Karnataka High Court
Mr Charanjeet Singh Rekhi vs Sri Shushanta Kumar Ray on 24 August, 2012
Author: N.Ananda
Bench: N. Ananda
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 24TH DAY OF AUGUST 2012
BEFORE
THE HON'BLE MR.JUSTICE N. ANANDA
CIVIL REVISION PETITION No.213/2012
BETWEEN:
1. Mr.Charanjeet Singh Rekhi
S/o Mr.Kuldeep Singh Rekhi
Aged 32 Years
R/at No.001, Greenview
#13, 13th 'A' Main, HAL 2nd Stage,
Indiranagar, Bangalore - 560 038.
2. Mr.Kuldeep Singh Rekhi
S/o late Mr.Dayal Singh Rekhi
Aged 64 Years
R/at No.001, Greenview
#13, 13th 'A' Main, HAL 2nd Stage
Indiranagar, Bangalore - 560 038.
3. Kulbeer Singh Rekhi
S/o late Mr.Dayal Singh Rekhi
Aged 56 Years
R/at No.001, Greenview
#13, 13th 'A' Main, HAL 2nd Stage
Indiranagar, Bangalore - 560 038.
4. Amarjeet Kaur Rekhi
W/o Kulbeer Singh Rekhi
Aged 47 Years
R/at No.001, Greenview
#13, 13th 'A' Main, HAL 2nd Stage
Indiranagar, Bangalore - 560 038.
2
5. Angad Singh Rekhi
S/o Kulbeer Singh Rekhi
Aged 29 Years
R/at No.001, Greenview
#13, 13th 'A' Main, HAL 2nd Stage
Indiranagar, Bangalore - 560 038.
6. Arjun Singh Rekhi
S/o Kulbeer Singh Rekhi
Aged 25 Years
R/at No.001, Greenview
#13, 13th 'A' Main, HAL 2nd Stage
Indiranagar, Bangalore - 560 038.
Petitioner nos.3 to 6 are
Rep. by G.P.A.Holder
Mr.Kuldeep Singh Rekhi. ... Petitioners
(By Sri Navkesh Batra, Adv. for Sri Pradeep Singh, Advocate)
AND:
Sri Shushanta Kumar Ray
S/o late Shiv Das Ray
Aged about 72 Years
R/at 1136, HAL II Stage
100 Feet Road
Bangalore - 560 038. ... Respondent
(By Sri Sreevatsa, Senior Advocate for Sri M.D.Raghunath
Legal Axis, Advocates for C/r)
This petition is filed under Section 115 C.P.C., against
the order dated 21.04.2012, passed in Ex.No.805/2012, on
the file of the XI Additional City Civil Judge, Bangalore
(CCH.8), dismissing the execution petition.
This petition coming on for hearing this day, the Court
made the following:
3
ORDER
The petitioners have sought for execution of compromise decree made by this court in RFA 711/2008 dated 14.02.2012.
2. The learned judge of Execution Court has held that compromise decree is a conditional decree. The petitioners (decree holders) have failed to perform their part of obligations within the time stipulated in compromise decree, therefore, the decree cannot be executed. In the circumstances, petitioners are before this court.
3. I have heard Sri.Navkesh Batra, learned counsel for petitioner and Sri.Sreevatsa, learned Senior counsel for respondent.
4. The brief facts necessary for disposal of this petition are as follows:
The petitioners/plaintiffs had filed O.S.No.9810/2006 for specific performance of agreement of sale dated 06.12.2005 executed by the respondent/defendant. The 4 agreed sale consideration was a sum of Rs.4 Crores and they had paid advance sale consideration of Rs.50 Lakhs. As there was failure on the part of respondent/defendant to execute a registered sale deed in terms of agreement of sale dated 16.12.2005, petitioners/plaintiffs had filed the aforestated suit, which was contested by respondent. On contest, the suit was decreed. Therefore, the respondent was before this court in RFA 711/2008.
5. On 14.02.2012, when a Division Bench of this court took up RFA 711/2008 for hearing, the parties entered into compromise and filed a compromise petition reading as hereunder:
"MEMORANDUM OF COMPROMISE PETITION UNDER ORDER-23 RULE-3 READ WITH SECTION-89 & SECTION- 151 OF THE CODE OF CIVIL PROCEDURE The Appellant and the Respondents humbly beg to submit as follows:-
1. The Appellant and the Respondents have fully, finally, irrevocably and amicable settled all disputes as hereinafter recorded.
2. The Respondents shall pay a sum of Rs.3,50,00,000/- (Rupees Three Crores Fifty Lakhs only) being the actual balance sale consideration amount to the 5 Defendant/Appellant herein under the agreement to sell dated 16.12.2005 and the Respondents shall also pay an additional amount of Rs.2,00,00,000/- (Rupees Two Crores only) to the Defendant/Appellant towards the additional sale consideration as per this compromise petition, in all Rs.5,50,00,000/- (Rupees Five Crores Fifty Lakhs only) by way of Cheque(s) to Sri Hashim Moosa the P.A. Holder of the Appellant on or before 16th March, 2012. The appellant declares that the Power of Attorney dated 15.12.2010 in favour of Sri Hashim Moosa is executed against the receipt by the appellant of the entire sale consideration under the registered agreement to sell dated 15.12.2010 and therefore IRREVOCABLE and coupled with interest. The said power of attorney is valid and subsisting and said Sri Hashim Moosa has full authority to execute this Compromise Petition and convey and vest clear and marketable title in terms hereof to bind the appellant and himself. Copies of the said Power of Attorney and the registered Sale Agreement are annexed as Annexure-1 and 2.
3. On receipt of the said Cheque(s) of Rs.5,50,00,000/-
(Rupees Five Crores and Fifty Lakhs only) in full and final settlement and complete discharge of entire sale consideration and additional consideration the Appellant or his P.A. Holder Mr.Hashim Moosa who is also an Agreement Holder shall simultaneously register an absolute sale deed and deliver vacant, exclusively and actual physical possession of the suit schedule property and shall also deliver original title deeds of the suit schedule property and the original power of attorney dated 15.12.2010 and registered Agreement to Sell dated 15.12.2010 to the Respondents.
4. It is agreed by the Respondents and their nominees and the Appellant that in case the Respondents fail to handover the cheque(s) for Rs.5,50,00,000/- (Rupees Five Crores Fifty Lakhs only) before the expiry of 5 pm on 16.03.2012 or the cheque(s) is/are dishonoured then the sale deed so executed shall stand cancelled at the cost of the respondents/nominees and the Appellant shall refund to the 6 respondents the sum of Rs.50,00,000/- (Rupees Fifty Lakhs only) and also pay an additional sum of Rs.2,00,00,000/- (Rupees Two Crores only) to the respondents not later than 5 pm on 21st March, 2012 and against such payment the respondents rights to the suit schedule property or under the agreement dated 16.12.2005 and decree dated 19.04.2008 shall cease, subject to the cheque(s) for Rs.2,50,00,000/- (Rupees Two Crores Fifty Lakhs only) being honoured.
5. It is agreed by the parties herein that the above terms and conditions have been arrived at after mutual discussion and consent of all the parties herein as well as the subsequent purchaser under the registered agreement dated 15.12.2010.
6. The parties to this compromise petition have agreed to the terms and conditions set out in this petition out of their own free will and consent. Neither of the parties have been forced or coerced to agree or sign this petition. WHEREFORE it is prayed that this Hon'ble Court may be pleased to modify the Judgment and Decree dated 19.04.2008 and dispose off the above Appeal as set out in this compromise petition, and the court fee paid before this Hon'ble Court in this appeal be refunded in the name of Sri Hashim Moosa who is the P.A. Holder of the appellant and the Court fee paid before the court below may kindly be refunded to the respondent no.1 in the interest of justice and equity.
RESPONDENTS APPELLANT
ADVCOATE FOR RESPONDENTS ADVOCATE FOR APPELLANT
VERIFICATION
We, Shri Charanjit Singh Rekhi the 1st Respondent and Shri Kuldeep Singh Rekhi, the respondent no.2 in the above matter and the Power of Attorney Holder of the 7 Respondents Nos.3 to 6 and Shri Shushanta Kumar Ray, by P.A. Holder Sri Hashim Moosa, the appellant herein, do hereby verify that the contents stated in para 1 to 6 are true to the best of our knowledge and belief and these are our true signatures.
BANGALORE CHARANJIT SINGH REKHI
KULDEEP SINGH REKHI
For himself and as GPA of R3 to R6
DATED :-14.02.2012 SHUSHANTA KUMAR RAY
APPELLANT
(By PA Holder Sri HASHIM MOOSA)"
The Division Bench of this court accepted the
compromise petition and the compromise decree was drawn reading as hereunder:
This Regular First Appeal preferred against the Judgment and Decree of the Court of the XI ADDL. CITY CIVIL JUDGE, BANGALORE CITY in OS.No.9810 of 2006 on its file dated the 19th DAY OF APRIL, 2008 coming on for hearing on the 14th DAY Of FEBRUARY, 2012 in the presence of Sri SREEVATSA, Sr. Counsel for M/s.LEGAL AXIS for the Appellant and Sri NAVKESH BATRA, Sr. Counsel for Sri PRADEEP SINGH, Advocate for R1 to R6 and Sri JANEKERE C.KRISHNA, Advocate for R2.
And for the reasons stated in the judgment, and while disposing of this Regular First Appeal, it is ordered and decreed that, the judgment and decree of the Trial Court is hereby modified in terms of the compromise petition duly 8 filed and signed by the power of attorney holder of the appellant, respondent no.1, respondent no.2, for himself and as a power of attorney holder of respondents 3 to 6 and also signed by their respective advocates which reads as follows:-
1. That the respondents shall pay a sum of Rs.3,50,00,000/- (Rupees Three Crores Fifty Lakhs only) being the actual balance sale consideration amount to the defendant/appellant herein under agreement to sell dated:16.12.2005 and respondents shall also pay an additional amount of Rs.2,00,00,000/- (Rupees Two Crores Only) to the Defendant/Appellant towards the additional sale consideration as per this compromise petition, in all Rs.5,50,00,000/- (Rupees Five Crores and Fifty Lakhs only) by way of Cheque(s), to Sri Hashim Moosa the P.A.Holder of the appellant on or before 16th March, 2012. The appellant declares that the power of attorney dated : 15.12.2010 in favour of Sri Hashim Moosa is executed against the receipt by the appellant of the entire sale consideration under the registered agreement to sell dated : 15.12.2010 and therefore IRREVOCABLE and coupled with interest. The said power of Attorney is valid and subsisting and said Sri Hashim Moosa has full authority to execute this Compromise Petition and convey and vest clear and marketable title in terms hereof to bind the appellant and himself. Copies of the said Power of Attorney and registered Sale Agreement are annexed as Annexure - 1 and 2.
2. That on receipt of the said Cheque(s) of Rs.5,50,00,000/- (Rupees Five Crores and Fifty Lakhs only) in full and final settlement and complete discharge of entire sale consideration and additional consideration the Appellant or his P.A.Holder Mr.Hashim Moosa who is also an Agreement Holder shall simultaneously register an absolute sale deed and deliver vacant, exclusively and actual physical possession of the suit schedule property and shall also deliver original title deeds of the suit schedule property and the original power of attorney dated : 15.12.2010 and registered Agreement to Sell dated : 15.12.2010 to the respondents.9
3. That it is agreed by the respondents and their nominees and the Appellant that in case the respondents fail to handover the Cheque(s) for Rs.5,50,00,000/- (Rupees Five Crores and Fifty Lakhs only) before the expiry of 5 pm on 16.03.2012 or the Cheque(s) is/are dishonoured then the sale deed so executed shall stand cancelled at the cost of the respondents/nominees and the appellant shall refund to the respondents the sum of Rs.50,00,000/- (Rupees Fifty Lakhs only) and also pay an additional sum of Rs.2,00,00,000/-
(Rupees Two Crores only) to the respondents not later than 5 pm on 21st March, 2012 and against such payment the respondents rights to the suit schedule property or under the agreement dated : 16.12.2005 and decree dated :
19.04.2008 shall cease, subject to the Cheque(s) for Rs.2,50,00,000/- (Rupees Two Crores and Fifty Lakhs only) being honoured.
