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2010 DIGILAW 506 (DEL)

Poonam Khanna v. V. P. Sharma

2010-04-06

SHIV NARAYAN DHINGRA

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JUDGMENT SHIV NARAYAN DHINGRA, J. By this petition under Article 227 of the Constitution of India, the petitioner has assailed two orders of the learned Guardianship Judge one dated 17.1.2008 and another dated 4.3.2008. By first order, the Guardianship Judge entertained a second petition in respect of guardianship of the child because of non compliance of the settlement arrived at between the parties in an earlier similar petition. However, the learned Judge framed a preliminary issue about the maintainability of the petition. By order dated 4.3.2008, the learned Guardianship Judge disposed of this preliminary issue of maintainability and held that the second petition was maintainable. 2. It is undisputed fact that for the custody of the child (who physically is aged 30 years but mentally is stated to be aged 06 years) a petition was filed by the petitioner earlier and during pendency of that petition a compromise was arrived at between the parties and a settlement deed was executed between the parties and the Guardianship Petition was disposed of in terms of the settlement. The learned Guardianship Judge entertained the second petition primarily on the ground that the respondent did not comply with the earlier settlement arrived at between the parties. In para 17 of order dated 4.3.2008, the Guardianship Judge observed as under: "17. Such is the conduct of the respondent that even though she was given an option to go in for mutual compliance of the balance clauses of settlement, even though the petitioner is ready and willing to comply with the settlement to his part, respondent flatly refused to comply her part. It is also pointed out by petitioner that even Hon’ble High Court has many times observed that respondent is just keen to continue litigation unabatedly." 3. It is settled law that where a suit/petition is disposed of in terms of compromise arrived at between the parties, the compromise between the parties is enforceable like a decree of the Court. Whether the suit is decreed by way of compromise or it is decreed after adjudication of the dispute between the parties, the decree passed by the Court has same force. Merely because one of the parties has failed to comply with the terms of the compromise as settled between them would not give a fresh cause of action to either of the parties to institute a suit on the same cause of action again. Merely because one of the parties has failed to comply with the terms of the compromise as settled between them would not give a fresh cause of action to either of the parties to institute a suit on the same cause of action again. The only course available to the party is to go for execution or for contempt of the Court. A compromise decree can be enforced through execution and where the compromise provides for doing certain act on the part of other party and the party refuses to do the acts, the Court can enforce the decree like any other decree taking resort to different provisions of Order 21 CPC and wherever necessary, the Court can appoint its own officer for execution of the documents. The court can enforce its orders through legal coercion wherever necessary. 4. I consider that the learned Guardianship Judge exceeded his jurisdiction of re-entertaining a Guardianship petition in respect of child on the ground that the respondent had failed to comply with the terms of the earlier compromise arrived at between the parties. The order dated 4.3.2008 of the learned Guardianship Judge is hereby set aside. However, the respondent herein would be at liberty to get the earlier compromise enforced through court of law. 5. I also consider that it is obligatory on every Court to ensure that the orders of the Court passed after adjudication or as a result of compromise, are enforced and if a party files any petition or institutes proceedings contrary to compromise, such party should not be heard in the proceedings, until and unless such party complies with the terms of the compromise. The petition is allowed. The order of the learned Guardianship Judge dated 4.3.2008 entertaining the petition is hereby set aside.