Revision petition challenging rejection of objections and issuance of execution warrants against execution of a compromise decree. Court held execution courtroom conclusion just and proper as petitioners failed to allege fraud.
Revision petition rejected; execution warrants against petitioners remained valid.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
S.B. Civil Revision No. 11/2016
1/1. Smt. Pushpa Devi W/o Jaigopalcharya, aged 62 years, by caste-Maheshwari, resident of Brijpura, Chhaparwal Bhawan, Nathdwara, District Rajsamand.
1/2. Dharmendra S/o Jaigopalcharya, aged 43 years, by caste-Maheshwari, resident of Brijpura, Chhaparwal Bhawan, Nathdwara, District Rajsamand.
1/3. Smt. Jaishree Ladha D/o Jaigopalcharya, W/o Rajesh Ji Ladha, aged 41 years, by caste-Maheshwari, resident of North Kerolena USA through power of attorney holder Smt. Neelam Rathi.
1/4. Smt. Neelam Rathi D/o Jaigopalcharya W/o Yogesh Rathi, aged 39 years, by caste-Maheshwari, resident of Flat No.A-2, 1104, Singhgarh Road, Opp. Santosh Hall, Pune Maharashtra.
1/5. Smt. Roopa Chechani D/o Jaigopalcharya W/o Ravindra Chechani, aged 36 years, by caste Maheshwari, resident of Graficolen Paradise Society Building, G Plot No.41, Flat No.7, LIBM Road, Pune, Maharashtra.
----Petitioner
Versus
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----Respondents
For Petitioner(s) : Dr. Eklavya A. Bhansali For Respondent(s) : Mr. Ravi Bhansali, Senior Advocate assissted by Mr. Dhanesh Saraswat.
HON'BLE MR. JUSTICE P.K. LOHRA
Order
13/08/2018
Petitioners—judgment-debtors, have preferred this revision petition under Section 115, Code of Civil Procedure, 1908 (for short, ‘CPC’) to assail order dated 15th of December, 2015, passed by Sr. Civil Judge, Nathdwara, District Rajsamand (for short, ‘learned Executing Court’), whereby learned Executing Court has rejected the applications submitted on their behalf in Execution Case No.07/13 under Section 3 read with Article 136 of the Limitation Act, under Order 21 Rule 22 & 23(2) read with Section 151 CPC and under Order 7 Rule 11 read with Section 141 CPC, and has allowed application of the respondent—decree-holders dated 23rd of May 2015. The Executing Court also issued warrant against petitioner—judgment-debtors under Order 21 Rule 30, Order 21 Rule 35 and Order 21 Rule 32 CPC.
Scorning the checkered history of the case, for the purpose of this revision petition, suffice it to state that a suit for redemption of mortgage and recovery of possession was filed at the threshold by plaintiffs Navneet Lal and Harikant, sons of Shri Jugal Kishore Vyas. The suit continued for sometime but finally
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the contesting parties settled the dispute by mutual agreement and in terms of compromise decree was passed by Civil Judge (Jr.Div.) cum Judicial Magistrate, Nathdwara, Rajsamand on 8th of September, 1997. In terms of compromise, as per the version of petitioners, possession of the suit property was not handed over by the respondents till 17th of January, 2011, i.e., uptil expiry of limitation and therefore after obtaining possession and obtaining requisite permission for construction of shop from Municipal Council, when steps were taken by them for demolition of earlier structure and raising new construction, Municipal Council stayed the sanction. This action of the Municipal Council was questioned by the petitioners—judgment-debtors but the learned Addl. District Judge, Nathdwara did not find any fault with the same and therefore the petitioners challenged the said order before this Court. In the interregnum, first respondent submitted an application for execution of the compromise decree. As the matter remained sub-judice before this Court for raising construction at the behest of petitioners, execution of decree was not possible. In this behalf, a notice was given by the respondents to the petitioners on 15th of July 2011. The aforesaid notice was replied by the petitioners. The execution laid on behalf of first respondent was resisted by the petitioners and objections were submitted by precisely questioning the executability of the decree on the ground that the same is unregistered and the Court which has passed the decree was lacking pecuniary jurisdiction. It is pertinent to note here that in the objections submitted on behalf of petitioners there was no whisper about the notice of the respondents dated 15th of July 2011 and its reply on behalf of petitioners. The learned
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Executing Court, after hearing learned counsel for the parties, rejected the objections.
