SONAULLAH MIR Vs. AB RASHID

JUDGEMENT

(1.) THIS is a second appeal against the judgment of the District Judge Anantnag by which the order of the Munsiff Anantnag was modified.

(2.) THE respondent filed a suit against the appellant herein in the court of the Munsiff for a declaration that he was the owner of a half share in the suit property and that he was in lawful possession thereof. Before the suit proceeded for trial the appellant and the respondent entered into a compromise and a joint application was filed in court praying that a decree be passed in terms of the compromise. The salient terms of the compromise were that the appellant should pay Rs. 14,000/ - to the respondent on receipt of which a decree for possession should be passed in favour of the appellant in respect of the suit property, A sum of Rs. 4,000/ - was paid immediately at the time of execution of the compromise deed and the balance of Rs. 10,000/ - was to be paid within three years of the passing of the decree. The respondent was to be in possession of the suit property till the balance of Rs. 10,000 was paid to him and if the balance was not paid to him within the time stipulated the suit must be deemed to have been decreed in his favour as prayed for in the plaint. The appellant deposited in court the balance of Rs. 10,000/ - within the time stipulated, but the respondent did not withdraw this amount and also refused to hand over possession of the suit property to the appellant. The appellant therefore filed an execution application and sought execution of the decree for possession of the suit property. The execution petition was allowed and an order was passed directing the respondent to deliver possession of the suit property to the appellant and on his failure to do so permitting the appellant to take possession of the suit property through the court.

(3.) AGAINST this order the respondent filed an appeal and contended that the trial court had no jurisdiction to pass the decree, that the decree was a nullity and that the decree therefore could not be executed. The learned District Judge held that the decree could be executed only in respect of the relief given in favour of the respondent namely that on the failure of the appellant to pay the balance of Rs. 10,000/ - within the time stipulated, the respondent would be declared as entitled to a half share in the suit property and also to be in lawful possession of the same, but that the decree could not be executed in respect of the relief given in favour of the appellant namely that on his paying the balance of Rs. 10,000/ - to the respondent a decree for possession should be passed in favour of the appellant. The learned District Judge therefore modified the order of the executing court accordingly;