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2007 DIGILAW 1944 (DEL)

MOHD. IQBAL v. MOHD. AAMIN

2007-11-30

BADAR DURREZ AHMED

body2007
BADAR DURREZ AHMED, J. ( 1 ) ON 25. 02. 1991 statements of the plaintiff and the defendant were recorded in Court. The statements were to the effect that the parties have amicably settled out of Court and an agreement has been arrived at dated 25. 02. 1991. ( 2 ) AN application under Order 23 Rule 3 of the Code of Civil Procedure, 1908 was filed and was taken up on 25. 02. 1991 itself. Along with the application the agreement dated 25. 02. 1991 was also annexed as Annexure a thereto. Upon hearing the counsel for the parties and after recording the statements of the plaintiff and the defendant and recording that both the parties had undertaken that they would be bound by the terms of the compromise as recorded in the said agreement dated 25. 02. 1991 (Ext. P-2), this Court granted permission to the plaintiff to withdraw the suit. The suit was dismissed as withdrawn and the Court directed that the parties shall be bound by the terms of the compromise Ext. P-2. It was a term of the compromise that the land in question would be handed over by the defendant to the plaintiff for the purposes of construction and that the defendant would get 6% of the built up area after the construction is done. It was also a term of the settlement/ agreement arrived at between the parties that if the construction is abandoned for any reason whatsoever, then the plot measuring 435 sq. yds. shall revert to the defendant and the agreement dated 25. 02. 1991 would become null and void. Thereafter, the defendant would be free to use the land according to its desire. ( 3 ) THE present execution petition was filed on the premise that no construction whatsoever had been carried out at the plot in question and in terms of the settlement/ agreement and in particular Clause 10 thereof, the property was to revert to the defendant in the suit. On 12. 03. 2004 after hearing the objections raised by the judgment debtor, this Court was of the view that since the suit was dismissed as withdrawn, there was no decree in favour of any of the parties and consequently the question of entertaining the execution petition on the basis of Clause 10 of the agreement did not arise. On 12. 03. 2004 after hearing the objections raised by the judgment debtor, this Court was of the view that since the suit was dismissed as withdrawn, there was no decree in favour of any of the parties and consequently the question of entertaining the execution petition on the basis of Clause 10 of the agreement did not arise. The Court was of the view that Clause 10 of the said agreement constituted a new contract between the parties and that no decree had been passed by the Court in terms of Clause 10 against the judgment debtor. As a result of this, the execution petition was found to be not maintainable and was dismissed. Liberty, however, was granted to the decree holder to seek other remedies on the basis of the aforesaid Clause 10 of the agreement in accordance with law. Being aggrieved by the said dismissal of the execution petition, the applicant/ decree holder filed an appeal being EFA (OS)13/2004. That appeal was disposed of by a Division Bench of this Court on 18. 11. 2005. The Division Bench was of the view that when the order dated 25. 02. 1991 was passed by this Court permitting withdrawal of the suit, the court was conscious of the fact that the suit had been withdrawn in view of the compromise which had been placed on record. The Division Bench specifically note that it is because of that that the Court had directed that the parties would be bound by the terms of the compromise. Consequently, the Division Bench concluded that the observation of the Executing Court that Clause 10 of the agreement was a new agreement between the parties, did not appear to be correct. As a result of this conclusion, the Division Bench set aside the impugned order and remanded the case back to the Executing court to decide the execution petition afresh in the light of the observations made by the Division Bench. ( 4 ) AS against this order of the Division Bench, the learned counsel for the decree holder submitted that the judgment debtor filed a Special Leave petition which was also dismissed by the Supreme Court by its order dated 10. 04. 2006. ( 4 ) AS against this order of the Division Bench, the learned counsel for the decree holder submitted that the judgment debtor filed a Special Leave petition which was also dismissed by the Supreme Court by its order dated 10. 04. 2006. ( 5 ) THIS being the position, the learned counsel for the decree holder presses for warrant of possession in respect of the plot in question inasmuch as the said plot was to revert to the decree holder in terms of Clause 10 of the agreement dated 25. 02. 1991. The learned counsel for the judgment debtor maintained his objections that there was nothing before this Court to execute because the suit had been withdrawn. The learned counsel for the judgment debtor submits that no time limit had been fixed by virtue of the agreement" dated 25. 02. 1991 within which the judgment debtor in conjunction with the builders mentioned in the agreement were to carry out the construction. According to his interpretation, Clause 10 of the agreement would come into operation only when the developer abandons the project. Since that event has not taken place, according to him, the decree is not yet executable. ( 6 ) HAVING considered the submissions made by the learned counsel for the parties and noting the events that have taken place in this case, I am of the view that the question of the decree being executable stands settled by the Division Bench order of 18. 11. 2005. The conclusion of the Division Bench that Clause 10 of the agreement was not a new agreement between the parties makes it clear that the same was part of the decree and could be the subject matter of execution. The only question that remains is whether the time for application of Clause 10 has arrived or not. According to the learned counsel for the judgment debtor there was no time fixed and it is only when the developer abandons the project that the right to take action under section 10 of the agreement would accrue to the decree holder. However, according to the learned counsel for the decree holder where no time is fixed, a reasonable period of time ought to be considered. He submits that the order was passed by this Court on 25. 02. However, according to the learned counsel for the decree holder where no time is fixed, a reasonable period of time ought to be considered. He submits that the order was passed by this Court on 25. 02. 1991 and it is only after 8 years that he filed the present execution petition in 1999. Moreover, from 1999 to the present day a further 8 years have elapsed. Therefore, a total of 16 years have elapsed since the order dated 25. 02. 1991. This can certainly be construed as being beyond a reasonable period. I agree with the learned counsel for the decree holder and, therefore, I am of the view that the decree holder is entitled to the warrants of possession in respect of the plot in question. The warrants of possession shall be issued. This petition stands disposed of.