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2014 DIGILAW 137 (KER)

Haridas Chettiar v. Rajeswary

2014-02-14

K.HARILAL

body2014
Judgment 1. The revision petitioners are the decree holders in E.P.No.237/2010 in O.S.No.289/2003 on the files of the Additional Sub Court, N.Paravur. The above Execution Petition was filed by them for realisation of an amount of Rs. 1,50,000/- with interest @ 12% per annum from the date of decree due under a compromise decree. As per the terms of compromise, the respondent herein is liable to pay a sum of Rs. 1,50,000/-to the revision petitioners provided that the respondent herein obtained possession over 1/10th share in the property involved in O.S.No.399/2003 which was pending before the Sub Court, Paravur. Further, it was stipulated that if the respondent herein is refusing to pay the said amount of Rs. 1,50,000/- to the revision petitioners, she is liable for paying interest @ 12% per annum from the date on which she got exclusive possession over 1/10th share of the property in O.S.No.399/2003. 2. In the above execution petition, the petitioners have sought for realisation of the above mentioned amount of Rs.1,50,000/- with interest @ 12% per annum from the date of decree. The respondent contended that the execution petition itself is a premature one and the same is opposed to the terms of compromise decree. Unless and until the respondent obtains 1/10th share in the property involved in O.S.No.399/2003, which is pending before the Sub Court, Paravur, the petitioners/decree holders are not entitled to realise the said amount by executing the decree. After considering the objection raised by the respondent herein, the execution court accepted the objection and dismissed the execution petition as premature one. The legality and regularity of the above order is under challenge in this revision petition. 3. The learned counsel for the revision petitioners advanced arguments in support of the contentions raised in the revision petition. The learned counsel mainly contented that the execution court ought to have seen that the condition requiring obtaining of 1/10th share by the judgment debtor, which stand outside the scope of the present suit, cannot be taken as a factor regulating execution of the decree passed in the present suit. The clause relating to 1/10th share as a condition regulating the payment of Rs.1,50,000/-is not liable to be considered, for the execution of the decree for money. The clause relating to 1/10th share as a condition regulating the payment of Rs.1,50,000/-is not liable to be considered, for the execution of the decree for money. According to the revision petitioners, the agreement entered into between the parties is an uncertain agreement and the decree is executable in so far as the petitioners are concerned. So long as the decree recognized the liability of the judgment debtor, it cannot be held that the execution petition is a premature one. 4. Per contra, the learned counsel for the respondent advanced arguments to justify the finding of the court below that the execution petition is a premature one. It is submitted that the parties to the decree are bound by the terms of the decree and execution court cannot go behind the decree. The matters relating to the parties which are not subject matter of the suit and falling outside the scope of the decree also can be included in the compromise and the decree passed thereunder. So, inclusion of the clause relating to 1/10th share in the subject matter of another suit O.S.No.399/2003 is proper and justifiable. Therefore, the revision petitioners are liable to give exclusive possession over 1/10th share in property to the respondent and unless and until the said share is given to the respondent, the revision petitioners are not entitled to claim Rs.1,50,000/-from the respondent, under the decree. In short, the decree becomes enforceable, when the respondent gets 1/10th share in the property. 5. In view of the rival contentions, the short question that arises for consideration in this revision petition is, whether the condition which stand beyond the scope of suit or fall outside the subject matter of the suit and included in the decree can regulate the execution of the compromise decree. Needless to say, answer to the above question depends upon the basic question, can the matters relating to the parties, which are beyond the scope of the suit or falling outside the subject matter of the suit, be included in the compromise or agreement and the decree passed thereunder. 6. Since question in controversy centers around the scope and extent of Order XXIII Rule 3 of the CPC, it is worthwhile to quote the Rule, which reads as under:- 3. 6. Since question in controversy centers around the scope and extent of Order XXIII Rule 3 of the CPC, it is worthwhile to quote the Rule, which reads as under:- 3. Compromise of suit.- Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise in writing and signed by the parties, or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject -matter of the suit, the Court shall order such agreement, compromise or satisfaction to the recorded, and shall pass a decree in accordance therewith so far as it relates to the parties to be suit, whether or not the subject-matter of the agreement, compromise or satisfaction is the same as the subject-matter of the suit. [Provided that where it is alleged by one party and denied by the other that an adjustment or satisfaction has been arrived at, the court shall decided the question; but no adjournment shall be granted for the purpose of deciding the question, unless the Court, for reasons to the recorded, thinks fit to grant such adjournment] [Explanation.