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1979 Supreme(HP) 71
High Court Of Himachal Pradesh
VYOM PRAKASH
BRIJ LAL - Appellant
Versus
ROSHAN LAL - Respondent
E. S. A. No. 10 of 1975
Decided On : 12/19/1979
For appellant :R. N. Malhotra and Mrs. P. Malhotra. For respondents: R. K. Sharma.
A decree based on a compromise between the parties can be enforced in execution proceedings, and the executing court has the power to construe the decree in light of the circumstances leading up to it and the intention of the parties.
Headnote:
DECREE ENFORCEMENT - DECREE FOR POSSESSION - EXECUTABILITY - DECREE BASED ON COMPROMISE - INTERPRETATION - SCOPE OF EXECUTION COURT'S POWER.
Fact of the Case:
A suit for declaration and injunction was filed by Waziru Ram against Brij Lal regarding a property. The suit was decreed on the basis of a compromise, whereby Brij Lal agreed to part with 2 marlas of land and a shop to Waziru Ram for Rs. 5130.78 paise. The decree sheet specified that upon payment of the amount, Waziru Ram would become the absolute owner of the property, failing which the suit would be dismissed. Waziru Ram deposited the amount within the stipulated period and sought execution of the decree for possession. Brij Lal objected, claiming that the decree was not executable and pertained to a matter extraneous to the suit.
Finding of the Court:
The court held that the decree was executable and that the possession of the property could be delivered to Waziru Ram through execution proceedings. The court interpreted the decree in light of the compromise and the intention of the parties, finding that Waziru Ram was to become the full-fledged owner of the property upon payment of the consideration.
Issues: 1. Whether the decree dated 31-8-1966 is a declaratory decree and not executable? 2. Whether the decree pertains to a matter extraneous to the suit and cannot be enforced in execution proceedings?
Ratio Decidendi: 1. The court relied on the Supreme Court judgment in Bhavan Vaja and others v. Solanki Hanuji Khodaji Mansang and another, which held that the executing court has the power to construe a decree in light of the circumstances leading up to it. 2. The court found that the decree was based on a compromise between the parties and that the intention was for Waziru Ram to become the absolute owner of the property upon payment of the consideration. 3. The court held that the decree was not extraneous to the suit as it related to the subject matter of the dispute and was arrived at to settle the litigation.
Final Decision: The court dismissed the appeal, upholding the lower court's order that the decree was executable and that possession of the property could be delivered to Waziru Ram through execution proceedings.
Vyom Prakash, J.—This Execution Second Appeal has been filed by Brij Lal against the order of the District Judge, Hamirpur, dated 13th June, 1975; whereby the appeal of Brij Lal was dismissed and the order, dated 30th October, 1973, passed by the Sub-Judge, Hamirpur, dismissing the objections of Brij Lal judgment-debtor, was affirmed.
2. The brief facts of the case are that one Waziru Ram filed a suit against Brij Lai for a declaration and injunction with respect to khasra number 604, measuring 8 marlas in Tika Gaura Manjhala, Tehsil Hamirpur. Out of this 8 marlas, 6 marlas was banjar gadim and 2 marlas was shown as a shop. The suit was for a declaration that Waziru Ram plaintiff was owner in possession of the disputed property and that Brij Lai defendant had no right to raise any construction, etc. on this property and also for an injunction restraining him from interfering in any manner with this property. The suit was also for possession of the land upon which the defendant is found to be in possession by removal of the structures from the disputed land at the time of the decision of the suit This suit was filed in the year 1963 and was decreed by the Sub-Judge, Hamirpur, on 31st August, 1966. According to the decree-sheet, Exhibit DH-2, it was ordered that "on payment of Rs. 5130-78 paise to the defendant or on its deposit for payment, the plaintiff shall become the absolute owner of the disputed shop and to two marlas of land belonging to the defendant, failing payment or deposit within two months from today (i.e. 31-8-66) the suit shall stand dismissed in accordance with the agreement between the parties. The parties were left to bear their own costs. The compromise between the parties was arrived at on 21-12-65 vide Ex. DH
1. By virtue of this compromise a local commissioner was appointed to assess the market value of the shop. After this assessment of the market value by the local commissioner, which was confirmed by the court, the decree was passed on 31-8-66 vide Ex. DH2. It is also admitted by both the parties that the decree and the compromise were got registered by the plaintiff on 27th May, 1968 vide Ex. DH3. It is also admitted by the parties that a sum of Rs. 5130-78 paise for payment to Brij Lal defendant was deposited by the plaintiff within the prescribed period as ordered in the decree-sheet, dated 31-8-1966. After the passing of the decree and the deposit of the amount of Rs. 5J30-78 paise, the decree-holder seems to have filed an execution petition, being No. 214 of 1966, but the same appears to have been dismissed as unsatisfied on 5-10.1967. Thereafter the decree-holder Waziru Ram filed another execution petition, being No. 30 of 1S68 cut of which the present appeal has arisen. Notice of this application was given to the judgment-debtor (Brij Lai) who took various objections regarding the excitability of the decree and upon these objections of the judgment-debtor, the following issues were framed :— “l. Whether any decree for possession of the property in dispute has been passed in favour of the decree-holder?
2. If so, whether the same is not executable ?
3. Whether any previous order passed by the Court operates as a res judicata on issues 1 and 2 ?
4. Relief. Later on another additional issue was framed which reads as: "3-A. Whether the judgment-debtor has carried out any repairs bona fide and thus made improvements in the shop. If so, of what value and whether he is entitled to get the same from the decree-holder before parting with possession of the property in suit?
3. The Court of Sub-Judge dismissed the objections of the appellant vide its order dated 30th October, 1973 and the appeal of the present appellant was also dismissed by the District Judge Hamirpur on June 13, 1975.
4. In the present appeal before me the learned counsel for the appellant (judgment-debtor) assailed the findings of the lower court on issues No. 1 and 2 only. Shri R. N. Malhotra, the counsel for the appellant contended
