Research › Search › Judgment

Bombay High Court · body

2015 DIGILAW 808 (BOM)

Abdul Rahim Khan v. Taj Bagh Committee

2015-03-23

R.K.DESHPANDE

body2015
ORAL JUDGMENT 1. The challenge in this petition is to the order dated 4th April, 2003, passed below Exh.9 and 108 by the executing Court in Regular Darkhast No. 289 of 1969. The objections raised to the executability of the compromise decree passed on 11.11.1957 in Section Appeal No. 248 of 1950 by this Court are accepted and the execution proceedings are dismissed. Hence, the legal heirs of the original decree holder are before this Court in this writ petition. 2. In Second Appeal No. 248 of 1950, decided by this Court on 11.11.1957, the terms of settlement were recorded as under; 1. That the respondent withdraws all his pleas against the title and possession of the appellant over the fields No. 43, 45, 46, 47, 48 and 50 having total area 84.92 acres situated at Mouza Bidpeth, Thak No. 175, Patwari Halka No. 28, in Tahsil and Distt. Nagpur, and now accepts that the appellant is the full owner and entitled to possession thereof including the suit land as described in paras 1 & 1(a) of the plaint. 2. That, the appellant hereby declares that out of the aforesaid fields he agrees to dedicate permanently by way of Wakf 20 acres consisting of the suit lands with some lands around the suit land and grave yard contained in one of the numbers of the aforesaid fields. The appellant would execute a duly stamped and registered Wakf deed in respect of the above 20 acres of land with a map drawn to scale showing the land dedicated within a period of three months, in the same of Hajrat Baba Tajuddin Awaliya. The appellant will make the proper arrangement for the management of the Wakf property in that deed. 3. That the remaining land out of the aforesaid fields amount to 64.92 acres is hereby restored by the respondent to the appellant who will be entitled to remain in possession, management and enjoyment thereof as owner, subject to the condition that the respondent will be entitled to get the same transferred in the name of the aforesaid Wakf created perpetuate name of Hajrat Tajuddin Awaliya after the period of four years on the nominal compensation stated below fixed by Raje Bahadur Raghojirao Bhonsle in the presence of and with the consent of parties. The appellant will be legally entitled to realise and appropriate the entire income from this 64.92 acres of land continuously for a period of 4 years after restoration of the physical possession thereof by the respondent without any obstruction from any person, including the respondent. It is only after the appellant is allowed peaceful enjoyment of this land for the above period, the respondent will be entitled to purchase at the price stated below. 4. That, the respondent will be entitled to purchase the said 64.92 acres of land from the appellant for the nominal consideration of Rs.6500/- (Six thousand five hundred only). This consideration would be paid by the respondent within the aforesaid period of four years and the respondent will be entitled to get a deed of transfer thereof executed as stated above from the appellant. The entire costs for such a deed would be borne by the respondent. 5. That the costs of the parties throughout be borne by themselves as incurred. The respondent in the aforesaid appeal was Tajbagh Committee which is also the respondent in this writ petition. 3. Regular Darkhast No. 289 of 1969 was filed by the appellant decree holder alleging that they were not given possession of 64.92 acres of land in terms of clause (3) of the aforesaid compromise accepted by this Court. On 10.10.1969, the objections raised at Exh. 9 were rejected by the Executing Court. Regular Civil Appeal No. 355 of 1969 was allowed remanding the matter back to decide the objections afresh. Second Appeal No. 183/1972 was preferred before this Court. The respondent judgment debtor filed a pursis in Second Appeal No. 183 of 1972. The contents of which are reproduced below (taken from the judgment of this Court in Civil Revision Application No. 9869 of 1988, delivered on 1st March, 1989); "The respondent J. Dr. Tajabad Committee submits that upon the appellant executing and registering a Waqu Deed of 20 acres of land surround the shrine of Hazrat Baba Tajuddin Aulia out of the suit land and further executing and registering a sale deed of five acres of open and unoccupied land out of the field survey Nos. Tajabad Committee submits that upon the appellant executing and registering a Waqu Deed of 20 acres of land surround the shrine of Hazrat Baba Tajuddin Aulia out of the suit land and further executing and registering a sale deed of five acres of