LAKSHMI PRASAD Vs. GOPI PRASAD

JUDGEMENT

(1.) This is a judgment debtor's second appeal from the concurrent decisions of the Courts below dismissing his objections against the execution of a decree for the possession of a house. The facts of the case are peculiar. The parties are near relations and owned certain houses. There was a dispute over their partition and the matter refered to arbitration. The arbitrator's award, which was registered, was in favour of the appellant. He applied to the Court for a decree in terms of the award, but the respondent opposed this application. During the proceedings the parties compromised their dispute and it was agreed that the house in possession of the appellant would be transferred to the respondent and the one in possession of the respondent to the appellant. A clause in the compromise provided that the parties would hand over possession to one another within one month and in case of failure each party would have the right to get possession in the execution proceedings.

(2.) The respondent applied for execution on the ground that the appellant had not transferred the house as agreed. The appellant filed an objection alleging that the respondent had deliberately demolished the house which was to be transferred to the appellant and had therefore become disentitled to the possession, of the other house. The trial Court without considering the truth of the appellant's allegation dismissed his objection on the ground that it was irrelevant. It took the view that the terms of the compromise decree did not provide that the decree-holder would not be entitled to recover possession; until he delivered possession of the other house to the judgment-debtor. It also held that the remedy of the judgment-debtor was to seek relief against the decree-holders in separate proceedings, but he could not resist the decree-holder's claim for delivery of possession of the house allotted to him under the compromise. The learned Judge upheld this view arid observed that the performance by one party of his part of the bargain was not a condition precedent to the performance by the other party. The appellant has (sic)ow come to this Court in second appeal.

(3.) This view of the Courts below is obviously erroneous. I have read the terms of the compromise. It says "mutabig, taqsim mazhura bala fariqain ek dusre ko maqbuza ek mah ke andar kar den ge ("The parties shall put each other in possession of the property in accordance with the aforesaid partition.") This is a compromise agreement consisting of reciprocal promises. The time of performance of each promise, is not specified but it is manifest that the two obligations are simultaneous; and the respondent had to be ready and willing to transfer his house to the appellant, and vice versa. While interpreting the terms of a compromise agreement containing reciprocal promise the Court should enforce it according to the plain words of the agreement, but if it is silent about the time and order of performance of the respective obligations the Court should ascertain the intention of the parties by putting itself in the position of two reasonable men who have decided to settle their dispute. A compromise is ordinarily intended to be a final settlement of a dispute, and the Court should avoid an interpretation of its obscure part which is inconsistent with the intention of the parties to make a full and final settlement of their dispute; and or which contains the seeds of future discord and litigation. If the terms of the settlement of a dispute over the partition of undivided property are that the house in possession of each party shall be transferred to the other, the only reasonable in terpretation consistent with equity and common sense is that the rights and obligation under the compromise are not only reciprocal but simultaneous and each party must be ready and willing to fulfil its obligation when seeking to enforce its rights.