- An agreement or compromise which is void or voidable under the Indian Contract Act, 1872 (9 of 1872), shall not be deemed to be lawful within the meaning of this rule.] On an analysis of Rule 3, it is seen that the Rule consists of two parts, of which 1st part relates to the statutory requirements to pass a compromise decree and the 2nd part relates to the nature of decree to be passed thereunder. The requirement is that it is to be proved to the satisfaction of the court that the suit has been adjusted wholly or in part by a lawful agreement or compromise in writing and signed by both parties or where the defendant satisfies the plaintiff in respect of whole or any part of the subject matter of the suit. As per Explanation to Rule 3, an agreement or compromise which is void or voidable under Indian Contract Act shall not be deemed to be lawful. It follows the legislative command that where the requirements stated above are satisfied, the Court shall pass a decree in accordance with the terms of the agreement or compromise. As per Explanation to Rule 3, an agreement or compromise which is void or voidable under Indian Contract Act shall not be deemed to be lawful. It follows the legislative command that where the requirements stated above are satisfied, the Court shall pass a decree in accordance with the terms of the agreement or compromise. The last limb of the IInd part shows the nature and scope of such decrees. That is, the decree can be passed : (i) in accordance with the terms of the decree (ii) so far as it relates to the parties the suit (iii) whether or not the subject matter of the agreement, compromise or satisfaction is same as subject matter of the suit. The last limb which permits to arrive at an agreement or compromise with respect to all matters or disputes including those matters or disputes which are not the subject matter of the suit, was introduced by the CPC Amendment Act/104 of 1976 with effect from 1.2.1977. The aim and object of the amendment is to enlarge the scope and ambit of the compromise by including the matters beyond the scope of the suit or falling outside the subject matter of the suit, so as to arrive at a complete settlement of disputes between the parties. Before the amendment, the scope of compromise decree was confined to subject matter of the suit only so far as it relates to parties to the suit; but after the aforesaid amendment a compromise decree can be passed relating to matters falling outside the subject matter of the suit or beyond the scope of the suit, so far as it relates to the parties, if such matters are included in the terms of the agreement or compromise. 7. The decree is indivisible in nature and it can be taken as whole only. Similarly, executing court cannot go behind the decree. If that be so, the conditions which stand beyond the scope of the suit or falling outside the subject matter of the suit and included the decree as conditions regulating the execution of the compromise decree is legally valid and permissible. It follows that unless and until that condition regulating the execution of the decree is satisfied, this decree cannot be executed. It follows that unless and until that condition regulating the execution of the decree is satisfied, this decree cannot be executed. When a compromise decree is passed on term of the agreement containing conditions beyond the subject matter or scope of the suit, in execution, parties cannot turn round and contend that such conditions are invalid and uneforceable as the same goes beyond the scope of the suit or falling outside the subject matter. To sum up, compromise decree creates an estoppal by judgment. So, the inclusion of the clause relating to obtainment of 1/10th share in the subject matter of another suit O.S.No.393/2003 pending before Sub Court, Paravur as a condition regulating enforcement of compromise decree in the present suit was permissible and justifiable under law. 8. On a cursory reading of the terms of the decree, it could be seen that the respondent is liable to pay the amount of Rs.1,50,000/-, when the respondent obtains the exclusive possession of 1/10th share in the property involved in O.S.No.393 of 2003. Needless to say, as rightly held by the court below, the terms of the compromise forms part of the decree. In this revision petition, it is contended that compromise is uncertain and there is no certainty as to when the respondent will obtain exclusive possession of 1/10th share of the property in O.S.393 of 2003. I am unable to countenance the said contention as the terms of compromise were fixed by the parties themselves. I am of the opinion that the terms of the decree is very clear and the revision petitioners are entitled to realise Rs.1,50,000/-from the respondent only when the respondent obtains exclusive possession of 1/10th share of property in O.S.No.393 of 2003. The revision petitioners have no case that the respondent had already obtained exclusive possession of 1/10th share of the property in O.S.No.393 of 2003. In such circumstances, I also concur with the findings of the Execution Court that the Execution Petition is a premature one. Thus, this revision petition is devoid of merits and I find that the Execution Court has exercised its jurisdiction correctly and there is no illegality or material irregularity in the order under challenge. This revision petition is dismissed accordingly.