RADHEY SHAM Vs. JUGMINDER

JUDGEMENT

(1.) This revision petition has been filed against order dated 30.8.2001, vide which, application of the petitioners, to dispose of the pending execution, on the basis of compromise entered into between the parties, was dismissed. It was case of the petitioners that respondent No.1 had entered into a compromise on his behalf and also on behalf of respondent Nos.2 to 6, to withdraw the execution, as having been satisfied, on receipt of Rs.six lacs. Rs.five lacs were paid through cheques and remaining one lac was paid in cash. When despite having received the money, pending execution was not withdrawn, the petitioners moved an application, which was dismissed, vide impugned order. The executing Court has found it as a matter of fact that so far as payment of Rs.six lacs, to respondent No.1 in consequent to compromise is concerned, the same stands proved on record. A categoric finding to that extent, after discussing evidence on record, has been given in paragraph Nos.22 and 35 of the order, under challenge. The Court below has refused to act upon the compromise because of the fact that respondent No.1 was not competent to sell shares of respondent Nos.2 to 6, as he was never appointed by them as their attorney.

(2.) To that extent, this Court feels that the order passed is perfectly justified. However, the Court below has committed an error in not granting any relief to the petitioner qua respondent No.1. There is no dispute that respondent No.1 was competent to effect compromise regarding his share in the property, in dispute and further that he had also received the money for himself and for other respondents. So far as his share is concerned, Rs.one lac would fall to his share and remaining Rs.five lacs, which he had received on behalf of others, he was bound to return the same. The Courts bellow, in such like matters are supposed to settle equities between the parties. By not granting any relief to the petitioners even qua respondent No.1, grave injustice has been caused to him. Counsel for respondent No.1 has failed to show as to why respondent No.1 be not ordered to return the money, which he has received on behalf of other respondents. In view of facts and circumstances of this case, order, under challenge, is modified to the extent that qua the share of respondent No.1 in the property, in dispute, the decree stands satisfied and further that respondent No.1 shall return Rs.five lacs alongwith 6% interest (simple) from the date of receipt till its payment to the petitioners, within three months from today, failing which the petitioners be at liberty to recover the said amount as a decree of the civil Court.

(3.) Revision petition stands disposed of.