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IN THE HIGH COURT OF ALLAHABAD
N. N. MITHAL
HARIHAR PANDEY - Appellant
Versus
MANGALA PRASAD SINGH - Respondents
EXECUTION SECOND APPEAL 1696 Of 1976
Decided On : 05/24/1985
EXECUTION OF DECREE - COMPROMISE DECREE - EXECUTABILITY - DECREE BASED ON COMPROMISE IS EXECUTABLE - DECREE GRANTS INJUNCTION BY AGREEMENT - EXECUTION OF DECREE FOR PROHIBITORY INJUNCTION - SUB-RULE (5) OF RULE 32 OF ORDER 21 OF THE CODE OF CIVIL PROCEDURE, 1908 - SCOPE - COURT MAY DIRECT ACT REQUIRED TO BE DONE UNDER SUB-RULE (5) - WILFUL FAILURE TO OBEY DECREE - FINDING OF WILFUL FAILURE TO OBEY DECREE IS NECESSARY BEFORE EXECUTION OF DECREE.
Fact of the Case:
The appellant, a judgment-debtor, filed an execution second appeal against an order dismissing his objections under Section 47 of the Code of Civil Procedure (CPC), 1908, whereby the removal of certain constructions raised by him in violation of the decree was ordered. The appellant raised several questions of law, including the executability of the decree, the scope of sub-rule (5) of Rule 32 of Order 21 of the CPC, and the necessity of a finding of wilful failure to obey the decree before execution.
Finding of the Court:
1. A decree based on a compromise is executable and is not merely an agreement between the parties. 2. A decree that grants an injunction by agreement, though not after adjudication of rights by the court, is executable under Rule 32 of Order 21 of the CPC. 3. Sub-rule (5) of Rule 32 of Order 21 of the CPC empowers the court to direct the act required to be done under the decree, including the removal of obstructions in the case of a prohibitory injunction. 4. A finding of wilful failure to obey the decree is necessary before execution of the decree under Rule 32 of Order 21 of the CPC.
Issues: 1. Whether a decree based on a compromise is executable. 2. Whether a decree that grants an injunction by agreement is executable. 3. Whether sub-rule (5) of Rule 32 of Order 21 of the CPC can be used to execute a decree for prohibitory injunction. 4. Whether a finding of wilful failure to obey the decree is necessary before execution of the decree.
Ratio Decidendi: 1. A decree based on a compromise is not merely an agreement between the parties, but is a formal expression of an adjudication that conclusively determines the rights of the parties. 2. A decree that grants an injunction by agreement, though not after adjudication of rights by the court, is executable under Rule 32 of Order 21 of the CPC. 3. Sub-rule (5) of Rule 32 of Order 21 of the CPC empowers the court to direct the act required to be done under the decree, including the removal of obstructions in the case of a prohibitory injunction. 4. A finding of wilful failure to obey the decree is necessary before execution of the decree under Rule 32 of Order 21 of the CPC.
Final Decision: The court held that the compromise decree was in terms both for prohibitory and mandatory injunctions and was capable of being executed under sub-rule (5) of Rule 32 of Order 21 of the Code of Civil Procedure, 1908. However, since the court below failed to record any finding on the point that the judgment-debtor had wilfully failed to obey the decree in spite of opportunity, the judgment under appeal suffered from an obvious infirmity. Therefore, the court remitted the following two questions for finding to the lower appellate court: 1. Whether the decree has been satisfied in terms of clause ga of the compromise as contended by the J. D. ? Its effect on the execution proceedings? 2. Was there wilful failure to obey the decree by the J. D. ? If not its effect?
( 1 ) THIS execution second appeal has been filed at the instance of the judgment-debtor against an order dismissing his objections under S. 47 C. P. C. whereby removal of certain construction raised by him in violation of the decree has been ordered. The appellant has raised several questions of law.
( 2 ) IN order to appreciate appellants submission the necessary facts need be grasped first. The parties own adjoining land with a passage running from west to east between their properties. When the defendant started raising construction over his land the plaintiff apprehended obstruction to his passage. Consequently the suit was filed. The plaintiff secured an interim injunction restraining any further construction activity. Within two months of this order the parties filed a compromise petition and in terms thereof a decree was passed making the compromise petition as part of the decree. This petition consists of three parts. Para ka is a sort of preamble to the dispute and the properties are described therein with reference to the Commissioners map. Its contents are not relevant for our present purposes. According to para kha the defendant, in lieu of the existing passage, offered an alternative passage to the plaintiffs running south-north towards West of defendants Dalan, then turning towards East, near the North-Eastern corner of the Dalan having a regular width of 8 throughout. Defendant also agreed to remove bamboo clumps standing towards the West of his Dalan and to level up the passage. The defendant further undertook not to cause any obstruction in its use even in future. A period of two months was fixed for doing all this failing which the plaintiff could enforce it by executing the decree. The last clause ga empowered the plaintiff to revert to their old 8 wide passage if the alternative Rasta was not provided for any reason whatsoever.
( 3 ) AFTER nearly ten years of this decree the plaintiff applied for enforcing the decree by (i) attachment of the offending constructions, (ii) for removal of bamboo clumps, (iii) for detention of the defendant in civil prison and for providing the alternative passage after removal of Ghoor and Nand raised at the eastern and southern ends which obstructed the passage. In this manner the decree-holder sought execution of the decree both in prohibitory and mandatory forms. The executability of the decree has been assailed on several grounds, which I propose to deal hereafter.
( 4 ) THE first submission is that a decree based on a compromise is in fact no more than an agreement which merely declares the respective rights of the parties and by its very nature was not capable of execution.
( 5 ) IN this connection reference that has been made to Amar Singh v. Custodian, Evacuee Property, Punjab, AIR 1957 SC 599 does not appear to be really justified. In that case a decree based on a compromise was held to be nothing more than an agreement of the parties with courts seal put thereon. But there the court was considering the compromise for the purpose of applying S. 11 C. P. C. where the matter is required to be heard and decided by the court. Since in a compromise decree there is no element of hearing by the court the Supreme Court had taken the said view. That principle, however, cannot be extended to the facts of the case before me. I am not impressed by this submission at all and hold that the decree although based on a compromise, cannot be rendered inexecutable for this reason alone.
( 6 ) FOR his other submissions that promise of providing the alternative passage was merely capable of being enforced by a separate suit and not by execution of this decree he seeks support from a decision of the Calcutta High Court in Hem Chandra Naskar v. Narendra Nath Bose, AIR 1934 Cal 402. In that case, the parties had their fields along the opposite banks of a river. The plaintiff used to draw water for their fisheries from the river through aqueducts. When defendants also made 32
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