Punjab-Haryana High Court
Chander Bhan vs Banwari Lal on 15 March, 2001
Author: R.L. Anand
Bench: R.L. Anand
JUDGMENT R.L. Anand, J.
1. This Civil Revision has been filed by Shri Chander Bhan petitioner against the order dated 7.8.1993, passed by the Court of Sub Judge 1st Class, Rewari, who dismissed the execution application of Shri Chander Bhan under Order 21 Rule 11 C.P.C. when it was prayed by Shri Chander Bhan that Shri Banwari Lal be directed to execute the sale deed in his favour and if he does not execute the sale deed the court may appoint a local Commissioner for the execution of the sale deed.
2. Some facts can be noticed in the following manner. The litigation started when Shri Banwari Lal respondent filed a Civil Suit No. 120 of 1976 tilted Banwari La! v. Chander Bhan and the suit was pending in the Court of Sub Judge 1st Class, Rewari. The suit was for permanent injunction vide which- the plaintiff Shri Banwari Lal called upon the Court to issue an injunction restraining Shri Chander Bhan not to interfere in his possession with respect to the land measuring 18 Kanals 2 Marias described in the Head Note of the said suit situated in village Dulhera Khurd in Sub Tehsil Bawal of Tehsil Rewari.
3. During the pendency of the suit, the parties entered into an agreement and on the basis of that agreement that suit was decreed on 1.9.1977 to the following effect :-
(a) The DH was to sell the entire suit land measuring 18 Kanals 2 Marias to the defendant for a cash consideration of Rs. 12,000/- total in instalment as per the following schedule :-
(i) Rs. 1,000/- was to be paid as earnest money on or before 30.9.1977.
(ii) Rs. 5,000/- was to be paid by the JD on or before 31.5.1979 and on receipt of the said sum the DH was to execute a sale deed in respect of half share on the suit land.
(iii) The balance amount of Rs. 6,000/- was to be paid by the JD on or before 31.5.1979 and on receipt of the said sum, the DH was to execute sale deed qua the remaining half share.
4. It was also agreed upon that in the meanwhile a decree for permanent injunction shall be issued in favour of plaintiff decree-Holder Shri Banwari Lat restraining the defendant Shri Chander Bhan from interfering in the possession of the plaintiff over the suit property.
5. It is the common of the parties that J.D. paid a sum of Rs. 1,0007- on 28.9.1977 i.e. well before 30.9.1977. Similarly he paid Rs.5,000/-on 26.5.1978 and that too prior to 31.5.1978 but a sum of Rs. 6,000/- was paid by the J.D. Shri Chander Bhan on 21.10.1980 after the stipulated date i.e. 31.5.1979.
6. The records of the trial Court further show that decree-holder Shri Banwari Lal filed one execution application in terms of the decree dated 1.9.1977 against Shri Chander Bhan on 18.7.1979 and Sub Judge 1st Class, Rewari vide order dated 28.3.1980 issued the order of attachment of the property of the J.D. Shri Chander Bhan as well as ordered for his detention in civil prison. Shri Chander Bhan filed an appeal before the Court of Additional District Judge, Namaul, who, vide order dated 21.5:1981 set aside the order of detention of Shri Chander Bhan and also the order of attachment with the observation that no Jamabandi or other document of J.D. exists on the file. Shri Banwari Lal, however, was permitted to file a fresh execution application containing the detailed particulars of the land of the J.D. Later on, vide order dated 22.9.1983, Sub Judge 1st Class, Rewari on the basis of the evidence led by the parties on the issues on 17.11.1979 "as to whether the J.D. Shri Chander Bhan had not complied with the terms of the decree dated 1.9.1977", held that Shri Chander Bhan did not comply with the terms of the decree dated 1.9.1977 and, therefore, the land is liable to be sold and attached. The property of Shri Chander Bhan was attached. He filed the objections contending that proceedings regarding attachment and sale are illegal. That objection petition was dismissed on 23.3.1984. Ultimately, a compromise took place in the execution application of Shri Banwari Lal and that execution No. 113/79 was also dismissed as per compromise dated 4.12.1985 and the order is dated 7.12.1985 passed by the Court of Sub Judge 1st Class, Rewari and I shall deal with this statement dated 4.12.1985 and order 7.12.1985.
7. When decree-holder Shri Banwari Lal filed Execution application No. 119 of 1978, the J.D. Shri Chander Bhan also filed an execution application No. 200 of 7.10.1981 and he made a prayer that decree-holder Shri Banwari Lal be directed to execute a sale deed qua the suit land in his favour and it was pleaded by Shri Chander Brian that he had already paid a sum of Rs. 1,000/- to Shri Banwari Lal on 28.9.1977 as per the terms of the compromise decree dated 1.9-1977 and this amount has already been withdrawn by Shri Banwari Lal. He has also paid a sum of Rs. 5,0007- on 26.5.1978 and the remaining amount of Rs. 6,000/- on 21.10.1980 but Shri Banwari Lal has not executed the sale deed in his favour, therefore, the directions be given to him to execute the sale deed failing which the sale deed be got executed through the intervention of the Court.
8. Notice of the Execution Application No, 200 dated 7.10.1981 filed by Shri Chander Bhan was given to Shri Banwari Lal who filed the objection contending that Shri Chander Bhan had not deposited the amount within time as stipulated in the compromise, in the decree time was the essence of the contract and therefore, he is not liable to sell the land in favour of J.D. Shri Cliander Bhan.
9. Shri Chander Bhan filed the rejoinder in which he stated that he had already complied with the terms of the decree dated 1.9.1977, therefore, he is entitled to get the sale deed executed of the land in his favour.
10. The Executing Court framed the following issues :-
1. Whether the decree in favour of DH is not executable in view of the allegations in the execution petition 7OPJD
2. Whether the execution petition filed by the JD is maintainable ? OPJD.
3. Relief.
The trial Court held that Shri Banwari Lal is not bound to execute a sale deed in favour of Shri Chander Bhan in the execution proceedings.
11. Aggrieved by the order the present revision by Shri Chander Bhan.
12. I have heard Shri S.K. Mittal, learned Counsel appearing on behalf of the-petitioner and Shri Hemant Gupta, Advocate, appearing on behalf of the respondent and with their assistance have gone through the record of this case.
13. The facts in this case are not disputed. Theonly point for determination is what is the effect of the compromise dated 1.9.1977 arrived at between the parties, what type of judgment was passed by the Court of Sub Judge 1st Class, Rewari and what is the decree.
14. The terms of compromise I have already reproduced above in the earlier portion of this judgment. The order of the learned Sub Judge 1st Class, Rewari is to the following effect :-
"As per statement of Shri Chander Bhan defendant with Sh. Yudhbir Singh, Advocate, for the defendant and Shri Banwari Lal plaintiff with Sh. S.B. Gupta, Advocate, for the plaintiff, the parties have arrived at compromise. As per statement of the parties recorded in open Court the defendant has agreed to purchase the suit land from the plaintiff for Rs. 12,000'- in all. The defendant shall pay a sum of Rs. 1,000/- as earnest money to the plaintiff on or before 30.9.1977, when the plaintiff shall execute an agreement of sale of the suit land in favour of the defendant. The defendant shall pay a sum of Rs. 5,000/- on or before 31.5.1978 and the plaintiff shall execute a sale deed in favour of the defendant in respect of the land in dispute. The defendant shall pay the re-_maining amount of Rs. 6,000/- to the plaintiff on or before 31.5.1979 and the plaintiff shall execute a sale deed for the remaining land in favour of the defendant. The defendant shall make the payment by the dates slipulated above and get the agreement and sale deed executed in his favour. In the meantime the suit of the plaintiff for the grant of permanent injunction shall stand decreed.
In view of the above compromise of the parties, the suit of the plaintiff is decreed. Decree-sheet be drawn and the tile be consigned to the Record Room",
15. Thus, it will indicate that so far as the suit of the plaintiff Shri Banwari Lal was concerned, it was decreed till the compromise is implemented in letter and spirit. Otherwise on receipt of Rs. l,000/-,theplaintiff was supposed to execute an agreement of sale in favour of the defendant and on receipt of Rs. 5,000/- he was supposed to execute a sale deed in respect of the half share of the land and on remaining consideration the plaintiff was supposed to execute the sale deed for the remaining land in favour of the defendant. The set Ilement also reveals that on making the payment, further documents i.e. agreement of sale and the sale deed itself were required to be executed. This order is Ex.PZ/2 on the record. Ex.PZ/3 is decree which has been drafted in terms of the compromise Ex.PZ/2, Here 1 also make a reference to one similar statement of Shri Chander Bhan which was given by him in the Execution No. 119 of 1978 which was filed by Shri Banwari Lal who complained that the decree dated 1.9.1977 has not been complied with by Shri Chander Bhan and he is interfering in his possession. Shri Chander Bhan gave the statement to the effect that he had nothing to do with the land in dispute and that he or members of his family will not interfere in the possession of the decree- holder. This statement of Shri Chander Bhan is very significant which clearly shows that Shri Chander Bhan was not making any right, title or interest in the property in question on payment of Rs. 1,000/- and Rs. 5,000/- before the slipulated date. The reading of the compromise and the order of the Court clearly clinches that these documents per se did-not confer any right, title or interest in the property to Shri Chander Bhan but it was mere a settlement between the parties which settlement has been incorporated in the decree which was in favour of the decree-
holder Shri Banwari Lal and the Court had categorically stated that till the final payments are made by Shri Chander Bhan, the suit of Shri Banwari Lal shall stand decreed for permanent injunction. On the basis of the statement dated 4.12.1985, Ex.DHW/1/2, the Sub Judge 1st Class passed the order dated 7.12.1985 by stating as follows ;-
"Statement of the parties already recorded on 4.12.1985. In view of the statements of the parties recorded on 4.12.1985 the execution petition is hereby dismissed as compromised. File be consigned to the record room after due compliance."
