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2002 DIGILAW 180 (HP)

Bachiter v. Moti Singh

2002-06-28

M.R.VERMA

body2002
JUDGMENT : M.R. Verma, J. (Oral) – 1. This revision petition under Sections 115 of the Civil Procedure Code is directed against the order dated 31.10.2001 passed by the learned Sub Judge, I-Class, Jawali whereby warrant of possession in execution of a decree in favour of respondent No. 1 has been ordered to be issued. 2. I have heard the learned counsel for the parties and have also gone through the records and am of the view that the revision petition deserves to be accepted an the matter remitted to the executing Court. 3. The material and relevant facts which are not in dispute, are that respondent No. 1 Moti Singh (here-after referred to as 'respondent No. 1') had instituted a suit for possession of land comprising Khata No. 3 min (2 min in red), Khatauni No. 12, Khasra Nos. 1413, 1416, 1417 to 1420, 1451, 1452, 1454, 1460, 1462 and 1456 measuring 136-34 Hectares, situate in Tika Dhawa, Mauza Nan Khas, Tehsil Jawali against the petitioner and proforma respondents in the Court of the learned sub Judge, First Class, Nurpur. The said suit was finally disposed of by the trial Court on the basis of a compromise and statements of respondent No. 1 and the petitioner on 27.9.1996 and a decree sheet was ordered to be prepared as per the compromise which, along with the statements of the parties, was to form a part of the decree. Copy of the order dated 27.9.1996 disposing of the suit as per the compromise as aforesaid and copies of the compromise and the statements of the parties are found on the record. However, there is no copy of decree sheet but all at the same what is clear from the order dated 27.9.1996 is that the suit was decreed in terms of the compromise and the statements of the parties. According to the compromise, it was agreed between the parties that the petitioner would give 18 kanals or land in lieu of the suit land to respondent No. 1 within three months of the execution of the compromise, i.e. 27.9.1996. The land so given was to be adjacent to the land of respondent No. 1 and was to be given as per the classification of the land in suit. The land so given was to be adjacent to the land of respondent No. 1 and was to be given as per the classification of the land in suit. In the event of failure of the petitioner to abide by the compromise within the stipulated period, the suit of respondent No. 1 was to be deemed to have been decreed and in case of any default committed by respondent No. 1 in complying with the terms and conditions of the compromise in completing the exchange within the stipulated period, his suit was to be deemed to have been dismissed. In view of the contents of the compromise and the aforesaid order disposing of the suit in terms of the compromise, the period of three months to complete the exchange by the parties as per the compromise started running from 28.9.1996 and expired on 26.12.1996, but admittedly, the exchange as per the compromise was not completed. Evidently, in view of the non-completion in of the exchange within the stipulated period, either of the alternatives provided in the compromise was to operate as a decree. The application for execution was moved by respondent No. 1 on 17.1.1997 complaining that the petitioner and the proforma respondents were not implementing the compromise, therefore, the same be enforced/implemented. Evidently, this application has been filed after expiry of the period of three months by which the exchange was to be effected and failing which either the suit of respondent No. 1 was to be deemed to have been decreed if the failure to complete the exchange was because of the act and conduct of the petitioner or the suit was to be deemed to have been dismissed if the failure to complete the exchange was because of the act and conduct of respondent No. 1. 4. The executing Court appears to have not realised the implications of the terms and conditions of the compromise and the consequential decree and proceeded to execute the decree as if it was for the exchange and no effort has been made to decide whether by virtue of the lapse of the stipulated period can the decree for exchange of land be executed or it stood substituted either by decree for possession of the suit land or by dismissal of the suit because of the lapse of time. 5. 5. In view of the above discussion, the only conclusion which can be drawn is that the Court by issuing the warrant to give effect to the decree regarding exchange has misdirected itself in implementing its decree without ascertaining whether the decree for exchange could be executed because of the lapse of time or the suit was to be deemed to have been decreed and such decree was to be executed or the suit was deemed to have been dismissed and there was no executable decree. 6. As a result, this revision petition is allowed and the impugned order is set aside. The case is remitted to the executing Court with the direction to first ascertain as to whether despite expiry of the stipulated period as per the terms and conditions of the compromise forming part of decree, the decree for exchange is to be executed or whether the exchange could not be effected by the parties because of the failure of either of them and if so whether the decree for possession of the suit land had become effective or the suit stood dismissed and after ascertaining as to which part of the decree is now operative because of the lapse of the stipulated time for effecting the exchange, to proceed with the matter in accordance with law. 7. The parties, through their learned counsel, are directed to appear before the executing Court on 5.8.2002.