Bangalore District Court
Dr. V. A Pinto vs Sri. B. R Rangaswamy on 4 January, 2020
IN THE COURT OF THE LXXII ADDL. CITY CIVIL
& SESSIONS JUDGE AT MAYO HALL
BENGALURU, (CCH73)
Present:
Sri.AbdulRahiman. A. Nandgadi,
B.Com, LL.B., (Spl.,)
LXXII Addl. City Civil & Sessions Judge, Bengaluru.
Dated this the 04th day of January, 2020.
Ex.Petition.No.15061/2006
Decree Holder: Sri. B.R.Rangaswamy,
S/o Late Rangaiah,
Aged about years,
R/o No.101, Sree Sannidhi Railway
Parallel Road, Kumara Park West,
Bangalore560 020.
[By Sri. B.M.ArunAdvocate]
V/s
[[
Judgment Sri. D. Syed Younus,
Debtors: (Since deased by his Lrs.,)
1. Smt. Basheera Jan,
W/o Late Syed Younus,
Aged about 59 years.
2. Sabeena Banu
D/o Late Syed Younus,
Aged about 37 years.
2 Ex.Petition. No.15061/2006
3. Humera Banu,
D/o Late Syed Younus,
Aged about 36 years.
4. Afrose banu,
D/o Late Syed Younus,
Aged about 35 years.
5. Syed Suhail,
Son of Late Syed Younus,
Aged about 44 years.
All are /at No.18/1, 5th Cross,
Jaibharathi Nagar,
Bangalore560 033.
[By Sri. MCN Adv.)
APPLICANTS:
1. Dr. V. A Pinto
Aged abot 71 years,
S/o Late B. Pinto
2. Dr. Mrs. P. Pinto,
Aged about 66 years,
W/o Dr. V.A Pinto,
1 & 2 R/at No.37/2,
Berlie Street, Langford Town,
Bangalore560 025.
3. Mr. J. T Pinto,
Aged about 61 years,
S/o Sri. B. Pinto,
R/at No.30,
3 Ex.Petition. No.15061/2006
Magarath Road,
Bangalore28.
V/s
RESPONDENTS:
1. Sri. B. R Rangaswamy,
Aged about 71 years,
S/o Sri. Rangaiah,
R/at No.101, Railway Parallel Road,
Kumara Park West,
Bangalore20.
2. Sri. D Syed Younus,
Since deceased by LR's
(a) Mrs. Basheera Jan,
W/o Late Syed Younus,
Aged about 64 years,
(b) Ms. Afroz Banu,
Aged about 46 years,
D/o Late D. Syed Younus,
(c) Ms. Sabeena Banu,
Aged about 43 years,
D/o Late D. Syed Younus,
(d) Ms. Humere Banu,
Aged about 39 years,
D/o Late D. Syed Younus,
(e) Sri. Syed Suhail,
Aged about 44 years,
D/o Late D. Syed Younus,
4 Ex.Petition. No.15061/2006
All R/at No.18/1, 5th Cross,
Jayabharath Nagar,
Bangalore33.
Date of Institution of the suit/Date
of filing application U/Or.21 Rule
06.07.2013
97 of CPC
Nature of the (Suit or pronote, suit
for declaration and possession, suit Objectors application
for injunction, etc.) U/Or. 21 Rule 97 of CPC.
Date of the commencement of
recording of the Evidence.
Date on which the Judgment was
pronounced on application U/Or. 21 04.01.2020
Rule 101 r/w Sec.151 CPC.
Year/s Month/s Day/s
Total duration 06 05 28
LXXII ADDL.CITY CIVIL AND SESSIONS JUDGE,
Mayohall Unit: Bengaluru.
5 Ex.Petition. No.15061/2006
JUDGMENT
This application is filed by the applicants U/Or. 21 Rule 97 of CPC, to determine the right, title and interest in the execution scheduled property and to put them in Possession of the said property.
2. The applicant No.1 has sworn to an affidavit in support of the application contending that, D. Syed Younus is the owner of the execution scheduled property as he had entered into an agreement with one E.P.Varunny on 11.07.1975. The said D. Syed Younus agreed in writing to sell the execution scheduled property to the applicants on 04.05.1978, which was reduced into writing on 15.11.1978. The present DecreeHolder claiming to be the agreement holder, under the said D. Syed Younus instituted an original suit at O.S.No.8443/1980 on 30.07.1980 for the relief of Specific Performance of Contract, wherein the present applicants were also the parties to the said 6 Ex.Petition. No.15061/2006 suit as Defendants. The said suit was dismissed on 15.04.1989. Against the said dismissal order, the present DecreeHolder preferred an appeal before the Hon'ble High Court of Karnataka, at RFA.No.374/1989. During the pendency of the said appeal, the present DecreeHolder was anxious to arrive at a settlement with the applicants, so he came up with the proposal on 04.02.1999, which was in writing and also signed by his Counsel, the said copy was given to the Counsel of the present applicants, to persuade the said proposal. The discussions inbetween the DecreeHolder and the applicants and their respective Counsels, were held on 08.02.1989 and an agreement was entered into inbetween the parties under the caption "Terms of Compromise" on 12.02.1999. This document was signed by the DecreeHolder, the applicants and their respective Counsels. This document was not filed into the Court, as it was an interse agreement between the DecreeHolder and the applicants, wherein there was no any participation of D. Syed Younus, who was also a party in the said RFA No.374/1989. As per the said Agreement, equitable 7 Ex.Petition. No.15061/2006 assignment of the benefits of the Decree were arranged to be made inbetween the DecreeHolder and the applicants. Resultantly, the applicants would get a portion of the property, the Suit Schedule Property in O.S.No.8443/1980.
Further the original owner D. Syed Younus had also admitted in his evidence that, he has sold the execution scheduled property to the applicants. Further contended that if the DecreeHolder would have failed in the litigation then definitely the said D. Syed Younus would have transferred the entire property infavour of the applicants, because of the said reason, the DecreeHolder had entered into an agreement with the applicants.
As per the said Agreement, the execution scheduled property was bifurcated into two parts, the front portion which is shown as Scheduled A property, which was agreed to be given to the applicants and the hind portion of the said property, which is shown as scheduled B property, which was agreed to be given to the DecreeHolder. Further it was agreed that the DecreeHolder and the applicants together have to pay a sum of 8 Ex.Petition. No.15061/2006 Rs.20,00,000/ to the original owner D. Syed Younus in equal shares. Thus, a concluded contract has come into existence inbetween the applicants and the DecreeHolder.
The Hon'ble High Court of Karnataka allowed RFA No.374/1989 and consequently, decreed the suit of the Plaintiff. The applicants became entitle to have scheduled A property, by virtue of the said agreement. The applicants filed Special Leave Petition prior to the filing of the Special Leave Petition by D. Syed Younus. Both these petitions were dismissed on 08.02.2006. The applicants on the basis of the decree passed in RFA.No.374/1989, filed Ex.Pt.No.15055/2006, on the strength of the said Agreement, which also came to be dismissed on 12.01.2010.
Thereafter, the applicants filed O.S.No.25242/2009, against the Respondents for Specific Performance of the aforesaid agreement dtd.12.02.1999. Initially an order of Adinterim injunction was passed on 11.02.2009 inrespect of the scheduled A property, the same is still in force.
9 Ex.Petition. No.15061/2006In this Execution Petition, this Court has directed the legal representative of the Judgment debtor to execute the Sale Deed infavour of the DecreeHolder. The DecreeHolder is not entitle to have a Sale Deed inrespect of the entire execution scheduled property, but he is entitled to have only inrespect of B scheduled property. Hence, prayed to allow the said application.
3. The Decree Holder has filed his objections on 28.10.2011 contending that, he had filed a suit at O.S.No.8443/1980 for the relief of Specific Performance of Agreement of Sale dtd.23.08.1978 against the original owner D. Syed Younus, arraying him as Defendant No.1 and against the present objectors, arraying them as Defendant Nos.2 to 4. The present objectors were impleaded as they had contended before the Urban Land Celling Authorities, that deceased D. Syed Younus had agreed to sell the Suit Schedule Property to them, under the Agreement of Sale dtd.15.11.1978. On trial, the said suit was dismissed on 15.04.1989 and the said dismissal of the suit was challenged 10 Ex.Petition. No.15061/2006 before the Hon'ble High Court of Karnataka in RFA.No.374/1989, wherein the present objectors were arrayed as Respondent Nos.2 to 4. The Hon'ble High Court of Karnataka, was pleased to allow the said Appeal on 05.03.1999, by setting aside dismissal of the suit, by the Trial Court in O.S.No.8443/1980. Immediately, the present objectors who were Defendant Nos.2 to 4 in O.S.No.8443/1980 filed an application U/Or. 41 Rule 5 of CPC, praying to stay the execution of the Judgment and Decree passed in RFA.No.374/1989 for a period of three months, enabling them to prefer Special Leave Petition. Accordingly, they had preferred Special Leave Petition at S.L.P.No.8462/1999, before the Hon'ble Supreme Court on 14.05.1999. The original owner also preferred Special Leave Petition at S.L.P.No.11200/1999. Both these petitions were dismissed by a common order on 08.02.2006. It is further contended that, the claim of the present applicants, who were the Defendants in O.S.No.8443/1980, were settled and attained finality. Since the original ownersthe Judgment 11 Ex.Petition. No.15061/2006 debtor, did not comply with the terms of the Judgment and Decree passed in RFA.No.374/1989, the DecreeHolder is constrained to file the present execution petition on 17.04.2006.
It is further contended that, the present objectors, who did not have any decree in their favour filed an execution petition at Ex.P.No.15055/2006 contending that during the pendency of the Regular First Appeal, the Decree Holder had assigned part of his rights in their favour under an agreement styled as "Terms of Compromise" dtd.12.02.1999. The DecreeHolder had filed objections as to the maintainability of the said petition, on hearing the same, the said Ex.Petition was dismissed on 12.01.2010.
Thereafter, the present Objectors filed an original suit at O.S.No.25242/2009, seeking for Specific Performance of the Agreement styled "Terms of Compromise" dtd.12.02.1999.
It is further submitted that, on the same lines the present Objectors have filed the present application, which is not maintainable. Hence, 12 Ex.Petition. No.15061/2006 prayed to reject the said application filed by the Objectors.
4. Heard the arguments of the Learned Counsels for the ObjectorsApplicants and the DecreeHolder, respectively on I.A.No.7. The Learned Counsel for the Applicants has relied upon seven decisions: 1) AIR 1955 SC 376; in the case of Jugalkishore Saraf V/s M/s. Raw Cotton Co. Ltd.,
2) AIR 1954 Bombay 273; in the case of Motilal Shivnarayan V/s Santaram Bala and Others, 3) 2012 (3) ARBLR 275 (Delhi); in the case of Atul Chopra & Others V/s Technotree Corporation & Others; 5) (2009) 6 Supreme Court Cases 184; in the case of Sneh Gupta V/s Devi Sarup and others,
6) AIR 1967 SC 951; in the case of Pulavarthi Venkata Subba Rao and others V/s Valluri Jagannadha Rao and others, 7) (2006) 5 Supreme Court Cases 566; in the case of Pushpa Devi Bhagat (Dead) through LR. Sadhna Ravi (Smt) V/s Rajinder Singh and Others, 8) (1969) 2 SCC 201; in the case of Baldevdas Shivlal and Another V/s Filmistan Distributors (India) Pvt. Ltd., and Others.
13 Ex.Petition. No.15061/2006Per contra, the Learned Counsel for the DecreeHolder has placed his reliance on four decisions: 1) ILR 2006 KAR 2965; in the case of A.M Subbamma V/s A.V Kushalappa and Others, 2) ILR 2007 KAR 4396, in the case of Gajanan V/s Jayamma and Another, 3) (2008) 7 Supreme Court Cases 144, in the case Usha Sinha V/s Dina Ram and Others, 4) ILR 2010 KAR 629, in the case of Smt. Nancy Pais V/s S. Surendra and Another. Further the Learned Counsel for the DecreeHolder has filed synopsis on 03.12.2019. I have carefully perused the said synopsis.
5. This case was made over to CCH21.
Thereafter, the same came to be transferred to this Court on 29.06.2019 as per the Notification No.ADM1(A)205/2019 dt.30.03.2019.
6. The points that arise for my consideration are:
1. Whether the Objectors have made out the grounds for determination of their rights 14 Ex.Petition. No.15061/2006 and to put them in Possession of the portion of Execution Scheduled Property, resulting in resistance of the execution of the Decree passed in RFA.No.374/1989?
