Sonaullah Mir vs Abdul Rashid and Another

M.R.A. Ansari, C.J.—This is a second appeal against the judgment of the District Judge Anantnag by which the order of the Munsiff

Anantnag was modified.

The Respondent filed a suit against the Appellant herein in the court of the Munsiff for a declaration that he was the owner of a half share in the

suit property and that he was in lawful possession thereof. Before the suit proceeded for trial the Appellant and the Respondent entered into a

compromise and a joint application was filed in court praying that a decree be passed in terms of the compromise. The salient terms of the

compromise were that the Appellant should pay Rs. 14,000/- to the Respondent on receipt of which a decree for possession should be passed in

favour of the Appellant in respect of the suit property, A sum of Rs. 4,000/- was paid immediately at the time of execution of the compromise

deed and the balance of Rs. 10,000/- was to be paid within three years of the passing of the decree. The Respondent was to be in possession of

the suit property till the balance of Rs. 10,000 was paid to him and if the balance was not paid to him within the time stipulated the suit must be

deemed to have been decreed in his favour as prayed for in the plaint. The Appellant deposited in court the balance of Rs. 10,000/- within the time

stipulated, but the Respondent did not withdraw this amount and also refused to hand over possession of the suit property to the Appellant. The

Appellant therefore filed an execution application and sought execution of the decree for possession of the suit property. The execution petition

was allowed and an order was passed directing the Respondent to deliver possession of the suit property to the Appellant and on his failure to do

so permitting the Appellant to take possession of the suit property through the court.

Against this order the Respondent filed an appeal and contended that the trial court had no jurisdiction to pass the decree, that the decree was a

nullity and that the decree therefore could not be executed. The learned District Judge held that the decree could be executed only in respect of the

relief given in favour of the Respondent namely that on the failure of the Appellant to pay the balance of Rs. 10,000/- within the time stipulated, the

Respondent would be declared as entitled to a half share in the suit property and also to be in lawful possession of the same, but that the decree

could not be executed in respect of the relief given in favour of the Appellant namely that on his paying the balance of Rs. 10,000/- to the

Respondent a decree for possession should be passed in favour of the Appellant. The learned District Judge therefore modified the order of the

executing court accordingly;

It is now well-settled that an executing court cannot go behind the decree and cannot decide the correctness or otherwise of the decree but the

executing court may refuse to execute the decree if it has been passed by a court which has no jurisdiction to pass the decree or where the decree

is otherwise a nullity. In Kiran Singh and Others Vs. Chaman Paswan and Others, it has been laid down that a court has no jurisdiction to pass a

decree not only when it has no inherent jurisdiction to pass the decree but also when it lacks pecuniary or territorial jurisdiction. But in a latter case

in Hira Lal v. Kali Nath All 1962 SC 199 the rule laid down by the Supreme Court in the earlier case has been somewhat modified. The Supreme

Court is the later case observed as follows (at (sic) 200):

The validity of a decree can be challenged in execution proceedings only on the ground that the court which passed the decree was lacking in

inherent jurisdiction is the sense that it could not have seizin of the case because the subject matter was wholly foreign to its jurisdiction or that the

Defendant was dead at the time the suit had been instituted or decree passed, or some other ground which could have the effect of rendering the

court entirely lacking in jurisdiction in respect of the subject-matter of the suit over the parties to it.

With regard to lack of jurisdiction the Supreme Court observed (at p. 201):

The objection to its territorial jurisdiction is one which does not go to the competence of the court and can, therefore, be waived.... It is well settled

that the objection as to the local jurisdiction of a court does not stand on the same footing as an objection to the competence of the court to try a

case. Competence of a court to try a case goes to the very root of the jurisdiction, and where it is lacking, it is a case of inherent lack of

jurisdiction. On the other hand an objection as to the local jurisdiction of a court can be waived and this principle has been given a statutory

recognition. By enactments like Section 21 of the Code of Civil Procedure.

In the present case there is no question of lack of inherent jurisdiction of the court to pass the decree. There is also (sic) question of the lack of

territorial jurisdiction. The only question is that the (sic) lacked the pecuniary jurisdiction to pass decree. Lack of pecuniary jurisdiction, according

to the rule laid down by the Supreme Court in Hira Lal's case AIR 19(sic) 199 (supra) does not amount to a lack of inherent jurisdiction. But

assuming for (sic) moment that lack of pecuniary jurisdiction renders the decree passed by the (sic) nullity, there is no material in this case to justify

the conclusion that the court which passed the decree lacked the pecuniary jurisdiction to pass it. It must be noted that the suit itself was filed by

the Respondent and according to the Respondent the trial court had the pecuniary jurisdiction to try the suit. The valuation of the relief claimed by

the Respondent in the suit was within the pecuniary jurisdiction of the trial court. The compromise decree provided that in the event of the balance

of Rs. 10,000/- not having been paid to the Respondent within the stipulated time, the suit would be deemed to have been decreed in favour of the

Respondent. It is not disputed by the Respondent that such a decree would be one which was within the pecuniary jurisdiction of the court and that

it was a valid decree which could be executed. There is no material on the record from which it can be said that the alternate decree which was to

be passed in favour of the Appellant under the terms of the compromise, namely a decree for possession of the suit property would be beyond the

pecuniary jurisdiction of the court. There is no evidence or other material on record to Indicate the value of the suit property, and in the absence of

any evidence or material (sic) cannot be said that the amount of Rupees 14,000/- which was to be paid by the Appellant to the Respondent

represented the value of the suit property. Therefore it cannot be held that the trial court had no pecuniary jurisdiction to pass the decree.

