Imbichamammad v. Ali — 1959 DIGILAW 405 (KER)

JUDGMENT C.A. Vaidialingam, J. 1. The defendants in O. S. 823/48 District Munsiff's Court, Quilandi, are the appellants in this Second Appeal. The matter arises in execution and the appeal is against the order of the learned District Judge confirming the order of the learned District Munsiff, directing delivery to be made to the plaintiff in R.E.P. 488/55. O. S. 823/48 District Munsiff's Court, Quilandi was filed by the respondent herein for recovery of arrears of rent from the defendants by sale of their tenancy rights in the land. According to the plaintiff, he leased the properties to the defendants on 27-9-46 and the defendants have agreed to pay every year 150 edangalis of paddy and Rs. 2/- in cash. As they had defaulted in payment of the rent for the years 1123 and 1124, he claimed to recover those arrears by sale of the tenancy rights of the defendants. 2. It is seen that on 30-7-51, the plaintiff and the defendants filed a memo of compromise, R.I.A. 3332/51 in the suit, whereby the defendants agreed to pay Rs. 253-5-6 including costs and further agreed to surrender possession of the properties after harvesting the 1127 Kanni crop. On the same date the compromise was recorded and the learned District Munsiff passed an order recording the compromise and passing a decree in terms of the compromise, so far as it relates to the subject matter of the suit. This order, it will be seen, is more or less in terms of Order XXIII, rule 3 of the C.P.C. A decree followed and the decree also incorporated the specific undertaking of the defendants to surrender the properties. 3. It is also seen that the plaintiff filed E.P. 170/52 for recovering the money portion of the decree and full satisfaction was also later on entered. But as the defendants did not surrender possession of the properties, the plaintiff filed O. S. 283/52 on the file of the District Munsiff's Court, Quilandi for recovery of possession of the properties from the defendants, in pursuance of the compromise decree together with mesne profits. 4. The defendants raised various contentions in the suit. But as the defendants did not surrender possession of the properties, the plaintiff filed O. S. 283/52 on the file of the District Munsiff's Court, Quilandi for recovery of possession of the properties from the defendants, in pursuance of the compromise decree together with mesne profits. 4. The defendants raised various contentions in the suit. While conceding that they had filed a Razi in O. S. 823/48, they contended that they had no knowledge of the existence of a clause in the said Razi about their agreeing to surrender possession of the property after taking the yield of 1127 Kanni. In fact, they also referred to an application R.I.A. 251/52 filed by the plaintiff for amending the decree in O. S. 823/48 for incorporating this clause, and stated that the said R.I.A. was dismissed. They also raised the plea that there was an execution petition E. P. 428/51 filed by the plaintiff for executing the decree, which was also dismissed and therefore, the said order bars the further rights, if any, of the plaintiff to seek recovery of possession of the properties. They also contended that the suit O.S. 283/52 was not maintainable and that the plaintiff's remedy, if at all, is to execute the compromise decree. The learned District Munsiff overruled every one of the objections of the defendants. That court held that the clause about surrender of delivery was already in the Razi, and it was so incorporated with the full knowledge and consent of the defendants. The learned District Munsiff also held that the profits claimed by the plaintiff were perfectly reasonable. The learned District Munsiff held that the order in R.I.A. 251/52 is no bar and that the defendants have not been able to satisfy that court regarding the bar on the basis of the order in E. P. 428/51. 5. The learned District Munsiff held that the plaintiff was at perfect liberty to execute the compromise decree and that it was absolutely unnecessary for him to have filed the suit for the purpose of getting possession of the properties. But to avoid any bar of limitation, the learned District Munsiff treated O. S. 283/52 as an execution petition and accordingly, directed the plaintiff to furnish the necessary particulars as required for an execution petition. In obedience to the order of the learned District Munsiff, the plaintiff filed the present R.E.P. 488/55. 6. But to avoid any bar of limitation, the learned District Munsiff treated O. S. 283/52 as an execution petition and accordingly, directed the plaintiff to furnish the necessary particulars as required for an execution petition. In obedience to the order of the learned District Munsiff, the plaintiff filed the present R.E.P. 488/55. 