums etc. The execution Court, after considering the objections raised, negatived them as not sustainable and ordered the judgment debtor to execute the sale deed in favour of the respondent / decree holder on deposit of the sum specified in the compromise decree with the amount which the judgment debtor had paid to the bank to clear the encumbrance over the property, with interest, within the time fixed. It was also ordered that in default of the execution of the sale deed after such deposit, the respondent / decree holder can get the sale deed executed through Court. In the event of default of the decree holder to deposit the amount within the time fixed, it was held he would lose all his right over the property and it shall remain in the absolute ownership and possession of the judgment debtor. Correctness and propriety of the above order passed by the execution Court is challenged in the revision.

(2.) I heard the counsel on both sides. Learned counsel for the petitioner / judgment debtor had reiterated the objections raised before the execution Court to contend the decree is inexecutable as the balance amount fixed under the compromise decree had not been paid within the time stipulated. Specific terms of the compromise should be implemented within the time fixed is highlighted by the counsel. Non payment of the sum within such period was fatal. Subsequent event after the time fixed as to the judgment debtor discharging the encumbrance over the property to a society treating himself as the owner of the property is also highlighted by the learned counsel to contend that the decree was no longer executable. On the other hand, learned counsel for the respondent / decree holder contended that as rightly held by the Court below time for payment was not the essence of the decree. The decree can be executable only on default of one or other party to comply with the terms after the expiry of the time fixed for such compromise. That being so, the execution petition, after the time fixed for payment of the balance sum imputing default on the part of the judgment debtor to execute the sale deed is perfectly maintainable, submits the counsel. So far as the amount paid by the judgment debtor to the society to clear the encumbrance over the property, it is submitted that the execution Court has taken care to order reimbursement of such amount with interest at 18% by the decree holder, and so much so, the judgment debtor cannot canvass any grievance thereof. The non enforceability of the execution of the decree on the premise that the compromise does not provide for a specific provision as to its executability as contended by the judgment debtor is also resisted by the learned counsel for the respondent / decree holder placing reliance in Sreedharan v. Bhaskaran, 1986 KHC 34 : 1986 KLT 102 : 1985 KLJ 961 : ILR 1986 (2) Ker. 149 : AIR 1986 Ker. 49 : 1985 KLN 739 : 1986 (2) Civ. LJ 252 pointing out that the absence of such a clause in the compromise decree would not strip the executability of the decree.

(3.) In the given facts of the case, the terms of the compromise entered by the parties by which the suit was disposed of have much significance. Terms of compromise which are stated in the memorandum of revision, in respect of which there is no dispute, read thus: