Kerala High Court
V.N. Sreedharan vs Bhaskaran on 1 November, 1985
Equivalent citations: AIR1986KER49, AIR 1986 KERALA 49, (1986) 2 CIV LJ 252, ILR (1986) 2 KER 149, (1986) ILR(KER) 2 KER 149, (1985) KER LJ 961, (1986) KER LT 102
ORDER K.T. Thomas, J.
1. Two brothers, residing under the same roof, are involved in this litigation over a plot of land in which their residential building is situate, Their mother was also a party in the suit as second respondent, but she bade farewell to her terrestrial terrain on 28-2-1980 without waiting to see the remaining portions of the fight between her two children, The suit was filed by the elder brother in 1977 for partition of his 1/3 share. On 18-10-1979, the parties filed a compromise petition in the suit and a decree was passed in terms of the compromise on that day itself. As the second defendant is not alive now, I shall refer to the parties as the plaintiff and defendant respectively.
2. As per the terms of the compromise, the plaintiff agreed to release all his rights and interests in the property, if the defendant pays to him a sum of Rs. 6,250/- on or before 6-2-1980, and the defendant on his part has agreed to release all his rights and interests in the property in the event of his failure to make the payment as aforesaid and in that case the plaintiff would pay him an amount of Rs. 5,250/-. Both sides agreed that the rights of their mother over this property would devolve on the plaintiff and defendant equally. There is a further term in the compromise that the plaintiff would vacate from the building in the suit property within two months from the date of the compromise. These are the material clauses mentioned in the compromise petition.
3. The plaintiff had filed an Execution Petition on 14-7-1980, contending that the defendant had failed to pay the sum which he had undertaken to pay within 6-2-1980, and the plaintiff on his part has offered to pay the sum which he has agreed as per the terms of the compromise. The prayer in the Execution Petition is to get the release deed executed through Court in execution proceedings. The defendant resisted the Execution Petition on various grounds, among which the important are that the defendant was willing and ready to pay the sum which he has to pay and that he went to the office of the registry on 6-2-1980 itself for the purpose of getting a release deed executed by the plaintiff. The defendant's stand is that the plaintiff did not turn up to receive the amount as the plaintiff was unable to vacate from the building situated in the property which is a condition precedent for receiving the sum from the defendant. His further contention is that the plaintiff has required an extension of period for six months more to vacale from the building. According to him, it was this subsequent development which had rendered the execution of the release deed impossible. Yet another ground on which the defendant resisted the Execution Petition is that the compromise decree is not executable inasmuch as it consists of only a contract for sale of the property and a separate suit for specific performance alone is the remedy to enforce it.
4. The objections of the defendant were overruled by the lower Court as per its order dated 26-2-1983 and the defendant is directed to execute a release deed, within two months, failing which the plaintiff is given an option to apply to the Court to get the said deed executed. That order of the lower Court is challenged by the defendant in this revision.
5. The learned counsel for the petitioner has raised a three-fold contention here. Firstly, that the compromise decree is not executable inasmuch as it does not contain a clause that in the event of failure to get the release deed executed, the other party is entitled to get the release deed executed and registered through Court. Secondly, that the plaintiff has at present no right to claim a release of defendant's rights in the property because such right would enure to the plaintiff only if the defendant fails to perform his obligation to pay the sum agreed upon and that it was the plaintiff who had failed to perform the first condition to vacate from the premises within two months from the date of the compromise. Thirdly, that if the defendant is found to be the defaulter, he may be given another opportunity to pay the sum fixed in the compromise so as to enable him to escape from the penalty clause.
6. As regards the third contention, the learned counsel for the plaintiff has pointed out that the lower Court has rejected such a prayer from the defendant's side as per its order dated 6-11-1981 which has not been challenged by the defendant and hence it became final. The main argument in this revision was focussed on the first two contentions mentioned above and hence I will deal with them now.
