Akhter Hussain vs Nanki Devi and Others

Sunil Hali, Judge

Aggrieved by order dated 4.02.2008 passed by learned Sub Judge, Poonch in Execution Application, whereby a direction has been issued to

the petitioner to comply with the said order, the petitioner has filed this revision petition.

In order to appreciate the controversy involved in the case, following facts are to be noted:

A compromise decree came to be passed by the learned Sub Judge, Poonch on 8.3.1999, on the compromise arrived at between respondent

no. 1 and respondents 2 to 4. It transpires that present petitioner had purchased 4 marlas of land constituting the suit property from the original

owner. As a result of the compromise decree, the judgment debtors were required to leave three feet gap from the house of the decree holder. It

was also settled that judgment debtors shall construct their house after leaving 11' -9"" gap from the boundary wall. The decree further contends

that judgment debtors shall not divert the flow of the water towards the land and house of the decree holder. After passing of the decree, land in

question was purchased by the present petitioner.

On an application filed before the executing court, a direction was issued to the Tehsildar, Haveli for making spot inspection. In his report, the

Tehsildar, Haveli has stated that water from the house of petitioner leads toward the house of respondents, which is in violation of decree passed

by the learned trial court.

Mr. Parihar, learned counsel for the petitioner states that the decree is not capable of execution, as the Sub Judge has no jurisdiction to pass the

said decree. He contends that the matter was referred to the Lok Adalat for settlement. After reference, it was required that an award be passed

which was to be signed by all the members of the Lok Adalat. Perusal of the decree would reveal that the matter was referred to the Lok Adalat,

but the decree has been passed by the Sub Judge, who had no jurisdiction to pass such decree after the matter was referred to the Lok Adalat, as

such, decree is nullity in the eyes of law.

Scanning through the contents of the order dated 8.3.1999, it is revealed that the matter was referred to the Lok Adalat and on the persuasion

of the Chairman, the parties were directed to avoid litigation and enter into compromise. Written settlement is stated to have been filed before the

learned Sub Judge, Poonch who, on the terms and conditions of the settlement, after recording the statements of the parties passed the decree.

It clearly emerges from the aforementioned order that; (a) the matter was referred to the Lok Adalat, (b) that without passing any award, the

Chairman has asked the parties to avoid litigation and enter into a compromise; (c) that in pursuance to this, the compromise deed was filed before

the Sub Judge, Poonch.

It be seen that no award was passed by the Lok Adalat, as such, decree was not required to be signed by the Chairman. Consequently, no

decree has been passed by the Lok Adalat. In fact what has happened is that the parties have filed Compromise Deed before the learned Sub

Judge, Poonch, who after recording the statements of the parties, has passed the decree. There is no reference of the decree having been passed

by the Lok Adalat. The parties have chosen to file settlement deed before the Sub Judge, Poonch under Order 23 Rule 3 of the Code of Civil

Procedure. The contention of Mr. Parihar that the decree is nullity, as it was not signed by the Chairman of the Lok Adalat is misplaced. It is a

decree passed under Order 23 Rule 3 of C.P.C, which the court of Sub Judge, Poonch is competent to pass. Other contention raised by the

petitioner need not be addressed. There is no dispute with regard to the judgments relied upon by the learned counsel for the petitioner. Regarding

the fact that decree is nullity, this can be questioned in execution proceedings u/s 47 of C.P.C. In view of the observations indicated hereinabove,

decree passed by the learned sub Judge Poonch is competent and no fault can be found with it.

In view of the above, I find no force in this revision petition, the same is, as such, dismissed alongwith connected CMP. The petitioner is

directed to comply with the order passed by the executing court within a period of one month from today.