2. What Order?
7. My findings on the above said points are as under:
Point No 1 : In the Negative;
Point No 2 : As per final order for
the following
:R E A S O N S:
8. POINT NO. 1:
As per the contentions of the DecreeHolder and Objectors, the undisputed facts are as under:
That the original owner D. Syed Younus had entered into an Agreement of Sale with the Decree Holder on 23.08.1978; on the basis of the said Agreement of Sale, DecreeHolder had filed original suit at O.S.No.8443/1980 for the relief of Specific Performance of Contract against D. Syed Younus 15 Ex.Petition. No.15061/2006 and the present Objectors; the said suit came to be dismissed on 15.04.1989; against the dismissal of the suit, the DecreeHolder preferred Regular First Appeal at RFA.No.374/1989, which came to be allowed on 05.03.1999 by setting aside the dismissal of the suit O.S.No.8443/1980; on the basis of the decree passed in RFA.No.374/1989, the present DecreeHolder has filed this execution petition.
On allowing the Regular First Appeal at RFA.No.374/1989, the present Objectors had preferred Special Leave Petition at S.L.P.No.8462/1999 before the Hon'ble Supreme Court. The original owner D. Syed Younus had also preferred S.L.P.before the Hon'ble Supreme Court at S.L.P.No.11200/1999. Both the said petitions were dismissed by virtue of a common order dtd.08.02.2006; the Objectors filed Execution Petition at Ex.P.No.15055/2006, which was objected by the DecreeHolder and on sustaining the said objections, the said Ex.Petition was dismissed on 12.01.2010.16 Ex.Petition. No.15061/2006
9. The disputed facts inbetween the Judgmentdebtor and the Objectors are;
(a) That the original owner D. Syed Younus had entered into an Agreement of Sale with the Objectors inrespect of the execution scheduled property on 15.11.1978;
(b) As per the Objectors the DecreeHolder has entered into an Agreement styled as "Terms of Compromise" dtd.12.02.1999, under which the Objectors have been given the front portion of the execution scheduled property, which is shown as scheduleA property and the DecreeHolder is given the hind portion of the execution scheduled property, which is shown as scheduledB property. Further the DecreeHolder and the Objectors had to pay an amount of Rs.20,00,000/ to the original owner D. Syed Younus in equal share.
10. The Objectors have produced the xerox copies of the proposal of the DecreeHolder for compromise dtd.04.02.1999; Terms of Compromise in RFA.No.374/1989 dtd.12.02.1999; order passed in W.P.Nos.34573458/2010 (GMCPC), 17 Ex.Petition. No.15061/2006 dtd.23.08.2011 and Ordersheet in O.S.No.25242/2009, by virtue of memo dtd.22.11.2009.
11. As per Order 21 Rule 97, 99 and 101, which reads as under;
Order 21 Rule 97:
"97. Resistance or obstruction to possession of immovable property.(1) Where the holder of a decree for the possession of immovable property or the purchaser of any such property sold in execution of a decree is resisted or obstructed by any person in obtaining possession of the property, he may make an application to the Court complaining of such resistance or obstruction.
[(2) Where any application is made under subrule (1), the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained.] ["99. Dispossession by decree holder or purchaser.(1)Where any person other than the judgmentdebtor is dispossessed of immovable property by the holder of a decree for the possession of such property or, where such property has been sold in execution of a decree, by the purchaser thereof, he may make an application to the Court complaining of such dispossession.18 Ex.Petition. No.15061/2006
(2) Where any such application is made, the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained.] "101. Question to be determined. All questions (including questions relating to right, title or interest in the property) arising between the parties to a proceeding on an application under rule 97 or rule 99 or their representatives, and relevant to the adjudication of the application, shall be determined by the Court dealing with the application, and not by a separate suit and for this purpose, the Court shall, notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions].
"Provided that when the Court is not competent to decide such question due to want of pecuniary jurisdiction the Court shall send the execution case to the Court of the District Judge to which the said Court is sub ordinate and thereupon the Court of the District Judge or any other competent Court to which it may be transferred by the District Judge, shall deal with it in the same manner as if the case had been originally instituted in that Court". As per the above provision of law, even if a third party to the Decree who is having certain rights in the property, which is the subject matter of the execution petition, he will fall within the ambit 19 Ex.Petition. No.15061/2006 of Rule 99 of Order 21 of CPC. In the present case, the Objectors, though they were the Defendant Nos.2 to 4 in O.S.No.8433/1980, can resist the execution of the Decree passed in RFA.No.374/1989, only on the basis of independent rights accrued to them and their rights can be adjudicated in this Execution Petition, even if they have not been arrayed as the parties to the Execution Petition, consequently they will become the third party. I find support to my above as per the decision of the Hon'ble Apex Court reported in (1998) 3 SCC 723; wherein it is held that "A third party to the Decree under Execution, who after resistance would fall within the ambit of Rule 99 of order 21 of CPC".
