PRITAM DASS Vs. CHAIRMAN, MUSLIM AUQAF, JAMMU

JUDGEMENT

(1.) A suit between the parties was pending some time back which was ultimately compromised in the High Court, and the High Court passed a decree in terms of the compromise arrived at between the parties. This compromise decree was passed on 16.8.1971 and amended subsequently on the application of one of the parties, on 28th of April, 1972.

(2.) ON 2.8.1982 the present appellants filed a suit against the respondent, by which they sought a mandatory injunction against the defendant -respondent to the effect that he should complete the construction of the shops in terms of the compromise laid down in the decree passed by the High Court on 16.8.1971 and 28.4.1972 and hand -over the possession of the shop in accordance with the compromise arrived at by him with the appellants -plaintiff. The case of the plaintiffs -appellants was that by virtue of the compromise arrived at by the parties, the defendant -respondent had to hand -over a shop to the plaintiff after the re -construction of the khokha which was in possession of the plaintiff, and who had handed it over to the defendant. The appellants submit that after handing over the khokha in accordance with the terms of the agreement, the shop was constructed but it was not partitioned in accordance with the compromise and possession was not handed over to the plaintiff.

(3.) THE suit was resisted by the defendant/respondent, and the main objection taken was that in view of Section 47 of the CPC the suit was not maintainable. Since, this is a second appeal, this Court is not going to deal with all the issues. Mr. Khajuria appearing for the appellants submits that the compromise arrived at between the parties in the High Court was in fact a fresh agreement between the parties, and his clients had a right to move the Court for its execution, whereas counsel for the respondent submitted that the compromise had merged into the decree of the High Court and no suit would lie for execution of the decree in view of bar created under Section 47 of the CPC. Both the Courts below have agreed with the contention of defendant -respondent. It will be profitable to reproduce Section 47 of the CPC, as under: