The enforceability of compromise decrees and the burden of proof on the judgment-debtors to establish the unenforceability of a clause in the decree.

This revision is filed by the judgment-debtors 1 and 2 in E.P.No.707 of 2001 in O.S.No.875 of 1992 on the file of the Subordinate Judge’s Court, Thrissur. The 1st respondent is the decree-holder and 2nd respondent is the third judgment-debtor. The order under challenge is passed by the Execution Court holding that the Execution Petition to execute the compromise decree is perfectly maintainable and posting the case for settlement of proclamation. According to the revision petitioners, if the revision is to be allowed, the Execution Petitioners, if the revision is to be allowed, the Execution Petition can be dismissed as not maintainable. Therefore, this revision is also maintainable.

2. Though the order under challenge does not disclose the necessary details for a proper understanding of the case, the facts narrated in the revision memorandum as well as in the counter affidavit filed by the 1st respondent disclose certain undisputed facts. Since the argument of the learned senior Advocate Shri. R.D. Shenoy is restricted to a pure question of law, this revision can be disposed of on the basis of the admitted facts and the legal contentions raised.

3. The 1st respondent in the revision who was the decree-holder in O.S.No.875 of 1992 owned an extent of 6.07 Ares of land in Guruvayoor Town with a four storied building used as a lodge. He had availed of a loan from the South Indian Bank for construction of the lodge. Subsequently, he sold the property to the judgment-debtors for a sale consideration of Rs.17,50,000/-. Out of the above-said amount Rs.9,95,000/- was to be paid to the Bank by the judgment-debtors. The sale deed was dated 11-10-1991. On the same day, another agreement was executed between the parties whereunder the judgment-debtors undertook to get back the document of title in respect of other items of properties given as collaterial security to the Bank by the decree-holder within six months from 11-10-1991 and if breach was committed, the judgment-debtors should pay a sum of Rs.300/- per day to the decree-holder. The judgment-debtors could not repay the loan to the Bank and get back the documents from the Bank within the period of six months and the decree-holder therefore filed O.S.No.875 of 1992 claiming an amount of Rs.22,200/- calculating at the rate of RS.300/- per day from 11-4-1992 to 23-6-1992 the date of suit. When the suit came up for trial, the parties filed a compromise petition as I.A.No.3552 of 1992 on 4-9-1992 as per which an application for amendment of plaint was also filed and the judgment-debtors agreed for a decree to be passed at the rate of Rs.300/- per day with proportionate interest from the date of suit till the date of getting release of colleteral securities. It was also agreed that for the purpose of taking back the collateral securities, the judgment-debtors required only one month’s time. But the judgment-debtors could not repay the loan and get release of the colleteral securities within one month and the Bank filed O.S.No.1197 of 1992 to recover the debt.

4. Subsequently, the decree-debtor also filed an E.P. to execute the compromise decree and to get Rs.9,86,100/- calculated at the rate of Rs.300/- per day from the date of plaint upto 31-7-2001 and interest at the rate of 18% together which the amount shown in the Execution Petition was Rs.11,66,055/-.

5. Before filing the present Execution Petition, E.P.No.160 of 1994 was filed on 31-3-1994 to realise Rs.2,19,378/- and the Execution Court allowed proclamation for sale. It is seen from the counter-affidavit filed in this revision that Rule 66 notice was ordered on 28-10-1995 and paper publication was effected for service to the 3rd defendant. No objection was raised regarding the validity of the decree. Thereafter, the Court proceeded to attach and sell the property. According to the decree-holder, the Execution Petition happened to be dismissed on 25-5-1996 due to a clerical mistake committed by the advocate’s clerk. Similar