12. Any application filed under Rule 97 or 99 of Order 21, it is to be dealtwith as a suit. Hence, the application filed by the Objectors under rule 101 of Order 21, is considered as a suit and dealt with accordingly, as separate suit is barred for the said relief, as per the decision of the Hon'ble High 20 Ex.Petition. No.15061/2006 Court of Karnataka reported in AIR 1998 Karnataka 186 (FB).
13. Treating the contentions urged by the Objectors in the present application as pleadings of the plaint on behalf of the Objectors, claiming right on the basis of the Agreement styled as "Terms of Compromise" dtd.12.02.1999, in respect of the execution scheduled property.
14. On the contrary, the Decree Holder contends that on the basis of the Decree passed in RFA.No.374/1989, the original DefendantD. Syed Younus, after his death his legal heirs are bound to execute the Sale Deed in their favour as per the terms of the Agreement of Sale dtd.23.08.1978. The said Decree has attained its finality.
15. Initially, the DecreeHolder is claiming his independent right on the basis of the Agreement of Sale dtd.23.08.1978, which is culminated into a Decree passed in RFA.No.374/1989, which is 21 Ex.Petition. No.15061/2006 confirmed under S.L.P.Nos.8462/1999 and 11200/1999 on 08.02.2006.
16. Whereas, the Objectors/Applicants initially are claiming their rights on the basis of Agreement of Sale said to have been executed by the Original owner D. Syed Younus on 15.11.1978. Thereafter, the Objectors/Applicants are claiming their rights on the basis of the Agreement styled as "Terms of Compromise" dtd.12.02.1999.
17. It is clear that the Objectors/Applicants are not claiming their rights under the Agreement of Sale dtd.23.08.1978, executed by the original owner D. Syed Younus infavour of the DecreeHolder. Secondly, the Objectors/Applicants are not claiming their rights under the Decree passed in RFA.No.374/1989. Though, the Objectors have produced the xerox copy of the Agreement styled as "Terms of Compromise", in RFA.No.374/1989, but the said terms of compromise was not been presented in the said appeal, inorder to become part 22 Ex.Petition. No.15061/2006 and parcel of the Decree, passed in RFA.No.374/1989.
When the present Objectors were the Respondent Nos.2 to 4 in RFA.No.374/1989, they could have presented the same before the Hon'ble High Court of Karnataka, in the said Appeal, but the same has not been presented. If they would have presented the said agreement U/Or.23 Rule 3 of CPC, then the said Agreement styled as "Terms of Compromise" would have taken the shape of a fresh contract, which would have been enforceable in Law. I find force to my above view as per the decision of the Hon'ble High Court of Karnataka, reported in Smt. Nancy Pais V/s S. Surendra & Another, reported in ILR 2010 Kar. 629; wherein it is held that;
"After the amendment of Rule 3 of Order 23 of CPC, there is no bar for the Civil Court to record a compromise not only inrespect of the subject matter of the suit but also extending beyond the subject matter of the suit. Since the compromise entered into between the parties is nothing but a fresh contract, Article54 of the Limitation act has no application.23 Ex.Petition. No.15061/2006
Thus, the compromise decree passed by the Court below is valid and is enforceable in Law".
18. The Learned Counsel for the Objectors would contend that, Agreement styled as Terms of Compromise is nothing but transfer of rights during pendency of the suit, accordingly there should be a equitable transfer of a decree and has placed his reliance on the decision of the Hon'ble Apex Court in the case of Jugalkishore Saraf V/s M/s. Raw Cotton Co. Ltd., reported in AIR 1955 SC 376; wherein it is held that;
" To attract the application of the principle of equitable assignment of decree, there must be an agreement to transfer the decree to be passed in future. As soon as the decree is passed, equity fastens upon it and by treating as done what ought to be done, that is, by assuming that the transferor has executed a decree, transferring the decree to the transferee, as in all conscience, he should do, equity regards the transferee, as the beneficial owner of the after acquired decree. The equitable principle only implements or 24 Ex.Petition. No.15061/2006 effectuates the agreement of the parties. This equity does not however, take upon itself the task of making new agreement for the parties either by filling up the lacuna or gap in their agreement or otherwise. If therefore, there is no agreement between the parties to transfer the future decree, the equitable principle cannot come into play at all".
