BRAHMAVATI Vs. RAMESH CHAND

JUDGEMENT

(1.) This is an appeal against the judgment and decree dated 23-9-1968 passed by II Additional Civil Judge, Moradabad.

(2.) Original Suit No. 443 of 1960 was brought by Ramesh Chand and 9 others under Order 1 Rule 8, C. P. C. in respect of an open piece of land in which there was a well. The open land was used by the members of the public for sitting purposes and passage. The members of the public used to draw water from the well. The defendants-appellants had broken the eastern stairs and Chabutra of the well with the intention of including it in their building, The defendants-appellants also intended to include the open land in their house, Therefore, the plaintiffs-respondents claimed permanent injunction restraining the appellants from doing any such act as to cause interference in the rights of the public in the matter of user of the open land and the well. The case was compromised between the parties. Para 9 of the compromise application stipulated that the appellants could construct pavement on the remaining open land with pucca new Chaukas within a month of the compromise and that if the appellants failed to do so the plaintiffs-respondents would be entitled to claim Rs. 1,000/- as compensation. The appellants failed to comply with this condition of the compromise. The plaintiff-decree-holders filed an execution application. An objection under Section 47 C. P. C. was raised by the appellants that this condition was extraneous to the subject matter of the suit and as such could not be enforced by an execution. The executing court passed a decree for the recovery of Rs. 1,000/-. This decree was confirmed in appeal by the II Additional Civil Judge on 23-9-1978.

(3.) The learned counsel for the appellants contended that the above condition was wholly extraneous to the subject, malter of the suit and could not be enforced by means of an execution of the decree passed on the basis of compromise.