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2016 DIGILAW 856 (MP)

Rameshwar Dayal v. Ram Vijay Yati

2016-09-22

VIVEK AGARWAL

body2016
ORDER 1. This writ petition has been filed by the judgment debtor challenging the order dated 28.7.2009 passed in Case No.176A/98×2007 (E.D.) by First Additional Civil Judge to First Civil Judge Class-II, Bhind wherein the applications filed by the decree-holder and the judgment debtor under the provisions of Order 19 rule 1 and 2 read with section 151 of CPC have been decided. 2. One of the decree-holder had filed an application under section 151 of CPC submitting that earlier he had appointed his mother as power of attorney but now he himself wants to appear and plead the case and the power of attorney be set aside. He had also submitted that another decree-holder Chandrahans Yati had accepted the compromise but this decree-holder wish to continue with the execution proceedings. This prayer of one of the decree-holder was opposed by the judgment debtor, who is petitioner before this Court and it was submitted on behalf of the judgment debtor that his application under Order 19 rule 1 and 2 of CPC read with section 151 of CPC be decided before taking any decision on application under section 151 of CPC filed by the decree-holder. 3. Learned trial Court has adverted to the fact that on 25.8.2008 an application for compromise was filed on behalf of decree-holder Chandrahans and the judgment debtor but on 4.9.2008 decree-holder Ram Vijay had filed an application under section 151 of CPC objecting to the compromise. Another application was also filed by decree-holder Ram Vijay on 14.10.2008 under section 151 of CPC and it was mentioned that the compromise was made under undue pressure and at that point of time free and willful consent of decree-holder Chandrahans was not obtained. It was also submitted that the price of the suit property was in the range of Rs.10-15 lacs and half of its portion is sought to be transferred for a consideration of only Rs.20,000/- which clearly demonstrate that the compromise was not filed under free will and voluntarily. On 25.10.2008, even Chandrahans had filed an application alleging that compromise application was procured under influence of alcohol and under threat of gun, therefore, the said compromise be set aside. The said application was properly signed by Chandrahans. On 25.10.2008, even Chandrahans had filed an application alleging that compromise application was procured under influence of alcohol and under threat of gun, therefore, the said compromise be set aside. The said application was properly signed by Chandrahans. This application was though opposed by the judgment debtor Rameshwar Dayal who submitted that since Chandrahans has filed contradictory affidavits, therefore, he be permitted to cross examine Chandrahans and also undertake the proceedings under the provisions of section 340 of CrPC. These applications have been dealt with by learned trial Court and learned trial Court has held that if decree-holder Ram Vijay pays a sum of Rs.20,000/- to the judgment debtor then the execution proceedings shall continue. This order is the bone of contention between the present petitioners and the respondents. 4. Learned counsel for the petitioner submits that once a compromise was produced before the Court, there was no authority vested in either the Court or in the parties submitting a compromise to rescind the same, therefore, the impugned order suffers from illegality and arbitrariness. 5. On the other hand learned counsel for the respondents has drawn attention of this Court to the law laid down in the case of Sanjay Singh v. Garima Singh, as reported in (1998)8 SCC 375 , wherein it is held that in case a decree or compromise is obtained under fraud then even consent decree can be set aside in exercise of powers under section 151 of CPC. 6. There is specific allegation of obtaining compromise under duress and fraud which is a subject matter of enquiry, therefore, it cannot be said that learned trial Court had committed any error in exercising its inherent powers in passing the impugned order. In fact section 151 of CPC expects that every Court constituted for the purpose of doing justice to act according to law. The Court is armoured with the inherent powers so to do the right and to undo a wrong in the course of administration of justice. In view of this aim and object of section 151 of CPC, the order passed by the trial Court cannot be said to be faulty. Thus the petition fails and is dismissed. R. K. Soni for petitioner; A. S. Bhadoriya for respondent No.1.