6. It may be stated that the original suit itself namely, 283/52 was filed on 29-8-52 and this suit was converted on 16-8-55 by the decree in the suit, as an execution petition and the necessary particulars, as an execution petition later, numbered as R. P. 488/55 were filed on 6-10--55. 7. Therefore, it will be seen that the learned District Munsiff, by his order dated 16th August 1955, and passed in O. S. 283/52, had overruled everyone of the objections raised by the defendants. 8. But curiously, when the same suit was continued as E. P. 488/55, the defendants again raised objections before the executing court. The defendants contended that the learned District Munsiff had no jurisdiction in O. S. 823/48, to record the compromise decree, with a clause regarding surrender of possession by the defendants. They contended that the said suit was a simple money suit claiming arrears of rent and therefore, the provision for surrender is not a matter "relating to the suit". On this ground they contended that the compromise decree itself is one passed without jurisdiction and therefore, the executing court has no power to execute such a decree passed by a court without jurisdiction. On the basis of certain decisions of the Madras High Court, the learned District Munsiff overruled this objection raised on behalf of the defendants and directed delivery of the properties in favour of the plaintiff. 9. The defendants carried the matter on appeal before the learned District Judge of Tellicherry who, by his order dated 13th November 1956, confirmed the order of the Trial Court. It is seen from the order of the learned District Judge that two contentions were raised namely, (1) of limitation and (2) the invalidity of the compromise decree. It is also stated by the learned Judge in paragraph 8 : "No other point was argued in the appeal." On both these points, the learned Judge decided against the defendants. 10. The defendants again challenge in this Second Appeal, the orders of the subordinate courts directing delivery of possession in R. E. P. 488/55. It is also stated by the learned Judge in paragraph 8 : "No other point was argued in the appeal." On both these points, the learned Judge decided against the defendants. 10. The defendants again challenge in this Second Appeal, the orders of the subordinate courts directing delivery of possession in R. E. P. 488/55. 11. Mr. V. M. B. Menon learned counsel for the appellants, contended that the compromise decree passed on 30-7-51 in O. S. 823/48, incorporating a clause about delivery of possession is without jurisdiction and therefore, the executing court should have refused to execute the said compromise decree. In this case, both the courts erred in allowing the plaintiff to execute the decree. 12. Mr. V. M. B. Menon also contended that the orders in R. I. A. 251/52 and E. P. 428/51 operate as a bar against the plaintiff from taking further proceedings in execution. Mr. V. M. B. Menon also contended that the present execution petition namely, R. E. P. 488/55 filed on 6-10-55 is barred by limitation, as the compromise decree sought to be executed, is dated 30-7-51. 13. On the other hand Mr. V. P. Gopalan Nambiar, learned counsel for the plaintiff respondent, supported the various reasons given by the two subordinate courts. The learned counsel contended that the order, R. I. A. 251/52 related only to an amendment asked for by the plaintiff, and that that application was dismissed as unnecessary. In fact, the clause which was sought to be incorporated by this application, was already in the original decree. So far as E. P. 428/51 is concerned, the learned counsel again contended that, though the appellants specifically raised this question during the trial of O. S. 283/52, they did not place any material before the court in support of their contention and that matter has been considered and decided against the appellants in paragraph 9 of the judgment in O. S. 283/52 while considering issue No. 3 therein. 14. It is also seen that the appellants did not argue this ground of attack before the learned District Judge, because the learned District Judge specifically says that only 2 points were raised and this is not one of the points that was argued. 