Himachal Pradesh High Court
Sunil Khanna vs Coram on 3 May, 2024
Author: Jyotsna Rewal Dua
Bench: Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CMP(M) No. 610 of 2020 & Civil Revision No. 57 of 2020 .
Reserved on: 26.04.2024 Decided on: 03.05.2024 _________________________________________________________________ Sunil Khanna ... Petitioner Versus Coram Ms. Justice Jyotsna Rewal Dua Chief Manager, Punjab National Bank & Ors. ...Respondents _________________________________________________________________ 1 Whether approved for reporting? Yes _________________________________________________________________ For the petitioner: Mr. R.K. Bawa, Sr. Advocate with Mr. Ajay Kumar Sharma, Advocate.
For the respondents: None for respondents No. 1 and 2.
Mr. Hemant Vaid, Advocate, for respondents No.3(a) to 3(c).
Jyotsna Rewal Dua, Judge Petitioner was the Judgment Debtor before the learned Executing Court. On 03.08.2019, learned Executing Court allowed the execution petition moved by the Decree 1 Whether reporters of Local Papers may be allowed to see the judgment? yes ::: Downloaded on - 03/05/2024 20:38:00 :::CIS -2- Holder, Sh. Rajneesh Khanna [(represented here by his legal heirs-respondents No. 3(a) to 3(c)] seeking enforcement of the .
compromise decree dated 22.06.2017 and dismissed the objections preferred by the petitioner. Based upon this order, certain other orders were passed on 09.12.2019 and 13.01.2020 in furtherance of enforcement of the compromise decree dated 22.06.2017. Feeling aggrieved, the petitioner-
2. Facts:-
Judgment Debtor has instituted this revision petition, which is barred by limitation.
2(i) The petitioner had instituted a civil suit against his brother Sh. Rajneesh Khanna and two banks: - the Punjab National Bank & UCO Bank. The petitioner sought direction to the aforementioned banks to release him money from the bank accounts and further that his brother Sh.
Rajneesh Khanna be directed not to interfere in the business being run at 4, Regent House, the Mall Shimla.
2(ii) Sh. Rajneesh Khanna's defence in the civil suit was that the firm known as M/s Puran Chand & Satya Paul Khanna, previously consisted of three partners i.e. ::: Downloaded on - 03/05/2024 20:38:00 :::CIS -3- Sh. Rajneesh Khanna, Sh. Sunil Khanna and their late father Sh. Dharam Pal Khanna. The firm was dissolved after the .
death of Sh. Dharam Pal Khanna and a new partnership firm, consisting of Sh. Rajneesh Khanna and Sh.Sunil Khanna, came into existence. According to Sh. Rajneesh Khanna, the business being run at both the aforementioned places was that of partnership firm, whereas according to Sh.Sunil Khanna, the firm carried its business only at Sajjan Niwas, Anaj Mandi, Shimla and the business being run from the shop No.4, Regent House, The Mall Shimla, was his personal business. Owing to the dispute, Sh. Rajneesh Khanna directed both the banks to stop releasing money from the bank accounts of the firm to Sh. Sunil Khanna. Aggrieved against these directions, Sh. Sunil Khanna filed the civil suit referred to above.
2(iii) The civil suit was sent for mediation. A compromise was effected between the parties before the Mediator. The mediation proceedings were placed before the Court where statements of the parties were recorded. On that basis, the suit was disposed of in terms of a compromise ::: Downloaded on - 03/05/2024 20:38:00 :::CIS -4- decree dated 22.06.2017.
Statements of the parties recorded before the .
Court were to form part of the compromise decree.
Sh. Rajneesh Khanna had stated before the Court that: -
i) The business being run in the name of firm at Anaj Mandi, Ram Bazar, Shimla and at 4, Regent House, The Mall Shimla, is a partnership business, in which Sh. Sunil Khanna and Sh. Rajneesh Khanna are the partners.
ii) Both the partners shall have no objection for releasing of an amount of Rs.10,000,00/- by the Punjab National Bank from the given account and the remaining amount of Rs.7,00.000/- lying in the said account, will be deposited in the name of Sh. Sunil Khanna, who will not encash the same till the accounts of the firm are settled between them and till the dispute about the accounts of the firm is settled finally.
iii) On release of Rs.10,00,000/- and formation of FDR of Rs.7,00,000/-, Sh. Sunil Khanna shall immediately open the shop at 4, Regent House, The Mall Shimla. In case Sh. Sunil Khanna receives any amount from Aditya Birla and ::: Downloaded on - 03/05/2024 20:38:00 :::CIS -5- Adidas India against any claim, the same shall go only to Sh. Sunil Khanna.
.
iv) Both the brothers shall remain joint tenants of the shop at 4, Regent House, The Mall Shimla under the name of firm. The business of the firm shall continue at all the units with both partners having right to watch their interest and administration of business.
v) The shop will remain the business premises till the existence of the firm. In case of death of either of the partners, their legal heirs may continue the partnership frim.
vi) Both the partners will help smooth functioning of the firm and will not hamper the business in any manner.
The aforesaid statement made by Sh. Rajneesh Khanna was accepted by the petitioner Sh. Sunil Khanna, who vide his separate statement stated that he had heard and understood the statement of his brother Sh. Rajneesh Khanna and that the terms of the above compromise were acceptable to him. The suit was accordingly decreed on 22.06.2017 in terms of the statements of the parties recorded before the Court. The statements formed part of the decree ::: Downloaded on - 03/05/2024 20:38:00 :::CIS -6- sheet.
2(iv) On 10.08.2017, execution petition was filed by .
Sh. Rajneesh Khanna under Order 21 Rule 32 read with Section 151 of Code of Civil Procedure with the grievance that though he had complied with his obligations under the compromise decree dated 22.06.2017 and had got released Rs.10,00,000/- in favour of Sh. Sunil Khanna and also got an FDR made of Rs.7,00,000/- in his favour, however, Sh. Sunil Khanna (petitioner herein), had not opened the shop at 4, Regent, The Mall Shimla.
2(iv)(a) Sh. Sunil Khanna was served with notice of the execution petition, but he did not remain present in the Court on the given date i.e. 04.09.2017. Smt. Pushpa Rajta appeared before the Court on the said date with authorization letter of Sh. Sunil Khanna. At her request, time was granted to Sh. Sunil Khanna for responding to the execution petition.
The record appended with this petition shows that Smt. Pushpa Rajta appeared before the learned Executing Court on several subsequent dates for Sh. Sunil Khanna. At times, he was even represented by his lawyer. From ::: Downloaded on - 03/05/2024 20:38:00 :::CIS -7- 07.09.2018 onwards, he was proceeded ex-parte.
2(iv)(b) Petitioner Sh. Sunil Khanna filed his reply to the .
execution petition on 15.10.2017 under his own signatures.
Objections were also preferred by him through an advocate on 10.01.2020, which also bore his signatures as well. In these objections, Sh. Sunil Khanna attacked the compromise decree dated 22.06.2017. He alleged that compromise was unlawful; He had executed such compromise under pressure due to scarcity of funds and looking to his health. He even blamed his lawyer and family members for getting that compromise executed.
2(iv)(c) On 03.08.2019, learned Executing Court allowed the execution petition and dismissed the objections preferred by Sh. Sunil Khanna. While dismissing the objections, learned Executing Court, inter-alia, observed that: - The compromise decree was passed in terms of the statements of the parties recorded before the Court; The allegations of Sh. Sunil Khanna that he was suffering from certain disease, because of which, he could not read, write, hear or see properly, were not established; The medical reports tendered ::: Downloaded on - 03/05/2024 20:38:00 :::CIS -8- by him before the Court were prior to the year 2017. The compromise decree was passed on 22.06.2017; There was .
nothing on record to show that medical condition of Sh. Sunil Khanna was such that he was unable to see, hear or understand the facts stated in the Court. Learned Executing Court also observed that Sh. Sunil Khanna had admittedly himself got typed the complaint against Sh. Rajneesh Khanna, that was filed in the execution petition through his attorney holder Smt. Pushpa Rajta; The said fact showed that Sh. Sunil Khanna was in proper condition to read, write or hear in the year 2017. It was also noticed by the learned Executing Court that the allegations of Sh. Sunil Khanna that he was unable to read, write or hear at the time of recording of the statements of the parties on 22.06.2017, had not been mentioned by him in his reply filed to the execution petition on 15.11.2017 or in his objections filed on 12.01.2018. All these facts were asserted by him later in the application under Order 22 Rule 3A of Code of Civil Procedure filed on 12.10.2018. These facts, subsequently asserted were only after thought. Learned Executing Court further observed ::: Downloaded on - 03/05/2024 20:38:00 :::CIS -9- that: - statement of Sh. Rajneesh Khanna was recorded in the open Court in presence of Sh. Sunil Khanna when his learned .
