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2007 DIGILAW 250 (KAR)

K. S. VENKATESH v. N. G. LAKSHMINARAYANA

2007-04-04

N.KUMAR

body2007
KUMAR, J, J. ( 1 ) THIS is a plaintiffs second appeal against a concurrent finding recorded by the Courts below that the suit schedule property is not a joint family property. Therefore, the plaintiff has no right to challenge a compromise decree passed by the High Court. ( 2 ) THE facts as set out in the plaint are as under: the land bearing Sy. Nos. 57, 63 and 2 of Narasipura Village, anandapura Hobli, Sagar Taluk, measuring 1 acre 3 guntas, 29 guntas and 11 guntas was purchased by the second defendant, the plaintiffs father under a registered sale deed dated 2-11-1955 for valuable consieration out of the joint family funds. The said sale deed was executed by Sri Govindappa Hegde and his son N. G. Mahabalagiri and the first defendant. The first defendant was a minor running 16 years on the date of the sale. The said sale deed was executed for the benefit of the family. At the time of purchasing the said lands, it was in hopeless condition and the vendors of the second defendant could not manage the said property as such the sale took place in favour of the secodn defendant. After purchasing the said land the said lands have been improved by investing fabulous amount out of the joint family funds to the tune of more than a lakh. Now all the above said lands have been improved and arecanuttrees have been raised and they are yielding. ( 3 ) IT is further stated in the plaint that the first defendant filed suit o. S. No. 454/67 on the file of the Munsiff, Sagar, seeking a declaration to set aside the sale to an extent of his 1/3rd share. After contest the suit came to be dismised on 31 -7-1970. He preferred an appeal in r. A. 93/70 on the file of the Civil Judge, Shimoga. After contest on 20-3-1972 the appeal was allowed and the suit was decreed. The second defendant preferred a second appeal in R. S. A. 707/72 before this Court. On 3-4-1978 a compromise was entered into in the second appeal. In terms of the cmpromise land bearing No. 57 of Narasipura measuing 1. 03 acres was given to the first defendant by way of his share which is admittedly in excess of the suit claim. On 3-4-1978 a compromise was entered into in the second appeal. In terms of the cmpromise land bearing No. 57 of Narasipura measuing 1. 03 acres was given to the first defendant by way of his share which is admittedly in excess of the suit claim. Even if the suit has been decreed, the first defendant would not have been entitled to the said extent of land. It is stated that the suit itself was not maintainable because the sale proceeds derived out of the said lands have been utilised and employed for the development of the first defendant father's business and also for the education of the first defendant. It was not a joint family property of the first defendant. It was a self acquired property of his father. Plaintiff came to know that on account of the careless management of the suit by the second defendant it ended in failure. He has yielded to the first defendant who is his close relative. The second defendant had no power or authority to enter into such a compromise. The said compromise is not for legal necessity or benefit of the plaintiff. Even otherwise the compromise is not in accordance with the provisions of the Code of Civil Procedure. Now the first defendant is trying to execute the said decree in Ex. No. 168/78. Therefore, on coming to know of the same, the plaintiff filed the present suit for declaration that the compromise decree said to have been entered into between the second defendant and the first defendant in r. S. A. No. 707/72 on the file of the High Court of Karnataka is null and void and unenforceable and not binding on the plaintiff and for a consequential permanent injunction restraining the first defendant, his men and representative, etc. from executing the compromise decree and for reliefs. The suit is filed on 22-5-1989. ( 4 ) THE defendants entered appearance. The first defendant filed written statement denying the claim of the plaintiff. The first defendant admitted relationship between the parties. However, he denied that the plaintiff was bom on 4-1-71. He admits the sale deed in favour of the second defendant in respect of the suit schedule property, but it was specifically contended that the sale deed was supported by valuable consideration; it did not flow out of the joint family funds. The first defendant admitted relationship between the parties. However, he denied that the plaintiff was bom on 4-1-71. He admits the sale deed in favour of the second defendant in respect of the suit schedule property, but it was specifically contended that the sale deed was supported by valuable consideration; it did not flow out of the joint family funds. The allegation that the sale came into existence for family benefit was also denied. He admitted the earlier legal proceedings, which culminated in the compromise decree in the second appeal before this court. Further it was denied that the said compromise was a result of undue influence and fraud as alleged in the plaint. They have set out in detail how the compromise came into existence. It was averred that the second defendant was the manager of the family and as such the compromise entered into by him is notonly binding on him, but the famly interest is well protected. The plaintiff has no authority to question the said compromise and therefore the same cannot be declared as null and void. As per. the terms of the compromise, when the first defendant offered to pay Rs. 15,000/- within the stipulated period, the second defendant refused to recive the same. The second defendant backed out of the compromise. Second defendant has deposited the said sum in Court. The compromise entered by the second defendant is binding on all members of the fami ly. Two elder brothers of the plaintiff did not initiate any legal proceedings to get rid of the compromise. The present suit is also time barred and it is not maintainable. The plaintiff has no right over the suit schedule property. Therefore his remedy is only for the general partition including all other joint family properties. He is not entitled for declaration or injunction as prayed for in the plaint. Subsequently, the written statement was amended by introducing paragraph 5 (a) to (c ). The plea raised was that the very same case which is put forth in the suit was put forth by the plaintiff in an application under Order 21 Rule 97 CPC, in the exectuion proceedings and the question involved in this suit is already decided in the said proceedings and therefore the suit is not maintainable. The plea raised was that the very same case which is put forth in the suit was put forth by the plaintiff in an application under Order 21 Rule 97 CPC, in the exectuion proceedings and the question involved in this suit is already decided in the said proceedings and therefore the suit is not maintainable. Secondly, it was contended that the compromise decree which is challenged in the suit is passed by the High Court and the civil Judge Court has no jurisdiction to cancel such a decree. Lastly, it was contended that the second defendant who is a party to the compromise has not filed any objection nor has challenged the same till now and therefore the plaintiff has no right to challenge the said compromise petition. ( 5 ) THE second defendant also filed a separate written statement. He has virtually supported the case of the plaintiff. He admitted the earlier proceedings between the parties. He asserts that the suit schedule property was a joint family property. The compromise is not lawful. The compromise as entered is not only against the interest of joint family but also is not in conformity with the provisions of Code of Civil Procedue. The plaintiff has every right to protect the interest of the joint famly property and therefore sought for appropriate orders to be passed. ( 6 ) ON the aforesaid pleadings the Trial Court framed the following issues: Recasted Addtional Issues framed on 28-6-2000 1. Whether the defendant No. 1 proves that the relief prayed in this suit is relating to the execution of the decree passed in RSA. 707/72 hence the suit is barred under Section 47 and order 21 Rule 97 to 104? 2. Whether the defendant No. 1 proves that the decree in rsa 707/72 is passed by the Hon'ble High Court of karnataka. Hence, this Court has no jurisdiction to go into the questioning of its validity? 3. Whether the defendant No. 1 proves that defendant No. 2 who is a party to the suit in RSA 707/72 has not challenged the decree passed in RSA 707/72 and therefore, the plaintiff cannot challenge the same? 4. Whether this Court has no jurisdiction to grant the relief claimed in this suit, since the plaintiff has raised the same contention in Execution 168/78 by filing protest application ? 5. 4. Whether this Court has no jurisdiction to grant the relief claimed in this suit, since the plaintiff has raised the same contention in Execution 168/78 by filing protest application ? 5. Whether the defendant No. 1 proves that the compromise entered between the defendant No. 1 and 2 is just and binding on the plaintiff? 6. Whether the suit of the plaintiff barred by law of limitation? 7. Whether the plaintiff proves that the compromise entered into between the defendant No. 1 and 2 RSA 707/72 is void as per order 23 Rule 3 (b) CPC ? ( 7 ) THE plaintiff was examined as P. W-1 and. produced 24 documents which are marked as Exs. P-1 to P-24. On behalf of the defendants, first defendant was examined as DW-1 and 30 documents were produced which are marked as Exs-D-1 to D-30. ( 8 ) THE Trial Court on consideration of the aforesaid oral and documentary evidence on record held that the plaintiff utterly failed to prove that the compromise and the order passed by the Hon'ble High court in RSA No. 707 of 72 are illegal and arbitrary in law. He has also failed to prove that the compromise is against the provisions of law under Order 23 Rule 3b of C. P. C. Coming to the said conclusion the Trial Court has held that the suit schedule properties are not joint famly properties, but it is the sole acquisition of the second defendant in which the plaintiff has no right at all. Further it held the second defendant has failed to prove that after purchasing the suit schedule property as well as the other two properties, he has invested lot of money in lakhs of rupees for the development of the said property. It also held that the first defednant had complied with the compromise terms in so far as payment of Rs. 15,000/- within the stipulated time and did not commit any default. It further held that the suit maintainable and the findings recorded u/s 47 r/w Order 21 Rule 97 and 98 would not operate as resjudicata in view of Rule 104 of C. P. C. It also held the suit of the plaintiff is not barred by law of limitation. The Civil court has jurisdiction. The compromise decree passed by the High court can also be challenged before the Civil Court. The Civil court has jurisdiction. The compromise decree passed by the High court can also be challenged before the Civil Court. Therefore it dismissed the suit of the plaintiff and imposed costs of Rs. 500/ -. ( 9 ) AGGRIEVED by the said judgment and decree the plaintiff preferred regulal appeal. In appeal the main ground of attack was the finding of the Trial Court that the compromise is valid is erroneous because admittedly the second defendant has not affixed his signature to the said compromise and he had not instructed his counsel to sign compromise petition. Secondly it was contended that the first defendant in the suit has admitted that the suit schedule property is a joint family property and in view of the categorical admission in the written statement to that effect the Trial Court could not have held that the suit schedule property is not the joint family property. Admittedly the plaintiff was a minor on the date of compromise. The suit schedule property being joint family property, the compromise is against his interest and therefore he has every right to seek declaration that the said compromise is not binding on him. The said compromise is contrary to the mandatory requirements of Order 23 Rule 3 (b) CPC and therefore is void. ( 10 ) THE lower Appellate Court re-appreciated the oral and documentary evidence on record and held that the finding of the Trial court that the suit schedule property is not a joint family property is correct. Though the compromise decree do not bear the signature of the second defendant, as it duly signed by his advocate who was duly authorized to sign the same, it is binding on the second defendant. Moreover, it was held that the second defendant at no point of time challenged the said compromise on that ground and therefore it is not open to the plaintiff to take up the said contention. As the suit was not filed in a representative capacity, the question of complying with the requirements as contemplated under Order 23 Rule 3 (b) do not arise. It also held, admittedly the second defendant was the kartha or manager of the joint family and his actions bind every member including a minor and therefore it found no infirmity in the judgment and decree of the trial Court, and the appeal was dismissed. It also held, admittedly the second defendant was the kartha or manager of the joint family and his actions bind every member including a minor and therefore it found no infirmity in the judgment and decree of the trial Court, and the appeal was dismissed. Aggrieved by these concurrent findings recorded by the Court below the plaintiff is in second appeal. ( 11 ) IT is to be noticed here that the second defendant died during the pendency of the appeal. On his death his two other sons, four daughters were brought on record as legal heirs. The plaintiff is not seeking any relief against the second defendant in the suit. It is the first defendant who is the contesting respondent in this appeal who had entered a caveat before this Court. When the appeal was listed for admission, learned counsel appearing for both the parties submitted that the Trial Court records be called for and the appeal could be heard and disposed of on merits at the stage of admission itself. Accordingly, the Trial Court records were called for and by consent of parties the matter was taken up for final hearing. As no relief is sought against the second defendant, who did not step into the witness box in the Trial Court after filing written statement, notice to the LRs was dispensed with who are none other than the brothers and sisters of the appellant and the appeal was taken up for final hearing. ( 12 ) SRI Jayakumar S. Patil, learned Senior counsel assailing the judgments and decrees of the Courts below urged two grounds. Firstly, he contended as there was a clear admission in the written statement that the suit schedule property was a joint family property, the tria Court did not raise any issue on that aspect, but on appreciation of the evidence on record, the trial Court erroneously recorded a finding that the plantiff has failed to prove tht the suit schedule property is a joint family property which finding has been affirmed by the lower appellate Court. It is his submission that non-raising of an issue regarding the nature of the property has prejudically affected the interest of the plaintiff/ appellant in this case. It is his submission that non-raising of an issue regarding the nature of the property has prejudically affected the interest of the plaintiff/ appellant in this case. Even if the Courts were not satisfied with the admission and they wanted the plaintiff to establish the fact that the suit schedule property is a joint family property, they ought to have raised an issue and given an opportunity to the plaintiff to establish the said fact. The same having not been done the judgments and decrees are vitiated. The second contention urged was, as is clear from the pleadings the second defendant was the kartha of the joint family. The first defendant filed suit against him in a representative capacity. The judgment and decree passed against the second defendant binds the plaintiff herein who was a minor before Court. In such representative suit, an obligation was cast upon the Court recording compromise to issue notice to all the persons who are affected by the said decree, and then the provisions contained under Order 23 Rule 3b ought to have been followed. Admittedly, the same has not been done. The compromise decree is null and void. Therefore the judgment and decree of the Courts below are liable to be set aside. No other grounds were urged. ( 13 ) PER contra,sri R. V. Jayaprakash, learned counsel appearing for the first respondent submitted that in the written statement filed by the defendants there is no admission that the suit schedule property is the joint family property. After denying that the suit schedule property was a joint family property, in the alternative it was contended the second defendant being the manager / kartha of the joint family, his actios bind the minors. e. , the plaintiffs. But that do not preclude the plaintiff from establishing that the suit schedule property is a joint family without which he had no right to challenge the lawful compromise recorded by the High Court. Secondly he contended that on the date suit was filed the plaintiff in the suit was not even born. Therefore the second defendant was not sued in representative capacity. On the contrary it is the case of the second defendant in the said that he is the absolute owner of the property in his own right and he was representing himself and no one else. Therefore the second defendant was not sued in representative capacity. On the contrary it is the case of the second defendant in the said that he is the absolute owner of the property in his own right and he was representing himself and no one else. Therefore he submits that Order 23 Rule 3 (b) is not attracted to the facts of this case and therefore compromise entered into is not void. ( 14 ) FROM the aforesaid material on record and the contentions urged in this appeal the substantial questions of law that arise for consideration are as under: 1) Whether non-raising of an issue regarding the nature of the suit schedule property, but recording a finding regarding the nature of the property by the Courts below on the evidence on record, has vitiated the judgment and decree passed by the Courts below? 2) Whether the suit filed by the first defendant against the second defendant in O. S. No. 454/1967 in which compromise was records in RSA No. 707/72 is a suit filed in a representative capacity so as to attract the compliance of the obligations under Order 23 Rule 3 (b) cpc, and for non-compliance of the same is it void? ( 15 ) POINT No. (1): The plaintiff has filed the suit for a declaration that the compromise decree entered into between the second defendantand the first defendant in R. S. A. No. 707/72 on the file of the High Court of Karnataka is null and void and unenforceable and not binding on the plaintiff. The case of the plaintiff as set out in the plaint is, that land bearing Sy. Nos. 57, 63 and 2 of Narasipura Village was purchased by the second defendant, his father, under the registered sale deed dated 2-11 -1955 for valuable consideration out of the joint family funds. After purchasing the said lands, the said lands have been improved by investing fabulous amount out of the joint family funds to the tune of more than a lakh. It is ajoint family property of himself, his father and two brothers. The second defendant has not chosen to defend the interest of the plaintiff, and failed to safeguard his interest. The said failure of the second defendant was on account of undue influence and fraud practised on the second defendant by the first defendant. It is ajoint family property of himself, his father and two brothers. The second defendant has not chosen to defend the interest of the plaintiff, and failed to safeguard his interest. The said failure of the second defendant was on account of undue influence and fraud practised on the second defendant by the first defendant. He is not a party to the said compromise petition. He was a minor on the date of the compromise petition and, therefore, even if that decree stands as it was not for a family necessity or the benefit of the plaintiff who was a minor, to the extent of his share the said compromise decree do not bind him. Therefore, unles the plaintiff establishes that the suit schedule property is a joint family property, he has not right to challenge the compromise. ( 16 ) THE 1st defendant in the written statement, meeting these allegations have specifically averred that "the allegations that the sale deed is supported by valuable consideration; that the consideration flowed out of the joint family funds are not true and correct. " It is also not true and correct to say that the sale came into existence for family benefit. The averments that after the sale the said lands were improved by investing funds of the plaintiffs family amountng to more than a lakh of rupees is absolutely false and baseless. Thereafter, it is stated that the second defendant was the manager of the family and as such the compromise entered into by him is not only binding on the plaintiff but the family interest is well protected by the same. The compromise entered into by the second defendant is binding on all the members of the family. The plaintiff has no full right over the suit schedule property and hence his only remedy, if any, is to file a suit for general partition including all other joint family properties. He is not entitled to have a declaration and injunction as prayed for in the plaint. ( 17 ) IT is relying on the later passages in the written statement, it was contended that, the defendant admits that the suit schedule property is a joint family property, second defendant as the manager of the joint family and the compromise entered into by him binds the plaintiff. It is true those averments are there. ( 17 ) IT is relying on the later passages in the written statement, it was contended that, the defendant admits that the suit schedule property is a joint family property, second defendant as the manager of the joint family and the compromise entered into by him binds the plaintiff. It is true those averments are there. But they are not the only averments in the written statement. As set out above the 1st defendant has categorically asserted that the allegations that the sale deed is supported by valuable consideration and that the consideration flows out of the joint family funds are not true and correct so also the allegation that the sale came into existence for family benefit. Therefore, it is clear that the defendant has categorically denied the allegation of the plaintiff that the suit schedule property was purchased out of the joint family funds. After denying the said allegation, in the alternative he has pleaded when admittedly the second defendant is the manager of the family his actions bind the family. ( 18 ) SECTION 17 of the Evidence Act defines what an admission is. It deals with admission which are both oral or written. In so far as admissions in writing are concerned the law on the point is well settled. If an admission is in writing and if an opposite party wants to make use of that statement as an admission then the whole statement containing the admission must be taken together to ascertain what the party has conceded against himself. Unles the whole is received the true meanng of the part which is evidence against him cannot be ascertained. An admission unless it is separable has to be taken as a whole or not at all. If a statement is not capable of dissection because that particular part is inextricably connected with the other part then it must be read as a whole. A plaintiff cannot be allowed to dissect a written statement. He cannot be allowed to avail only those parts of the written statement which are favourable to him and discard the other parts of the written statement which are not favourable to him. Such dissection of the written statement is not permissible in law. A plaintiff cannot be allowed to dissect a written statement. He cannot be allowed to avail only those parts of the written statement which are favourable to him and discard the other parts of the written statement which are not favourable to him. Such dissection of the written statement is not permissible in law. In other words a statement in writing cannot be taken out of context or read in part, so as to bind the maker of the statement when the intention of the maker of such statement is to the contrary, as could be gathered from reading the entire statement. Equally it is not open to the Court to dissect a statement and pick up a part which is incriminating and reject a part which is exculpatory It is to be remembered that an admission contained in a pleading is a piece of substantive evidence, which can be acted upon even without putting it to the maker of such statement. Adistinction must also be drawn between the case where an admission by one party has merely the effect of relieving the other party from gi ving proof of a particular fact, and the case where one party, failing to adduce independent evidence in his favour attempts to rely on the statement of the other party as an admission. In the letter case, as the party relies on the admission, he must take the whole of it together, in the former case, the one party cannot be said to use the admission of the other as evidence at all. ( 19 ) THEREFORE, it is not possible to accept the defendant admitted the joint family status of the plaintiff, thus plaintiff was under no obligation to prove the said fact. Unless the plaintiff proves that the suit property is a joint property he cannot succeed in the suit. ( 20 ) NEXT, it was argued, if the aforesaid pleas in the written statement did not constitute an admission, constituted denial of the case of the plaintiff, then there ought to have been an issue framed in the Trial Court to the effect whether the plaintiff proves that the suit schedule property is a joint family property as alleged. If such an issue had been framed, the plaintiff would have been put on notice, so that he would have adduced evidence to substantiate the said pleading. If such an issue had been framed, the plaintiff would have been put on notice, so that he would have adduced evidence to substantiate the said pleading. As the plaintiff was not put on notice, the plaintiffis prejudicially affected by not framing of an issue to that effect and, therefore, it is submitted that the judgment and decree of the Courts below are liable to be set aside and or at any rate this Court in second appeal has to frame an issue and remit the matter to the Trial Court or the lower appellate court for recording a finding on that issue. ( 21 ) IT is in this context it is necessary to see the additional seventh issue framed in the suit. 7. Whether the plaintiff proves that the compromise entered into between the defendant No. 1 and 2 in RSA 707/72 is void as per order 23 Rule 3 (b) CPC ( 22 ) ORDER 23 Rule 3b stipulates that, no agreement or compromise in a representative suit shall be entered into without the leave of the court expressly recorded in the proceedings; and any such agreement or compromise entered into without the leave of the Court so recorded shall be void. An explanation is added to this provision about what the representative suit means. Clause (c) says, a suit in which the manager of an individed Hindu family sues or is sued as representing the other meambers of the family. The said issue came to be raised because of the plea teken by the plaintiff in the plaint. Therefore, the plaintiff has specifically taken a plea that it is a joint family property in which the plaintiff has an interest. Even if the second defendant is a manager and he is agreeing for compromise, the Court was under an obligation to issue notice to the members of the family as the subject matter of the suit was a joint family property. Therefore, it cannot be said that no issues were framed so as to put the plaintiff on alert regarding what is to be proved in the case. Therefore, it cannot be said that no issues were framed so as to put the plaintiff on alert regarding what is to be proved in the case. Even though an issue is not framed in the manner suggested by the plaintiff, issue No. 7 clearly includes the question whether the schedule property is a joint family property or not, and in order to succeed the plaintiff has to necessarily prove that the schedule property is a joint family property. Therefore, i do not find any substance in the said contention. ( 23 ) EVEN otherwise the law on the point is well settled. The supreme Court in the Case of NEDUMARI KAMESWARAMMA vs smapati SUBBA RAO dealing with the question, whether ommission to frame an issue vitiates the proceedings held that, where the partice went to trial fully knowing the rival case and led all the evidence not only in support of their contentions but in refutetion of those of the other side, it cannot be said that the absence of an issue was fatal to the case, or that there was that mis-trial which vitiates proceedings. The suit could not be dismissed on this narrow ground, and also there is no need for a remit, as the evidence which has been led in the case is sufficient to reach the right conclusion and neither party claimed that it had any further evidence to offer. ( 24 ) REITERATING the aforesaid legal position, the Supreme Court in the Case of SAYEDA AKHTAR vs ABDULAHAD held that, a bare parusal of the judgment of the Larned Trail Court clearly demonstrated that the parties who were aware thereabout adducing evidence and also advancing their respecti ve submissions, not only adduced evidence on their behalf but also in relation thereto and held if the material on record shows the parties understood the case, adduced evidence, addressed arguments, mere not framing of an issue on that point would not vitiate the judgment. ( 25 ) THEREFORE, it is well settled that where the parties went to trial fully knowing the rival case and led all the evidence not only in support of their contentions but in refutation of those of the other side, the absence of an issue is not fatal and it cannot be said that there was mis-trial. ( 25 ) THEREFORE, it is well settled that where the parties went to trial fully knowing the rival case and led all the evidence not only in support of their contentions but in refutation of those of the other side, the absence of an issue is not fatal and it cannot be said that there was mis-trial. If the material on record shows parties understood their case, adduced evidence, addressed arguments, mere not framing of an issue on that point would not vitiate the judgment if the Court on consideration of the aforesaid material has recorded a finding on the said disputed question. The principle underlining this rule is, the party to a suit should not be taken by surprise and not only he should have a full opporutnity to put forth his case, but he should also have an opportunity to meet the case of the opposite party. It is needless to emphasise that framing of a proper issue in a suit is not only the responsibility of the Court, but equally a responsibility is cost on the learned Counsel who are appearing for the party, as they are fully acquainted with the facts of the case and the points in dispute and the evidence they are expected to adduce in order to succeed. So also is the responsibility of the parties, as it is they who want adjudication of their dispute. Therefore, if the material on record shows that both the parties are fully conscious of the dispute involved in the proceedings and consciously adduce evidence in respect of their respective cases also, address arguments and when the Court on consideration of the same records a finding thereon mere non-framing of an issue in the manner the parties wanted it to be, would not vitiate the judgment and decree rendered by the Court, void. ( 26 ) IN the light of the aforesaid legal position, let us see how the plaintiff understood the case and what he has to prove in the case, and whether he has adduced evidence to prove his case. ( 27 ) IN examination in chief he has stated as under: "three survey numbers werre purchased by his father on 2-11-1955 out of the joint family income. In order to improve and develop the said land his father has spent the joint family funds. ( 27 ) IN examination in chief he has stated as under: "three survey numbers werre purchased by his father on 2-11-1955 out of the joint family income. In order to improve and develop the said land his father has spent the joint family funds. At the time of purchase of the schedule property the second defendant has spent the joint family funds. Therefore, the schedule properties belong to the joint family. Till today his father and they have not effected partition of the joint family properties. Till the appeal was disposed of his father was the manager of the joint family. In the examination in chief, the family referred to as joint family, consists of his father and his sons. It does not refer to the joint family of his father and his brother. In 1955 his father was not living in the joint family. In 1955 how much properties the joint family owned and what was the income of the said joint family to show the same records are there. The said records are in the possession of his father. He and his father are in good talking terms. " In the cross-examinatin he admits that in the suit filed by the first defendant against the second defendant challenging the same in favour of his father, his father took a contention that the said property is his self acquired property. Therefore, from the evidence it is clear that the plaintiff knew what his case was, he knew what he has to establish,. e. , the schedule property was a joint family, property and, therefore, he has adduced evidence in support of his contention. The defendants have specifically denied that the suit schedule property is a joint family property. They have tried to demonstrate the said fact ir several ways. One of the important piece of evidence which they have produced to show that the schedule property is not a joint family property is Ex. D4, the registered partition deed between the second defendant and his brothers dated 18-6-1956. It is not in dispute, that second defendant purchased from the father of the first defendant three items of the property including the suit schedule property under a registered sale deed dated 2-11-1955. On the date of the said purchase the second defendant and his brothers constituted a Hindu undivided Family. The present plaintiff was not born on that day. It is not in dispute, that second defendant purchased from the father of the first defendant three items of the property including the suit schedule property under a registered sale deed dated 2-11-1955. On the date of the said purchase the second defendant and his brothers constituted a Hindu undivided Family. The present plaintiff was not born on that day. The evidence on record shows the second defendant's elder son was 5 years old on the date of the said purchase. He had one more son apart from four daughters. It is also not in dispute that on 18-6-1956 under a registered partition deed the second defendant separated from the joint family of himself and his brothers by taking his share in the property. In the said registred partition deed, the properties covered under the sale deed dated 2-11-1955 were not partitioned. Till today the brothers of the second defendant have not put forth any claim to the said property as joint family property. These properties covered under the sale deed dated 2-11-1955 were not the joint family properties of the second defendant and his brothers. Though the second defendant was a member of the joint family of himself and his brothers and if he had purchased it on 2-11-1955 for valuable consideration, the said consideration did not flow from the joint family funds of himself and the brothers and it was the self acquition of the second defendant. The recitals in Ex. D3, the registered sale deed dated 2-11-1955 do not indicate that the said property was purchased by the second defendant for and on behalf of the joint family. The sale deeds stand in his name exclusively. Therefore, though there is a presumption in law that father and sons do constitute a joint family, there is no presumption in law that the properties standing in the name of any of the family, member is a joint family property. In this case when joint family funds were not utilized for purchasing the property under Ex. Therefore, though there is a presumption in law that father and sons do constitute a joint family, there is no presumption in law that the properties standing in the name of any of the family, member is a joint family property. In this case when joint family funds were not utilized for purchasing the property under Ex. D3 by the second defendant and the joint family of himself and is brothers did not put forth any claim in this property, it cannot be said that this property was a joint family property of the second defendant and his children and this property was purchased out of the funds of the said non-existent joint family on the date of purchase of this property. ( 28 ) IT is also relevant to note the contention of the second defendant that after the purchase and when the suit was filed against him challenging the said sale deed, in the written statement filed in the suit O. S. No. 454/67 the second defendant has taken a categorical stand that the said property is his self acquisition and the entire consideration for the sale has been paid by him exclusively and, therefore, the property is his exclusive property. In fact the Trial Court has extracted the said recital in the written statement at paragraph 39 of its judgment. It reads as under: "after the sale in the year 1956 this defendant was put in possession of the properties and he has been enjoying in his own right since then till now. " It is in this context the plaintiff who contends in this case that the said property is a joint family property, has not produced any material to show that the said consideration for purchase flowed from the joint family funds. In fact the second defendant is a party to the proceedings. He has not stepped into the box to support the case of the plaintiff. It is on record that the second defendant had two major sons. His eldest son was a leading member of the Bar at Sirai who took care of the family interest, both in the earlier proceedings before the High court as well as in this proceedings by actively assisting the second defendant and the plaintiff in all the legal proceedings. It is on record that the second defendant had two major sons. His eldest son was a leading member of the Bar at Sirai who took care of the family interest, both in the earlier proceedings before the High court as well as in this proceedings by actively assisting the second defendant and the plaintiff in all the legal proceedings. In spite of a member of the family being a leading advocate, if material is not produced before the Court to demonstrate that the schedule property is a joint family property, Courts below committed no illegality, in concurrently holding that the plaintiff has failed to prove that the suit schedule property is a joint family property. ( 29 ) THE opening words at paragraphs 40 and 41 of the Trial court judgment makes it clear that it was argued on behalf of the plaintiff that the averments in the written statement clearly proves the case of the plaintiff that the suit schedule property is a joint family property as there is a clear admission by the first defendent insofar as the nature of the property is concerned. Similarly, several innumerable decisions were cited on behalf of the plaintiff to show how the Court has to approach the material on record to come to the conclusion that the suit schedule property is ajoint family property. These submissions make it clear that the plaintiff knew that to succeed in the suit he has to establish that the suit schedule property is a joint family property. He had given oral evidence. He was also relying on the averments in the written statement by way of admission and the legal position as set out in the various decisions in support of his contention. He knew that the issues framed in the suit covers the said question. He also knew that the first defendant had adduced evidence to counter the case of the plaintiff. Therefore it is too late in the day for the appellant before this court to contend, that any prejudice is caused to him on account of non framing of a specific issue regarding the nature of the property and that he was made to believe that it is not in dispute between the parties. The ground, which is now urged in this second appeal, was not urged before the lower Appellate Court when the first defendant preferred the appeal. The ground, which is now urged in this second appeal, was not urged before the lower Appellate Court when the first defendant preferred the appeal. On the contrary, it is clear from paragraph 17 of the Appellate Court judgment, where plaintiff asserted that the first defendant has admitted that the suit schedule property is a joint family property in his written statement and he has referred to the so called admissions set out supra. Infact the second defendant in the written statement filed in this suit has admitted that the suit schedule properties are joint family properties and therefore, it was contended, in view of the aforesaid admissions the plaintiff has established that the suit schedule property is a joint family property. Therefore, it is clear, in both the courts the plaintiff knew what his case was, and what he has to prove to succeed in the suit and in proof f of the said plea he was relying on the admissions of the defendant in the written statement and he was also contending that the admissions of the second defendant in the earlier suit cannot be construed as an admission in this suit and at any rate the said admission would to bind the plaintiff. Therefore, his grievance was that the Trial Court did not property appreciate the material on record and record a finding in his favour. Each of the parties knew what their respective cases was and what they were expected to prove in the Court to succeed and both of them have adduced evidence and both the Courts knew what is the real issue involved in the suit and on appreciation of the evidence on record have concurrently held that the suit schedule property is not the joint family property and it was the self acquired property of the first defendant and the so called averments in the written statement on which reliance is placed by the plaintiff would not constitute an admission and it does not prove that the suit schedule property is a joint family property. In that view of the matter, there is no substance in the argument that non framing of an issue regarding the nature of property had vitiated the judgment and decree of the Trial Court or prejudicially affected the interest of the plaintiff. In that view of the matter, there is no substance in the argument that non framing of an issue regarding the nature of property had vitiated the judgment and decree of the Trial Court or prejudicially affected the interest of the plaintiff. ( 30 ) POINT No. 2: the arguments in support of this contention is based on the provision contained under Order XXIII Rule 3-B, which reads as under: "3b. No agreement or compromise to be entered in a representative suit without leave of court- (1) No agreement or compromise in a representative suit shall be entered into without the leave of the Court expresely recorded in the proceedings; and any such agreement or compromise entered into without the leave of the Court so recorded shall be void. (2) Before granting such leave, the Court shall give notice in such manner as it may think fit to such persons as may appear to it to be interested in the suit. Explanation : In this rule, "representative suit" means, (a) a suit under Section 91 or Section 92, (b) a suit under Rule 8 of Order I, (c) a suit in which the manager of an undivided Hindu Family sues or is sued as representing the other members of the family, (d) any other suit in which the decree passed, by virtue of the provisions of this Code or of any other law for the time being in force, bind any person who is not named as party to the suit. " ( 31 ) A reading of the aforesaid provision makes it clear that in a representative suit no agreement or compromise shall be entered into without the leave of the Court expressly recorded in the proceedings. If such leave is not expressly recorded and compromise entered into, it shall be void. Before granting such leave it is made obligatory for the Court to give notice in such manner as it may think fit, to such persons as may appear to it to be interested in the suit. Explanation to the said Rule defines what a representative suit means. A suit under Section 91 or 92 or under Rule 8 of order I are said to be representative suits. Explanation to the said Rule defines what a representative suit means. A suit under Section 91 or 92 or under Rule 8 of order I are said to be representative suits. In addition to that, a suit in which the manager of an undivided Hindu Family sues or is sued as representing the other members of the family, then it is held to be a representative suit. Similarly, in other suit in which the decree passed may, by virtue of the provisions of the Code or any other law, if any in force, bind any person who is not named as party to the suit, is also treated as a representative suit. Therefore, it is clear, a suit filed by the manager or filed against the manager representing the other members of the family, is a representative suit. In other types of suits, if any person who is not named as a party is bound by the decree to be passed, is a representative suit. ( 32 ) THE suit filed by the first defendant against the second defendant in OS No. 454/1967 on the file of the Learned Munsiff at sagar, is it a suit filed against a manager representing the members of a joint family, is the question? The case pleaded by the first defendant in the said suit is that the suit schedule properties in that suit were the joint family properties of himself, his father and brother. His father and his brother have executed a sale deed on 2-11-1955 in favour of the second defendant in this suit during his minority. There was no legal necessity nor the said sale was for the benefit of the family. Therefore, it was contended that the sale would not bind his l/3rd share in the property. The second defendant in this suit filed his written statement. It was his specific case that he never wanted to purchase the said land but at the instance and inducement of the second defendant in the said suit and other members to get over the financial difficulties, he was forced to pay the entire sale consideration of Rs. 3,800/- and the same had been received by the second defendant in the said suit and no part of the sale consideration is due. The entire sale consideration of Rs. 3,800/- and the same had been received by the second defendant in the said suit and no part of the sale consideration is due. The entire sale consideration of Rs. 3,800/- paid has been utilised for the family business and education of the first defendant in this suit. After the sale in the year 1956 the second defendant was put in possession of the properties and he has been enjoying in his own right. In the evidence it is stated that before purchase of the property he had no property at narsipura. He paid Rs. 3,000/- before the Sub Registrar to the second defendant. The pahani is in his name. After the sale he is personally cultivating the said lands. In the compromise petition entered into in the High Court, the second defendant entered into compromise in his individual capacity and not representing the other members of the family. Therefore, it is clear that the suit OS. No. 454/1967 was not filed against second defendant, in his capacity as a manager of an undivided Hindu family or is representing the other members of the family. Therefore, order XXIII Rule 3b is not attracted to the facts of this case. ( 33 ) TO find out whether a particular suit is a representative suit or not, what is to be seen is the pleadings in the case. It is only if the pleadings disclose that the parties are suing or sued in a representative capacity then an obligation is cast upon the Court to give notice to such persons as may appear to it to be interest in the suit and then near them and grant leave to record a proper finding. If the pleadings of the case do not disclose that the suit is filed in a representative capacity or the manager of an undivided Hindu family is sued or sues in a representative capacity, there is no obligation cast upon the Court to make an enquiry to find out whether it is a representative suit or not and then to act in accordance with law. As otherwise, in every case before recording a compromise the Court has to hold a mini trial to find out the suit in which parties are tending to enter into compromise is a representative suit or not. That is not the intention of the legislature in enacting order XXIII Rule 3b. As otherwise, in every case before recording a compromise the Court has to hold a mini trial to find out the suit in which parties are tending to enter into compromise is a representative suit or not. That is not the intention of the legislature in enacting order XXIII Rule 3b. ( 34 ) A Division Bench in the Case of Siddalingeshwar vs V1rvpangouda held that if no notice is issued to the persons interested in a representative suit in and as a consequence the consent decree is void under Rule 3b, then such person (who are not parties) will not be entitled to file an application in the suit nor file an appeal under Order 43 Rule 1 A. Therefore, the right to bring a separate suit seeking appropriate remedy, remains unaffected. Thus if Rule 3b is not complied with, while passing a decree on a compromise in a representative suit, any person who is affected by such compromise decree, but not a party to it may file a separate suit seeking appropriate relief in regard to such compromise decree, by way of declaration or otherwise. He may also file a suit for appropriate relief ignoring the compromise decree and such a suit will not be barred either by the principle of re judicata or estoppel. On facts it was held that in a suit for partition where the heads of the branches alone were made partice, any decision rendered would bind not only the heads of the branches, but also the members of the branches represented by the respective heads (who have been made parties ). Therefore, a partition suit where only the heads of branches are made parties, without impleading the other members who are entitled to shares, will be a representative suit for the purpose of order 23 Rule 3b having regard to the explanation (d) to the said Rule. In such a representative suit, no compromise can be entered into without the leave of the Court, expressly recorded in the proceedings after issuing notice to all parties interested in the suit. ( 35 ) OS No. 454 of 1967 is not a suit, in which the manager of an undivided Hindu family is sued as a representative of the other members of the family. The second defendant was sued in his individual capacity having purchased the suit schedule property which belonged to the joint family. ( 35 ) OS No. 454 of 1967 is not a suit, in which the manager of an undivided Hindu family is sued as a representative of the other members of the family. The second defendant was sued in his individual capacity having purchased the suit schedule property which belonged to the joint family. Therefore, his children have no right in the said property. Therefore, any decree passed against the second defendant would not bind his children because his children have no right or interest in the said property. In that view of the matter, the suit filed by the first defendant against the second defendant in OS No. 454/ 1967 is not a representative suit and to record a compromise in such a suit the mandatory requirement as contained in Rule 3b was not required to be complied with, as order XXIII Rule 3b is not attracted to the facts of the said suit. Therefore, I do not find any merit in the contention of the appellant that the decree passed by the Trial Court is vitiated because of non compliance of the mandatory requirement of order 23 Rule 3b. ( 36 ) FROM the material on record, it is clear that the first defendant, his father Govindappa Hegde and his brother N. R. Mahabalesh Rao constituted a joint family. Land bearing Sy. No. 2 measuring 11 guntas, Sy. No. 57 measuring 1 acre 03 guntas and sy. No. 63 measuring 29'guntas situate at Narasipura village, Sagar taluk, Shimoga District belonged to the said family. Govindappa hegade sold the said lands to the second defendant under a registered sale deed dated 2-1-1955. The second defendant was a member of the joint family of himself and his three brothers on the date of the said purchase. However, the said purchase was not made by him out of the said joint family funds. It was his self acquisition. After the said purchase, on 18-6-1956 under a registered partition deed the second defendant and his three brothers effected partition of the joint family properties. The properties, which are subject matter of the sale deed dated2-l-1955 were not partitioned. Till today brothers of the second defendant have not put forward any claim to the said properties as joint family property. Therefore, it is clear that the properties purchased by the second defendant on 2-1-1955 under the sale deed Ex. The properties, which are subject matter of the sale deed dated2-l-1955 were not partitioned. Till today brothers of the second defendant have not put forward any claim to the said properties as joint family property. Therefore, it is clear that the properties purchased by the second defendant on 2-1-1955 under the sale deed Ex. D3 is his self acquisition. The first defendant, challenged the aforesaid alienation by his father contending that it was not for legal necessity or for his benefit as, as on the date of alienation he was minor. In the said suit, OS No. 454 of 1967 the second defendant contended that the said properties were his self acquisition. After contest, the suit came to be dismissed on 31-7-1970. The first defendant preferred an appeal in RA. No. 83/1970. The said appeal was allowed. The plaintiffs suit was decreed. Aggrieved by the same the second defendant preferred a regular second appeal RSA. No. 707/1972. In the said appeal, a compromise petition was filed under which towards the 1/3rd share of the first defendant the entire extent of 1 acre 3 guntas in sy. No. 57 was given to the share of the first defendant. As what was given to his share was more than what he is entitled to him under law,. e. about 15 guntas of land in excess of what the is entitled to, the first defendant agreed to pay a sum of Rs. 15,000/- representing the market value of the said 15 guntas of land, and gave up his claim for means profits as consideration for 15 guntas of the land. The Second appeal came to be disposed of in terms of the compromise petition on 3-4-1978. The first defendant offered Rs. 15,000/- to the second defendant within the stipulated time as per the terms of the compromise. When the second defendant refused to receive the said amount, the first defendant was constrained to file a miscellaneous case No. 13/1978 for permission to deposit the amount. The second defendant filed his statement of objections admitting the compromise decree. However, he contended that as the first defendant has not paid the agreed amount of Rs. 15,000/- within the stipulated time, he was under no obligation either to receive the said amount or to give him the property, which is agreed to be given in the compromise petition. The second defendant filed his statement of objections admitting the compromise decree. However, he contended that as the first defendant has not paid the agreed amount of Rs. 15,000/- within the stipulated time, he was under no obligation either to receive the said amount or to give him the property, which is agreed to be given in the compromise petition. After contest, the Court permitted the first defendant to deposit the said amount. Accordingly, on 14-4-1978, Rs. 15,000/- was deposited by the first defendant before the Court. After such deposit the first defendant filed Execution No. 168/1978 seeking for execution of the compromise decree. The second defendant filed his statement of objections, accepting the compromise, but contended that as the amount of Rs. 15,000/- was not paid within the stipulated time, the first defendant has lost his right and therefore, he is not liable to hand over the possession of the property to him. ( 37 ) THEREFORE, the second defendant filed an application under section 48a of the Karnataka Land Reforms Act on 7-4-1979 seeking grant of occupancy rights admitting the ownership of the first defendant to the secheduled property and claiming to be a tenant under him. By an order dated 23-10-1981 the Land Tribunal granted occupancy rights in favour of the second defendant. The first defendant challenged the said order in Writ Petition No. 15262/1982 before this Court, which was allowed and the order of the Land Tribunal was set aside and the matter was remanded back to the Tribunal for fresh consideration. Therefore, the second defendant filed an application ia. No. 3 in Execution No. 168/1978 for stay of all further proceedings till the Land Tribunal decides his application on merits. The Execution court dismissed IA. No. 3 on 24-7-1981. Aggrieved by the said order, the second defendant preferred a Revision Petition before this court in CRP. No. 2483/1981 and this Court on 21-9-1981 dismissed the Revision Petition. The Land Tribunal after enquiry rejected the application of the second defendant for grant of occupancy rights by order dated 9-1-1985. Challenging the said order the second defendant filed Writ Petition No. 772/1985. The said Writ Petition came to be dismissed by order dated 9-4-1985. Aggrieved by the said order the second defendant preferred WA. No. 844/1985, which also came to be dismissed on 31-5-1985. The Special Leave Petition filed against the said order in SLP. Challenging the said order the second defendant filed Writ Petition No. 772/1985. The said Writ Petition came to be dismissed by order dated 9-4-1985. Aggrieved by the said order the second defendant preferred WA. No. 844/1985, which also came to be dismissed on 31-5-1985. The Special Leave Petition filed against the said order in SLP. No. 12372/1985 before the Hon'ble supreme Court of India also came to be dismissed on 6-1-1987. Thereafter, the second defendant again challenged the order of the land Tribunal rejecting his application before the Land Reforms appellant Authority, Sagar in LRA. No. 86/1987 in view of the constitution of the appellate authority under the Amended Act of 1987 and obtained an order of temporary inj unction on 22-5-1987. After contest, the Land Reforms Appellate Authority dismissed the appeal as not maintainable on 10-2-1988. The second defendant filed an application for amendment of the objection statement before the executing Court, invoking the provisions under Section 79a of the karnataka Land Reforms Act. The said application was dismissed on 17-3-1989 by the execting Court. CRP. No. 3125/1989 preferred against the order also came to be dismissed by this Court on 1-10-1991. ( 38 ) AS the said second defendant failed in all his efforts to stall the execution of the compromise decree passed, he set up his son, the plaintiff in this suit, to file the present suit. It is pertinent to point out at this stage itself that the second defendant had three sons, eldest son Sreepad Rao, the second son Raghavendra and the plaintiff. The first son was an Advocate by profession practicing at Sagar, who is the person who is actually prosecuting all these cases referred to above. By the time all the efforts of second defendant failed and the said Sri Sreepad Rao and his younger brother Sri Raghavendra had attained majority long back, the present suit came to be filed through the plaintiff, who was 16 days old and a minor challenging the compromise decree on the ground that on the day the compromise decree was entered into the plaintiff was a minor and his interest is seriously jeopardised by the said compromise. In the suit the plaintiff sought for an order of temporary injunction and it was granted. The first defendant preferred an appeal in MA. No. 31/1991, which came to be allowed setting aside the order of temporary injunction. CRP. In the suit the plaintiff sought for an order of temporary injunction and it was granted. The first defendant preferred an appeal in MA. No. 31/1991, which came to be allowed setting aside the order of temporary injunction. CRP. No. 2596/1993 preferred against the said order came to be dismissed as withdrawn. Thereafter, the plaintiff filed IA. No. 39 in execution case under order 21 Rule 97, 98, 100, 101, 103 and 104 of Civil procedure Code read with Section 47 offering obstruction to the execution of compromise decree. Pending disposal of the suit, an application IA. No. 40 for stay of all the further proceedings was filed. Both the applications were rejected by a common order dated 17-6-1995 by imposing a cost of Rs. 3,000/ -. The executing Court permitted the second defendant to receive Rs. 15,000/- deposited in the Court and directed the second defendant to deliver the possession of the property in question in terms of the compromise. The said order was challenged in CRP No. 2169/1995, which came to be dismissed on 2-6-1995. CRP No. 2210/1995 filed against the said order also met the same fate on 31-8-1989. Against the order of rejecting his application filed under Order 21 Rule 97, the plaintiff preferred an appeal RA. No. 32/1995. The said appeal was allowed and the order of the executing Court was set aside and the matter was remanded to the executing Court for fresh disposal in accordance with law by an order dated 12-10-1995. The said order was challenged by the first defendent in this Court in MSA. No. 53/1996. By an order dated 30-9-1997 the said appeal was allowed and the order passed in RA. No. 32/1995 was set aside and the order of the executing court was restored. Challenging the said order, the plaintiff preferred slp. No. 22963/1997. The Supreme Court granted special leave, directed the parties to maintain status quo till OS. No. 272/1989 is heard. Subsequently, by an order dated 11-3-2004 the Supreme court disposed of the Civil Appeal No. 4977/1998 by the following order: "execution proceeding No. 168/1978 is pending on the file of the Civil Judge (Jr. Division) Sagar, challenging the decree that was put in execution, a suit was filed. No. 272/1989 is heard. Subsequently, by an order dated 11-3-2004 the Supreme court disposed of the Civil Appeal No. 4977/1998 by the following order: "execution proceeding No. 168/1978 is pending on the file of the Civil Judge (Jr. Division) Sagar, challenging the decree that was put in execution, a suit was filed. That suit, filed by the appellant, came to be dismissed by a decree made on 30-9-2002 holding that the appellant had failed to prove that the compromise decree obtained in RSA. No. 707/1972 is not binding on him. Against that decree an appeal has been preferred in RA. No. 16/2002 before Civil Judge (Sr. Division) Shimoga in which certain interim orders have been passed. In these circumstances, we think there is no need to examine the various questions raised in this matter. It would be appropriate for the parties to work out their rights in the aforesaid proceedings and the orders made by the Civil judge (Sr. Division) will govern the parties for the time being. Appeal shall stand disposed of accordingly. " Thereafter, regular Appeal RA. No. 16 of 2002 was heard on merits and it came to be dismissed on 8-2-2007. ( 39 ) THE narration of sequence of events above clearly shows there is collusion on the part of the plaintiff, second defendant and his other children to thwart execution of a lawful compromise decree passed by this Court. They have strained every nerve and approached every possible forum to defect and deny the legitimate right of the first defendant to the suit schedule property as declared in the compromise decree. The original litigation started in the year 1967 and four decades are over. Even then, there is no hope of finality being reached. It is because of such solitary cases, the entire judicial system is rediculed and people wonder whether our judicial system would really give them justice. Every one have contributed their might in their own way to this sorry state of affairs. It is high time the Court should come down heavily on such chronic litigants, who abuse the process of the Court and put innumerable obstructions in execution of a lawful decree passed, which has reached finality. It is also necessary that an appropriate message is to be sent while dealing with such cases to the effect that the Courts are no more prepared to tolerate these manipulative tactics. It is also necessary that an appropriate message is to be sent while dealing with such cases to the effect that the Courts are no more prepared to tolerate these manipulative tactics. Parties have spent nearly forty years in the Court corridors, virtually the youth of the first defendant is robbed for all time to come. The time and money spent in these litigation is not possible to be quantified. Mere passing of an order in favour of a successful party would not meet the ends of justice. The person who is responsible for this inordinate delay in realising the fruits of a decree should made to pay heavily for indulging in such obstructive tactics, then only it would deter others who are sitting on the fence from indulging in such means. ( 40 ) IN these circumstances, I am satisfied that not only this appeal is to be dismissed, the appellant should be made to pay exemplary costs of Rs. 30,000/- to the first respondent. Hence, I pass the following: order . The appeal is dismissed.. The appellant shall pay a sum of Rs. 30,000/- towards costs of this litigation.. The Executing Court shall proceed to execute the decree expeditiously without allowing any time for the judgment debtor in the execution case or the plaintiff in this case whose objection has already been over ruled and put the decree holder in possession of the scheduled property with all its force at its command and if necessary, by giving police protection in the first instance itself so that no more delaying tactics should be allowed to succeed in obstructing the execution proceedings. ( 41 ) THE Learned Counsel for the appellant sought for stay of the order, for a period of four weeks to enable him to move the supreme Court. I do not find any justification to grant such order in view of what I have set out in the order and the reasons given for imposing exemplary costs. Accordingly, the request is rejected.