15. Regarding the attack that the compromise decree in O. S. 823/48 incorporating the provision for surrender of the properties, is one passed without jurisdiction, Mr. 15. Regarding the attack that the compromise decree in O. S. 823/48 incorporating the provision for surrender of the properties, is one passed without jurisdiction, Mr. V. P. Gopalan Nambiar contended that the Madras High Court and other High Courts except the Calcutta High Court have uniformly taken the view that compromise decrees passed under such circumstances, cannot be considered to be passed without jurisdiction. It may be at the most, an erroneous exercise of jurisdiction, which the defendants should have corrected by way of appeal, and the executing court has no right to question the decree. Alternatively, Mr. V. P. Gopalan Nambiar also contended that the decisions bearing on Order XXIII, rule 3 of the C. P. C. have given a very liberal interpretation to the expression "So far as it relates to the suit." In this case, the plaintiff in O. S. 823/48 specifically asked for recovery of the arrears of rent for 1123 and 1124 by sale of the tenancy rights of the defendants and as part of the terms of the compromise, the defendants agreed to surrender possession of the properties held by them as tenants after harvesting the Kanni crop of 1127. This is also a matter which relates to the suit and therefore, the compromise decree is perfectly valid and binding on the appellants. 16. The contentions of Mr. V. M. B. Menon about the bar of limitation or the bar created by the orders in R. I. A. 251/52 and E. P. 428/51 can be briefly disposed of. It is seen that the bar based upon the orders in R. I. A. 251/52 and E. P. 428/51 has not been challenged before the learned Judge. It may be that it was raised in the grounds of appeal but the learned Judge has stated, that excepting the validity of the decree and limitation, no other point was argued before him. Therefore, when these grounds of attack, though raised, were not pressed before the lower appellate court, I cannot entertain any contention in this Second Appeal, based on the points which were not pressed before the lower court. Even otherwise, I am satisfied that the contention of Mr. V. M. B. Menon cannot be accepted on merits also. 17. Regarding the plea of limitation, here again, I entirely agree with the reasoning of the learned District Judge. Even otherwise, I am satisfied that the contention of Mr. V. M. B. Menon cannot be accepted on merits also. 17. Regarding the plea of limitation, here again, I entirely agree with the reasoning of the learned District Judge. The compromise decree, which is sought to be executed, was itself passed on 30-7-51 and the plaintiff filed O. S. 283/52 on 29-8-52 for recovery of possession under the compromise decree. The defendants raised an objection that the suit is not maintainable and that the proper remedy for the plaintiff is to proceed in execution. The learned District Munsiff converted O.S. 283/52 into an execution petition, and it is in pursuance of that, that the present R. E. P. 488/55 has been filed. It is really the plaint in O. S. 283/52 filed on 29-8-52 that has been converted into an R. E. P, and therefore, there is absolutely no bar of limitation. 18. The more substantial point raised by Mr. V. M. B. Menon is regarding the validity of the compromise decree in O. S. 823/48. Whatever it is, even the learned counsel was prepared to accept, that it is open to the plaintiff to treat the compromise decree as a contract and enforce it by a suit. That is exactly what the plaintiff attempted to do when he filed O. S. 283/52. But the present appellants, raised an objection that the suit is not maintainable and the plaintiff should seek recovery of possession by executing the compromise decree itself. The learned District Munsiff accordingly, after overruling all the objections of the defendants on the question of fraud etc., has converted the said suit into an execution petition and that is the present application to execute the compromise decree. Now the defendants raised an objection that the compromise decree cannot be executed, because that decree is one passed without jurisdiction. This is really an instance of the defendants blowing hot and cold and raising contentions as it suits their convenience. Really, they are approbating and reprobating. In my view, it is not open to the appellants to raise these objections in execution, when it was on the basis of their objection, that the suit was converted into a proceeding in execution. 19. Even otherwise, I do not think that I should accept the contention of Mr, V. M. B. Menon. Really, they are approbating and reprobating. In my view, it is not open to the appellants to raise these objections in execution, when it was on the basis of their objection, that the suit was converted into a proceeding in execution. 