7. As for the executability of the compromise decree, the learned counsel has argued that Order 21, Rule 2 of the Civil Procedure Code envisages only a decree as defined in the Code to be capable of execution, and that since the compromise decree is not the result of an adjudicatory process, the same is not a decree as defined in Section 2(2) of the Civil Procedure Code. According to him, a compromise decree only contains ,the terms of an agreement arrived at by the parties and the role of the Court is only to record the agreement and hence there is no adjudicatory exercise involved in passing a decree thereon. The thrust of his argument is that when a decree is not the result of an application of the mind of the Court regarding the points of controversy between the parties, it cannot be treated as a decree coming within the ambit of Section 2(2) of the Code. Order 21 Rule 3 of the Code deals with the power of a Court to pass a decree in cases where the parties have agreed to compromise the suit. A reading of that Rule would show that the power of adjudication is very well vested in it and a decree, even on a compromise, can be passed only in exercise of adjudicatory powers of the Court. No doubt that the direction contained in Order 21 Rule 3 is of a mandatory tone that the Court "shall pass a decree in accordance with the compromise". But before passing such a decree, the Court has to satisfy itself as to three aspects. First is that, it must be proved to the satisfaction of the Court that the suit has been adjusted wholly or in part, and the second is that, the adjustment is by way of a lawful agreement or compromise, and the third is that the agreement or compromise is in writing and the same has been signed by the parties. Only on satisfaction of the above three conditions that the Court is vested with the jurisdiction to pass a decree in accordance therewith. If the Court is of opinion that all or any of the terms of the compromise or agreement is opposed to public policy or is intended to defeat any provision of law, then the Court has the power to refuse to pass a decree in accordance with that compromise. Similarly, if the Court has some doubt about the genuineness of the signature of the parties. in the petition or doubt that the signature has not been obtained after the compromise terms were reduced to writing, then also the Court is not obliged to pass a decree. Thus, before passing a decree, though on a compromise petition, the adjudicatory powers of the court have to be exercised and the resultant decree would therefore be an expression of such an adjudication and hence such a decree falls within the ambit of Section 2(2), of the Code.
8. The second limb of his argument on the executability of the compromise decree is based on the absence of a clause in it that on failure of the performance of the conditions undertaken therein, the aggrieved party is entitled to get the performance enforced through Court. Though the learned counsel for the petitioner has cited few decisions to support this contention, I do not think that any one of them is of any useful help to build up this argument. Those decisions are, Girdharilal v. Hukam Singh AIR 1977 SC 129, Subramania Iyer v. Chinnu Pillai AIR 1952 TC 179 and Shyam Sundar v. Indramoni Das AIR 1951 Ori 46. In none of the above decisions, the Court was called upon to consider the effect of the absence of a clause in the compromise decree providing for initiation of execution proceedings. I therefore do not think it necessary to refer to those decisions in detail. The question here is, when a decree contains declaratory clauses and stipulations regarding obligatory performances, is that the decree capable of enforcement through execution proceedings without an express provision in the decree permitting the decree-holder to do so? Executability is one of the main incidences of a decree, whether it is a compromise decree or otherwise. Unless the right to execute a decree is restricted either expressly or by necessary implication either by the terms of that decree, or by the provisions of any supervening legislative enactments, the executable character of a decree is not lost. It is not necessary that the decree must embody in it, a clause empowering the initiation of execution proceedings in the event of non-satisfaction of it or non-fulfilment of any condition or non-compliance of any term therein. Absence of such a clause in it does not strip the decree of its executability which inheres in a decree.
9. The above principle is a long recognised one in law. The Madras High Court had affirmed this principle in a suit filed in the year 1889. The decree in that suit was worded only in a declaratory form that the "plaintiffs are entitled to the keys of the temple". When the defendant failed to hand over the keys to the plaintiff, the latter had initiated execution proceedings in a District Court. But that Court has dismissed the application saying that the decree contains only a declaration and no provision for execution has been incorporated therein. The Madras High Court in the decision reported in Ramaswami Iyengar v. Sree Rangachary (1910) 6 Ind Cas 681 had reversed the said view of the District Judge and held that the decree is executable notwithstanding the absence of an express clause to that effect. In the decision reported in Abdul Shakoor v. Bijai Kumar AIR 1964 SC 874, the Supreme Court had occasion to consider the executability of a compromise decree without any specific clause enabling execution. Clause 2 of the compromise memo filed in that case has recorded that the "mortgage properties are hereby sold for the amount of the decree in full satisfaction thereof and the defendants will execute a regular sale within 10 days from this date". On failure of the defendant to execute the sale deed, the Supreme Court has held that the decree can be executed and the sale deed can be got executed through the intervention of the Court. In Parkash Chand v. Harnam Singh AIR 1973 SC 2065 the Supreme Court had considered the executability of a decree passed on an arbitration award. The observation reads thus : --
"A clause in a decree passed in terms of an arbitration award providing that on the happening of certain events the vendor shall be entitled to take back possession of the property does not make the award declaratory so as to make it incapable of execution. The intendment of the award is that on the happening of; stipulated events the vendor would be entitled to apply for execution of the award and obtain possession of the property. The mere fact that the award fails to mention filing of an execution application does not make it declaratory. It is never a pre-condition of the executability of a decree that it must provide expressly that the party entitled to a relief under it must file an execution application for obtaining that relief."
