Kerala High Court
Sali P G vs Sunimol G on 30 October, 2019
Author: Sunil Thomas
Bench: Sunil Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SUNIL THOMAS
WEDNESDAY, THE 30TH DAY OF OCTOBER 2019 / 8TH KARTHIKA, 1941
OP(C).No.4135 OF 2013(O)
AGAINST THE ORDER/JUDGMENT IN OS 230/2001 OF MUNSIFF COURT,
ETTUMANOOR
PETITIONERS:
1 SALI P G, MANAPPURATHUMALIYIL HOUSE
NATTASSERY KARA,
PERUMBAIKADU VILLAGE,
S.H.MOUNT P.O., KOTTAYAM - 686 006.
2 SABU P.G.
AMBALAMALIYIL HOUSE,
S.H.MOUNT P.O., NATTASSERY,
PERUMBAIKADU, KOTTAYAM - 686 006.
3 BAIJU P.G.
AMBALAMALIYIL HOUSE, S.H.MOUNT P.O.,
NATTASSERY, PERUMBAIKADU,
KOTTAYAM - 686 006.
BY ADVS.
SRI.MATHEW PHILIP EDAPPALLIL
SRI.K.G.BALASUBRAMANIAN
RESPONDENT:
SUNIMOL G MANAPPURATHUMALIYIL HOUSE, S.H.MOUNT P.O., NATTASSERY, PERUMBAIKADU, KOTTAYAM - 686 028.
R1 BY ADV. SRI.A.K.ALEX THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 10-07-2019, THE COURT ON 30-10-2019 DELIVERED THE FOLLOWING:
O.P(C).4135/13 2 REVISED JUDGMENT Petitioners are the defendants in O.S.No.230 of 2001 of the Munsiff's Court, Ettumanoor in a suit for mandatory injunction. The petitioner challenge Ext.P9 order. This Court, after hearing both sides, by judgment dated 19.09.2019 dismissed the original petition. The petitioner filed R.P.No.959 of 2019 on the ground that the main argument advanced by the revision petitioner based on ground no:B and based on two decisions of the Supreme Court was not considered by this Court. On a finding that, the contention of the petitioner was justified, the judgment of this Court dated 19.09.2019 was reviewed and recalled. Thereafter, both sides were heard in extenso.
2. In the above suit, plaintiff, who is the respondent herein, sought a direction to call upon the petitioners herein who are the defendants to shift the residence from the plaint schedule property. After trial, the suit was dismissed. It was carried in appeal by the plaintiff before the Additional District Court, Kottayam as A.S.No.156 of 2004. Pending the appeal, the dispute was settled in Adalath on 25.03.2006. Ext.P3 award was passed. As per the compromise, amounts were to be paid to the petitioners by the respondent within the stipulated time. The amounts were not paid. After five years, execution was laid as E.P.No.7 of O.P(C).4135/13 3 2011 in O.S.No.230 of 2001. Petitioners herein, who are the judgment debtors, entered appearance and raised objection regarding the executability of the decree. It was contended that, the above decree was not enforceable. It was contended that the amounts due to be paid to the judgment debtors were not paid by the decree holder. The claim was barred by limitation. There was absolutely nothing to show that the petitioners herein were ready and willing to perform their part. It was also contended that the compromise entered into during the pendency of the appeal was only an agreement between the parties and in case of failure of one party to perform , it will frustrate the contract.
3. Respondent/decree holder contended that, she was ever willing to perform her part of the contract, to pay the money and to discharge the liability. However, judgment debtors never agreed to receive the money and to surrender vacant possession of the building. Hence, it was requested that the decree holder may be permitted to deposit the above amount.
4. By Ext.P9, order, the court below rejected the objection raised by the judgment debtor regarding the maintainability. It was held that the agreement was binding on the parties. It was noted by the court below that clause (vi) of the agreement provided that, in case of violation of agreement, both parties could approach the courts. It was also found that a charge was created over the property of the defaulting party. O.P(C).4135/13 4 Hence, court below held that the decree was executable. This finding is assailed in this original petition.
5. It is an admitted fact that, parties have entered into a settlement in Adalath in the course of appeal proceedings. The compromise was recorded by the appellate court, which closed the appeal recording it. Even though rival contentions were set up regarding the nature of settlement arrived at in Lok Adalath and it was contended by the judgment debtor that the agreement so executed did not have the effect of decree and was not enforceable, I am not in agreement with the above contention. Section 21 of the Legal Service Authority Act 1987 provides that a settlement arrived at through the process of negotiation or settlement will be deemed to be a decree binding on the parties and no appeal was provided in any other court court. It was claimed to have attained finality. The terms of the agreement could be enforced by due process of law.
6. Hence, the contention of the learned counsel for the petitioners that the settlement was only a mere agreement and in case of breach of terms, agreement got frustrated and cannot be enforced does not appear to stand in the light of the settled legal position. It is not a mere agreement but has the effect of decree.
7. Next limb of argument of the learned counsel for the petitioners was that, the agreement which formed the basis of the consent O.P(C).4135/13 5 decree, was dependant on the performance of the conditions in clause 2, by the decree holder within the stipulated time. The agreement was dated 25.03.2006 and a decree was passed thereon. The agreement formed part of the decree. The liability of judgment debtor 1, 6 and 7 to vacate the building arises only if the decree holder pays to the judgment debtors the prescribed amounts, within an outer limit of 6 months. It was contended that the amounts were not paid within the stipulated time. The decree holder filed the execution petition on 03.03.2011, five years after the decree. The decree holder claimed that, she had tendered the amount, but the judgment debtors did not receive it. It was contended by the judgment debtor that, she could not explain the date when it was tendered. Her failure to approach the court upon the alleged refusal of payment was also not explained. She did not even deposit the amount at the time of filing the execution petition, it was contended.
8. The execution court considered the question whether the application was barred by limitation in the light of Article 135 of Limitation Act, 1963. The Court held that, being a compromise decree, it is a contract recognized by the Court. Such a decree is not a culmination of a reasoned judgment upon the merit of the case. According to the court, when a compromise is recognized by the court and passes a decree, such agreement of performance will not turn into a direction issued by the court. According to the court, if a decree is passed upon O.P(C).4135/13 6 such compromise, that will not be a decree of mandatory injunction and hence, it will not be hit by Article 135 of the Limitation Act. Hence, the Court concluded that, parties are at liberty to file an execution petition within 12 years from the date of award. The execution court also negatived the contention that the decree was not executable, since time was the essence of the agreement. Court held that, in the light of clause 6 of the agreement, executability of the agreement was not specifically restricted. The Court ultimately held that the executability was not expressly restricted.
9. Though the learned counsel for the original petitioner contended that the parties voluntarily fixed the time limit as 6 months and the decree holder was liable to pay the money after a period of three months from the date of agreement and within an outer limit of six months and that, in case of breach, the agreement becomes unexecutable and stale, I am not attracted by that contention. Clause 6 of the agreement provided that, if any party to the agreement committed breach, other party was entitled to approach the court and to get it executed, from the property of the defaulting party. Evidently, though a time limit was prescribed in clause 2, parties visualized a breach by either party and hence agreed to reserve the right of judicial recourse to aggrieved person. Hence, the above contention of the judgment debtor is only to be rejected.
O.P(C).4135/13 7
10. The next argument was based on Article 135 of the Limitation Act. The reasoning of the court below for rejecting this contention was that, a decree passed on a compromise will not be a decree of mandatory injunction and hence, not hit by Article 135 of Limitation Act. The nature of a compromise decree was considered by the Supreme Court in Rama Narang v. Ramesh Narang (AIR 2006 SC 1883). A 3 Judges bench held that a compromise decree is as much a decree, as a decree passed on adjudication and it is not merely an agreement between parties. In passing the decree by consent, the Court adds its mandate to the consent. A consent decree is both a command and a contract. A consent decree is a contract with the imprimatur of the court. By passing a decree in terms of a Court order, the court authorizes and approves the course of action consented to, it was held.
11. However, the question of limitation has to be approached from another angle also. The question of enforcing the mandatory part of the agreement arises only on payment of money mentioned in clause 2. Hence, the obligation of the judgment debtors to vacate the premises arises only on payment of money by the decree holder. In fact, the first prayer in the EP was to permit the decree holder to deposit the money stipulated. The prayer for mandatory injunction was the subsequent relief. This narrows down to the question whether payment of money or its deposit by the decree holder, after the period prescribed, can be O.P(C).4135/13 8 permitted. This depends on the question whether the execution court can extend the time for deposit fixed by parties. The learned counsel for the petitioner contended that, in the light of section 48 of the CPC and Article 137 of the Limitation Act, only the time fixed by the court can be extended by the court. Even that extension can only be for 30 days, it was contended. It was further contended that, even the power of extension rests with the court on the original side and not with the execution court.
