IMPORTANT POINT
Executing court cannot go behind the decree.

JUDGMENT

S.B. Sinha, J. —

1. Leave granted.

2. Whether the terms of a consent decree can be varied by the executing court is the question involved in this appeal which arises out of a judgment and order dated 29.9.2006 passed by a learned Single Judge of the Madhya Pradesh High Court at Jabalpur in Writ Petition No.4141 of 2006.

3. Appellants herein filed a suit in the Court of Additional District Judge, Jabalpur for declaration and permanent injunction in respect of their share in the suit property which they are said to have inherited from their mother.

In the said suit the parties settled their disputes and differences. A compromise petition in terms of Order XXIII Rule 3 of the Code of Civil Procedure, 1908 was filed which was accepted by the Court by an order dated 12.5.1995, some of the terms whereof are as under :

“(i) & (ii) ...

(iii) That the Plaintiffs have claimed a declaration to the suit properties which were given to them by dint of Will executed by the late Smt. Parmeshwari Devi in favour of the Plaintiffs. It is now agreed between the Plaintiffs and Defendants 3 to 5 that in respect to the above the Plaintiffs shall remain entitled to a sum of Rs.10 (Rs. Ten) Lakhs each only and rest of sale money shall be exclusive property of the Defendant 3 to 5.

(iv) That the defendant No.3 to 5 shall be at liberty to alienate the properties in any manner they like.

(v)(a) That the Defendant No.3 to 5 have paid Rs.1 Lakh (Rs. One Lakh) each to the plaintiffs and the remaining balance shall be paid within six months from the date the decree is passed by the Court. In case of failure of payment within the stipulated time, the Plaintiffs shall be entitled to claim interest on the above mentioned amount at the rate of 18% per annum and the total balance amount along with interest will be first charge on the suit property.

(b) That if after the expiry of the period of six months from the date of decree, the full payment of Rs.Ten Lakhs each could not be made to the Plaintiffs then the same made within the extended period of three months together with interest,. Till then the charge on the property will continue.

(vi) That out of the sale proceeds or earnest money received by the Defendant No.3 to 5 by the sale of the suit/will properties amount due to the Plaintiffs shall be paid first.”

4. A decree was directed to be prepared on the said basis, stating :

“1. The suit is for declaration and possession.

2. The parties have moved compromise petition on the ground that the Plaintiffs and the Defendant happened to be real brother and sisters and to maintain the harmony in the families they come forward with this compromise petition regarding the property in disputes.

3. Shri O.P. Sahni (PW1) counsel for the Plaintiff had deposed thereof the parties have come to a compromise in accordance with EXC1 wherein his signature from 1 to 1 and accordingly the decree be granted also Shri V.R. Rao (DW1) counsel for the Defendant had deposed that they agrees to EXC1 where in his signatures are from B to B and therefore, decree be granted accordingly.

4. On perusal of EXC 1 the compromise petition the pleading and deposition I am of the view that all the necessary conditions of the complaint are adjusted in the compromise petition hence accordingly the decree be awarded. I accordingly, order that the decree be drawn in accordance with EXC 1 compromise petition.”

5. The compromise petition was to form part of the decree. Payment having not been made in terms of the said consent decree the appellants filed an application for execution. Respondents deposited a sum of Rs.18 lacs in the year 1998. An objection was also filed by them under Section 47 of the Code before the Executing Court in 2002. The said objection petition was rejected.

6. A Civil Revision Application was filed thereagainst, inter alia, contending that the respondents were not liable to pay interest at the rate of 18% per annum.

The High Court, by reason of a judgment and order date