4. That it is agreed by the parties herein that the above terms and conditions have been arrived at after mutual discussion and consent of all the parties herein as well as the subsequent purchaser under the registered agreement dated: 15.12.2010.
5. That the parties to this compromise petition have agreed to the terms and conditions set out in this petition out of their own free will and consent. Neither of the parties have been forced or coerced to agree or sign this petition.
And it is further ordered and decreed that, the appellant has no objection to confirm the decree granted to the Trial Court provided the respondents shall pay a total consideration of Rs.5,50,00,000/- (Rupees Five Crores and Fifty Lakhs only). Out of which, Rs.3,50,00,000/- (Rupees Three Crores and Fifty Lakhs only) is towards the balance sale consideration and Rs.2,00,00,000/- (Rupees Two Crores only) as additional consideration considering the cost of escalation of the value of the property.
And it is further ordered and decreed that, the respondents shall pay the aforesaid Rs.5,50,00,000/- 10 (Rupees Five Crores and Fifty Lakhs only) to Hashim Moosa, the Power of Attorney Holder of the appellant on or before 16.03.2012, and on payment of Rs.5,50,00,000/- (Rupees Five Crores and Fifty Lakhs only) on or before 16.03.2012 the P.A.Holder of appellant shall execute a registered sale deed in favour of the respondents/their nominees at their cost failing which, the respondents are entitled to get the decree executed through the court.
And it is further ordered and agreed between, the parties that if the amount of Rs.5,50,00,000/- (Rupees Five Crores and Fifty Lakhs only) as agreed upon is not paid by the respondents before 16.03.2012, the respondents are not entitled for the decree of specific performance and they are entitled for refund of Rs.50,00,000/- (Rupees Fifty Lakhs only) paid as advance sale consideration and an additional sum of Rs.2,00,00,000/- (Rupees Two Crores only) from the appellant and the appellant shall pay total sale amount of Rs.2,50,00,000/- (Rupees Two Crores and Fifty Lakhs only) to the respondents on or before 21.03.2012 and if such payment is made by the appellant to the respondents, the decree granted by the Trial Court shall be set aside.
And it is further ordered and decreed that, there shall be no order as to costs in this appeal.
Given under my hand and the seal of this Court, this the 14TH DAY OF FEBRUARY 2012."
6. The parties have not disputed that the aforestated compromise was entered into between parties and it was accepted by this court on 14.02.2012.
7. It is the case of petitioners that in terms of compromise petition, petitioners were ready with a Pay Order 11 for a sum of Rs.5,50,00,000/- and they had communicated their intention to pay the same to respondent in terms of compromise decree. However, respondent avoided to receive the pay order. It is the specific case of petitioners, in obedience to the terms of compromise decree, they were ready with a Pay Order for a sum of Rs.5,50,00,000/- lakhs to handover the same to respondent in terms of compromise decree before 5.00 p.m., on 16.3.2012. However, respondent avoided to receive the pay order. Thereafter, on the same day, petitioners filed a memo in RFA No.711/2008, reading as hereunder:
"The Advocate for respondents beg to submit that as per the directions of this Hon'ble Court and in due compliance of the order dated 14.2.2012, the respondent had gone to the Sub- Registrar office with the required sale consideration, stamp duty and registration duty.
The appellant represented through the power of attorney holder Hashim Moosa along with his son Adan Moosa and his Lawyer Raghunath of Legal Axis were also present for the sale of schedule property bearing No.1136 on Indiranagar 100 feet road, but in view of the 12 stamp duty not been paid on the GPA by the appellant the sale deed could not be registered, hence the matter may kindly be put up before the court for further orders regarding directions."
8. On 19.3.2012, this court passed the following order:
"No order is necessary on the memo, since the appeal is disposed of by way of compromise."
