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12. Assailing the, impugned order, it is contended by the learned counsel for the petitioner, that in the very nature of things, the compromise is only a contract, superimposed with the seal of the Court, and is not enforceable, in absence of any stipulation being there in it to that effect. It was then contended, that in any case the compromise decree is not executable, being only a declaratory decree. The other submission made was, that the decree exhausts after delivery of possession being made once, and cannot be executed again and again. The next submission made was, that in the petition dt. 16-3" 2004, the petitioner had also made a prayer for partition of the property, and since according to para 4 of the decree, mentioned above, it is clearly stipulated, that if it is not possible to keep the property joint, the parties will be free to partition it. and since according to contents of para 4, it is not in dispute that the property was kept Joint, it is also clearly stipulated that each of the parties has l/4th share, and therefore, if at all the decree is said to be executable. It also contemplates effecting of partition, therefore, the petitioner's request for partition was required to be allowed, in which event, the petitioner need not be dispossessed, and in view of the recital of para 4 of the decree, since there is no impediment in the way of the partition, the impugned order is required to be set aside. It is also contended, that the learned Court below has proceeded under the obsession, about the petitioner being said to have deprived the other parties of the possession for 20 years, and labouring under that obsession, the objections of the petitioner have been rejected, by not giving appropriate judicial considerations, which also vitiates the impugned order. In this regard, it was contended, relying upon the Judgment of Hon'ble the Supreme Court, in (2000) 8 SCC 532 : (2000 AIR SCW 3967) that, the past conduct of the petitioner is not required to be seen for the purpose of adjudicating his right, in praesenti. In other words, the mere fact that, for some reason or the other, the petitioner could not be dispossessed for a period of 20 years, or more, it can be no ground for rejection of his legitimate objections, if they are otherwise sustainable. Another submission made was. that the Executing Court is bound to interpret the decree. as to whether it is merely declaratory, or is executable. Next submission made was, that the petitioner was never given possession of the property by Kishan Lal, rather he was already continuing in possession of the property, since before passing of the decree, and according to the learned counsel, this fact was never controverted on the side of the respondents, inasmuch as, to his application dt. 16-4-2004, reply was filed by Babu Lal only, and not by Kishan Lal, nor any affidavit of Kishan Lal has been filed, to the effect that he delivered possession to petitioner Gopal Lal, in accordance with the terms of the decree. Thus, the compromise decree was never acted upon, and therefore, also it could not be executed.

22. The above narration of rival contentions. In my view, can be summed up, in the manner, that according to the petitioner the decree is not executable because:-

1. It is a compromise decree, not incorporating stipulation of excitability, in the event of .non-compliance by any of the parties.

2. Is only a declaratory, about the status of the property being joint, each party having l/4th share, and only makes arrangement as to how each of the Joint owners will remain in possession.

3. The arrangement made in para 4 of the decree is wholly unworkable.

"(2) The Courts below have held that the compromise decree is executable as the suit itself was for possession. It appears to us that it would be travelling beyond the words used by the parties in the compromise deed, to import into it anything like a provision directing execution to be taken in the event of the defendant not vacating the house after the expiry of the period of one year. The compromise does not say that the decree-holder shall be entitled to enforce the compromise in execution proceedings and eject the defendant. Nor does it say that the defendant should deliver back possession at the end of the stipulated period. All that the stipulation amounts to is that the defendant agreed to vacate after a certain date. What would happen in the event of a violation of this provision was not stipulated or agreed to between the parties. In such circumstances it is difficult to hold that the parties intended that the plaintiff should recover possession byway of execution as the suit itself was one for possession. We are. therefore, unable to accept the view taken by the Courts below that the decree was executable as the suit itself was for possession and would set aside the order under appeal."

30. Likewise in V. N. Sreedharan's case (AIR 1986 Ker 49) in para 8 dealing with identical argument, it was held as under :-

"8. The second limb of his argument on the excitability 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 Trav-Co 179 and Shyam Sundar v. Indramoni Das, AIR 1951 Orissa 46. In none of the above decisions, the Court was called upon to consider the effect of the decree 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? Excitability 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 by necessary implication either by the terms of that decree, or by the provisions of any supervening legislative enactment, 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 excitability which inheres in a decree."