open and unoccupied land out of the field survey Nos. 43, 45, 46, 47, 48 and 50, mouza Bidpeth, P.H. No. 28, Thak No. 175, Tahsil and District Nagpur, in favour of the Welcome Cooperative Housing Society, bearing registration No. NGP/HSG1134/ 81 of Chhota Loharpura, Nagpur, within one month from today, the objections raised by the respondent to the execution proceedings shall not be pressed and shall be unconditionally withdrawn. In case the appellants endorse their consent to this proposal on the face of this pursis, the instant appeal may be disposed of as settled out of Court; otherwise the same be disposed of in accordance with law". In terms of the aforesaid settlement accepted by the parties, the appellants were required to execute and register a deed of Wakf in respect of 20 acres of land and a sale deed in respect of 5 acres of land in favour of Welcome Cooperative Housing Society within a period of one month. The matter was remanded back by this Court to the executing Court to decide the objections raised in Exh.9 and 108 in accordance with law. 4. By impugned order, the executing Court has held that in terms of pursis of compromise filed and accepted by the parties in Second Appeal No. 183 of 1972, the contents of which are reproduced above, the decree holder did not execute the Wakf deed in respect of 20 acres of land within a period of one month, which expired on 22.02.1987. The Wakf deed and the sale deed were executed on 25.11.1988, creating Wakf and selling the property to Welcome Housing Society. There was no extension of time sought by invoking the provisions of Section 148 of C.P.C. and therefore, the compromise decree became unexecutable. 5. Undisputedly, it was a compromise decree which was passed by this Court in Second Appeal No. 248 of 1950 on 11.11.1957. It created reciprocal obligations upon the parties to be discharged. In subsequent second appeal which came up before this Court, again settlement was arrived at, which was accepted by the parties. 5. Undisputedly, it was a compromise decree which was passed by this Court in Second Appeal No. 248 of 1950 on 11.11.1957. It created reciprocal obligations upon the parties to be discharged. In subsequent second appeal which came up before this Court, again settlement was arrived at, which was accepted by the parties. In terms of settlement reproduced in earlier paragraph, the Wakf deed and the sale deed were required to be executed within a period of one month from the date of filing of the pursis. The pursis was filed on 23.01.1987 and the time expired on 22.02.1987. 6. In the decision of the Apex Court in the case of Shivshankar Gurgar vrs. Dilip, reported in (2014) 2 SCC 465, relied upon by Shri Anand Jaiswal, the learned Senior Advocate, it has been held in paragraph 13.1 as under; "13.1. In our opinion, the order of the executing court dated 23.11.2005 is beyond his jurisdiction and a nullity. The only source which confers powers on the civil court to enlarge time is found under Section 148 of the Code of Civil Procedure which reads as follows. 148. Enlargement of time. Where any period is fixed or granted by the Court for the doing of any act prescribed or allowed by this Code, the court may, in its discretion, from time to time, enlarge such period not exceeding thirty days in total, even though the period originally fixed or granted may have expired. It is obviously from the language of the section, such a power can be exercised only in a case where a period is fixed or granted by the court for doing of any act prescribed by this Court. In a compromise decree such as the one on hand, the stipulation that the judgment debtor is required to make the payment of the money within a specified period is a stipulation by agreement between the parties and it is not a period fixed by the court. Therefore, Section 148 CPC has no application to such a situation. We are fortified by the decision of this Court in Kukumchand v. Bansilal." 7. Therefore, Section 148 CPC has no application to such a situation. We are fortified by the decision of this Court in Kukumchand v. Bansilal." 7. It is thus apparent that under Section 148 of C.P.C, there could not have been an enlargement of time in respect of a compromise decree as it is not the time fixed by the Court but it was the time fixed by way of an agreement between the parties. The provision of Section 148 of C.P.C. was neither in fact invoked nor it could have been invoked by the petitioners who are the decree holders. In view of this, no fault can be found with the view taken by the executing court in dismissing the execution petition. In the result, the writ petition is dismissed. Rule is discharged. No order as to costs.