9. Thereafter, applications were filed by petitioners in RFA No.711/2008, which came up before the Division Bench on 21.3.2012 and the Division Bench made the following order:
"In a disposed of appeal, these applications are filed. One to issue a direction and another to consider Interim order.
This appeal was disposed of by way of compromise petition. If the respondents were ready and willing to perform their part of the contract, in terms of the compromise petition, if the appellant has failed to execute the sale deed in their favour, it is always open for the 13 respondents to file an execution and get the decree executed.
When once the decree is passed by consent, this Court cannot entertain such applications. It is for the aggrieved persons to get the decree implemented in accordance with law.
With the above observation, the applications are dismissed."
10. The execution petition was filed on 13.3.2012. The respondent entered appearance and contested the execution petition. It was the contention of respondent that petitioners did not pay amount as stipulated in the compromise decree before 5.00 p.m., on 16.3.2012. Therefore, in terms of the compromise decree, a right accrued to respondent to return the amount of Rs.50.00 lakhs towards refund of advance sale consideration and a sum of Rs.2.00 crores as additional amount to set at naught decree made in O.S.No.9810/2006. On 17.03.2012, respondent sent a cheque for a sum of Rs.2,50,00,000 drawn in favour of first petitioner to the first 14 petitioner through speed post, but the first petitioner refused to receive the same.
11. The learned trial Judge, on consideration of rival contentions has held that decree sought to be executed is a conditional decree. The decree holders (petitioners herein) had failed to pay a sum of Rs.5,50,00,000/- before 5.00 p.m., on 16.3.2012. Therefore, they have forfeited their rights to execute the decree.
12. The learned trial Judge of the execution Court has held that execution court cannot give beyond the decree. The execution court is bound to execute the decree strictly in terms of compromise decree. In terms of compromise decree, decree holders had obligation to handover Pay Order for a sum of Rs.5,50,00,000/- to the Power of Attorney Holder of judgment debtor namely Mr.Hashim Moosa before the expiry of 5.00 p.m., on 16.3.2012. If the Power of Attorney Holder Mr.Hashim Moosa, had refused or avoided to receive the Pay Order, decree holders should have sent the Pay Order purchased in the name of Mr.Hashim Moosa, through post 15 or they should have deposited the same in the Hon'ble Court before 5.00 p.m., on 16.3.2012 with notice to the Power of Attorney Holder, Hashim Moosa. But for the reasons best known to decree holders, they did not discharge their obligation in paying a sum of of Rs.5,50,00,000/-to the P.A.Holder of judgment debtor, by any one of the modes recognized in law and therefore, it cannot be said that decree holders have complied with the terms of compromise decree passed in R.F.A.No.711/2008 and decree holders have lost their rights under the compromise decree made in R.F.A.No.711/2008.
Before adverting to other aspects and submissions made by learned Counsel for parties, I deem it proper to state that reasons assigned by the execution court, the mode of payment contemplated by the execution court and the observations of the execution court relating to manner in which decree holders ought to have discharged their part of obligation to fulfill the terms of com decree in R.F.A.No.711/2009, are rather speculative. In terms of compromise decree dated 14.2.2012, decree holders were 16 expected to pay a sum of Rs.5,50,00,00/- to the Power of Attorney Holder of judgment debtor before 5.00 p.m., on 16.3.2012. In the circumstances, the observations of the trial Court that if Power of Attorney Holder had avoided or refused to receive payment, the decree holders should have deposited the same with this Court before 5.00 p.m., on 16.3.2012, looks a rather impossible situation. The learned Judge of execution court has held that amount should have been sent through post or the amount should have been deposited. In such an event also, the fulfillment of these obligations, should not have happened before 5.00 p.m., on 16.3.2012, which according to learned Judge of execution court was the deadline.
13. The learned Judge of execution court while considering the execution petition should have made reference to the provisions of Section 47 CPC reading as hereunder;
"47. Questions to be determined by the Court executing decree: - (1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, 17 and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit.
( *** ) (3)Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the Court.
[Explanation I. - For the purposes of this section, a plaintiff whose suit has been dismissed and a defendant against whom a suit has been dismissed are parties to the suit.
