NAZIR AHMAD PANDIT Vs. HANEEFA

JUDGEMENT

(1.) THIS civil second appeal which is directed against the decision dated August 22, 1970, of the learned District Judge, Srinagar, dismissing appeals Nos. 40 of 1969 and 6 of 1970, and upholding the decision dated November 10, 1969, of the City Judge, Srinagar, raises interesting questions relating to the validity and executability of the compromise decree passed on the 6th Bhadoon, 2002 (Samvat) in a suit brought by Mst. Haneefa Banu, respondent, for partition of immovable property excluding agricultural lands left by her father, Hajee Ahmed Pandit, who appears to have been possessed of huge assets in the form of lands, houses etc. and business interests. The said decree ran as follows: "As per compromise a decree for partition of property is passed in favour of plaintiff and against the defendants. Defendant No. 4 has been given up. She is discharged. Parties will bear their own costs. Since the parties have themselves made a partition there is no point in making a preliminary decree and the decree shall therefore be treated as final decree. It may be noted that the terms of the compromise are very long and as such these are entered on the reverse of this decree -sheet dated 6th Bhadon 2002." After the passing of the aforesaid decree Mst. Haneefa made a number of applications for execution of the decree. The first of these applications appears to have been filed on the 17th Baisakh, 2003, which was dismissed on 26th Chet, 2004. the second application was filed on 7th Poh. 2005, which was consigned to the records on the 4th Katik, 2006, the third application was filed on 13th of Assuj, 2009, which was dismissed on 6th October, 1955 and the fourth application which is the last in the series and which has unduly lingered on for a long time was filed on 9th March, 1957. On the filing of this application the appellants took the following objections to the execution of the decree: (i) that the decree being based upon a compromise which included property extraneous to the suit, the same is invalid and unenforceable; (ii) that the decree was a nullity and inexecutable as Assad Ullah, one of the persons against whom the decree was passed, was a person of unsound mind and no guardian -ad litem was appointed for him; (iii) that the decree was also a nullity and inexecutable as Ahmed Dar, one of the defendants, against whom the decree was passed had already died when the compromise was made and the decree was passed and he was not duly represented in the compromise; (iv) that the execution is barred by limitation. All these objections were over -ruled by the City Judge, Srinagar, vide his aforesaid order dated November 10, 1969. On appeal the decision of the City Judge, over -ruling the objections was upheld by the learned District Judge, Srinagar, as stated above. It is against this decision that the present appeal has been preferred.

(2.) MR . Beg appearing on behalf of the appellant has reiterated the aforesaid objections which shall be dealt with by us ad -seriatim. Objection No. 1:

(3.) FOR a proper determination of this objection, it will be advantageous to refer to order 23 Rule 3 of the Code of Civil Procedure which provides: "Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise, or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject -matter of the suit, the Court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith so far as it relates to the suit." A careful perusal of the above provision would show that the compromise decree has to be in relation to the subject matter of the suit and not in relation to the matters extraneous to the suit. This does not however, mean that if the parties include extraneous matters in the compromise deed and the Court passes a decree upon the basis thereof, the entire decree is invalid or unenforceable. In a case of this nature the operative portion of the decree is restricted to the matters covered by the suit and it is perfectly legal for the Court passing the decree to execute the same in so far as it relates to the matters covered by the subject matter of the suit. We are fortified in this view by a Division Bench decision of this Court in Duni Chand and another V. Shiv Lal & another (A. I. R. 1957 J & K 26) where it was held: "Where a compromise comprises matters unconnected with the suit, the proper course for the Court is to recite the compromise as a whole in its decree or in the form of a schedule to the decree for purposes of reference but to restrict the operative part of the decree to those terms of the compromise which relate to the suit." To the same effect is the decision of a Special Bench of the Patna High Court in Chari Chandra Mitu V. Shambu Nath Pandey and others, A. I. R. 1918 Patna 507. As therefore rightly held by the lower appellate Court the executing Court will overlook the portion of the decree which relates to the property falling outside the scope of the suit and confine itself to the matters which fall within the scope of the suit. The first contention raised by Mr. Beg is accordingly repelled. Objection No. 2: