Balak Ram vs Fateh Chand

V.K. Jhanji, J.—This civil revision is directed against the order of the Executing Court vide which objections preferred by the respondent-judgment-debtor pertaining to the execution of the decree were accepted and the decree was held to be not executable. Execution was also found barred by the principle of res judicata.

Petitioner filed suit for possession. In the suit it was claimed that the respondent is in possession of the premises as a licensee and on termination of the license, he failed to vacate the premises. Suit was contested by the respondent.

During the pendency of the suit, a compromise was arrived at between the parties. Respondent made a statement that he shall vacate and hand over the vacant possession of the disputed shop to the petitioner within a period of two years and the petitioner shall not claim rent for those two years. Respondent also stated that the decree be passed in terms of the compromise. Consequently on 11-10-1977 decree for possession was passed Petitioner sought execution. Respondent raised objection that the decree cannot be executed as it does not give any description of the property for which the decree for possession was passed. In his reply, petitioner denied the allegations made in the objection petition.

On the basis of the pleadings of the parties, the following issue were framed : -

Whether the execution petition is not maintainable as alleged in the objection petition 7 OPJD

Relief.

The Executing Court found that the decree is silent with regard to the manner in which possession was to be delivered. The issue thus was decided in favour of the respondent and consequently, decree was held to be in-executable. After the order dated 28-3-1980 vide which the objection petition was accepted, petitioner filed an application for the amendment of the decree for getting the decree corrected. Application was contested by the respondent. Vide order dated 10 9 1980 the decree was corrected and it was ordered that the amended decree be read as follows :-

"Recovery of property marked AKJL as described in para 2 of the plaint and shown red in the site plan, be also mentioned."

Consequently, decree sheet was amended as ordered by the trial Court. Thereafter, petitioner again filed execution application seeking assistance of the Court for the execution of the decree. Respondent again raised objection. In the objection petition, it was stated that the decree is not executable inasmuch as decree is silent as to what will happen if the respondent fails to deliver the possession of the disputed shop within two years Secondly, the same is barred by principles of res judicata. The Executing Court again framed the issues which were to the following effect :-

Whether the decree in question is in-executable as alleged ? OPJD

Whether the execution is barred by principle of res judicata ? OPJD

Relief.

Both the issues were found in favour of the respondent and the execution application was dismissed. This order is being impugned here in this civil revision.

After hearing the learned counsel for the parties at length, I am of the view that the impugned order is not sustainable.

The decree was held to be not executable because the Executing Court was of the view that the decree was silent as to what will happen if the respondent fails to deliver possession of the disputed shop within two years This finding cannot be sustained inasmuch as at the time when the decree was passed, respondent gave statement that he shall vacate and handover the vacant possession of the disputed shop to the petitioner within a period of two years and the petitioner will not claim rent for those two years. In his statement, he has also stated that decree for possession be passed. On the basis of this statement, decree for possession was passed. Once the defendant agreed that decree for possession be passed meaning thereby that he agreed that in case he failed to handover the vacant possession, the same can be recovered in execution of the decree for possession which was passed by the trial court on the basis of the compromise. It is not correct that the decree was silent as to what will happen if the respondent fails to deliver possession as per his statement given in the Court, on the basis of which decree for possession was passed. It is true that a compromise decree is not a decision by the Court. It is only the acceptance by Court of a compromise to which the parties had agreed A compromise decree is merely a seal of the Court on the agreement of the parties. As already noticed, respondent in his statement, agreed for the passing of decree for recovery of possession. The only condition was that the same could not be executed for a period of two years as the parties under the compromise had agreed that the respondent would retain the possession for a period of two years and no rent for that period shall be paid. Respondent, after the passing of the decree, cannot make a grievance that the decree is not executable or the same is silent as to hew the same was to be executed after the expiry of two years. So far as the issue with regard to execution being barred by principle of res judicata is concerned, I find that the finding on this issue is also not sustainable. The Executing Court, while accepting the objections on the other issue, held that the previous execution petition was found in-executable on two grounds ; (i) that the description of the shop was vague; and (ii) that the decree was silent with regard to the manner in which it was to be executed after the expiry of two years. As the earlier order became final and conclusive, so the present execution petition was held to be barred by principle of res judicata. There is no doubt that the principle of res judicata apply to the execution proceedings but at the same time in order to apply the principle of res judicata, it is further necessary that the controversy must have been in issue directly and substantially in the former proceedings This would mean that the matter cannot be said to have been "directly and substantially" in issue unless it was alleged by one party and denied or admitted by the other party either directly or by necessary implication. From the objection petition, I find that the defendant had no where alleged that the decree is silent with regard to the manner in which the same could be executed. Thus, this matter was never put in issue nor was raised and, therefore, any observation made on a matter which was not put in issue, cannot invite application of principle of res judicata.

Thus, I hold that the decree is executable and is not barred by principle of res judicata as was held by the Executing Court. Petitioner is thus held entitled to recover possession in pursuance of the decree.

Consequently, this civil revision is allowed and the impugned order is set aside. The Executing Court is directed to issue warrants of possession in pursuance of the decree for possession which was passed in favour of the petitioner.