Explanation II. (a) For the purposes of this section, a purchaser of property at a sale in execution of a decree shall be deemed to be a party to the suit in which the decree is passed; and
(b) All questions relating to the delivery of possession of such property to such purchaser or his representative shall be deemed to be questions relating to the execution, discharge or satisfaction of the decree within the meaning of this section.] Section 47 the questions relating to the execution, discharge or satisfaction of the decree 18 shall be determined by the Court executing the decree and not by a separate suit.
14. In the case on hand, the learned judge of execution court has held that decree cannot be executed for the failure of decree holders to discharge their obligations in terms of compromise decree dated 14.2.2012.
15. In terms of the compromise decree made in R.F.A.No.711/2008, they were reciprocal obligations cast on both parties and they had to be performed in succession. The first obligation to be discharged by decree holders was that they should have paid a sum of Rs.5,50,00,000/- to the Power of Attorney Holder of judgment debtor before 5.00 p.m., on 16.3.2012. Thereafter, second obligation cast upon by judgment debtor was to execute a registered sale deed in favour of decree holders through his Power of Attorney Holder, Mr.Hashim Moosa.
The compromise petition provided for payment of aforestated sum through cheques. The compromise petition further provided that if cheques were dishonoured, sale deeds, if any, executed shall be treated as cancelled. The 19 judgment debtors were expected to deposit a sum of Rs.2,50,00,000/- (a sum of Rs.50.00 lakhs towards advance sale consideration and a sum of Rs.2.00 crores as additional amount) on or before 21.3.2012 to have the decree set aside.
When the execution petition was filed before the execution court, the learned judge of execution court should have concluded the execution proceedings by implementing decree to its logical conclusion. The learned Judge of execution court should not have abruptly closed the execution petition without calling upon judgment debtor to deposit the amount in terms of compromise decree to establish his bonafides. These observations are made on the assumption of what has been done by the executing court is correct.
16. The crucial point for determination is whether the execution court has discharged its duties in terms of Section 47 CPC.
When the execution petition was filed to execute a compromise decree, the execution court had to deal with two rival contentions. The decree holders had contended that 20 they were ready to discharge their part of obligation viz. pay a sum of Rs.5,50,00,000 to the Power of Attorney Holder of judgment debtor before 5.00 p.m., on 16.3.2012. The decree holder was ready with a pay order for a sum of Rupees Five Crore Fifty Lakhs drawn in favour of Power of Attorney Holder of judgment debtor. They had notified this fact to the Power of Attorney Holder of judgment debtor. The Power of Attorney Holder of judgment debtor evaded to receive the amount. Therefore, they were constrained to approach this Court.
In terms of order made in RFA.No.711/2008, the decree holder filed execution petition. The orders made by this court on the memo and on the application are stated supra. This court by order dated 21.03.2012 has held;-
"It is for aggrieved parties to implement decree in accordance with law."
The judgment debtor has contended that no attempt was made by decree holders to pay a sum of Rs.5,50,00,000/- in terms of compromise decree on or before 5.00 p.m., on 16.3.2012. Therefore, decree holders have 21 forfeited their right to execute the decree. The judgment debtor had promptly sent a cheque for a sum of Rs.2,50,00,000/- drawn in favour of judgment debtor during the morning of 17.3.2012 by a speed post and the same was refused by decree holders.
17. The law is fairly well settled that the executing court cannot go beyond the terms of decree. However, it is the duty of the executing court to find out the intention of parties entering into compromise to protect the interest of parties. The questions;- whether decree holders had committed default as contended by judgment debtor? Whether judgment debtor/Power of Attorney Holder of judgment debtor had deliberately avoided to receive payment are questions of fact which the execution court should have decided by proper interpretation of decree and also by considering documents filed by parties. It is needless to state that endeavor of the Court shall be to execute the decree and not to frustrate the decree, unless the decree sought to be executed is a nullity in the eye of law. 22
18. In a decision reported in 1956 SC 329 (in the case of Jai Narain Ram Lundia vs. Kedar Nath Khetan), the Supreme Court has held;-
"18. Much of the argument about this revolved round the question whether the equitable rules that obtain before decree in a suit for specific performance continue at the stage of execution. It is not necessary for us to go into that here because the position in the present case is much simpler.
When a decree imposes obligations on
both sides which are so conditioned that
performance by one is conditional on
performance by the other execution will not be ordered unless the party seeking execution not only offers to perform his side but, when objection is raised, satisfies the executing Court that he is in a position to do so. Any other rule would have the effect of varying the conditions of the decree: a thing that an executing Court cannot do.
There may of course be decrees where the obligations imposed on each side are distinct and severable and in such a case each party might well be left to its own execution. But when the obligations are reciprocal and are interlinked 23 so that they cannot be separated, any attempt to enforce performance unilaterally would be to defeat the directions in the decree and to go behind them which, of course, an executing Court cannot do."
(Underlining supplied by me)
19. In a decision reported in AIR 1972 SC 1371 (in the case of Bhavan Vaja and Others Vs. Solanki Hanuji Khodaji Mansang and Another), the Supreme Court has held:-
"19. It is true that an executing court cannot go behind the decree under execution. But that does not mean that it has no duty to find out the true effect of that decree. For construing a decree it can and in appropriate cases, it ought to take into consideration the pleadings as well as the proceedings leading upto the decree. In order to find out the meaning of the words employed in a decree the court, often has to ascertain the circumstances under which those words came to be used. That is the plain duty of the execution court and if that court fails to discharge that duty it has plainly failed to exercise the jurisdiction vested in it. Evidently the execution court in this case 24 thought that its jurisdiction began & ended with merely looking at the decree as it was finally drafted. Despite the fact that the pleadings as well as the earlier judgments rendered by the Board as well as by the appellate court had been placed before it, the execution court does not appear to have considered those documents. If one reads the order of that court, it is clear that it failed to construe the decree though it purported to have construed the decree. In its order there is no reference to the documents to which we have made reference earlier. It appears to have been unduly influenced by the words of the decree under execution. The appellate court fell into the same error. When the matter was taken up in revision to the High Court, the High Court declined to go into the question of the construction of the decree on the ground that a wrong construction of a decree merely raises a question of law and it involves no question of jurisdiction to bring the case within Section 115, Civil Procedure Code. As seen earlier in this case the executing court and the appellate court had not construed the decree at all. They had not even referred to the relevant documents. They had merely gone by the words used in the decree under execution. It is clear that they had failed 25 to construe the decree. Their omission to construe the decree is really an omission to exercise the jurisdiction vested in them."
20. The law is well settled that purpose of parties entering into compromise and the court accepting the compromise is to put an end to the litigation in terms of settlement arrived at between parties. Therefore, the execution court was bound to hold an enquiry to record a finding as to who were defaulting parties under what circumstances parties were not able to discharge their obligations in terms of compromise decree.
21. At this juncture, it is necessary to state that all these questions referred to under Section 47 shall be decided by the execution court and not by a separate suit. Therefore, when there were contentious issues raised before the execution court, notwithstanding the fact that parties had not requested the execution court to hold an enquiry, it was the duty of executing court to hold an enquiry to record a finding on execution of decree. The learned Judge of the execution court has read the documents relied upon by 26 parties as per-se evidence which is not permissible by law. The enquiry was also necessary in view of the fact that compromise decree provides relief to judgment debtor to have the decree in O.S.No.9810/2006 set aside by paying a sum of Rs.2,50,00,000/- to judgment debtor.
