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2019 DIGILAW 1275 (GAU)

Hirak Baruah v. Secretary, Golap Chandra Rabi Chandra Puja Mandir Samity

2019-11-25

PRASANTA KUMAR DEKA

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JUDGMENT : Prasanta Kumar Deka, J. Heard Mr. G. P. Bhowmick, learned Senior Counsel assisted by Ms. M. Kalita, learned counsel for the petitioners. Also heard Mr. A. K. Gupta, the learned counsel for the respondent No. 1. Title Suit No.45/1997 was filed by the present respondents as plaintiffs against the present petitioners as the defendants. The petitioners are tenants under the respondents and the suit was for ejectment on the ground of defaulter and bonafide requirement. The suit was decreed vide judgment and decree dated 14.03.2001 by the learned court of Civil Judge, (Junior Division) No. 1, at Tinsukia. The petitioners thereafter, as appellants challenged the said judgment and decree passed by the learned trial court in Title Appeal No. 4/2001 in the court of the learned Additional District Judge, No. 2 at Tinsukia. The said appeal ended up with a compromise between the parties and to that effect a joint compromise petition stipulating various terms and conditions was filed after verifying the contents therein by both the parties. The said compromise petition was accepted by the learned First Appellate Court and the First Appellate court observed that as per the term stipulated therein, the joint compromise petition would form a part of the decree. It was further held by the First Appellate Court the suit to be decreed as per the terms and conditions of the petition. The said Title Appeal No.4/2001 was disposed of on 21.12.2002. 2. In the year 2012, the respondents initiated Title Execution No. 10/2012 against the present petitioners seeking for delivery of the khas possession of the suit premises by evicting the present petitioner and also for recovery of Rs.871.50/- being the costs of suit. The description of the property in the execution petition under Order XXI Rule 11 of the C.P.C. indicates changes from the one mentioned in Title Suit No. 45/1997 as the suit premises. 3. The petitioners raised objection on the ground that no decree was drawn by the learned First Appellate Court and under such circumstances, the decree passed by the learned trial court in Title Suit No. 45/1997 cannot be executed keeping in view the doctrine of merger and as such there was no decree for execution. 3. The petitioners raised objection on the ground that no decree was drawn by the learned First Appellate Court and under such circumstances, the decree passed by the learned trial court in Title Suit No. 45/1997 cannot be executed keeping in view the doctrine of merger and as such there was no decree for execution. On the other hand, based on the compromise arrived in the appeal, the landlord decree holder renewed the terms of tenancy for 10 years and a no objection certificate was issued by the respondent No. 1/ Secretary of the decree holder samity. As there was a fresh cause of action started with effect from execution of the new agreement dated 01.08.2004 nothing remained to be executed. The said objection was rejected vide the impugned order dated 10.03.2014 passed by the court of learned Munsiff No. 1 at Tinsukia in Title Execution No. 10/2012. While rejecting the said petition, the learned court below held as follows:- "The present execution proceeding has been started on the basis of compromise entered into the parties to the suit and it is no doubt that the appeal is a continuation of the suit. It is certain that for non-preparation of the decree by the Ld. Court of appeal, the judgment debtor side was not prejudiced and being the same is ended with compromise, there was no occasion to them to challenge it by way of further appeal or revision. The order passed by the Ld. Appellate Court and the petition of compromise is found well to the terms and conditions of the compromise to put the parties in the execution. The so called no objection averred by the judgment debtor as second reason to dismiss the execution proceeding is nothing but a plea, which is itself against the purview of the order of the Ld. Appellate court recorded as per the terms and conditions of compromise. The terms and conditions agreed by a bilateral agreement before the court cannot be changed without the knowledge of the court and also could not made against the terms and conditions agreed by the parties earlier without cancellation of the same. The principles of law and the interest of justice demand that the parties should not be allowed to suffer for any reason beyond their control. The principles of law and the interest of justice demand that the parties should not be allowed to suffer for any reason beyond their control. The procedure of the law and the court is made for advance justice to the litigant rather to deny. For the sake of argument, if we treat the order of the Ld. Appellate court and the petition of compromise is the final verdict in a suit, the said order is also executable as like as a decree. Under the aforesaid circumstances and for non-framing of decree by the Ld. Appellate court, this court finds no reason to stop or dismiss the execution proceeding and it is allowed to be continued. The both plea taken by the judgment holder side is found not sustainable and rejected. The decree holder may take steps for execution. Fix. 31.03.2014 for report". 4. Mr. Bhowmick, the learned Senior Counsel for the petitioners submits that initiation of the execution process itself is an act of wrong exercise of jurisdiction by the learned executing court. Admittedly, the learned trial court decreed the suit for ejectment of the present petitioners. Further in the First Appellate Court a joint application was filed under joint verification of the statement made therein, which included the terms and conditions agreed by both the parties thereby giving rise a fresh cause of action on a new tenanted premises other than the one which was the suit premises in the Title Suit No. 45/1997. The doctrine of merger itself goes to show that the judgment and decree of ejectment merged with the compromise decree arising out of terms and conditions agreed by the parties in the suit and as such there was no existence of judgment and decree passed by the learned trial court once it merged with the compromise decree. Accordingly he sought for setting aside and quashing of the said execution proceeding. 5. Mr. Gupta, the learned counsel for the respondents submits that as the petitioners failed to abide by the terms and conditions stipulated in the agreement thereby failing to vacate their possession of the earlier suit premises as such the execution of the decree passed by the learned trial court cannot be faulted. It is further submitted that mere issuance of no objection certificate cannot alter the terms and conditions agreed by the petitioners in the compromise petition. It is further submitted that mere issuance of no objection certificate cannot alter the terms and conditions agreed by the petitioners in the compromise petition. Failure to perform the terms and conditions stipulated in the compromise petition itself gives right to execution of the decree. Referring further to the description of the property in the execution petition Order XXI Rule 11 of the C.P.C. he wanted to project that the decretal premises is the one described in the Schedule of the Title Suit No.45/1997. Summing up he submits that the order requires no interference by this court. 6. Considered the submissions. On perusal of the joint compromise petition it is found that both the parties in Title Appeal No.4/2001 stipulated various terms and conditions and the said terms and conditions were verified by both the parties to the appeal. This itself indicates that the compromise petition was filed under Order XXIII Rule 3 of the C.P.C. and the learned First Appellate Court vide its order dated 21.12.2002 made a specific observation that it was agreed by the parties that the compromise petition would form a part of the decree. It was also directed the suit to be decreed as per the terms and conditions of the petition. Once order dated 21.12.2002 was passed it amounts to closure of the Title Appeal No.4/2001 on the basis of the compromise decree which includes various terms and conditions including the new Schedule of tenanted premises as mentioned in the joint compromise petition. Non-drawal of a decree by the court cannot cause any prejudice to the parties to the suit/appeal. Once the said compromise petition was filed by the parties and after passing of the order dated 21.12.2002 by the First Appellate Court, the judgment and decree passed by the learned trial court merged with the said compromise decree and the cause of action which crystallized on the date of filing Title Suit No.45/1997 comes to an end. If at all there is any violation of the compromise decree by the present petitioners, a fresh cause of action accrued on the respondents/landlords and to that effect there must be a decree deciding such violation by a competent court. 7. If at all there is any violation of the compromise decree by the present petitioners, a fresh cause of action accrued on the respondents/landlords and to that effect there must be a decree deciding such violation by a competent court. 7. Section 2(2) of the C.P.C. defines a "decree" which means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit. The decree passed in Title Suit No. 45/1997 is the expression of the court upon adjudication of the controversies raised in the said suit. The said decree merged with the compromise decree and as such if at all there is any violation of the terms there must be a fresh decree passed by a competent court in a fresh suit raising the controversy about the violation of the terms and conditions of the compromise decree. The learned executing court while exercising its jurisdiction came to the finding that the terms and conditions agreed by a bilateral agreement before the court cannot be changed without the knowledge of the court and also could not be made against the terms and conditions agreed by the parties earlier without cancellation of the same. The learned executing court below itself indicates that it assumed its jurisdiction as if to decide the issue regarding violation of the terms and condition of compromise decree by the petitioners as if it is acting as a trial court. But the executing court must execute a decree which is the formal expression of an adjudication i.e. the issue of violation of terms and conditions of the compromise decree. 8. Section 38 of the C.P.C. stipulates that a decree may be executed either by the Court which passed it, or by the Court to which it is sent for execution. Section 37 of the C.P.C. defines the "Court which passed a decree" which includes the decree passed in the exercise of appellate jurisdiction inasmuch as the trial court is the court of first instance as referred therein. Admittedly, the learned court below assumed its jurisdiction on the decree passed by the learned trial court in Title Suit No. 45/1997. There is a compromise decree and to that effect there is an order passed by the First Appellate Court. Admittedly, the learned court below assumed its jurisdiction on the decree passed by the learned trial court in Title Suit No. 45/1997. There is a compromise decree and to that effect there is an order passed by the First Appellate Court. Because of non-drawal of the compromise decree, the court of first instance cannot retrieve back from the compromise decree and put to execution the decree passed by the trial court assuming the jurisdiction of the court of first instance. 9. Considering the same I am constrained to exercise the jurisdiction under Article 227 of the Constitution of India setting aside and quashing Title Execution No.10/2012 and its proceeding pending in the court of learned Munsiff No. 1 at Tinsukia. 10. Accordingly, this revision petition succeeds. Interim order if any, stands vacated. No costs.