Applying the above principles of law, firstly the Objectors have to show that, the decree has been transferred (i) by assignment in writing or (ii) by operation of Law. In the instant case, there is no such assignment of decree, but the Objectors contend that, the DecreeHolder has executed an agreement styled as "Terms of Compromise", in RFA.No.374/1989, which is denied by the Decree Holder, as well as the said agreement has not been brought on record in RFA.No.374/1989. Under such circumstances, the first ingredient is not satisfied.
Secondly, no new agreements can be made out under the concept of equitable assignment of a 25 Ex.Petition. No.15061/2006 decree, as has been made out by the Objectors in the agreement styled "Terms of Compromise".
19. Further the Learned Counsel for the Objectors has relied upon the decision of the Hon'ble High Court of Bombay, in the case of Motilal Shivnarayan V/s Shantaram Bala & Others, reported in AIR 1954 Bombay, 273; wherein it is held that;
"If a decree can be executed piecemeal, there is no reason why an assignee in whose favour part of the decreetal rights have been transferred should not be entitled to execute the decree, so far as it relates to the part assigned to him."
In the instant case, no any decree has been assigned by the DecreeHolder infavour of the Objectors, muchtheless the decree drawn in RFA.No.374/1989.
20. Further the Learned Counsel for the Objectors has relied upon the decision of the Hon'ble High Court of Delhi; in the case of Atul 26 Ex.Petition. No.15061/2006 Chopra & Others V/s Technotree Cooperation & Others; reported in 2012 (3) ARBLR 275(Delhi), wherein it is held that;
"Executing Court shall only record the discharge f the claims, earlier raised and accept the covenants entered into by the parties and relegate the parties to agreed mechanism."
In the instant case, the DecreeHolder denies the execution of agreement styled as "Terms of Compromise", so there is no consenses adithem. Thus, there is no any agreed mechanism. Covenant as contended by the Objectors, said to have been agreed by the DecreeHolder, is not proved, so DecreeHolder cannot be directed to relegate to the terms of the Agreement styled as "Terms of Compromise".
21. Further the Learned Counsel for the Objectors has relied upon the decision of the Hon'ble Hon'ble Apex Court; in the case of Sneh Guptha V/s Devi Sarup & Others; reported in (2009) 6 SCC 194; wherein it is held that;
27 Ex.Petition. No.15061/2006"When an order/decree is void or voidable, the same must be set aside, no period of limitation for setting aside, thereof shall be attracted at all. A compromise decree, even if void was required to be set aside by seeking remedy therefor, within the limitation contained under the Limitation Act, 1963".
In the instant case, the agreement styled as "Terms of Compromise" said to have been entered into by the DecreeHolder and the Objectors have not taken the shape of compromise decree.
22. Further the Learned Counsel for the Objectors has relied upon the decision of the Hon'ble Apex Court; in the case of Pullavarti Venkata Subba Rao & Others V/s Valluri Jagannadha Rao & Others; reported in AIR 1967 SC 591; wherein it is held that;
"Compromise Decree merely sets the seal of the Court on the Agreement of the parties. The Court did not decide anything. Nor can it be said that, a decision of the Court was implicit in it."28 Ex.Petition. No.15061/2006
In the instant case, the socalled agreement styled as "Terms of Compromise", is not placed before the Hon'ble High Court of Karnataka, in RFA.No.374/1989, so the said terms will not form as the compromise terms inbetween the parties.
23. Further the Learned Counsel for the Objectors have relied upon the decision of the Hon'ble Apex Court; in the case of Pushpadevi Bhagat (Dead) through L.R., V/s Rajinder Singh & Others; reported in (2006) 5 SCC 566; wherein it is held that;
"Order 23 Rule 3 consists of two parts. The first part provides that where it is proved to the satisfaction of the Court, that a suit has been adjusted wholly or in part, by any lawful agreement or compromise in writing and signed by the parties, the Court shall order such agreement or compromise to be recorded and shall pass a decree in accordance therewith. The Second part provides that where a Defendant satisfies the Plaintiff inrespect of the whole or any part of the subject matter of the suit, the Court shall order such satisfaction to be recorded and shall pass a 29 Ex.Petition. No.15061/2006 decree in accordance therewith. The first part refers to the situation where an agreement or compromise is entered into and will spell out the agreed terms by which the claim is admitted or adjusted by the mutual concessions or promises, so that the parties thereto can be held to their promises in future and performance can be enforced by the execution of the decree to be passed in terms of it."
