The executing Court's power under Section 47 of the Code of Civil Procedure is limited to the discharge, satisfaction, and execution of a decree. It does not extend to setting aside or declaring a decree null and void.

ASHIM KUMAR BANERJEE, J.

PREFACE

1. These two appeals would relate to a challenge to the order dated September 28, 2011 whereby the learned single Judge dismissed the application for order of injunction restraining registration of conveyance in favour of AGR Plantation as also the other application for setting aside of the decree directing execution of conveyance in favour of AGR Plantation.

FACT INVOLVED

One Bhupatish Roy Choudhury was the owner of Toonbarrie Tea Estate. Bhupatish entered into an agreement for sale dated March 12, 1988 with one Khem Chand Dhingra. Bhupatish failed and neglected to conclude the sale. Dhingra filed a suit for specific performance being suit C.S. No.486 of 1991. However, as per the agreement for sale, Bhupatish handed over possession of the tea estate to Dhingra and executed an irrevocable power of attorney in his favour empowering him to run and manage the tea estate. Under the agreement for sale, sale would be concluded upon permission being taken from the appropriate authorities. Bhupatish contended, he could not get permission as Dhingra did not assist him properly. It later on transpired, M/s. AGR Plantation, a company run by one Santosh Kumar Agarwala took over the tea estate from Dhingra. AGR and Santosh were added as party defendant. The parties settled the suit. Santosh claimed interest in the tea estate on the basis of an agreement executed by Bhupatish in his favour on April 30, 1991. The suit ended in a compromise on a Terms of Settlement being executed by Bhupatish on one hand and Dhingra, Santosh and AGR on the other hand. Dhingra went out and AGR was substituted in place of Dhingra. AGR and Santosh agreed to meet up the bank liabilities whereas Bhupatish was to convey the garden in their favour. The compromise was recorded in a decree passed on April 5, 2000. AGR filed an execution case being Execution Case No.83, 2007 after about seven years. Santosh filed an application inter alia, stating that AGR Plantation was a family company and his younger brother forcibly ousted him from the garden on November 2, 2005. In the meantime, Bhupatish died leaving him surviving the present appellant Prabir Roy Chowdhury as his heir who filed application for recall of the compromise decree on the ground, the decree was not enforceable; firstly because of not obtaining permission from the appropriate authority and secondly in absence of meeting of the bank liability. The learned single Judge found both the applications being devoid on merit. Being aggrieved, Prabir filed the appeal as his application was dismissed. AGR filed appeal as His Lordship did not direct the Receiver to take physical possession of the Tea Estate for being handed over to AGR Plantation. We heard both the appeals analogously.

CONTENTIONS

Appearing for the appellant in APO No.387, Mr. Sumit Talukdar, learned senior counsel raised four issues:

i) The compromise decree would record reciprocal obligations of the parties, unless the parties would discharge the reciprocal obligations, the decree could not be put to execution.

ii) The decree would provide no default clause hence, not enforceable.

iii) The vendor having failed to obtain any permission from the appropriate authority, decree for specific performance was not liable to be enforced.

iv) Under the appropriate statute of 1993 being the West Bengal Land (Regulation of Transfer) Act, 1993 no tea estate could be transferred without permission from the appropriate authority. Hence, in absence of the appropriate permission from the State authorities the decree could not be executed.

Elaborating his argument, Mr. Talukdar would contend, the compromise decree even if put to execution, the statutory liabilities having not discharged, the purchaser was not entitled to claim execution of the conveyance. According to Mr. Talukdar, the bank dues were not cleared by AGR. Moreover, under the agreement Bhupatish was entitled to rupees fifty thousand per month. Such payment was