10. In this connection, it is useful to refer to the observation of B. P. Sinha, J. (as he then was), in a Patna decision in Bilas Devi v. Bansidhar Sahu AIR 1951 Pat 459.
"On general principles also, it is in my opinion, more consistent with reason and public policy that a compromise of the nature entered into by the parties in this case should be enforced by execution instead of compelling the decree-holder to take recourse to a separate suit because a person in the position of the applt, who is a dependent member in a joint Hindu family, should not be compelled to incur further costs upon fresh litigation. The Court is always in favour of construing a compromise in a manner which tends to shorten litigation and the Court will always resist any attempt on the part of any of the parties to construe the decree in such a way as to multiply litigation."
11. It is appropriate at this stage to quote the words of Narendran, J. in Gopinathan Nair v. Madhavan ILR (1984) 1 Ker 464.
"A decree is the fruit of a litigation. The rights under a decree have to be realised by execution unless the party liable readily discharges his obligation under the decree. A compromise decree is also a decree. In the normal course, parties, fight to the last and the Court is called upon to give a decision on the issues involved. But when the parties compromise, the Court disposes of the suit in terms of the compromise. Simply because a decree is a compromise decree, it cannot be said that the decree is not executable. It cannot also be said that unless there is a direction in the compromise decree, to execute and realise the right conferred by the decree, the decree cannot be executed."
12. The emerging position is that the non-inclusion of a particular clause in a compromise decree, that in the event of non-performance of the conditions in it the party concerned is entitled to apply for execution and get the conditions enforced through Court will not render the decree inexecutable.
13. But the above findings in favour of the plaintiff do not appear to be sufficient to protect the execution proceedings initiated by him. The plaintiff gets the right to demand the release of all the rights and interests of the defendant in the suit property on the happening of one particular eventuality, i. e. the failure of the defendant to pay the sum of Rs. 6,250/-within 6-2-1980. The plaintiffs stand is that the defendant has failed to pay that amount within the said period and hence he has acquired a right to demand that the defendant should release all his rights and interests in the suit property on receipt of a sum of Rs. 5,250/-If the date 6-2-1980 was considered by the parties as of such a crucially important one, then the defendant must suffer the consequences of his failure to pay the amount within that time. But the difficulty in this case is to hold that the said date is so decisively important or that any such crucial significance was intended by the parties when they fixed that date as the last date for the payment to be made by the defendant. There is one clause in the compromise which cannot be easily overlooked and it reads thus : -- (translated in English) "The defendants hereby consent the plaintiff and his family to reside in the building situated in the suit property for a period of two months from today within which time the plaintiff will find out another place to shift his residence to".
14. Plaintiff as PW. 1, has admitted that he has not shifted his residence from the suit property uptill the date of his examination. The date of compromise is 18-10-1979. The period of two months thereafter expires on 17-12-1979. The interval between that date and the date 6-2-1980 is fifty days. Very likely, the parties would have had in mind that within a period of fifty days of the plaintiff vacating the house, he must get the sum payable by the defendant. That would have made them to fix up the date 6-2-1980. I do not find any other importance in fixing up that date as the last date for payment of the money to be made by the defendant. Whatever that be, the fact remains that the first condition in the order of conditions to be fulfilled next to the signing of the compromise has not been complied with by the plaintiff on whom is the obligation cast to fulfil the same. The role to be performed by the defendant comes only next to that. Can the plaintiff be allowed to say that "no matter that I have not done what I have undertaken, but since you have not performed the subsequent condition undertaken by you, you must pay the penalty"? Such an insistence will be inequitable, unjust and unilateral. Court must give a pragmatic interpretation to the compromise settlement so as to achieve the real intention of the parties. I do not think for a moment that the parties would have envisaged such a consequence to unilaterally operate against one side alone. So I do not think that the date 6-2-1980 must be given that amount of solemnity which the plaintiff wants to attach to it and at the same time ignore the first condition to be fulfilled. I therefore hold that the plaintiff's right to demand a release of the defendant's rights and interests in the suit property would arise only after a period of fifty days from the date of the plaintiff vacating from the suit property, unless the defendant fails to make the payment within that period. The Execution Petition now filed is premature and hence not maintainable.
15. In the result, I allow this revision and set aside the order under attack and dismiss the Execution Petition filed by the plaintiff. I make it clear that the dismissal of this execution petition now will not stand in the way of the plaintiff filing another execution petition on his attaining the right to demand a release of defendant's rights and interests in the suit property as indicated above. This revision is thus disposed of without any order as to costs.