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Showing contexts for: compromise decree is executable in N.Debora Indira Jaba Priya vs Ibrahim Sha on 19 November, 2012Matching Fragments
iv) Whether the sale deed executed by the sixth defendant in favour of the seventh defendant is valid in law?
v) Whether the plaintiffs are entitled for decree for delivery of possession and for documents?
8. The Trial Court, on the basis of oral and documentary evidence, held that the defendants 1 and 2 did not take any steps to pay the mortgage amount, as per the compromise decree and held issue No.i against the defendants 1 and 2. The Trial Court also held issue Nos.ii and iii against the defendants 1 and 2, holding that as per the compromise decree, there is no necessity to file an Execution Petition to execute the decree and the defendants 1 and 2 cannot incorporate any new procedure, which was not mentioned in the compromise decree and on the failure of the payment of the amount by the defendants 1 and 2 to the defendants 3 and 4, as per the compromise decree, there is no need to file Execution Petition to recover the amount. The Trial Court also held that the fifth defendant is entitled to confirm the sale and execute the sale deed in favour of the sixth defendant and the sale deed executed by the sixth defendant in favour of the seventh defendant is also valid in law and the plaintiffs are entitled to the decree of delivery of possession and for delivery of original documents and answered all the issues in favour of the plaintiffs.
12. On the other hand, Mr.S.Parthasarathy, the learned Senior Counsel for the respondents 1 and 2 submitted that, it is not open to the appellants to question the sale conducted by the fifth defendant pursuant to the power given under the mortgage, as in the compromise decree, they accepted the sale in favour of the sixth defendant and as per the compromise decree, the appellants have to pay Rs.4,00,000/- within certain period and having failed to pay the same, auctioneer/fifth defendant was permitted to confirm the sale in favour of the sixth defendant and the defendants 3 and 4 were permitted to execute the sale in favour of the sixth defendant and therefore, there was no need to file Execution Petition for executing the decree, as there was nothing to execute and power had been given to the parties under the compromise decree to execute the sale in favour of the sixth defendant.
35. Further, the contention of the appellants that, without filing Execution Petition, the sale cannot be executed by the defendants 3 and 4 in favour of the sixth defendants is also devoid of merits. A reading of the compromise decree makes it clear that in the event of failure of mortgage payment, the sale in favour of the sixth defendant shall be confirmed and the mortgagees shall execute the sale in favour of the auction purchaser. Therefore, under the compromise decree, power has been given to the mortgagees to execute the sale deed, and as the appellants committed default in the payment of Rs.4,00,000/-, as per the compromise decree, the right is conferred on the mortgagees to execute the sale deed and exercise all their power conferred under the compromise decree, and the mortgagees validly executed the sale deed in favour of the sixth defendant and there is no need to file Execution Petition, seeking permission of the Court to execute the sale deed.
37.Similarly, in this case also, only in the event of mortgagees/defendants 3 and 4 failed to execute the sale deed in favour of the sixth defendant, the sixth defendant had to approach the Court and when the mortgagees/defendants 3 and 4 were willing to execute the sale deed, there was no necessity to file Execution Petition to execute the decree.
38. Therefore, I hold that the sale conducted by the fifth defendant is valid and the appellants did not tender Rs.4,00,000/- as per the compromise decree to the respondents 3 and 4 and the respondents 3 and 4/defendants 3 and 4 are entitled to execute the sale in favour of the sixth defendant pursuant to the compromise decree, without filing execution petition and there is no necessity for the respondents 3 and 4/defendants 3 and 4 to file execution petition to recover the amount from the appellants, as per the compromise decree and the sale in favour of the sixth defendant executed by the defendants 3 and 4 and the consequential sale executed by the sixth defendant in favour of the respondents 1 and 2 are valid.