I have heard learned counsel for the parties at length, perused the impugned judgment and also thoroughly examined the written submissions made on behalf of petitioners.
Learned counsel for the petitioners in support of his
arguments has placed reliance on following judgments.
There remains no quarrel that after protracted trial, a compromise was arrived at between rival parties and same facilitated passing of a compromise decree by Civil Judge (Jr.Div.) cum Judicial Magistrate, Nathdwara. Execution of a decree for specific performance of contract can, of course, be resisted by a judgment-debtor but then a compromise decree cannot be put to hold at the behest of a judgment-debtor on certain flimsy or technical pretext. In order to thwart execution of a compromise decree, a judgment-debtor is required to make out a case that compromise decree is vitiated by fraud, misrepresentation,
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misunderstanding or mistake. No such allegations are forthcoming in the matter, nor discernible from the impugned order. Moreover, as per petitioners’ own admission they did not make endeavour to take possession of the disputed property from respondent till 17th of January, 2011. It is also not in dispute that in terms of compromise it was obligation of the petitioners to serve a registered notice on first respondent for getting vacant possession of the disputed premises so as to demolish the existing construction and raise new construction. The objection of the petitioners that execution was laid by the respondents belatedly is therefore not tenable inasmuch as when in terms of compromise decree petitioners themselves also awakened after more than 10 years, i.e., in the year 2011, to perform their obligation.
It may be observed that execution of a decree, which is passed after contest and execution of a compromise decree is on different footing because a compromise decree pre-supposes an agreement between rival parties willing to meet some of the demands of the plaintiff but not all; in a way, it may be called ‘meet someone half way’ and therefore a party to a litigation, who has entered into compromise, cannot be allowed to eschew or disown obligation on its part, which emanates from compromise decree.
The learned Executing Court has examined the matter threadbare in the backdrop of peculiar facts and circumstances of the case and thereafter concluded that objections of the petitioners are superfluous; and the conclusion of the learned Court below in this behalf, in my view, is just and proper. The
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learned Court below has neither committed any illegality or material irregularity in exercise of jurisdiction, nor it has overstepped its jurisdiction, or failed to exercise jurisdiction vested in it so as to warrant interference in exercise of revisional jurisdiction.
The legal precedents, on which the learned counsel for the petitioners has placed reliance, in my considered opinion cannot come to the rescue of petitioners in the light of peculiar facts and circumstances of the instant case.
Resultantly, the revision petition fails and same is hereby rejected.
3 issues framed by the court
Whether the executing court committed any illegality or material irregularity in rejecting objections to the execution of a compromise decree.
Whether a judgment-debtor can resist execution of a compromise decree on mere technical pretexts without alleging fraud or mistake.
Whether the High Court should interfere in revision under Section 115 CPC given the specific facts and circumstances of the case.
Colour shows how this judgement treated each authority
Urban Improvement Trust, Jodhpur Vs. Gokul Narain & Anr.Referred¶34
(AIR 1996 SC 1819) · Who else cites this
Bhoop Singh Vs. Ram Singh Major & Ors.Referred¶35
(AIR 1996 SC 196) · Who else cites this
Hameed Joharam (D) & Ors. Vs. Abdul Salam (D) by LRs & Ors.Referred¶36
(AIR 2001 SC 3404) · Who else cites this
N. Vittal Prabhu Vs. Shrimath Auamtheswara Temple, Manjeshwar & Ors.Referred¶37
(AIR 1986 Kerala 221) · Who else cites this
Nain Singh & Ors. Vs. Mahendra SinghReferred¶38
[AIR (39) 1952 Allahabad 196] · Who else cites this
Kiran Singh & Ors. Vs. Chaman Paswan & Ors.Referred¶39
(AIR 1954 SC 340) · Who else cites this
Ajab Enterprises Vs. Jayan Vegoiles and Chemicals Pvt. Ltd.Referred¶40
(AIR 1991 Bombay 35) · Who else cites this
Praja Singh & Ors. Vs. Gurdip Singh & Ors.Referred¶41
(AIR 1982 Punjab & Haryana 353) · Who else cites this
4 provisions across 2 enactments
LRs of Jaigopalcharya S/o Shri Nana Lal
Shyam Prakash S/o Bhagwati Prasad
P.K. LOHRA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
