Lakshmi Prasad, Judgment-debtor vs Gopi Prasad and others, Decree-holder

Dhavan, J.

This is a judgment debtors second appeal from the concurrent decisions of the Courts below dismissing his objections against the execution of a decree for the possession of a house. The facts of the case are peculiar. The parties are near relations and owned certain houses There was a dispute over their partition and the matter referred to arbitration. The arbitrators award, which was registered, was in favour of the appellant. He applied to the Court for a decree in terms of the award, but the respondent opposed this application. During the proceedings the parties compromised their dispute and it was agreed that the house in possession or the appellant would be transferred to the respondent and the one in possession of the respondent to the appellant. A clause in the compromise provided that the parties would hand over possession to one another within one month and in case of failure each party would have the right to get possession in the execution proceedings.

The respondent applied for execution on the ground that the appellant had not transferred the house as agreed. The appellant filed an objection alleging that the respondent had deliberately demolished the house which was to be transferred to the appellant and had therefore become disentitled to the possession of the other house. The trial Court without considering the truth of the appellants allegation dismissed his objection on the ground that it was irrelevant, it took the view that the terms of the compromise decree did not provide that the decreeholder would not be entitled to recover possession until he delivered possession of the other house to the judgmentdebtor, be also held that the remedy of the judgmentdebtor was to seek relief against the decreeholder, in separate proceedings, but he could not resist the decreeholders claim for delivery of possession of the house allotted to him under the compromise. The learned Judge upheld this view and observed that the performance by one party of his part of the bargain was not a condition precedent to the performance by the other party. The appellant has now come to this Court in second appeal.

This view of the Courts below is obviously erroneous. I have read the terms of the compromise, it says "mutabiq taqsim nmzhura balu fariqain ek dusre Ico maqbnza ek mah ke andaz kar den ge ("The parties shall put each other in possession of the property in accordance with the aforesaid partition.") This is a compromise agreement consisting of reciprocal promises. The time of performance of each promise is not specific but it is manifest that the two obligations are simultaneous; and the respondent had to lie ready and willing to transfer his house to the appellant, and vice versa. While interpreting the terms of a compromise agreement containing reciprocal promise the Court should enforce it according to the plan words of the agreement, but if it is silent about the time and order of performance of the respective obligations the Court should ascertain the intention of the parties by putting itself in the position of two reasonable men who have derided to settle their dispute.

A compromise is ordinarily intended to be a final settlement of a dispute and the Court should avoid an interpretation of its obscure part which is inconsistent with the intention of the parties to make a full and final settlement of their dispute and or which contains the seeds of future discord and litigation. If the terms of the settlement of a dispute over the partition of undivided property are that the house in possession of each party shall be transferred to the other, the only reasonable interpretation consistent with equity and commonsense is that the rights and obligation under the compromise are not only reciprocal but simultaneous and each party must be ready and willing to fulfil its obligation when seeking to enforce its rights.

In the case before me both common sense and the words of the agreement require that the two obligations must be treated as inseparable, and one cannot be enforced without the other. The agreement contemplates a simultaneous exchange of house. Therefore if one of the parties without lawful excuse refuses to perform his part of the agreement, he is in breach and must face all the inevitable consequences; and if the house in possession of one parry is destroyed by accident or vis

major before possession is delivered to the other party, the compromise becomes void. In the pre sent case the appellant alleged that the respondent deliberately demolished the house and thus made it impossible for himself to fulfil his obligation under the compromise. There is no difference in law between refusal and deliberate conduct which makes it impossible for a person to perform his obligation. If the appellants charge is true the respondent has violated the compromise agreement and therefore disentitled himself to enforce his rights under it. Even if the house in possession of the respondent was destroyed by accident or some event beyond the control of the respondent, he cannot ask the appellant to deliver possession of the other house as the essential condition of the compromise that there was to be an exchange of houses has been destroyed. The order of the lower Court must be set aside.

Mr. Ashok Gupta has however contender that the appellants allegation that the respondent demolished the house has not been considered by the Courts below. He pointed out that in the affidavits filed in this Court in the stay proceeding the respondent had denied the charge that he had demolished the house. Learned counsel con tended that even if the appeal is allowed the truth of the appellants allegation has to be investigator I think there is substance in this argument.

I allow this appeal and set aside the order of the learned District Judge. The case shall be sent back to the trial Court with a direction that the appellants allegation that the responded demolished the house with the heard on merits. The parties will lead evidence if the Court hold that the appellants allegation is established or that the house in possession of the respondent decreeholder has been destroyed by any cause not due to the fault of the appellant it shall dismiss the respondents application for execution; but if it finds that the house has not been demolished an is capable of being transferred, or that was destroyed by any cause outside the control of the respondent and he is willing to restore it to be original condition at his own cost, it shall treat the appellants objection as an application for execution and order the transfer of each house to the party entitled to it in no case shall the respondent get possession before the appellant. The cost of this appeal shall abide the result of the execution proceeding.

Appeal allowed.