Ghulam Mohd.and Anr. vs Abdul Hamid

This is all about the compromise decree dated 26.11.1984 passed in the suit of the respondent, by the learned Sub Judge, Poonch. The decree

admittedly does not contain any specific clause regarding its execution in case of noncompliance of its terms by the judgmentdebtor. The all

important question that arises for consideration is whether such a decree is executable without any stipulation regarding its excitability ?

The controversy arises out of a suit filed by the respondent praying that defendantpetitioners be restrained from obstructing the flaw of water

discharged from his house from the land comprised in Khasra No 433 of village Smodh. It appears that the parties lived in Kacha houses at the

time of institution of the suit and the water discharged from their houses used to get absorbed in the compound and then would flow towards the

land of Krishen Lal and Tola Ram and therefrom into a Nallah. It further seems that after the petitioners constructed their pacca house, Krishen Lal

stopped flow of water from their house constraining them to purchase the land of Krishen Lal for a consideration of Rs. 36.000/. They are said to

have constructed a pacca drain thereafter with an underground pipe to challehlise the flow of water from their house into the Nallah.

During the pendency of the suit the parties entered into a compromise and submitted the compromise deed dated 19.11.1984 before the Court

upon which the decree was passed. The decree stipulated ""that the discharge of water will continue to be the same as before and defendants will

not cause any obstruction in the same and the drainage of water will remain joint"". It transpires that the petitioners allegedly obstructed the flow of

water from the house of the respondent constraining him to file an application for execution of the decree. The petitioners filed their objections

which have been overruled by the executing court by order dated 73 1991 directing the petitioners to allow the flow of water of the house of the

decreeholder ""through underground pipe by removing cement plaster of the floor of their house on their expense within 15 days from the date of

the order"". The petitioners took an appeal against the order of the executing court which v as dismissed on 19.12.1992 amongst others on the

ground that the same was incompetent and not maintainable. Hence this revision petition.

Mr. Salaria, learned counsel for the petitioners has assailed the order of the executing court primarily on the ground that the decree dated

26.11.1984 is a declaratory decree and thus, was not executable and even if it be treated to be a compromise decree, it still could not be executed

as the same did not contain any specific stipulation that it would be so executed in the event of noncompliance of its terms. He also submitted that

the executing court had fallen in error by looking into (he plaint of the respondent to find out the position regarding the discharge of water as it

existed before the compromise between the parties. According to him, the Court should have ordered evidence to determine what was the mode

of discharge of water prior to the compromise between the parties. He also resisted the objections that his revision petition was time barred and in

support of his submissions relied upon AIR 1970 Calcutta 34, AIR 1966 J&K 13, AIR 1953 Orissa 74 and AIR 1933 Allahabad 269.

Mr. Sharma, on the other hand, submitted that the revision petition was time barred taking in regard to 90 days period of limitation prescribed

under the J&K. High Court Rules. He stated that the petitioner had filed the petition after more than two years without any accompanying

application explaining the circumstances in which he had chosen a wrong forum so as to entitle him to the exclusion of lira; under Sec, 14 of the

Limitation Act. On merits, he contended, that every decree, including a compromise decree is meant to be executed and that the executing court

was not debarred from looking into the pleadings for the purposes of execution of the decree. He pleaded that the petitioner's., effort was to

challenge the validity of the decree through the medium of this revision petition and to protract the litigation in order to deprive he respondent from

the benefit of the decree. He relied upon 1985 KLJ 400 and AIR 1986 Kerala 49.

A decree is the fruit of litigation and a decreeholder enjoys it by execution unless the judgmentdebtor discharges his obligation on his own. A

compromise decree is as good a decree as any other decree as defined in Sec 2 (2) C.P.C. Though it is passed on the compromise arrived at

between the parties, it does not cease to be a decree.

Excitability is the heart and soul of any decree, whether it is a compromise decree or any other decree. As a corollary the right to execute a decree

is abailable to a decreeholder under restricted either expressly or by necessary implication, either by the terms of the decree itself or by the

provisions of any supervening legislative enactment. This right subsists so long as it is not taken away expressly or by open action of any law.

Therefore, it is not a precondition that the decree must contain a clause empowering the initiation of execution proceedings in the event of

nonsatisfaction or non compliance of any term. This holds true about a compromise decree also and the absence of any such stipulation in the

decree does not render the decree in executable as the excitability inheres in every decree. '

Though all this is will recognised, it may still be worth while to refer to some of the decisions of the Supreme Court and some High Courts to

reiterate the position. In AIR 1964 SC 874, the Apex Court had the occasion to consider the excitability of the compromise decree without any

specific clause enabling the execution and it was held that on the failure of the defendant to execute the saledeed, the decree can be executed and

the saledeed can also be executed through the intervention of the Court. In AIR 1973 SC 2065, it was laid down thus :

It is never a precondition of the executability of a decree that it must provide expressly that the party entitled to a relief under it must file an

execution application for obtaining that relief......

Similarly in AIR 1986 Kerala 49, it was held that the absence, of a specific stipulation in the decree regarding its executability does not strip it of its

executability.

The position enunciated seems more consistent with reason and public policy on general principles also. If the object is to shorten the litigation, it

carrot be said that a compromise between the parties should be enforced by compelling them to take recourse to a separate suit instead of by

execution of the decree. It does not stand to reason that the decreeholder should be compelled to plunge it to a fresh bout of litigation and to incur

further costs to render his earlier effort futile. The courts would not countenance such a situation and would always construe a compromise in a

manner as to avoid the multiplicity of litigation.

Mr. Salaria must also fail in his second submission It is for the executing court to sea and make sure whether the decree is capable of execution or

not. It, of course, cannot go beyond the decree. But it is' net at the fame lime debarred from locking into the pleadings of the parties with a view to

facilitate the execution of the decree. It is also the domain of the court to adopt its own mode in a situation where the execution of the decree

presents some difficulty. If the decree can be explained by looking into the pleadings, so far so good. It is not for the litigating parties to suggest

what mode the court should adopt to ascertain whether or not the decree is capable of execution.

Mr. Salaria's reliance on AIR 1970 Calcutta 34, AIR 1966 J&K 13 and AIR 1953 Orissa 74, is wide off the mark. I have perused these

judgments. In the Calcutta case the question involved was whether the second suit filed by the decreeholder was barred under Sec 47 C.PC and

the Court held that it was maintainable. This decision does not lay down and law on the point whether a compromise decree is capable of

execution in the absence of a specific stipulation contained therein regarding the executability. It does contain a passing reference on the point

which is nothing but an observation. Similarly AIR 1906 J&K 13, does nowhere hold that a compromise decree is in executable though it is true

that in the facts and circumstances of the case, the Court found the decree to be declaratory decree and held it to be in executable. Similar is the

position in AIR 1953 Orissa 74.

Mr. Salaria's contention that the decree in the present case should be treated to be a declaratory decree, is an argument in despair. It would be too

much to say that it is a declaratory decree, pure and simple. Therefore, considering the terms of the decree, and its nature, I am unable to persuade

myself to the view that the decree in the present case should be treated as a declaratory decree and held incapable of execution.

The position that emerges is that the decree in the instant case is not a pure declaratory decree. It is a compromise decree which is capable of

execution notwithstanding the absence of any specific clause which should have mandated and directed its execution. Nor is it possible to hold that

the executing court had committed any material irregularity or illegality by looking into the plaint of the decreeholder to order the execution of the

decree.

For the reasons stated above this revision petition fails and is accordingly dumped alongwith C.M.P. No. 07 of 1993.