Kerala High Court
D.I.Michale Nirmala Deelite vs K.K.Koshi
Author: A. V. Ramakrishna Pillai
Bench: A.V.Ramakrishna Pillai
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HON'BLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI
MONDAY, THE 13TH DAY OF AUGUST 2012/22ND SRAVANA 1934
CRP.No.656 of 2004 (C)
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(AGAINST THE ORDER DATED 27/1/04 IN EP.280/96 IN OS.1241/1992 of PRL.MUNSIFF
COURT, TRIVANDRUM)
REVISION PETITIONER(S)/DECREE HOLDER/PLAINTIFF:
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D.I.MICHALE NIRMALA DEELITE, T.C.11/582-1
MUSEUM BAINS COUMPOUND, TRIVANDRUM.
BY ADV. SRI.R.S.KALKURA.
RESPONDENT(S)/JUDGMENT DEBTOR.:
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K.K.KOSHI, T.C. 11/582-2,
MUSEUM BAINS COMPOUND, TRIVANDRUM.
BY ADV. SRI.K.K.KOSHI (PARTY).
THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 13-08-2012,
THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
C.R
A. V. RAMAKRISHNA PILLAI, J.
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C.R.P No.656 of 2004
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Dated this the 13th day of September, 2012
ORDER
The short question which this Court is called upon to answer in this revision petition challenging the order dated 27/01/2004 in E.P.No.280/1996 in O.S.No.124/1992 on the file of the Munsiff Court, Thiruvananthapuram, is whether the execution court can refuse to execute a compromise decree placed on board for execution on the ground of substantial compliance.
2. Now to the facts.
The revision petitioner is the decree holder. The suit was instituted for prohibitory as well as mandatory injunction and other consequential reliefs alleging excavation of soil by the first respondent from his property to such depth that it caused the erosion of soil from the petitioner's property which is lying adjacent, thereby causing damage to the petitioner's property. Later, a compromise was entered into by the parties which was accepted by the court and a decree was passed in terms of the compromise. Subsequent to the compromise decree, the respondents constructed a wall. Alleging that the said construction was not in conformity with the compromise decree, the petitioner filed the E.P. The execution court after considering the evidence including the CRP.No.656 of 2004 -:2:- report of the Commissioner dismissed the E.P holding that the decree has been satisfied. Thus, this revision petition.
3. Arguments have been heard and the records including the impugned order perused.
4. It is submitted by the learned counsel for the petitioner that as per the compromise decree, the first respondent was legally bound to construct a retaining wall with granite and cement mortar to a height of 5 ft. up to an extent of 9 ft. towards south from the north eastern corner of his property and from there to a height of 10 ft. up to the end of the south eastern corner of the property of the respondents, so as to support the boundary wall and the property of the petitioner. The respondent was also bound to construct the said retaining wall independently adjacent to the western side of the compound wall of the petitioner at a width of 2 ft. The height of 5 ft. and 10 ft. were to be measured from the ground level of the property of the 1st respondent. The judgment debtor was permitted to reduce the width of the retaining wall only in respect of 3 ft. length where a sunshade projects. At this particular portion the retaining wall was to have a width of 2 ft. up to the sunshade and from there it could be slanted. Construction was to start in the presence of the counsel of both sides and was to be completed within two weeks on or before 20th April, 2005.
CRP.No.656 of 2004 -:3:-
5. After the compromise decree, the respondents constructed a retaining wall in the absence of the petitioner. However, the Commissioner deputed by the execution court reported that:
a) the width of the retaining wall constructed by the respondents was only 45 Cms., as against two feet agreed, excluding the width of 10 CMs thickness of the brick border of the compound wall of the petitioner. It was also reported that the total length of the retaining wall was 10.6 meters of which, 2.9 meters from north towards south had a height of 1.6 meters (5.25 ft.) and the remaining length of 7.7 meters had a height of 2 meters (6.5 ft.) only, as against 10 ft. as envisaged by the decree. In other words, there was a shortage of 3.5 ft. in height to the 2nd stage i.e. southern portion .
b) the base of the slanting construction has only a width of 8 inches, though as per the decree the width of the super structure should be 2 ft. The construction also had a concave nature which is unscientific.
6. The case of the petitioner before the execution court was that the decree was not satisfied as the construction of the retaining wall by the judgment debtor was not in accordance with the compromise decree. According to the petitioner, the execution court failed to appreciate the material evidence on the basis of the presumption that there was substantial compliance of the decree and dismissed the E.P. CRP.No.656 of 2004 -:4:-
7. The argument of the learned counsel for the petitioner buttressed by a catena of decisions, seems to proceed on the principle that the duty of the executing court is to give effect to the compromise decree that was already passed beyond which it could not go. The fact that the decree sought to be executed was a compromise decree is not in dispute. The executability of a compromise decree under Order XXI of the CPC cannot be disputed at all as the compromise decree was the result of the adjudication process of the court. It falls well within the definition of decree in Section 2 (2) of the Code of Civil Procedure. The same Commissioner, who filed the report at the trial stage was deputed by the execution court. He found that there were short comings in the construction and it was not in conformity with the terms of compromise which was accepted and acted upon by the trial court by passing a decree. It is true that the execution court could take note of events subsequent to the passing of the decree which has become final and conclusive. (see Karunakaran v. Janaki Amma (1987 (2) KLT 1010). However, even that power can be exercised only within the limits of the decree. If the execution court goes beyond that, it would be a negation of the rights of the parties which were already concluded by the decree. There may be decrees, where the obligation imposed on the decree holder and the judgment debtor are so conditioned that CRP.No.656 of 2004 -:5:- performance by one is conditional on performance by the other. In such cases, execution will not be ordered unless the party seeking execution not only offers to perform his side but, when objection is raised, also satisfies the executing court that he is in a position to do so. Any attempt to enforce performance unilaterally in such cases would have the effect of varying the conditions of the decree which the execution court cannot do. (see Jai Narain Ram Lundia v Kedar Nath Khetan and others (AIR 1956 S.C.359). In the instant case, the performance of the respondents was not conditional on any performance by the petitioner. In other words, the respondents were bound to do what has been agreed by them.
8. The decision of the Apex Court in V.Ramaswami Aiyengar and Others v. T.N.V.Kailasa Thevar (AIR (38) 1951 Supreme Court 189) which advise the execution courts against going beyond decree further makes it clear that though the execution courts can interpret the decree under execution, they could not make a new decree for the purpose under the guise of interpretation. It is difficult to imagine a clearer salutary principle to attain finality of litigation.
9. I am clear in my mind that the court below has gone beyond the decree by not giving full effect to the terms of the compromise decree. The learned Munsiff appears to have overlooked the fact that he CRP.No.656 of 2004 -:6:- was sitting only as an executing court and his duty was to give effect to the terms of that decree that was already passed and beyond which he could not go. The convincing evidence on record which reveals that the construction was not in accordance with the terms of the compromise decree was overlooked by the court below. It is regrettable to note that the said mistake prevented the petitioner from enjoying the fruits of the decree for years.
The result of the above discussion, therefore, is that the impugned order warrants interference by this Court in exercise of the revisionary powers under Section 115 of the Code of Civil Procedure. Accordingly, I allow the revision. The impugned order is set aside and the matter is remitted back to the execution court for fresh consideration and disposal of the execution petition, in accordance with law.
Sd/-
A. V. RAMAKRISHNA PILLAI JUDGE //TRUE COPY// P.A TO JUDGE krj