12. To buttress the first contention, learned counsel relied on the 3 Judges bench decision of Supreme Court in Chen Shen Ling v. Nand Kishore Jhajharia ((1973)3 SCC 376) and a later decision in Shiv Shankar Gurgar v. Dilip (AIR 2014 SC 1182). It was contended by the learned counsel that, extension under section 148 of CPC can be granted only by the Court, if the time limit is prescribed by the Court, and not, if it is fixed by the parties.
13. A perusal of the former judgment shows that, it deals with a different issue. In that case, one party who did not fully comply with his obligation by the decree, sought for enforcement of the obligation on the other side. The Supreme Court in this situation held that, unless the party seeking execution offers to perform his part, he cannot seek enforcement of consent decree. Hence that decision will not help the petitioner. In the latter decision, referring to section 148 CPC, the O.P(C).4135/13 9 Hon'ble Supreme Court held that, only if the time limit is prescribed by the Court, it can extend the time under section 148 of CPC.
14. However, learned counsel for the respondents relied on decisions to the contra. In Periyakkal and Ors. v. Dakshyani (1983)2 SCC 127), it was held by the Supreme Court that, by virtue of courts order in terms of the compromise, the time for deposit stipulated by the parties became the time allowed by the Court and this gave the Court jurisdiction to extend time. In Thomas v. Thomas Job (2005(3) KLT 1042(SC) it was held that the award of Lok Adalath is fictionally deemed to be a decree of court and have all powers in relation thereto as it has in relation to a decree passed thereto. Hence, it was held that the civil court has jurisdiction to extend the time agreed between the parties. The decision of Supreme Court in Shiv Shankar Gurgar v. Dilip (Supra) was without considering the earlier decision in Periyakkal and Ors. v. Dakshyani (supra) and Thomas v. Thomas Job (supra). Further Shiv Shanker's decision was laid down in the context of Madhya Pradesh Accommodation Control Act, which did not permit extension of time. Hence, I feel that the decisions in Periyakkal and Thomas's case (Supra) apply to the facts of the case. In Thomas's case, the extension of time was sought before the execution court. This answers the contention of the learned counsel for the petitioner that, even if extension can be granted, it can be only by, the court of original jurisdiction. O.P(C).4135/13 10
15. In the light of the above reasoning, I find that, none of the objections set up by the judgment debtors against the executability of the decree is sustainable. I find no reason to interfere in the above order. The court below, by its finding at para 13, has relegated the issue of readiness and willingness of the parties to another stage. In the light of the above, the court below shall proceed to consider that issue after giving both sides some reasonable time to produce rival materials.
In the result, the original petition fails and is dismissed.
Sd/-
SUNIL THOMAS
Sbna JUDGE
O.P(C).4135/13
11
APPENDIX
PETITIONER'S EXHIBITS:
EXHIBIT P1 EXT.P1: TRUE COPY OF THE PLAINT IN O.S
230/01 BEFORE MUNSIFF COURT, ETTUMANNUR.
EXHIBIT P2 EXT.P2: TRUE COPY OF THE WRITTEN STATEMENT
IN O.S 230/01 BEFORE MUNSIFF COURT,
ETTUMANNUR.
EXHIBIT P3 EXT.P3; TRUE COPY OF THE AWARD DATED
25/3/2006 OF LOK ADALATH KOTTAYAM.
EXHIBIT P4 EXT.P4: TRUE COPY OF THE EXECUTION PETITION
NO.7/2011 DATED 3/3/11 IN O.S 230/01 BEFORE
MUNSIFF COURT, ETTUMANNUR.
EXHIBIT P5 EXT.P5: TRUE COPY OF THE OBJECTION DATED
8/12/11 FILED BY THE PETITIONERS HEREIN
(JUDGMENT DEBTORS)
EXHIBIT P6 EXT.P6: TRUE COPY OF THE ORDER DATED
30/11/2012 IN E.P. NO.7/11 IN O.S 230/01.
EXHIBIT P7 EXT.P7: TRUE COPY OF THE JUDGMENT IN O.P(C)
687/2013 BEFORE THIS HONOURABLE COURT.
EXHIBIT P8 EXT.P8; TRUE COPY OF THE OBJECTION DATED
18/6/2013 BEFORE THE LEARNED EXECUTION
COURT.
EXHIBIT P9 EXT.P9: TRUE COPY OF THE ORDER DATED
10/7/2013 OF THE LEARNED EXECUTION COURT.