counsel was also present. Sh. Sunil Khanna had given his statement, expressly and unequivocally agreeing to the statement made by his brother Sh. Rajneesh Khanna.
Learned Executing Court also took cognizance of the fact that the shop No.4, Regent, The Mall Shimla had been lying closed. On receipt of agreed money in his account, Sh. Sunil Khanna was required to open the shop. The fact that Sh.
Sunil Khanna had agreed to open the shop on receipt of Rs.10,00,000/- from the bank was a clear indicator of his understanding the facts as stated by Sh. Rajneesh Khanna in his statement, which was the basis of the compromise or otherwise the money would not have been transferred to him.
Taking all these aspects into consideration, learned Executing Court dismissed the objections filed by Sh. Sunil Khanna and allowed the execution petition.
2(iv)(d) Subsequently, on 09.12.2019, certain directions were issued for enforcement of decree. On 13.01.2020, observing that Sh. Sunil Khanna had caused disobedience to ::: Downloaded on - 03/05/2024 20:38:00 :::CIS
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the compromise decree, warrant of attachment of movable and immovable property of the Judgment Debtor was directed .
to be issued.
2(v) It is in the aforesaid circumstances, Sh. Sunil Khanna has instituted this revision petition, praying for following relief: -
"It is, therefore, respectfully prayed that the present revision petition may very kindly be allowed throughout with costs and orders dated 03.08.2019, 09.12.2019 and 13.01.2020 passed in Execution Petition No. 35-10 of 2017, which had arisen out of judgment and decree dated 22.06.2017 passed in Civil Suit No.31-1 of 2017 by learned Civil Judge (Senior Division), Court No.2, Shimla may kindly be quashed and set aside and judgment and decree dated 22.06.2017, may kindly be ordered to be modified strictly in accordance with the terms and conditions of the compromise entered into between the parties before learned Mediator and further the execution petition No.35-10 of 2017 may kindly be dismissed."
3. This petition is barred by limitation.
4. Consideration Learned Senior Counsel for the petitioner submitted that the Hon'ble Apex Court had extended the limitation in Suo Motu Writ Petition (C) No.3 of 2020 ::: Downloaded on - 03/05/2024 20:38:00 :::CIS
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(Cognizance for Extension of Limitation), therefore, limitation period will get extended in this case as well.
.
In the instant case, the impugned order was passed on 03.08.2019 i.e. prior to the setting of COVID-19 Pandemic, therefore, the order passed by the Hon'ble Apex Court covering the period from 15.03.2020 to 28.02.2022 will not come to the aid of the petitioner in this case. However, looking to the facts and the grievances raised by the petitioner, learned Senior Counsel also been heard on merits of the petition.
Besides praying for setting aside of the orders dated 03.08.2019 (dismissing the petitioner's objections and allowing the execution petition), 09.12.2019 and 13.01.2020 (passed towards enforcement of the compromise dated 22.06.2017), the petitioner has also laid challenge to the compromise decree dated 22.06.2017.
Heard learned Senior Counsel for the petitioner as well as learned counsel for the respondents and with their assistance, considered the case record.
The petitioner in essence is questioning the ::: Downloaded on - 03/05/2024 20:38:00 :::CIS
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compromise judgment and decree dated 22.06.2017 passed in Civil Suit No.31-1 of 2017 by the learned Trial Court. The .
endevour of learned Senior Counsel has only been to highlight the compromise decree dated 22.06.2017 should not have been passed as the petitioner (Judgment Debtor) at the time of agreeing to the compromise was not able to read, hear or understand.
Under the impugned orders dated 03.08.2019, 09.12.019 and 13.01.2020, learned Executing Court has only decided the objections preferred by the petitioner and such objections have been dismissed. The execution petition has been allowed and objections have been dismissed under order dated 03.08.2019. Based upon that, further orders have been passed on 09.12.2019 and 13.01.2020 towards enforcement of the compromise decree.
