Madhya Pradesh High Court
Kailash Kumar Paliwal vs Umesh Kumar Paliwal on 1 May, 2017
Author: Sanjay Yadav
Bench: Sanjay Yadav
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WP-20488-2014
HIGH COURT OF MADHYA PRADESH : JABALPUR
BEFORE HON'BLE SHRI JUSTICE SANJAY YADAV
Writ Petition No.20488/2014
Kailash Kumar Paliwal
versus
Umesh Kumar Paliwal and others
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Shri Naman Nagrath, learned Senior Counsel with Shri
A. Shrivastava, learned counsel for petitioner.
Shri Umesh Trivedi, learned counsel for respondent No.1.
Shri Gulab Singh, learned counsel for respondent No.2.
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ORDER
(1.5.2017) Petitioner takes exception to the order-dated 20.3.2014 passed in an Execution Case No.6A/1998; whereby, the trial Court rejected the objection raised by the petitioner vide application under Section 54 of the Code of Civil Procedure, 1908.
2. Grievance of the petitioner is that though the execution proceedings were initiated by the petitioner by filing an application under Section 47 CPC; wherein, while raising objection as to executability of the compromise decree, the petitioner sought quashment of the report submitted by the Tahsildar. The trial Court, it is urged, without dwelling on the :: 2 ::
WP-20488-2014 said application and by rejecting the application under Section 54 CPC filed at later stage, consigned the case to record room.
3. Relevant facts lie in a narrow compass. That, petitioner and respondent No.1 filed a suit for declaration that the suit property situated at Village Sangakheda Tahsil Babai District Hoshangabad bearing Khasra No.72 Area 13.55 acre, Khasra No.79 Area 81/2 Area 13.58 acre, Khasra No.107/2 Area 1 acre, Khasra No.107/1 Area 11.10 Acre, Khasra No.193/3 Area 14.08 acre, Khasra No.245/1-Ka Area 0.80 Acre, Khasra No.245/2 Area 2.10 acre and Khasra No.251/1 Area 0.08 acre, total Area 59.23 acres, is a joint family property of the plaintiffs and respondents No.2 and 3, who were arrayed as defendants No.1 and 2. And, for permanent injunction that defendants No.1 and 2 be prohibited from causing any interference in cultivation carried out by the plaintiffs and from alienating the property. The suit was registered as Civil Suit No.6A/1996.
4. The suit was compromised in Lok Adalat and a compromise decree was passed on 29.6.2002. As the decree related to partition of agricultural land, the trial Court took recourse to the procedure prescribed under Order 20 Rule 18 :: 3 ::
WP-20488-2014 CPC read with Section 54 CPC on an application filed by petitioner under Order 21 Rule 11 CPC by order-dated 18.5.2012.
5. Though certain cavil has been raised on behalf of the petitioner that the decree being not a decree in a contested case, but a compromise decree and the same is to be treated as other type of decree as would be bound by Order 20 Rule 18 CPC and Section 54 CPC. In other words, the contention that being a compromise decree, the provisions under Order 20 Rule 18 and Section 54 CPC were not applicable, is taken note of and rejected at the outset.
6. Sub-section (2) of Section 2 CPC defines decree to mean "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 and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within section 144, but shall not include-
(a) any adjudication from which an appeal lies as an appeal from an order, or :: 4 ::
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(b) any order of dismissal for default.
Explanation - A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit, it may be partly preliminary and partly final;
7. Thus, where there is a judicial determination of the rights of the parties which is conclusive in nature in a civil suit, tantamounts to a decree. Therefore, no distinction is carved out whether the decree is in a contested case or on a compromise under Order 23 Rule 3 CPC.
8. What is necessary is that, there must be judicial determination of rights of the parties in a suit. The contention that the compromise decree cannot be construed stricto sensu a decree and therefore, the provisions under Order 20 Rule 18 CPC and Section 54 CPC is not attracted, is negatived.
9. Coming back to the main issue. That, the Collector Hoshangabad in exercise of his powers under Section 54 CPC sought the report from Tahsildar, Babai. Report as to respective share as per decree was tendered by Tahsildar on 5.2.2013; on the basis whereof, Collector, Hoshangabad passed an order on 4.2.2015; whereagainst the petitioner has filed a Revision before Board of Revenue vide No.673-PBR-15.
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WP-20488-2014
10. That, in pending application under Order 21 Rule 11 CPC, petitioner filed an application under Section 47 CPC and during pendency whereof, filed another application under Section 54 CPC.
11. Vide application under Section 47 CPC, the petitioner, as borne out from Paragraph 8 of the application, sought rejection of the report by Tahsildar and a direction to the Collector for re-determination of share ¼**;g fd rglhynkj ckcbZ us tks va'k fu/kkZj.k izfrosnu U;k;ky; esa izLrqr fd;k gS og U;k;ky; } kjk ikfjr fu.kZ; ,oa fMdzh ds vuq:i ugh gS bl dkj.k mDr va'k fu/kkZj.k i=d fujLr djrs gq;s eafnj ls yxh gqbZ Hkwfe ds laca/k esa iqu% va'k fu/kkZj.k i=d cqyk;s tkus ds vkns'k dysDVj gks'kaxkckn dks fn;s tkos ½-
12. Be it noted that the application was filed in a pending execution case under Order 21 Rule 11 CPC, wherein the Court had already directed the Collector to take recourse to Section 54 CPC. Whereon, an order has already been passed and the matter now rests with the Board of Revenue at the instance of the petitioner, who is aggrieved by the share determined by said order.
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13. A Division Bench of our High Court in Bhagwansingh vs Babu Shiv Prasad 1973 MPLJ 1059, while dwelling on the issue as to whether the Civil Court having sent the decree of partition to the Collector for effecting partition in accordance with the provisions of Section 54 and Order 20 Rule 18 CPC does have any jurisdiction, held -
5. Having heard learned counsel for both the parties, we are of the opinion that the contention advanced by the learned counsel for the appellant has substance and as such must be accepted. We shall first like to refer to the relevant provisions of the Code of Civil Procedure before dealing with the point involved in the present case. Rule 18 (1) of Order XX of the Code reads as under:
"Rule 18. Where the Court passes a decree for the partition of property or for the separate possession of a share therein, then,- (1) if and in so far as the decree relates to an estate assessed to the payment of revenue to the Government, the decree shall declare the rights of the several parties interested in the property, but shall direct such partition or separation to be made by the Collector, or any gazetted subordinate of the Collector deputed by him in this behalf, in accordance with such declaration and with the provisions of Section
54.
Section 54 of the Code reads as under:
"54. Where the decree is for the partition of an undivided estate assessed to the payment of revenue to the Government, or for the separate possession of a share of such an estate, the partition of the estate or the separation of the :: 7 ::
WP-20488-2014 share shall be made by the Collector or any gazetted subordinate of the Collector deputed by him in this behalf, in accordance with the law (if any) for the time being in force relating to the partition, or the separate possession of shares of such estates."
A perusal of the aforesaid two provisions make it clear that the rule does not contemplate passing of a final decree. All that is required of a civil Court in a case for partition of an undivided estate assessed to the payment of land revenue to the Government, or for the separate possession of a share of such an estate, is to only pass a preliminary decree and declare the rights of the several parties who are interested in the property and nothing more and give direction for such partition or separation to be made by the Collector or any gazetted officer subordinate to the Collector deputed by him in this behalf in accordance with such declaration and with the provisions of Section 54 of the Code. Thereafter, the execution has to be effected by the Collector. The reason is that the revenue authorities are more conversant and better qualified to deal with such matters than the Civil Court and interest of the Government with regard to the revenue assessed on the assets would be better safeguarded by the Collector executing the decree than by the Court. The partition contemplated by Section 54 is not confined to mere division of lands but includes also the delivery of the shares of the respective allottees. Thus, the Collector or his subordinate would be completely carrying out the partition. The civil Court after passing of the preliminary decree for partition of an undivided estate assessed to the payment of land revenue becomes functus officio and it would have no jurisdiction to act in any manner thereafter so as to pass a final decree or deliver possession to a party in accordance with the said decree.
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8. From the aforesaid discussion we come to the conclusion that although in the instant case a final decree was actually passed and even though it was not challenged by the appellant, that would pot in any way preclude the appellant from raising the present objection that the civil Court had no jurisdiction to pass the final decree and execute the same after the matter was referred to the Col- lector under Order XX, Rule 18 read with Section 54 of the Code. The civil Court had become functus officio and it was not competent to pass a final decree which it did in terms of the partition effected by the Collector.
9. Learned counsel for the respondent made another submission also that in the present case there was no question of partition or revenue apportionment and, therefore, the civil Court should not have referred the case to the revenue Court for effecting partition under Order XX, Rule 18, read with Section 54 of the Code. It will suffice to say in answer that if that was so, the respondent ought to have challenged the preliminary decree of the civil Court and not having done so, it is now not open for him to raise this point and as such even this contention has no substance.
14. The said decision is later followed in Ismail Khan vs Rafiqkhan 1983 MPWN 508.
15. In Tripti Pathak vs B.C. Vaidya 2008 (1) MPLJ 200, it is held : -
"13. In view of the aforesaid settled law, it is apparent that a decree in a given case may be both preliminary and final. In the present case, as stated hereinabove, the properties in respect of which land revenue was payable to the State :: 9 ::
WP-20488-2014 Govt, the Civil Court was not required to pass any preliminary or final decree and only right or share in respect of those properties were to be declared by the Civil Court. The Civil Court in Para 1 of the decree found that the plaintiffs are entitled for 1/8th share in the agricultural lands and after declaring their share issued directions as enumerated in Section 54 of the C.P.C. Meaning thereby that the Civil Court was not to do anything further in respect of agricultural lands and the entire follow up action was to be taken by the Revenue Courts in that regard, though on filing of an application.
Only in respect to house properties in respect of which directions were issued in para 2 of the decree, the Civil Court was required to pass a final decree as at the time of passing of the decree, the Civil Court was not in a position to finally determine the rights of the parties and after declaring the rights of the parties, necessary directions were issued. So the final decree was required only in respect of direction No.2 and not in respect of direction No. 1 of the decree."
16. In Mst. Hironda vs Mst. Anti 1970 MPLJ 91, it is held that "the Civil Court, when disposing of a suit for partition relating to revenue paying lands, has only to declare the shares of the parties and has no other power in the matter. That power having been exercised and the papers having been sent to the Collector for effecting actual partition, the Court became functus officio. The Court, thereafter, could not entertain any application in relation to that matter either for ascertainment of mesne profits or for delivery of possession :: 10 ::
WP-20488-2014 etc. After passing that decree declaring the rights, the Court had no jurisdiction to entertain any application under Order 20 Rule 18(2) of the Civil Procedure Code. Sub-rule (2) of Rule 18 only relates to decrees in respect of "(i) any other immovable property or (ii) movable property." The case being one relating to agricultural property assessed to land revenue, sub-rule (2) was not applicable at all, and the application made to the Civil Court was misconceived."
17. In the case at hand, the Civil Court having referred the matter to the Collector for partition under Section 54 CPC and it being beyond its jurisdiction being functus officio, the non- consideration of an application under Section 47 and the rejection of application under Section 54 raising objections as to allocation of share was not without jurisdiction.
18. Petitioner has relied on the decisions in Lakshmi Narayanan vs S.S. Pandian AIR 2000 SC 2757, Pushpa Devi Bhagat vs Rajinder Singh (2006) 5 SCC 566 and R. Rajanna vs S.R. Venkataswamy (2014) 15 SCC 471 to bring home submissions as to maintainability of an application under Section 47 CPC.
