SURAJ MAL Vs. SHIV LAL

JUDGEMENT

(1.) SURAJ Mal petitioner has filed the instant revision petition under article 227 of the Constitution of India for setting aside the order dated 24.12.1993 (Annexure P-2) passed by the Additional District Judge Hisar. Vide that order the Additional District Judge had set aside the order dated 4.6.1992 passed by the Executing Court vide which it was held that the execution application filed by the respondent for executing the compromise decree in his favour was not maintainable.

(2.) THE instant dispute is between father and son. The petitioner is the son whereas the respondent is the father. The petitioner filed a suit for declaration and possession against his father regarding certain lands mentioned in the suit. The said suit was decided on the basis of a compromise between the parties under Order 23 Rule 3 of the Code of Civil Procedure (hereinafter referred to as 'the Code'). According to the compromise decree, the respondent (father) was to relinquish his possession over khasra No. 201/12/12 (0-14) (which was the subject matter of the suit) in favour of the petitioner (son), while, the petitioner was required to hand over the possession of khasra No. 315/8/2 (which was not the subject matter of the suit) (hereinafter referred to as the disputed land) to the respondent. In view of the aforesaid compromise decree, the respondent complied with his obligation and delivered the possession of aforesaid khasra No. 201/12/2 to the petitioner, whereas the petitioner did not deliver the possession of the disputed land to the respondent. Hence, the respondent filed execution petition before the Executing Court for executing the part of the decree in his favour and for taking possession of the disputed land. The said execution petition was opposed by the petitioner on the ground that since the disputed land was not the subject matter of the suit, therefore, the respondent can not enforce the decree for recovery of possession of the said land by filing the execution petition; and he can execute the decree for the said land by filing a separate suit for specific performance and possession. The objections filed by the petitioner were accepted by the Executing Court. While relying upon the decision of Orissa High Court in Chander Sheikhar Patel v. Pritam Patel and others, A.I.R. 1977 Orissa 82 and a decision of Allahabad High Court in Smt. Burmawati and another v. Ramesh and another, A.I.R. 1980 Allahabad 297, the Executing Court held that where the compromise decree contains the terms pertaining to a property which did not relate to the suit property, such terms can only be enforced by a separate suit, and a party in whose favour the decree has been granted for such property cannot execute the same by filing execution. The Executing Court did not take the notice of the amendment made in Order 23 Rule 3 of the Code vide which the words "so far as it relates to the parties to the suit whether or not the subject matter of the agreement or compromise is the same as the subject matter of the suit" have been inserted in place of the words "so far as it relates to the suit".

(3.) LEARNED counsel for the petitioner canvassed that the order passed by the learned Additional District Judge is wholly without jurisdiction, as after the amendment of 1976 in the Code, no appeal lies against the dismissal of the execution petition by the Executing Court. Against that order the aggrieved party (respondent) should have filed a revision petition. Therefore, the said order is liable to be set aside under the superintending powers of this Court under Article 227 of the Constitution of India. Counsel for the petitioner raised only this point regarding jurisdiction of the Additional District Judge to hear the appeal against the order of the Executing Court. However, during the course of arguments, when learned counsel for the petitioner was asked by this Court to justify the order dated 4.6.1992 passed by the Executing Court, he could not satisfy this Court as to how the said order was a valid order. Undisputedly, the compromise decree was passed subsequent to the amendment made in Order 23 Rule 3 of the Code in the year 1976. After the amendment it is immaterial whether the property mentioned in the compromise is the subject matter of the suit or not made. In compliance of the compromise decree, the respondent delivered possession of the land, which was subject matter of the suit, to the petitioner. However, the petitioner did not fulfil his obligation under the compromise decree and refused to deliver possession of the disputed land to the respondent. The execution petition, filed by the respondent, was dismissed by the Executing Court solely on the ground that the same was not maintainable as the disputed land, for which the execution petition was filed, was not the subject matter of the suit, and for such property the respondent was required to file a separate suit. Such view was taken by some of the High Courts prior to the aforesaid amendment made in the year 1976 in Order 23 Rule 3 of the Code. As there was conflict in opinions of different High Courts, the said conflict was resolved and the position was clarified by the aforesaid amendment. The Executing Court has completely failed to note the aforesaid amendment and has relied upon the decisions in Chander Sheikhar Patel v. Pritam Patel and others (supra) and Smt. Barmawati and another v. Ramesh and another (supra), which were rendered under the unamended provisions of Order 23 Rule 3 of the Code. This Court in Jagtar Singh v. Balbir Singh (supra) has clearly held that where a Court has the jurisdiction to deal with the property having regard to its nature, character and value, the mere fact that it was not originally included in the plaint would not oust the jurisdiction of the Court, when it was acting upon the agreement of the parties. In cases where a part of the compromise decree does not strictly speaking relate to the matter involved in the suit and a decree has been passed on the basis of compromise including a property which was not the subject matter of the suit, the said compromise decree will be perfectly valid and binding on the parties. The validity of such decree cannot be questioned in the execution proceedings and such compromise decree can be duly executed by the Executing Court on the petition filed by the Decree Holder.