The petitioner's main grievance is against the compromise decree dated 22.06.2017. There is nothing on record to suggest that any order has been passed on the application of the petitioner filed for setting aside the compromise decree. It is not for this Court to exercise ::: Downloaded on - 03/05/2024 20:38:00 :::CIS
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original jurisdiction for setting aside the compromise decree in favour of the petitioner. In fact, the record does not even .
make it clear as to whether any application for setting aside the compromise decree was actually presented by the petitioner in accordance with law in the required format and procedure before the Court of competent jurisdiction.
Learned Senior Counsel for the petitioner would contend that the petitioner had presented an application under Order 23 of Code of Civil Procedure for modification of the compromise decree before learned Executing Court in the execution petition that was instituted by Sh. Rajneesh Khanna (Decree Holder). Such a procedure, if followed by the petitioner, cannot be held to be in consonance with the law.
The petitioner was required to institute independent proceedings in a Court of competent jurisdiction for assailing the compromise decree in accordance with law. Reference in this regard can be made to decision dated 16.07.2008 rendered in Civil Appeal No.4456 of 2008 (M/s Premium Exchange & Finance Ltd. & Anr. Vs. M/s S.N. Bagla & Co. & Ors.), where it was held by the Hon'ble Apex Court ::: Downloaded on - 03/05/2024 20:38:00 :::CIS
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that 'it was not open to move under Section 47 of Code of Civil Procedure for setting aside a portion of the consent .
decree; Appropriate proceedings ought to have been taken either for setting aside or modifying the consent decree before the Competent Court but not in the Executing court which has no power to set aside, modify or vary the decree'.
Relevant para from the judgment reads as under: -
"7. We are of the view that, in the present case, Section 47 C.P.C. application made by the respondents herein was totally misconceived. It was not maintainable. The Executing Court had no authority to set aside, modify or vary the consent decree dated 26th April, 2002. We have quoted above Clause-K of the Scheme annexed to the consent decree. Clause-K makes the valuation by Ernst & Young final and binding on the disputing parties. If, according to the respondents, the opinion of the Valuer was tainted, biased or that they had failed to do their duty as a Valuer, then, appropriate proceedings ought to have been taken by the respondents either for setting aside or modifying the consent decree before the Competent Court but not in the Executing Court which has no power to set aside, modify or vary the decree. It was not open to the respondents to move under Section 47 C.P.C. for the relief, namely, to have the valuation report set aside as that would amount to virtually setting aside a portion of the consent decree which, as stated ::: Downloaded on - 03/05/2024 20:38:00 :::CIS
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above, constituted very core and the basis of the consent decree.
5. In respect of execution of a decree, only limited .
nature of issues relating to execution i.e. discharge or satisfaction of decree can be gone into. In the instant case, admittedly, the compromise decree stands as of now. It is not in dispute that the petitioner did not abide by the compromise decree and has not performed his part of obligations therein though he has himself received benefits under this decree from the decree holder. Petitioner's objections against the execution petition were nothing but a challenge to the compromise decree. The Executing Court could not have gone behind the compromise decree. It did not have any jurisdiction to do so. The dismissal of petitioner's objections assailing the compromise decree, by the learned Executing Court was therefore, in order. There is, therefore, no infirmity in the orders of the learned Executing Court, passed on 03.08.2019 (dismissing the objections of the petitioner), 09.12.019 and 13.01.2020 [ordering attachment of petitioner's (Judgment Debtor's) ::: Downloaded on - 03/05/2024 20:38:00 :::CIS
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property]. Hence, there is no merit in the present revision petition. Accordingly, the application as well as Revision .
Petition stand dismissed. However, the petitioner shall be at liberty to seek appropriate remedy in accordance with law for redressal of his grievances against the compromise decree dated 22.06.2017.
It is clarified that the observations made present case.
r to hereinabove shall remain confined to the adjudication of the The pending miscellaneous application(s), if any, also stand disposed of.
Jyotsna Rewal Dua Judge May 03, 2024 R.Atal ::: Downloaded on - 03/05/2024 20:38:00 :::CIS