LRs of Jaigopalcharya @APPELLANT@Hash Shyam Prakash

Petitionersâ€"judgment-debtors, have preferred this revision petition under Section 115, Code of Civil Procedure, 1908 (for short, ‘CPC’) to

assail order dated 15th of December, 2015, passed by Sr. Civil Judge, Nathdwara, District Rajsamand (for short, ‘learned Executing Court’),

whereby learned Executing Court has rejected the applications submitted on their behalf in Execution Case No.07/13 under Section 3 read with Article

136 of the Limitation Act, under Order 21 Rule 22 & 23(2) read with Section 151 CPC and under Order 7 Rule 11 read with Section 141 CPC, and

has allowed application of the respondentâ€"decree-holders dated 23rd of May 2015.   The Executing Court also issued warrant against

petitionerâ€"judgment-debtors under Order 21 Rule 30, Order 21 Rule 35 and Order 21 Rule 32 CPC.

Scorning the checkered history of the case, for the purpose of this revision petition, suffice it to state that a suit for redemption of mortgage and

recovery of possession was filed at the threshold by plaintiffs Navneet Lal and Harikant, sons of Shri Jugal Kishore Vyas.  The suit continued for

sometime but finally the contesting parties settled the dispute by mutual agreement and in terms of compromise decree was passed by Civil Judge

(Jr.Div.) cum Judicial Magistrate, Nathdwara, Rajsamand on 8th of September, 1997.   In terms of compromise, as per the version of

petitioners, possession of the suit property was not handed over by the respondents till 17th of January, 2011, i.e., uptil expiry of limitation and

therefore after obtaining possession and obtaining requisite permission for construction of shop from Municipal Council, when steps were taken by

them for demolition of earlier structure and raising new construction, Municipal Council stayed the sanction. This action of the Municipal Council was

questioned by the petitionersâ€"judgment-debtors but the learned Addl. District Judge, Nathdwara did not find any fault with the same and therefore

the petitioners challenged the said order before this Court. In the interregnum, first respondent submitted an application for execution of the

compromise decree.  As the matter remained sub-judice before this Court for raising construction at the behest of petitioners, execution of decree

was not possible.  In this behalf, a notice was given by the respondents to the petitioners on 15th of July 2011.  The aforesaid notice was

replied by the petitioners.  The execution laid on behalf of first respondent was resisted by the petitioners and objections were submitted by

precisely questioning the executability of the decree on the ground that the same is unregistered and the Court which has passed the decree was

lacking pecuniary jurisdiction. It is pertinent to note here that in the objections submitted on behalf of petitioners there was no whisper about the

notice of the respondents dated 15th  of July 2011 and its reply on behalf of petitioners.   The learned Executing Court, after hearing learned

counsel for the parties, rejected the objections.

I have heard learned counsel for the parties at length, perused the impugned judgment and also thoroughly examined the written submissions made on

behalf of petitioners.

Learned counsel for the petitioners in support of his arguments has placed reliance on following judgments.

▪ Urban Improvement Trust, Jodhpur Vs. Gokul Narain & Anr. (AIR 1996 SC 1819)

▪ Bhoop Singh Vs. Ram Singh Major & Ors. (AIR 1996 SC 196)

▪ Hameed Joharam (D) & Ors. Vs. Abdul Salam (D) by LRs & Ors. (AIR 2001 SC 3404)

▪ N. Vittal Prabhu Vs. Shrimath Auamtheswara Temple, Manjeshwar & Ors. (AIR 1986 Kerala 221)

▪ Nain Singh & Ors. Vs. Mahendra Singh [AIR (39) 1952 Allahabad 196]

▪ Kiran Singh & Ors. Vs. Chaman Paswan & Ors. (AIR 1954 SC 340)

▪ Ajab Enterprises Vs. Jayan Vegoiles and Chemicals Pvt. Ltd. (AIR 1991 Bombay 35)

▪ Praja Singh & Ors. Vs. Gurdip Singh & Ors. (AIR 1982 Punjab & Haryana 353)

There remains no quarrel that after protracted trial, a compromise was arrived at between rival parties and same facilitated passing of a compromise

decree by Civil Judge (Jr.Div.) cum Judicial Magistrate, Nathdwara.  Execution of a decree for specific performance of contract can, of course,

be resisted by a judgment-debtor but then a compromise decree cannot be put to hold at the behest of a judgment-debtor on certain flimsy or technical

pretext.  In order to thwart execution of a compromise decree, a judgment-debtor is required to make out a case that compromise decree is

vitiated by fraud, misrepresentation, misunderstanding or mistake. No such allegations are forthcoming in the matter, nor discernible from the

impugned order. Moreover, as per petitioners’ own admission they did not make endeavour to take possession of the disputed property from

respondent till 17th of January, 2011.  It is also not in dispute that in terms of compromise it was obligation of the petitioners to serve a registered

notice on first respondent for getting vacant possession of the disputed premises so as to demolish the existing construction and raise new

construction.  The objection of the petitioners that execution was laid by the respondents belatedly is therefore not tenable inasmuch as when in

terms of compromise decree petitioners themselves also awakened after more than 10 years, i.e., in the year 2011, to perform their obligation. Â

It may be observed that execution of a decree, which is passed after contest and execution of a compromise decree is on different footing because a

compromise decree pre-supposes an agreement between rival parties willing to meet some of the demands of the plaintiff but not all; in a way, it may

be called ‘meet someone half way’ and therefore a party to a litigation, who has entered into compromise, cannot be allowed to eschew or

disown obligation on its part, which emanates from compromise decree.

The learned Executing Court has examined the matter threadbare in the backdrop of peculiar facts and circumstances of the case and thereafter

concluded that objections of the petitioners are superfluous; and the conclusion of the learned Court below in this behalf, in my view, is just and

proper.    The learned Court below has neither committed any illegality or material irregularity in exercise of jurisdiction, nor it has overstepped

its jurisdiction, or failed to exercise jurisdiction vested in it so as to warrant interference in exercise of revisional jurisdiction.Â

The legal precedents, on which the learned counsel for the petitioners has placed reliance, in my considered opinion cannot come to the rescue of

petitioners in the light of peculiar facts and circumstances of the instant case.

Resultantly, the revision petition fails and same is hereby rejected.