LAWS(BOM)-1988-4-27

DATTYA Vs. VITHAL

Decided On April 26, 1988
DATTYA Appellant
V/S
VITHAL Respondents

JUDGEMENT

(1.) PETITIONER is the original judgment debtor. Respondent is the legal representative of original Decree-holder Dattya Gangya. In this civil revision petition, the petitioner challenges the order dated 16-1-1988 passed by the Civil Judge, Senior Division, Nanded, directing execution of the decree passed in Special Civil Suit No. 15 of 1968 holding that the compromise for adjustment dated 3-1-1978 filed in Special Darkhast No. 31 of 1977 is null and void and does not prevent the decree-holder from executing the decree.

(2.) THE facts in brief are : special Civil Suit No. 15 of 1968 was filed by Dattya Gangya against Gangya Dhondya Mahar (defendant No. 1), Dhondabai w/o Gangya Mahar (defendant No. 2) and Dattya s/o Dhondya Mahar (defendant No. 3), claiming to be the adopted son of defendant Nos. 1 and 2 and praying for recovery of Khas possession of the agricultural lands, survey Nos. 115-A, 123 and 127 situate at village Pangri Taluka and District Nanded and for cancellation of the sale-deed executed by defendant No. 2 in favour of defendant No. 3 in respect of lands survey Nos. 123 and 127. The suit was decreed on 7-2-1968. Defendants Nos. 1 to 3 filed First Appeal No. 66 of 1970 in the High Court. The first appeal was decided on 16-11-1977. The decree for possession was modified and a joint decree for possession was passed in favour of the plaintiff and defendants Nos. 1 and 2.

(3.) ON 3-12-1977 decree-holder Dattya Gangya filed Special Darkhast No. 31 of 1977 for recovery of Rs. 676/- to which he was entitled by way of costs. It may be mentioned that the decree-holder did not apply for execution of the decree for possession of the agricultural lands but the execution was restricted to the recovery of amount of costs and the Court had ordered issuance of warrant under O. 21, R. 43 of the Code of Civil Procedure (Code for short ). On 3-1-1978, an application was filed on behalf of the decree-holder requesting the Court to take up the Darkhast on Board, as the parties wanted to file a compromise petition. According the compromise was filed in the Court on the same day which is signed by the judgment-debtor and bears the thumb mark of the decree-holder. It is also signed by Their Advocates. By this compromise the decree holder agreed to give half share in all the three lands to the judgment debtor. It is also mentioned in the compromise that the judgment debtor delivered possession of half share in all three lands to the decree-holder with standing crops. The judgment debtor agreed to pay Rs. 600/- in full satisfaction of the costs amount. On this compromise the Court made an endorsement "seen the purshis". On 18-2-1978 the decree-holder passed a purshis informing the Court that he received the amount of costs from the judgment debtor and, therefore, the darkhast be disposed off in full satisfaction. On 18-2-1978 the Executing Court passed the following order on Exhibit 1 in Special Darkhast No. 31 of 1977 :