19. Even otherwise, I do not think that I should accept the contention of Mr, V. M. B. Menon. The Madras, Allahabad, Lahore, Bombay and Patns High Courts have held, under such circumstances, that the executing court cannot refuse to execute the decree in such cases. An objection to the execution of the decree cannot be allowed to be raised in the executing court, but must have been taken only by way of an appeal against the compromise decree as such. In these circumstances, all these courts have held that the decree cannot be said to be one passed without jurisdiction. The Calcutta High Court alone has taken the view that such a decree is inoperative and invalid and cannot be executed, in so far as it gives effect to the terms of a compromise not relating to the suit, and it is on this principle that Mr. V. M. B. Menon contends that the compromise decree is one passed without jurisdiction. The Madras decisions are those reported in The Manager of Sri Meenakshi Devastanam, Madura v. Abdul Kasim Sahib (ILR 30 Mad. 421 - Benson and Wallis JJ); Sabapathy v. Vanmahalinga (ILR 38 Mad. 959 - Ayling and Sadasiva Ayyar JJ); Ratnaswami Chetty v. Ratnamal (27 MLJ 388 - Sankaran Nair and Ayling JJ); Ramaswamy Nayudu v. Subbaraya Thevar ( AIR 1925 Mad. 1101 - Wallace and Madhavan Nair JJ) which are all Division Bench rulings; and the decision of a Single Judge in Govinda v. Murugesa (AIR 1932 Mad. 557 - Walsh J). The earliest Madras decision namely, The Manager of Sri Meenakshi Devastanam Mudura v. Abdul Kasim Sahib (ILR 30 Mad. 421 - Benson and Wallis JJ) was really based upon S.375 of the old Code corresponding to Order XXIII rule 3 of the present Code and all the other decisions have dealt with the present rule 3 of order XXIII, C. P. C. 20. 421 - Benson and Wallis JJ) was really based upon S.375 of the old Code corresponding to Order XXIII rule 3 of the present Code and all the other decisions have dealt with the present rule 3 of order XXIII, C. P. C. 20. The Allahabad view is in accordance with the Madras view, and the Full Bench decision of that court following the Madras decisions is the one reported in Shyam Lal v. Shyamlal (AIR 1933 Allahabad 649-F. B- Sulaiman C. J. Mukerji and King JJ). 21. The Patna view again accepting the Madras view, is represented by the decision in Muhammad Ismail v. Bibi Shaima (AIR 1934 Patna 203- Courtney-Terrell C. J, and Saunders J). 22. The Bombay view which is in accordance with the Madras decisions is stated in Bajirao v. Sakharam (AIR 1931 Bombay 295 -Madgavkar J) and Ambalal v. Sonabhai (AIR 1944 Bombay 46-Lokur J). 23. The Lahore view, which again is in accordance with the Madras decisions, is expressed in Lal Singh v. Mohan Singh (AIR 1934 Lahore 623- Jai Lal J) and Mushar of Hussain v. Agha Nunawar Ali (AIR 1940 Lahore 7 - Din Mohammad, J.). 24. These decisions lay down that even if a court passes a decree, relating to a matter which is extraneous to the suit, the decree passed as such, is not a nullity, for beyond the jurisdiction of the court which passed it. If a party was aggrieved by the insertion of such a clause in the compromise decree, the view expressed, is that he should have challenged the decree by way of an appeal against the compromise decree, and it is not open to him to challenge the correctness or otherwise of the decree in execution. 25. It is only the Calcutta High Court that has taken a different view and the decision in Arjun Kapali v. Asvini Kumar (AIR 1925 Calcutta 286- Suhrawardy J) is illustrative of that view. The observations of the Privy Council in Hemanta Kumari Debi v. Midnapur Zamindari Co. (ILR 47 Calcutta 485 PC -Viscount Haldane, Lord Buckmaster and Lord Dunedin) have been explained by almost all the decisions referred to above but the Calcutta High Court alone has understood it in a different way. The Calcutta rulings have not been accepted by the other High Courts. 26. (ILR 47 Calcutta 485 PC -Viscount Haldane, Lord Buckmaster and Lord Dunedin) have been explained by almost all the decisions referred to above but the Calcutta High Court alone has understood it in a different way. The Calcutta rulings have not been accepted by the other High Courts. 26. Therefore, even on the basis, that the provision for surrender of the properties in the compromise decree in O. S. 823/48, can be considered to be extraneous to the subject matter of the suit, the compromise decree passed under such circumstances, cannot be considered to be one passed without jurisdiction and as such, the defendants are not entitled to raise that objection before the executing court and the executing court also has no right to go into that question. Excepting the Calcutta High Court all the decisions of the other High Courts referred to above, have uniformly laid down, that if once extraneous matters are allowed to be included in a decree without any objection on the part of the defendants, the executing court cannot refuse to execute that part of the decree on the ground that it was extraneous to the subject matter of the suit. The defendant in such cases has got a right of appeal against the decree so drawn up, and could have had that clause, to which he is now objecting, cancelled or excluded. So long as the defendants, in this case, have not taken any such action, they cannot be allowed to avoid that part of the decree merely on the ground of its being inoperative. I respectfully agree with the decisions of the Madras, Allahabad, Bombay, Patna, and Lahore High Courts referred to above. Even if this view is erroneous, I would like to err in good company of the distinguished Judges who are parties to the decisions referred to above. Therefore, this contention of Mr. V. M. B. Menon fails. 