In the instant case, the DecreeHolder denies the execution of the agreement styled as "Terms of Compromise", under such circumstances, it is for the Objectors to prove the same, separately but not under this execution petition, as it is distinct to the claim made by the DecreeHolder as against the claim of the Objectors.
24. Further the Learned Counsel for the Objectors has relied upon the decision of the Hon'ble Apex Court; in the case of Baldevdas Shivlala & Another V/s Filmistan Distributors (India) Pvt. Ltd., & Others; reported in (1969) 2 SCC 201; wherein it is held that;
30 Ex.Petition. No.15061/2006"A consent decree is merely the recording of a contract between the parties to a suit, to which is super added the seal of the Court".
In the instant case, when the DecreeHolder denies the execution of the agreement styled as "Terms of Compromise", then there is no concluded contract, to term the same as a consent decree.
25. Further the Learned Counsel for the Objectors has relied upon the decision of the Hon'ble High Court of Kerala (Thrivandrum Bench); in the case of Chinnan Kesavan V/s Gouri Amma ; reported in AIR 1959 Kerala 180; wherein it is held that;
"During the pendency of the suit, Plaintiff assigned all his rights in equity of redemption of properties,infavour of the appellant and directed him to get recovery of Possession of properties from the Defendant, on payment of redemption price, that may be found to be due to them. Under such assignment, the assignee was entitled to get himself impleaded as additional Plaintiff in 31 Ex.Petition. No.15061/2006 the suit and to continue the suit to its logical termination. Such assignee is a person claiming under the Decree Holder and is entitle to all the benefit of the decree".
In the instant case, the DecreeHolder has not assigned his rights accrued under the proceedings either of O.S.No.8443/1980 or of RFA.No.374/1989; or the right accrued to him under the decree passed in RFA.No.374/1989. Under such circumstances, Objectors are not entitle to have any rights under the decree passed in RFA.No.374/1989.
26. Secondly, the DecreeHolder contends that, the present Objectors have filed an independent suit at O.S.No.25242/2009 for Specific Performance to enforce the terms of concluded/Deed of assignment and direct the execution of the absolute Sale Deed inrespect of scheduled A property in their favour. The said suit is pending for its adjudication. The Objectors have produced the xerox copy of the Ordersheet in 32 Ex.Petition. No.15061/2006 O.S.No.25242/2009, and further the Objectors contends that, the said suit is still pending for its adjudication.
Further the Objectors have produced the xerox copy of the orders passed in W.P.Nos.3457 3458/2010 (GMCPC) dtd.23.08.2011, wherein the Hon'ble High Court of Karnataka is pleased to observe at Para No.4 of the said Orders, as under;
"4. It is the contention of the Petitioners that the terms of compromise although not reported to the Court and made part of the record in the appeal, yet the terms of compromise would amounts to assignment of a decree and thus, the Petitioners under Order 21 Rule 16 would be entitled to come on record. However, counsel for the Petitioners submitted that the Petitioners apart from filing execution case have also filed a suit for Specific Performance to enforce the terms of compromise entered into between the parties vide Annexure'D'. Since a separate suit is filed, all the disputed questions can be considered and decided in the suit. All the questions raised in petition are kept open to be decided by the Civil Court. In that view, writ petitions are dismissed. The observations made b the Executing Court with regard to 33 Ex.Petition. No.15061/2006 propositions of law in the impugned order shall not bear any influences on the Trial Court in deciding the suit."
So, under such circumstances, when the relief in the suit as well as in the application are one and the same, then the Objectors cannot be permitted to pursue their remedy in two different proceedings. When the Objectors have availed the remedy of filing a suit then, the present application filed by the Objectors U/Or. 21 Rule 97 of CPC, claiming same and similar relief, as claimed in the suit, is not maintainable. I find support to my above view as per the decision of the Hon'ble High Court of Karnataka in the case of A.M.Subbamma V/s A.V. Kushalappa & Others; reported in ILR 2006 Kar. 2965; wherein it is held that;
"When the relief in the suit as well as in the application filed U/Or. 21 Rule 97 of CPC, are similar, then the Objectors cannot maintain the application filed U/Or. 21 Rule 97".