19. In Lakshmi Narayanan (supra), in context to a :: 11 ::
WP-20488-2014 compromise decree in a landlord tenant eviction, wherein a compromise was arrived at that if respondent fails to vacate the premises on the expiry of the stipulated period, the appellant will be entitled to have the decree executed against him and get possession of the same. On filing the memo of compromise in the Court, the eviction case was dismissed as not pressed. Later on, as the compromise was not honoured, a fresh E.P. for execution of the decree for recovery of possession was filed. The respondent filed an appeal praying for recalling of order dated 16.11.1993. The Executing Court by a common order dismissed the appellant's petition (i.e. for execution of decree) and allowed the respondent's application (for recalling of order-dated 16.11.1993). In these factual background, with the issue as to "whether in view of the compromise entered into between the parties and execution of a new lease deed, the ex parte decree dated May 2, 1990 got extinguished as such the appellant cannot get possession of the premises in execution of the existing decree", their Lordships were pleased to observe and hold :
13. In a case where parties compromise after the decree in a case has been passed, the effect of the compromise on the executability of the :: 12 ::
WP-20488-2014 decree depends upon the intention of the parties, which is a mixed question of law and fact and has to be determined by the executing court on an application under Section 47 of the C.P.C. on interpretation of the decree and the compromise in the light of the facts and circumstances of each case. If on such determination it is gathered that the intention of the parties is to extinguish the decree and either the decree holder or the judgment-debtor got the compromise recorded under Rule 2 of Order 21 of the C.P.C. by the court whose duty it is to execute the decree, the execution of the decree cannot be proceeded with by the executing court. But if the intention of the parties is to keep the decree alive and to give effect to it in the manner agreed upon between the parties in the compromise, the decree will be given effect to accordingly or executed as it is depending upon whether the compromise is recorded by the court as aforementioned or not. ...
16. The fact that the parties entered into a new lease deed for three years pursuant to the compromise cannot be taken note of for reasons more than one. First, because the compromise was not recorded under Rule 2 of Order 21 and secondly, because the agreement of tenancy though for three years is not a registered document as it should be in view of the provisions of Section 107 of the Transfer of Property Act and Section 17 of the Indian Registration Act. Be that as it may, we do not propose to rest our decision on the second ground as this point was not taken either before the executing court or before the High Court. We are now left with the first reason only. The executing court has simply dismissed the earlier E.P. as not pressed. It did not record the compromise between the parties, for this reason alone the compromise cannot be pleaded to bar the execution of the decree in view of the provisions of Rule 3 of Order 21 of the C.P.C.
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18. This being the position, there is no legal bar to have the decree executed and the executing court has clearly erred in recalling its earlier order of November 16, 1993, directing the delivery of possession to the appellant. The High Court also fell into an error in confirming the order of the executing court."
20. Similarly, in the case of Pushpa Devi Bhagat (supra), their Lordships, while dwelling on the issue as to "whether the appeal filed by Pushpa Devi under Section 96 of the Code of Civil Procedure against the consent decree was maintainable", were pleased to hold :
16. Section 96 provides for appeals from original decrees. Sub-section (3) of section 96, however, provided that no appeal shall lie from a decree passed by the court with the consent of the parties. We may notice here that Order 43 Rule 1
(m) of CPC had earlier provided for an appeal against the order under Rule 3 Order 23 recording or refusing to record an agreement, compromise or satisfaction. But clause (m) of Rule 1 Order 43 was omitted by Act 104 of 1976 with effect from 1.2.1977. Simultaneously, a proviso was added to Rule 3 Order 23 with effect from 1.2.1977. We extract below the relevant portion of the said proviso :
"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 decide the question"
Rule 3A was also added in Order 23 with effect from 1.2.1977 barring any suit to set aside a :: 14 ::
WP-20488-2014 decree on the ground that the compromise on which the decree is based was not lawful.
17. The position that emerges from the amended provisions of Order 23, can be summed up thus :
(i) No appeal is maintainable against a consent decree having regard to the specific bar contained in section 96(3) CPC.
(ii) No appeal is maintainable against the order of the court recording the compromise (or refusing to record a compromise) in view of the deletion of clause (m) Rule 1 Order 43.
(iii) No independent suit can be filed for setting aside a compromise decree on the ground that the compromise was not lawful in view of the bar contained in Rule 3A.
(iv) A consent decree operates as an estoppel and is valid and binding unless it is set aside by the court which passed the consent decree, by an order on an application under the proviso to Rule 3 of Order 23.
Therefore, the only remedy available to a party to a consent decree to avoid such consent decree, is to approach the court which recorded the compromise and made a decree in terms of it, and establish that there was no compromise. In that event, the court which recorded the compromise will itself consider and decide the question as to whether there was a valid compromise or not. This is so because a consent decree, is nothing but contract between parties superimposed with the seal of approval of the court. The validity of a consent decree depends wholly on the validity of the agreement or compromise on which it is made. The second defendant, who challenged the consent compromise decree was fully aware of this position as she filed an application for setting aside the consent decree on 21.8.2001 by alleging that there was no valid compromise in accordance with law. Significantly, none of the other :: 15 ::
WP-20488-2014 defendants challenged the consent decree. For reasons best known to herself, the second defendant within a few days thereafter (that is on 27.8.2001), filed an appeal and chose not to pursue the application filed before the court which passed the consent decree. Such an appeal by second defendant was not maintainable, having regard to the express bar contained in section 96 (3) of the Code."
21. In R. Rajanna (supra), their Lordships were pleased to observe :
"11. It is manifest from a plain reading of the above that in terms of the proviso to Order XXIII Rule 3 where one party alleges and the other denies adjustment or satisfaction of any suit by a lawful agreement or compromise in writing and signed by the parties, the Court before whom such question is raised, shall decide the same. What is important is that in terms of Explanation to Order XXIII Rule 3, the agreement or compromise shall not be deemed to be lawful within meaning of the said rule if the same is void or voidable under Indian Contract Act, 1872. It follows that in every case where the question arises whether or not there has been a lawful agreement or compromise in writing and signed by the parties, the question whether the agreement or compromise is lawful has to be determined by the Court concerned. What is lawful will in turn depend upon whether the allegations suggest any infirmity in the compromise and the decree that would make the same void or voidable under the Contract Act. More importantly, Order XXIII Rule 3A clearly bars a suit to set aside a decree on the ground that the compromise on which the decree is based was not lawful. This implies that no sooner a question relating to lawfulness of the agreement or compromise is raised before the Court that passed :: 16 ::
WP-20488-2014 the decree on the basis of any such agreement or compromise, it is that Court and that Court alone who can examine and determine that question. The Court cannot direct the parties to file a separate suit on the subject for no such suit will lie in view of the provisions of Order XXIII Rule 3A of CPC. That is precisely what has happened in the case at hand. When the appellant filed OS No.5326 of 2005 to challenge validity of the compromise decree, the Court before whom the suit came up rejected the plaint under Order VII Rule 11 CPC on the application made by the respondents holding that such a suit was barred by the provisions of Order XXIII Rule 3A of the CPC. Having thus got the plaint rejected, the defendants (respondents herein) could hardly be heard to argue that the plaintiff (appellant herein) ought to pursue his remedy against the compromise decree in pursuance of O.S. No.5326 of 2005 and if the plaint in the suit has been rejected to pursue his remedy against such rejection before a higher Court."
22. Thus, in these cases, the issue was that, whether an appeal can be preferred against a compromise decree. Answering in the negative, their Lordships were pleased to observe that the parties aggrieved (who are party to the suit) can invoke Section 47 CPC questioning the decree as separate suit is barred. In all these matters, agricultural land was not the subject matter as in the case at hand. Moreover, in the present case, the petitioner is not seeking setting aside of ex parte decree. He is aggrieved of the fraction of share that the :: 17 ::
WP-20488-2014 co-plaintiff has of the Govt. land as alleged, accorded to his share. In view whereof, the contention that it is within the right of the petitioner to raise objection vide application under Section 47 CPC against the allocation of share, cannot be carried forward because once the Civil Court has referred the matter to the Collector under Section 54 CPC, it is functus officio and the Civil Court is not under an obligation to decide application under Section 47 CPC.
23. The impugned order, when is tested on the anvil of above analysis, cannot be faulted with.
24. Consequently, petition fails and is dismissed.
25. Interim order-dated 19.1.2015 stands vacated. No costs.
(SANJAY YADAV) JUDGE vinod