22. The learned Senior Counsel for respondent has relied on a judgment of the Supreme Court reported in AIR 1966 SC 153 (in the case of Pandurang Dhoni Chougule vs. Maruti Hari Jadhav) to contend that even if the execution court has misconstrued the decree, that cannot be a ground to invoke the jurisdiction of this Court under Section 115 CPC. The learned Senior Counsel for judgment debtor would submit that construction of a document even if it is not in accordance with law and facts has no relation with jurisdiction of this Court under section 115 CPC. The learned Senior Counsel for respondent would submit that jurisdiction under section 115 CPC can be invoked only if one of three ingredients stated therein is satisfied. 27
23. This submission cannot be accepted for the following reasons:
The decree holders had filed a suit for specific performance in O.S.No.9810/2006. The suit was decreed on contest. Thereafter, the judgment debtors were before this Court in R.F.A.No.711/2008 wherein, the decree holders agreed to pay additional sale consideration of Rs.2.00 crores within a stipulated time i.e., before 5.00 p.m. on 16.3.2012 and it was agreed between parties if there was any default in payment of sale consideration, judgment debtors were bound to repay advance sale consideration of Rs.50.00 lakhs along with additional sum of Rs.2.00 crores to have decree set aside, which in reality would mean that whatever rights decree holders had under the decree made in O.S.No.9810/2006 would extinguish. The learned Judge of the execution Court should have noticed these ordeals undergone by parties before compromise was recorded in RFA.No.711/2008 by this Court.
It is in the background of all these facts, the learned trial Judge should have held an enquiry to find out as to 28 whether decree holders have failed to discharge their part of obligations in terms of compromise decree. If the answer was in affirmative, the learned trial Judge should have proceeded with execution to ascertain bonafides of judgment debtor, who in fact was obliged to return a sum of Rs.2,50,00,000/- to decree holders to have decree of O.S.No.9810/2006, set aside which would put an end to litigation once and for all.
24. In a decision reported in AIR 1972 SC 1371 (in the case of Bhavan Vaja and Others Vs. Solanki Hanuji Khodaji Mansang and Another), the Supreme Court has held:-
"19. ..... If one reads the order of that court, it is clear that it failed to construe the decree though it purported to have construed the decree. In its order there is no reference to the documents to which we have made reference earlier. It appears to have been unduly influenced by the words of the decree under execution. The appellate court fell into the same error. When the matter was taken up in revision to the High Court, the High Court declined to go into the question of the construction of the decree on the ground that a wrong construction 29 of a decree merely raises a question of law and it involves no question of jurisdiction to bring the case within Section 115, Civil Procedure Code. As seen earlier in this case the executing court and the appellate court had not construed the decree at all. They had not even referred to the relevant documents. They had merely gone by the words used in the decree under execution. It is clear that they had failed to construe the decree. Their omission to construe the decree is really an omission to exercise the jurisdiction vested in them."
25. In view of this, I am of the considered opinion that the learned Judge of execution Court has failed to exercise the jurisdiction vested with execution court. Therefore, the submission of learned Counsel for judgment debtor that petitioners cannot invoke jurisdiction under Section 115 CPC cannot be accepted.
26. The leaned Senior Counsel for judgment debtor relying on a judgment reported in AIR 1990 Punjab and Haryana 92 (in the case of M/s.Woolways vs. Central Bank of India, Chandigarh) would submit that the execution court, 30 deciding question under Section 47 is not duty bound to hold an enquiry or record evidence, as if it was deciding a suit, the execution court can hold an enquiry, if it is requested by parties.
In the aforestated decision, decree under execution was a decree made on contest. In the circumstances, it was held that the execution court had no duty to hold an enquiry unless requested by parties.
27. In the case on hand, what was sought to be executed before the Execution Court was a compromise decree recorded by this Court in R.F.A.No.711/2008. Each party was contending that the other party was the defaulting party. The contentions raised by the parties related to execution of compromise decree or extinction of rights under the compromise decree. In the circumstances, the executing Court was bound to hold an enquiry to record a categorical finding either to execute the decree in favour of the decree holders or set aside decree made in O.S.No.9810/2006. Therefore, I am of the considered 31 opinion that the matter requires remand. The execution Court is directed to hold an enquiry to record a finding on the factual controversies raised by the parties.
28. In the result, I pass the following:
ORDER The petition is accepted. The Execution Court shall hold an enquiry and conclude the enquiry and decide the case on merits within a period of three months from today, for which both parties shall extend their co-operation. It is made clear that the observations made herein on construction of compromise decree shall not be taken into consideration by the Execution Court.
Sd/-
JUDGE Np/nas