27. Thirdly, the Learned Counsel for the DecreeHolder would contend that, the Objectors are not claiming any independent rights, socalled 34 Ex.Petition. No.15061/2006 accrued to them, under this application. Hence, the application filed by the Objectors U/Or. 21 Rule 97 of CPC, is not maintainable. The Learned Counsel for the DecreeHolder has relied upon the decision of the Hon'ble High Court of Karnataka, in the case of Gajanan V/s Jayamma & Another, reported in ILR 2007 Kar. 4396, wherein it is held that;
"Once it is found that the Objector/ obstructer is not claiming any independent right, title and interest over the Suit Schedule Property and if there is no any privily of contract inbetween the Decree Holder and the Objector or any other person under whom the Objector is claiming his rights".
In the instant case, the Objectors are claiming their rights under the agreement styled as "Terms of Compromise", said to have been entered into by the DecreeHolder. When the DecreeHolder has denied the said agreement, then it cannot be said that the Objectors have derived independent right, title and interest, unless they prove the execution of the said agreement, which they have to prove under the 35 Ex.Petition. No.15061/2006 original suit at O.S.No.25242/2009, which is pending for its adjudication. Unless it is proved the Objectors will not have any independent right. Thus, the Objectors cannot maintain the present application without having independent right, title and interest.
28. Further the Learned Counsel for the DecreeHolder has relied upon the decision of the Hon'ble Apex Court in the case of Usha Singh V/s Dina Ram & Others; reported in (2008) 7 SCC 144; wherein it is held that;
"If an unfair, inequitable or undeserved protection is afforded to a transferee pendente lite, a Decree Holder will never be able to realize the fruits of his decree".
Applying the above principles of law to the instant case, it can be said that the DecreeHolder is getting executed a decree passed in RFA.No.374/1989, whereas the Objectors are claiming the rights under the socalled agreement styled as "Terms of Compromise", which they claim 36 Ex.Petition. No.15061/2006 to have been executed by the DecreeHolder, which is denied by the DecreeHolder, under such circumstances, no any protection can be afforded to the Objectors, to resist the Decreeholder from realizing the fruits of the decree passed in RFA.No.374/1989.
29. Viewing from all the angles, it is seen that the rights claimed by the Objectors under this application, are already placed for adjudication in O.S.No.25242/2009. No any rights in respect of the petition schedule property have remained to be adjudicated or decided in this petition. Hence, the resistance made by the Objectors for realizing the fruits of the decree passed in RFA.No.374/1989, infavour of the DecreeHolder, is unsustainable. Hence, I answer Point No.1 in the Negative.
30. Point No.2:
Since the Objectors have failed to establish their respective rights over the petition scheduled property as against the right of the Decree Holder, based on the Agreement styled as "Terms of 37 Ex.Petition. No.15061/2006 Compromise", dtd.12.02.1999, the Objectors are not entitle for Possession of the portion of the execution scheduled property, muchtheless schedule A property shown under the terms of compromise dtd12.02.1999. In view of such findings, I proceed to pass the following:
ORDER Application filed by the Objectors Under Order 21 Rule 97 of CPC is hereby dismissed.
No order as to costs.
Draw decree accordingly.
- (Dictated to the Judgment Writer directly on computer system, computerized by her and print out taken by her, after correction, signed and pronounced by me in the open court on this the 04th day of Jan., 2020.) [AbdulRahiman. A.Nandgadi] LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH73) 38 Ex.Petition. No.15061/2006 SCHEDULE A:
All that piece and parcel of land bearing old No.14, New No.86, situated in Richmond Road, Civil Station, Bangalore560 025, bounded on the North by Richmond Road, measuring on that side 75 feet, on the South by Veerarja Urs property, measuring on that side 130 feet, on the West by premises No.87 feet, Richmond Road, measuring on that side 285 feet and on the East by Kingston Road, measuring on that side 315 feet.
SCHEDULE - B:
The movable properties found and shown by the DHR work Rs.1,07,200/ in premises No.18/1, 15th Cross, Jai Bharathinagar, Bangalore560 033.
1) T.V Set : Rs. 5,000
2) Steel Almirahs : Rs. 20,000
3) Sofa Sets : Rs. 10,000
4) Dining Table & Chairs :
5) Cots : Rs. 1,000
6) Other articles shown
by the Decreeholder: Rs. 61,200
-
TOTAL Rs.1,07,200
[AbdulRahiman. A.Nandgadi]
LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH73) 39 Ex.Petition. No.15061/2006 Order sheet To hear Dhr on the main execution petition , call on 08.01.2020.