Andhra HC (Pre-Telangana)
Gangalla Venkataiah vs Gangalla Yakaiah And Ors. on 23 October, 2002
Equivalent citations: 2002(6)ALD653
ORDER C.Y. Somayajulu, J.
1. 1st respondent filed IA No.521 of 2001 on the file of the Court of Senior Civil Judge, Mahaboobabad in OS No. 100 of 1988 on the file of the Court of Principal Subordinate Judge, Warangal, for the following reliefs:
"(a) To appoint a Commissioner to deliver possession of the petition schedule property as per the compromise decree dated 31.8.1995 passed in AS No. 1721 of 1989 on the file of the Honourable High Court of A.P. in OS No.100 of 1988 on the file of the Principal' Subordinate Court, Warangal.
(b) Pass a final decree as per the report of the Commissioner and in terms of compromise decree dated 31.8.1995 passed by the Honourable High Court of A.P. in AS No.1721 of 1989 in OS No.100 of 1988 of Principal Subordinate Court, Warangal as per the directions given by the Honourable High Court of A.P. in CRP No.4912 of 1998..."
By his order dated 1-8-2002 the learned Senior Civil Judge holding that a final decree in terms of compromise decree dated 31-8-1995 can be passed, appointed a Commissioner to deliver possession of shop Nos.6-3-99/18 and 6-3-99/19 of Annapurna Commercial Complex in terms of the compromise decree dated 31-8-1995 in AS No.1721 of 1989 on the file of this Court to the 1st respondent. The said order is the subject-matter of this revision filed by the 1st respondent in LA No.521 of 2001.
2. 2nd respondent is the wife, and respondents 3 to 5 are the daughters, respondents 6 and 7 are the sons of revision petitioner and 2nd respondent. 1st respondent filed OS No.100 of 1998 in the Court of the Principal Subordinate Judge, Warangal against the petitioner and respondents 2 to 7 and his sisters seeking partition of the properties specified in the Plaint 'A' and 'B' schedules appended to the plaint, which includes the Annapurna Commercial Complex where the two shop Nos.6-3-99/ 18 and 6-3-99/19, which are directed to be delivered possession of the 1st respondent by the order under revision, alleging that those properties are the joint family properties of himself and revision petitioner who is his elder brother, and that those properties were purchased from income derived from the business that was carried on with the joint family funds and the funds realised by selling the gold ornaments of his mother, in various names, in the names of the female members of the family, though in fact all the businesses were joint family businesses. Revision petitioner filed his written statement contending that all the properties specified in the plaint A and B schedules are his self-acquired properties and that first respondent has no share therein. Other defendants in the suit adopted the said written statement. The trial Court dismissed the suit holding the properties specified in plaint A and B schedules are not the joint family properties and so first respondent has no share in them. Aggrieved by the dismissal of his suit, 1st respondent preferred an appeal in AS No.1721 of 1989 before this Court. During the pendency of the said appeal, parties to the appeal entered into a compromise. Revision petitioner and other defendants in the suit, who are the respondents in AS No.1721 of 1989, filed CMP No. 11033 of 1995 accompanied by an affidavit sworn to by the revision petitioner swearing to the fact that AS No.1721 of 1989 was adjusted between him, 1st respondent and others by way of a compromise in writing dated 2.12.1994 which was signed by all the parties, and requested for recording of the said compromise. That CMP came up for hearing before a Division Bench on 11.5.1995 which passed the following order:
"Learned Counsel for the appellant requests for time to ascertain whether the two shops bearing House Nos.6-3-99/18 and 6-3-99/19, forming part of Annapurna Shopping Complex at Warangal, are part of the properties which are the subject-matter of the suit OS No.100 of 1988 on the file of the Principal Subordinate Judge's Court at Warangal. Post on 21.8.1995 for orders."
Subsequently the said CMP came up for hearing before another Division Bench, which passed the following order:
"This is an application to record the compromise between the parties and pass a decree in Appeal Suit No. 1721 of 1989 in terms of the compromise.
Both the learned Counsel for the parties pray that the decree be passed in the appeal in terms of the compromise. The petition is ordered."
3. The memorandum of compromise signed by the parties to AS No. 1721 of 1989 reads as under:
"Whereas the appellant herein and the 1st respondent herein are brothers.
And whereas the appellant herein has filed the suit OS No. 100 of 1988 in the Court of the Principal Subordinate Judge, Warangal; seeking partition of suit schedule properties and for allotment of 1/5th share therein and also for rendition of accounts.
And whereas the case of the 1st respondent herein is that the suit schedule property is his self acquired property and not a joint family property.
And whereas the learned Principal Subordinate Judge, Warangal by judgment dated 20.3.1989 dismissed the suit holding that the plaintiff/appellant herein is not entitled to any share in the suit schedule properties and that the 1st defendant/1st respondent herein is not liable to render account.
And whereas the appellant herein filed AS No. 1721 of 1989 against the judgment passed by the Principal Subordinate Judge at Warangal in OS No.100 of 1988 in this Hon'ble Court which is pending.
And whereas by the intervention of the elders both the parties i.e. the appellant and 1st, 2nd, 6th and 7th respondents herein have compromised the matter and thus the Honourable Court may dispose of the said appeal subject to following terms.
1. The 1st, 2nd, 6th and 7th respondents herein have to pay a sum of Rs. 3,25,000/-in three instalments namely Rs. 1,00,000/- by 15.12.1995, another Rs. 1,00,000/- by 15.12.1996 and the balance of Rs. 1,25,000/- by 15.12.1997 to the appellant herein.
2. If a major part of the suit schedule property is sold within three years the entire balance due by that time as per the first clause, has to be paid in lumpsum.
3. Irrespective of the fact whether the property is sold or not the instalments agreed to in the first clause are to be paid accordingly.
4. In the event of failure to pay any one of the instalment as per Clause-1, the respondents7defendants Nos. 1, 2, 6 and 7 have agreed to give two shops bearing H.No.6-3-99718 and 6-3-99719 bounded by on East, West and North: Remaining portion of Annapurna Commercial Complex, and on South: Joint lane which is specifically shown in the plan annexed hereto.
The respondents 1, 2, 6 and 7 shall not sell, mortgage, or alienate the above property i.e., two shops bearing H. No. 6-3-99/18 and 6-3- 99719 to anybody until the above amount is paid to the appellant finally.
5. The appellant or his heirs will not have any claim or interest in the properties of respondents 1, 2, 6 and 7 after due execution of this compromise decree.
6. The appellant does not press the appeal AS No. 1721 of 1989 on the file of this Hon'ble Court against 3rd, 4th and 5th respondents and the same may be dismissed against 3rd, 4th and 5th respondents herein.
The appellant and the respondents 1st, 2nd, 6th and 7th in AS No. 1721 of 1989 pray that this Hon'ble Court may be pleased to pass a decree in terms of this compromise."
4. After disposal of OS No. 100 of 1988 by the Principal Subordinate Judge, a Subordinate Judge's Court was established at Mahaboobabad. On the ground that revision petitioner failed to pay the amount agreed to be paid under the compromise, 1st respondent filed EP No.24 of 1996 in the Court of Subordinate Judge, Mahaboobabad, on 19-9-1996, seeking delivery of possession of the two shops bearing Nos. 6-3-99/18 and 6-3-99/19 covered by the compromise decree to him, either by appointing a Commissioner or by sending a bailiff. Revision petitioner filed his counter in that EP, inter alia contending that E.P. is not maintainable since there is no valid decree inasmuch as 1st respondent did deposit non-judicial stamps either before the High Court or before the trial Court. After hearing both sides, the learned Subordinate Judge passed the following order.
"The petition is allowed with costs subject to a condition of production of final decree passed by the Hon'ble High Court duly engrossed on non-judicial stamps."
Dissatisfied with the said order, first respondent preferred CRP No. 4912 of 1998 before this Court. After hearing both sides, a learned single Judge of this Court passed the following order:
"This civil revision petition is filed against the order dated 1.5.1997 passed in EP No.24 of 1996 on the file of the learned Subordinate Judge, Mahabubabad. By the impugned order, the Court below allowed the execution petition filed by the decree holder subject to condition of production of final decree passed by this Court duly engrossed on non-judicial stamps. This Court in AS No. 1721 of 1989, basing on the compromise memo entered into between the parties, disposed of the appeal in terms of the compromise. Upon disposal of the said first appeal, the petitioner should have moved the Court below for passing a final decree as per the judgment in the above appeal.
Instead of doing so, he filed the EP and obtained a conditional order. Since no proceedings are pending before this Court, I feel it appropriate to direct the petitioner to take necessary steps for passing a final decree by the Court below and for execution of the same. Thereafter, it is for the Court below to pass a final decree in terms of the judgment in AS No.1721 of 1989, dated 31.8.1995.
Accordingly the civil revision petition is disposed of. No order as to costs."
In pursuance of the above order 1st respondent filed IA No.521 of 2001, which was allowed. Hence this revision.
5. The first contention of Sri K.Raghava Rao, learned Counsel for the revision petitioner is that the trial Court ought not to have taken IA No.521 of 2001 on file when its cause title reads 'IA No.521 of 2001 in AS No.1721 of 1989 in OS No.100 of 1988,' when AS No.1721 of 1989 was not on its file but was filed in this Court. His next contention is that since OS No.100 of 1988 was filed for partition and since in a suit for partition, question of seeking delivery of possession of particular items of property cannot arise without passing of a final decree, and since admittedly no final decree as yet is passed in OS No.100 of 1988, the order under revision appointing a Commissioner to deliver possession of specific items of property, without there being a final decree, is contrary to established, procedure and is also contrary to the order of this Court in CRP No.4912 of 1998 dated 29.8.2002, which became final. His next contention is that in any event the Court below was in error in holding that IA No.521 of 2001 is within time in view of Section 14 of Limitation Act, which has no application to the facts of this case, and vehemently contended that IA No.521 of 2001 is hopelessly barred by time inasmuch as it was not filed within three years from the date of compromise decree, as contemplated by Article 137 of the Limitation Act. He relied on Sagi Bangarraju v. State Bank of India, , and Awappa Tatoba v. Datto Krishna, AIR 1948 Bom. 185, in support of his said contention. Placing strong reliance on T.Saraswathi Prasad Singh v. G.V. Kalavathy, , he contended that since the compromise decree in this case is in the nature of a declaratory decree it is not executable, because there is no direction therein to the revision petitioner to deliver possession of the two shops mentioned therein to the 1st respondent The contention of Sri Muralidhar Reddy, learned Counsel for first respondent, is that the revision petitioner who failed to comply with the terms and conditions agreed to in the compromise, is not entitled to raise the plea that the decree is not executable, and relying on Raghubir Sahu v. Ajodhya Sahu, AIR 1945 Pat. 482, Rahmat Bee v. Maqbool Banu, 1989 (2) APLJ 220, and Salkia Businessmen's Association v. Howrah Municipal Corporation, , he contended that there are no grounds to interfere with the order under revision.
6. With respect, I am unable to agree with the contention of the learned Counsel for the revision petitioner that Article 137 of Limitation Act, 1963 applies to petitions for passing final decree in a suit for partition and so such petition has to be filed within three years from the date of preliminary decree for partition. Sagi Bangarraju's case (supra), relied on by him did not arise out of a suit for partition, but arose out of a suit for recovery of amount due under a mortgage bond. So, the said decision has no application to partition suits. Awappa Tatoba v. Datto Krishna (supra) relied on by learned Counsel, arose under Limitation Act, 1908. In that case a decree holder, within three years of his obtaining a decree under Section 15(b) of Dekkhan Agriculturists Relief Act, filed a petition for passing a final decree, and more than three years after preliminary decree, applied for execution of the decree. His application for final decree was rejected as unnecessary, inasmuch as the decree was obtained under Section 15(b) of the Dekkhan Agriculturists Relief Act, which itself is in the nature of a final decree. The judgment debtor objected to the execution on the ground of limitation. It should be remembered mat under the provisions of Limitation Act, 1908, execution petition has to be filed within three years of the decree and step in aid of execution has to be taken within three years of the dismissal of his earlier execution petition. The contention of the decree holder was that his petition for passing of a final decree, filed within three years of the decree, was a step in aid of execution and so the execution petition though filed beyond three years of the decree, is within time as per Article 182(5) of Limitation Act, 1908. The executing Court upheld his contention and held that the EP was in time. Appeal to High Court filed by the judgment debtor was allowed on the ground that the petition for passing of a final decree is not a step in aid of execution, as an application for passing final decree is not the same thing as an application for execution of the decree. The said decision has no application to the facts of this case because the question for decision in this case is not whether the execution petition is in time or not
7. Article 137 of the Limitation Act, 1963, the residuary article relating to application which are not otherwise provided in the schedule, prescribes the time limit of three years. The said article does not apply to partition suits, because it is well known that a partition suit would be deemed to be pending till final decree (s) is or are passed in respect of all the properties covered by the suit, see Abdul Keem Sab v. S. Silar Saheb, AIR 1957 AP 40, and Sudarsan Panda v. Laxmidhar Pande, . So petition for passing final decree in a suit for partition need not necessarily be filed within three years from the date of decree. So I am not able to agree with the contention that IA No.521 of 2001 is barred by limitation. As rightly contended by the learned Counsel for the revision petitioner Section 14 of the Limitation Act does hot apply to this case and so the learned Senior Civil Judge was in error in holding that the petition is in time in view of Section 14 of Limitation Act.
8. The important point for consideration in this revision is whether the compromise decree in AS No. 1721 of 1989 is a preliminary decree for partition which cannot be enforced without passing a final decree, or if itself is an enforceable decree.
9. Explanation to Section 2(2) of Code of Civil Procedure, which defines 'decree', lays down that a decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of, and it is final when such adjudication completely disposes of the suit, and it may be partly preliminary and partly final. So in order to find out if the decree is preliminary or final, the decree itself has to be looked into, irrespective of the nature of the suit in which such decree was passed. So, without haying regards to the terms and conditions in the compromise, merely because the compromise was entered into in a suit for partition, it cannot be said that it cannot be enforced without passing of a final decree. If the terms of the compromise show that nothing farther need be done by the Court for enforcing the same it is a final decree, and if some farther proceedings are required to enforce the same, it would be a preliminary decree. In Raghubir Sahu case (supra) relied on by the learned Counsel for the 1st respondent it is held that when the properties allotted to the share of each party are specified in the compromise decree, it is a final decree but not a preliminary decree, because nothing remains to be done, and it only has to be engrossed on a non-judicial stamp paper, and no time limit for engrossing the decree on a non-judicial stamp papers is prescribed. In Rahmat Bee case (supra) relied on by the learned Counsel for the 1st respondent it is held that since a preliminary decree specifies shares and rights of the parties to the suit for partition, defendant also can file an application to get his share separated, as per the decree. In Salkia Businessmen's Association case (supra) relied on by the learned Counsel for the 1st respondent it is held that Court should strictly enforce the terms of a compromise in a proceeding, which is finally disposed of in terms of compromise between the parties.
10. In this case the trial Court dismissed the suit for partition on the ground that the properties specified in the schedules appended to the plaint are not joint or joint family properties between the revision petitioner and 1st respondent. In the appeal preferred by the 1st respondent, at the instance of the revision petitioner and others, a compromise was entered into, as per which revision petitioner agreed to pay Rs. 3,50,000/- to the 1st respondent in three instalments. In case the amount agreed to be paid on the stipulated dates is not paid to the 1st respondent, he (revision petitioner) and others agreed to deliver two shops bearing Nos.6-3-99/18 and 6-3-99/19 to the 1st respondent. The terms of compromise do not contemplate 'partition' of any property between the revision petitioner and the 1st respondent and others. So question of passing a final decree for 'partition' in terms of the compromise does not arise in this case. In Tara Pada v. Shyama Pada, , it is held that a right to claim partition arises only when it is proved that there are divisible joint properties between the parties, and if there is no such property, Court cannot be called upon to pass a decree for partition. The terms of compromise extracted in extenso in para 3 above do not show that the revision petitioner admitted that the property agreed to be given to the 1st respondent is a part of the joint property or joint family property between him and the 1st respondent. So the finding of the trial Court that there are no joint family properties between the revision petitioner and 1st respondent stood undisturbed and became final. So it has to be taken that right to take possession of the two shops bearing Nos.6-3-99/18 and 6-3-99/19, which are covered by the suit was created for the first time under the compromise, in favour of the 1st respondent. A Division Bench of the Punjab and Haryana High Court in Gurdev Kaur v. Meher Singh, AIR 1987 P&H 324, held that in respect of a property covered by the suit even if rights are created for the first time under a compromise, the decree would not amount to an instrument of gift, and so no registration in required.
11. Sri K. Raghava Rao relied on Bholanth Karmakar and Ors. v. Madanmohan Karmakar and Ors., (SB), where a Special Bench of Calcutta High Court held that a decree for partition, which is not engrossed on a stamp paper, is not enforceable and contended that since the decree in this case is not engrossed on a non-judicial stamp paper, petition for delivery of the two shops is not maintainable. The question before the Special Bench in the above case was whether a decree for partition becomes enforceable on being pronounced by the Court, or after it was engrossed on non-judicial stamps. It was held that a decree for partition becomes enforceable only after it is engrossed on the requisite stamp paper. The said decision also has no application to the facts of this case because the compromise decree is not a decree for 'partition'.
12. In EP No.24/1996 filed by the 1st respondent he clearly stated that since the revision petitioner failed to pay the amount agreed to be paid as per the terms of the compromise, he is entitled to possession of the two shops. Revision petitioner did not state that he paid any of the instalments agreed to be paid to the 1st respondent under the compromise. So it is clear that the compromise decree worked itself out and the agreement to deliver possession of the two shop rooms bearing Nos.6-3-99/18 and 6-3-99/19 mentioned in Clause 4 of the compromise came into operation and so 1st respondent can seek delivery of the shops referred to in para 4 of the compromise, even without the necessity of passing a final decree or the same being engrossed on a non-judicial stamp paper, since the same is not a decree for 'partition', and is itself enforceable without the necessity of the 1st respondent taking any further proceedings.
13. Saraswathi Prasad Singh case (supra) relied on by the learned Counsel for the revision petitioner has no application to the facts of this case, as the facts in that case are entirely different from the facts of this case. In fact from para 11 of the said judgment it is seen that even by the date of the compromise in that case, the property, which was the subject-matter of dispute, was alienated to a third parry to the knowledge of the parties to the suit, and subsequently there was a suit for declaration of title in respect of the said property. In this case revision petitioner clearly agreed to deliver possession of two shops to the 1st respondent, if he were to commit default in payment of any of the instalments agreed to be paid to the 1st respondent under the compromise. The agreement to deliver the shops was in lieu of the amount agreed to be paid as per the compromise. If amount is not paid, and if property is not delivered, the compromise becomes otiose. Court should not be a mute spectator to the deliberate and calculated breach of terms of compromise by a party to the compromise. Revision petitioner who voluntarily filed a petition requesting the Court to record the compromise brought about by the mediators between him and 1st respondent cannot be heard to say that something further has to be done by the Court for putting the 1st respondent in possession of the two shops agreed to be delivered by him to 1st respondent, even after he admittedly committed default in paying the agreed amount. It is to be remembered that compromise is an agreement between the parties, which can be enforced by Court, in case of breach by the party concerned. Therefore, the contention of the revision petitioner that the compromise decree is only declaratory and further direction to the 1st respondent to deliver possession of the two shops to the 1st respondent ought to be obtained from the Court by the 1st respondent has no substance.
14. I find no force in the contention of the learned Counsel for the revision petitioner that IA No.521 of 2001 ought not to have been entertained by the Court below because AS No. 1721 of 1989 also is mentioned in the cause title to, the petition. Mention of AS No. 1721 of 1989 in the cause title is redundant. Since IA No.521 of 2001 was filed more with a view to comply with the direction given in CRP No. 4912 of 1998 that it is for the Court below to pass a final decree in terms of the judgment in AS No. 1721 of 1989, which arose out of OS No.100 of 1988, "AS No. 1721 of 1989" also might have been mentioned in the cause title. If the revision petitioner felt inconvenienced or aggrieved by the 1st respondent mentioning "AS No.1721 of 1989" also in IA No.521 of 2001, he ought to have brought that fact to the notice of the Court below and sought for its deletion. Having failed to do so in the Court below, at the stage of revision, a respondent in a petition in a Court below, cannot for the first time in the revision be heard to say that since the number of the appeal also is mentioned in the cause title of the petition the same ought not to have been entertained by the Court below.
15. Obviously because a learned single Judge of this Court in CRP No.4912 of 1998 directed the 1st respondent to take steps in the Court below for passing of a final decree, 1st respondent filed IA No.521 of 2001 including a prayer to pass a final decree, and delivery of possession of the two shops to him though there is no necessity for obtaining a final decree in this case, because the compromise decree itself is an enforceable decree, as it finally disposed of this lis and no further orders of Court are required to enforce the terms therein. So the learned Senior Civil Judge by the order under revision, appointing a Commissioner to deliver possession of two shops agreed to be delivered by the revision petitioner to the 1st respondent as per the terms of the compromise, cannot be said to be erroneous or without jurisdiction, and in my considered opinion the learned Senior Civil Judge did not commit any irregularity or material irregularity in passing the order impugned in this revision. Though some other grounds were taken in the Court below and in the grounds of revision, since none of those grounds were canvassed before me during the course of arguments, I take it that those grounds are not pressed by the revision petitioner.
16. For the aforesaid reasons, I find no merits in this revision and hence the same is dismissed with costs. Advocate fee is fixed as Rs. 1,000/-.