Allahabad High Court
Gangotri Sahkari Avas Samiti Ltd. vs Pushpa Sahkari Avas Samiti Ltd. And Ors. on 10 January, 2002
Equivalent citations: 2002(1)AWC649, (2002)1UPLBEC553, 2002 ALL. L. J. 2091, 2002 A I H C 4481, 2002 ALL CJ 1 231, (2002) 2 CIVLJ 729, (2002) 1 ALL WC 649, (2002) REVDEC 181, (2002) 1 UPLBEC 553, (2013) 8 ADJ 36 (ALL), (2002) 2 CIVILCOURTC 510, (2002) 1 ALL RENTCAS 213
Author: B.K. Rathi
Bench: B.K. Rathi
JUDGMENT B.K. Rathi, J.
1. Suit No. 501 of 1995 was filed by the respondent No. 1 against the revisionist and other respondents for several reliefs of permanent and mandatory injunctions. The suit was decided between the revisionist and respondent No. 1 on 6.9.1996 on the basis of the compromise dated 4.9.1996. Annexure-2 to the affidavit. The order of the Civil Judge deciding the suit in terms of the compromises is Annexure-3 to the affidavit. The respondent No. 1 moved an application for the execution of decree for recovery of money in which the revisionist filed objections under Section 47, C.P.C. The objections have been rejected by the impugned order dated 21.7.1997 by Civil Judge, Allahabad. Aggrieved by it, the present revision has been preferred.
2. I have heard Sri Ravi Kant, learned senior advocate for the revisionist and Sri A. K. Gupta, learned counsel for the respondent No. 1 and perused the record.
3. Several legal pleas have been raised by Sri Ravi Kant, learned counsel for the revisionist and it is contended that the decree is not executable. The learned counsel has referred to the allegations of the plaint and the compromise decree and it is contended that property has been transferred by compromise decree thereby the payment of court fee and the stamp duty has been evaded : that therefore, this compromise decree is illegal and cannot be enforced and is also against the provisions of Section 17(2)(6) of the Indian Registration Act. The compromise is also against the public policy and, therefore, is void under Section 23 of the Indian Contract Act.
4. It is further contended that the reliefs sought in the suit are for mandatory and permanent injunctions only and the money decree could not have been passed ; that the decree is executable under Order XXI, Rule 32, C.P.C. only. The execution for recovery of money in accordance with the compromise by attachment and sale of property is not maintainable.
5. The other contention of the learned counsel for the revisionist is that six months time was granted in the decree for the payment of money. The execution is premature having been filed within the period of six months from the date of the decree.
6. It is further contended that the respondent Nos. 2 to 14 are the actual owners of the property. There was only an agreement in favour of the respondent No. 1 and a power-of-attorney and therefore, he had no right to transfer the property ; that, therefore, compromise entered by him is illegal ; that the compromise is also Invalid as ft does not comply the provision of Section 17(2)(6) of the Indian Registration Act. On the basis of these arguments, it has been contended that the execution is not maintainable and is liable to be struck off ; that the court below has erred in rejecting the objections of the revisionist under Section 47. C.P.C.
7. As against this, it has been argued by Sri A. K. Gupta, learned counsel for the respondent No. 1 that no such pleas were taken in the objections under Section 47, C.P.C. ; that, therefore, they cannot be raised for the first time in this revision.
8. It is further contended that after the impugned order dated 21.7.1997. two other orders have been passed in the execution and therefore, this revision has become infructuous.
9. I have carefully considered the arguments of the learned counsel. The two orders have been passed in the execution after the impugned order, which are Annexures-CA5 and CA-6. These orders are regarding the proceedings with the execution after the rejection of the objection under Section 47, C.P.C. They are consequential orders after rejection of objection under Section 47, C.P.C. and because of the fact that the execution proceedings have been started, this revision has not become infructuous. After rejection of the objection under Section 47, C.P.C., the trial court was bound to proceed with the execution proceedings and accordingly passed orders in the execution case. For this reason, the objection under Section 47, C.P.C. cannot be rejected. If the decree might have been fully executed, this revision would have become infructuous. The first argument of the learned counsel for the opposite party No. 1, therefore, cannot be accepted.
10. Now coming to the second argument, the order of the trial court shows that none of the objections was taken in objections under Section 47, C.P.C. nor was pressed before the trial court except the objection that the execution is premature having been filed within a period of six months from the date of the decree. Therefore, other objections cannot be raised for the first time in this revision and I do not propose to record any finding on them.
11. Now I consider the question whether the execution is premature. It may be mentioned that the judgment and decree by which the suit was decreed in terms of compromise is dated 6.9.1996, Annexure-2 of the affidavit. It shows that six months time was given to make payment. It is not disputed that the execution was filed before the expiry of the period of six months from 6.9.1996. The executing court has considered this point and held that six months time have already expired during the pendency of execution since the date of the decree and, therefore, now the execution cannot be rejected on this ground. In my opinion, the approach of the executing court is not correct. The question whether the execution was premature or not is to be decided with regard to the date at which the execution was filed. If a suit is found to have been filed premature, it cannot be decreed for the reason that the period has expired during the pendency of the suit. Similar principle will not apply to the execution. If the execution was premature when it was filed, it is liable to be rejected and cannot be proceeded with because it has prematured during the pendency of the case.
12. In this case, it is admitted that the execution has been filed before the expiry of six months from the date of the decree. It is also not disputed that six months time was granted for payment. Therefore, the execution is premature.
13. Accordingly, the objections under Section 47, C.P.C. are fit to be allowed. The revision is accordingly allowed and the impugned order of the learned Civil Judge, Allahabad is quashed. It is ordered that the execution is premature and is dismissed as premature.
14. In the circumstances of the case, the parties shall bear their own costs.