16. The decree dated 1.9.1977 isonly in favour of the one party, it was not a composite decree. Decree was only one. That was in favour of Shri Banwari Lal and that decree only makes a reference of settlement between the parties. How that settlement is enforceable. The decree did not say that if Shri Banwari Lal after receipt of the money does not execute the sate deed in favour of Shri Chander Bhan then Shri Banwari Lal will be able to gel the sale deed executed by filing a separate execution application.
17. In these circumstances, the remedy of Shri Chander Bhan was to file a suit for specific performance on the basis of the contract and its breach by alleging that Shri Banwari Lal has violated the terms of the settlement dated 1.9.1977 in spite of the fact that he has received a sum of Rs. 6,000/: or Rs. 12.000/- as per that settlement and thai he was not willing to execute the sale deed. The execution No. 200 filed by Shri Chander Bhan was totally a misconceived idea specially when he had already made astatement dated 4.12.1985 to the effect that he had nothing to do with the suit property.
18. The learned Counsel for the petitioner relies upon a judgment of Calcutta High Court reported as AIR 1932 Calcutta 579, Heramba Chandra Maitra v. Jyotish Chamlra Sinha and others and submits that defendant-petitioner is also entitled to enforce adecree like that of the plaintiff and, therefore, execution No. 200 is legally maintainable. This judgment is distinguishable on facts. I cannot lose sight of the fact that the suit of Shri Banwari Lal was not that of specific performance but it was a suit for injunction. In the cited case, there was a decree for specific performance and the Hon'ble Judges of the Calcutta High Court said that a decree for specific performance operates in favour of both the parties and such decree is within the meaning of Section 2. Decree is nothing but the formal expression of an adjudication which a Court expresses. It conclusively determines the rights of the parties with regard to all or any of the matter in controversy in a suit and may be either preliminary or final. The decree dated 1.9.1977 only incorporates the terms of compromise/settlement but it does not force the right to the J.D. Shri Chander Bhan to get his right executed through a separate execution. In order to get his right enforced Shri Chander Bhan was supposed to file a separate suit for possession by way of specific performance against Shri Banwari Lal which he did not do. He opted to file an execution which remedy was totally misconceived.
19. On the contrary, learned Counsel for the respondents submitted that the compromise can be got enforced only through a separate suit and not by filing an execution application. I find sufficient force in the contention raised by the learned Counsel for the respondent. I draw some support from judgment reported as 1989 PLJ 182 : 1989(2) RRR 499 (DB), Gurdev Kaur v. Mehar Singh in which a shape of contract has been given to a settlement. Virtually it was a contract between the parties. There was no decree in favour of the defendant and, therefore, the Exe-. cuting Court could only execute that decree which is enforceable. It could not stretch the decree to that an extent to which it was not enforceable in the execution proceedings.
20. The learned Counsel for the petitioner then relied upon AIR 1966 Calcutta 107, Cliandilal (sic) v. Guneilra Kr. Roy and another and AIR 1987 Rajas-than 117, Hem Chand v. Karilal and submitted that the petitioner had the locus standi to file the execution proceedings for the enforcement of the settlement which was incorporated in the decree itself. The contention of the learned Counsel for the petitioner is not acceptable. The judgments relied upon are distinguishable on facts. In AIR 1966 Calcutta 107 (supra) it was held by his Lordship that decree for specific performance is in the nature of a preliminary decree and original court keeps control over the action and has full power to make any just and necessary orders therein, including in appropriate cases, an extension of time. Such a decree operates in favour of both the parties and the defendant in a suit for specific performance is as much entitled to enforce a decree as the plaintiff. It was also observed in this judgment that the passing of such decree does not terminate the suit. Similar is the observation in AIR 1987 Rajasthan 117 (supra). Both the judgments are distinguishable in facts. Had the suit of Shri Banwari Lal been a suit for specific performance, there would have been no difficulty on my part to hold that the defendant's execution is legally maintainable provided some rights had flowed to him on that decree itself. In the present case, the suit was for injunction filed by Shri Banwari Lal. The decree was in favour of Shri Banwari Lal. An option was given to the defendant as per compromise to purchase the property. That compromise was reduced in the shape of an agreement. If there is a breach of agreement on the part of the plaintiff the remedy of the opposite party was to file a suit for possession by way of specific performance. Admittedly, the possession of the property throughout remained with Shri Banwari Lal. Therefore, I affirm the findings of the trial Court and hold that Shri Banwari Lal could not get the sale deed executed in Execution No. 200. His execution has been rightly dismissed.
There is no merit in this revision. The same stands dismissed with no order as to costs.