27. But the matter could be also considered from an alternative standpoint. Even if this view is erroneous, I would like to err in good company of the distinguished Judges who are parties to the decisions referred to above. Therefore, this contention of Mr. V. M. B. Menon fails. 27. But the matter could be also considered from an alternative standpoint. In this case, it is seen that the suit O. S. 823/48 was admittedly filed for recovery of the arrears of rent of 1123 and 1124 by sale of the tenancy rights of the defendants and it is under those circumstances that the parties entered into a compromise and one of the considerations for the compromise so entered into was the term regarding the surrender of their tenancy rights by the defendants and delivering possession of the properties after the Kanni harvest of 1127. Even in these circumstances, the decisions referred to and which are followed by me, have placed a very wide interpretation on the expression "So far as it relates to the suit". In my opinion, there is nothing in principle or in the language of Order XXIII rule 3 to restrict the relief to be granted in accordance with the compromise, to what is actually prayed for in the plaint. If the Legislature's intention was that, it would have certainly expressed that intention in a more suitable language. The language, as used in Order XXIII rule 3, is wide and general and it is clear that it will be highly inconvenient, if the parties should not be allowed to settle their disputes on such lawful terms as they might agree to, without being restricted to such relief as one of the parties has chosen to claim in the plaint. In this case, the clause regarding the surrender of possession was a consideration for the compromise of the suit and therefore, it must be deemed to be part of the decree, which could be enforced in execution proceedings. Even in this view, having regard to the circumstances in this case, it cannot be stated that the clause regarding surrender of possession by the defendants, which itself was a term of the compromise, has no relation to the suit at all. 28. Even in this view, having regard to the circumstances in this case, it cannot be stated that the clause regarding surrender of possession by the defendants, which itself was a term of the compromise, has no relation to the suit at all. 28. That a very wide interpretation is placed upon Order XXIII rule 3 is also clear from a decision of Rajamannar C. J. of the Madras High Court reported in Somu Odayar v. Adilakshmi Ammal (1956-II MLJ Short Notes p. 53- Rajamannar C. J.). In a suit for injunction as against the defendant from interfering with his possession of the properties, the matter was compromised to the effect that the plaintiff therein was to pay a Certain amount before a particular date and if he so paid the amount, the plaintiff was entitled to remain in possession for a particular period. But the compromise therein also provided that if the plaintiff did not pay the amount within the period mentioned in the compromise, the plaintiff was bound to deliver possession of the property which could be taken delivery of by the defendant in execution of the compromise decree. The learned Chief Justice Rajamannar C. J. held that though the suit was not one by the defendant to recover possession, nevertheless, the provision in the compromise decree enabling the defendant to get possession of the properties from the plaintiff was not in any way illegal and a decree passed on those terms cannot be considered to be without jurisdiction. The learned Chief Justice has also held that such a clause in the compromise decree, in those proceedings, cannot be said to be wholly unrelated to the subject matter of the suit. 29. Similarly, applying the same principles in this case before me, even in the first instance, the plaintiff has asked for recovery of the arrears due to him by the sale of the tenancy rights of the defendants. Both the parties entered into a compromise and the defendants agreed to surrender possession of the properties, which possession the plaintiff is now trying to get, by executing the compromise decree. In my opinion, such a clause cannot be considered to be wholly unrelated to the subject matter of the suit. 30. All the contentions of Mr. V. M. B. Menon fail and the Second Appeal is dismissed with costs. No leave.