MADHUSUDAN NAG Vs. DHANANJOY NAG

JUDGEMENT

(1.) This revisional application, at the instance of the Defendant in Title Suit No. 107 of 1981 of the Eighth Court of Asstt. District Judge, Alipore, is directed against the judgment and order passed by the learned Asstt. District Judge in the Execution Case being Title Execution Case No. 13 of 1985 arising out of that suit. The opposite party No. 2, the Plaintiff, brought the above suit, inter alia, praying for declaration that the Deed of Trust dated March 29, 1974, in favour of his two sons, namely, the opposite party No. 1 and the present revisionist, in respect of the part of premises No. 17A, Hem Chandra Naskar Road and also Deed of Gift dated January 31, 1975, in favour of opposite party No. 1 are void and not acted upon. He also prayed for cancellation of the deeds on the ground of fraud and misrepresentation. The parties entered appearance in the suit. The suit was ultimately compromised and decreed in terms of the petition of compromise filed on March 30, 1984. It was agreed by the parties to the suit that the opposite party No. 2 would execute two deeds of gift in favour of his two sons who were Defendants in that suit in respect of the sail property which belonged to him. The opposite party No. 1, one of the Defendants, put the compromise decree into execution and the executing Court refused to proceed with the execution case holding, inter alia, that there was no scope to execute any deed of gift in favour of either party to the suit through Court. It is alleged that no notice of such proceeding was served on the revisionist. Subsequently, the opposite party No. 1 filed an application under Sec. 151 of the Code of Civil Procedure for recalling the earlier order. The Court allowed such prayer and recalled the order and the Court asked for report of the Sheristadar as to the propriety of the draft deed of gift filed by the opposite party No. 1. The Court accepted the draft on the report of the Sheristadar and directed the execution of the deed of gift through Court. All these orders, it is alleged, were passed in the absence of the revisionist. The opposite party No. 2 who was the Plaintiff of the original suit, however, on August 5, 1989, executed a deed of gift in favour of the revisionist in respect of the disputed property. He took over possession of such property in terms of the compromise decree and paid Rs. 18,000 towards the Municipal Taxes. The opposite party No. 2 and the revisionist contested the application under Sec. 151 of the Code of Civil Procedure filed by the opposite party No. 1. But they were unsuccessful. The Misc. case brought under Sec. 47 of the Code of Civil Procedure by the opposite party No. 1 met the same fate. Thereafter, the revisionist filed an application under Sec. 151 of the Code of Civil Procedure for recalling such orders as entire proceedings were taken out in his absence and without his knowledge. The opposite party No. 1 filed an application for amendment of the execution petition for including the prayer for delivery of possession of the suit property in his favour with the help of Police. The Court rejected the Petitioner's application Under Sec. 151 of the Code of Civil Procedure for recalling the order passed in favour of the opposite party No. 1 while allowing the application for execution of the deed of gift through the Court and amendment of the execution petition. Being aggrieved by and dissatisfied with the judgment and order of the Court below passed on September 14, 1990, the Petitioner has come up in revision.

(2.) It has been urged by Sri N.K. Dey the learned Advocate, duly assisted by Sri N.R. Chatterjee, representing the revisionist that the Court should not have rejected application filed by the revisionist under Sec. 151 of the Code of Civil Procedure as all the proceedings were taken out in the absence of the revisionist. It has further been urged that the compromise decree is not executable as it related to extraneous matter not being the subject -matter of the suit. According to him, the deed of gift could not legally be executed through Court and the decree passed in this regard is a nullity and without jurisdiction.

(3.) Mr. S.P. Roy Chowdhury, the learned Advocate representing the opposite party, has on the other hand urged that the application under Ss. 151 and 152 of the Code of Civil Procedure filed by the revisionist in the Court below was misconceived as there was no scope for adding to or subtracting the compromise decree and that the executing Court cannot go behind the decree. According to him, the revisionist should have moved the Court below Under Rule 3 of Order 23 of the Code of Civil Procedure which, inter alia, provides that in case of any dispute as to any adjustment or any satisfaction arrived at between the parties preceding the compromise should be decided by such Court. He has drawn our attention to Rule 3A of the same Order which lays down that no suit shall lie to set aside a decree on the ground that the compromise on which the decree was based was not lawful.