Indian Kanoon - Search engine for Indian Law

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.

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 : --

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."