The next question for consideration is whether that portion of the decree which have the relief of possession of the suit property in favour of the

Appellant was void and executable by reason of its being extraneous the subject-matter of the suit. Order 23, Rule 3 the CPC contains a special

provision for the passing of decrees based upon compromise arrived at between the parties. 3 reads as follows:

Where it is proved to the satisfaction of the court that a suit has been adjusted wholly (sic) in part by any lawful agreement or compromise, or

where the Defendant satisfies the Plaintiff in the suit, the court shall order such agreement, compromise or satisfaction to be recorded, and shall

pass a decree in according (sic) therewith so far as it relates to the suit.

Under Rule 3 therefore the court is competent (sic)pass a decree in accordance with the compromise ""so far as it relates to the suit"", and the

decree so passed by the court falls within the scope of Rule 3, it would be permanently valid decree and it cannot be said to be a decree which the

court had no jurisdiction to pass or which is a nullity. Therefore the question for consideration is whether the impugned portion of the decree is one

which relates to the suit. Guidance may be sought from various High Courts for the meaning of the words ""so far as it relates to the suit"". In Nanalal

Bhogilal Choksi Vs. Ambalal Somnath, , the suit property had been mortgaged at different times to two persons. The prior mortgagee filed the suit

against the mortgagors to enforce the mortgage and in the suit the subsequent mortgagee was also joined as the Defendant. A compromise was

arrived at between the parties and a decree was passed in terms of the compromise. Under the compromise decree the subsequent mortgagee was

also entitled to recover the amount due under the mortgage. He, thereafter moved for the execution of the compromise decree and one of the

objections taken by the mortgagors was that the decree passed in favour of the subsequent mortgagee was extraneous to the subject matter of the

suit filed by the prior mortgagee to enforce his mortgage and that the decree in favour of the subsequent mortgagee was not executable. Rejecting

this objection the Bombay High Court observed as follows (at p. 428):

The expression so far as it relates to the suit ... is a very wide expression and may include something which was extraneous to the suit and which

was never in question in the suit itself."" It was further held that the decree in favour of the subsequent mortgagee which was in respect of the same

property which was the subject-matter of the suit was not extraneous to the suit and that it related to the suit itself.

In Maharani Devi Vs. Ram Adhar Pandey and Another, the Plaintiff, Maharani Devi, filed a suit for a declaration that she was entitled as the

widow of the deceased brother of the Defendants to the rights of a Bhumidhar to the extent of l/3rd in certain plots of land which were jointly held

by her late husband and the Defendants. The parties arrived at a compromise under which the Defendants agreed to pay to the Plaintiff a sum of

Rs. 30/- per month in lieu of her claim to Bhumidhari rights. The compromise also provided that in case the Defendants failed to pay the amount it

should be realized by attachment of the plots which were the subject-matter of the suit. The court passed a decree in terms of the compromise.

The Plaintiff subsequently moved the court for the execution of the compromise decree. An objection was taken on behalf of the judgment debtors

that the decree providing for the payment of Rs. 30/- per month was extraneous to the subject-matter of the suit and did not relate to the suit and

was therefore inexecutable. The High Court rejected this contention and held that the decree providing for the payment of Rs. 30/- per month was

not extraneous to the subject matter of the suit and that it related to the suit and that the court was competent to pass such a decree under Order

23, Rule 3 Code of Civil Procedure. While so doing the High Court observed as follows (at p. 21):

Every justiciable right has been compounded under the law. The CPC confers on the parties the right to compromise any dispute and has made it

compulsory for the court to give effect to any compromise by passing a decree in accordance with its terms ""so far as it relates to the suit,"" The

words ""so far as it relates to the suit"" should be interpreted liberally and according to common sense, so that the right to compromise is not

defeated in cases where the only possible compromise under the circumstances can be the surrender of the disputed right, for a va(sic)able

consideration.

In Govindagouda v. Madhava Rao AIR 1964 Mys 277 the Mysore High Court explained the difference between the two phrases ""subject

matter of the suit"" and ""so far as it relates to the suit"" occurring in Rule 3 of Order 23 Civil P. C in the following words (at p. 280):

The words 'so far as it relates to the suit' in Order 23, Rule 3 are of wider import than the subject-matter and they should be construed widely.

When it is said that the term is covered by a subject-matter of the suit, it means that it falls within the pleadings of the parties and the relief claimed

therein. But the matter relating to the suit may not be confined to these limitations, because these words as mentioned above are of wider import.

In the above cases a suit for partition was filed by the guardian of the minor Plaintiff. The suit related to the partition of movable and immovable

property with relief for recovery of possession. The parties arrived at a compromise and a decree was passed in terms of the compromise. The

compromise decree provided for the payment by the Defendant a sum of Rs. 1000/- to the power of attorney holder of the Plaintiff. When the

power of attorney holder sought to execute the decree in his favour and recover the sum of Rs. 1000/- from the Defendant, the latter raised an

objection that the decree was not executable as it did not relate to the suit. The High Court rejected this contention and made the observations

which have already been reproduced.

In Patel Chaturbhai Nanabhai Vs. Patel Mohanbhai Nanabhai and Another, a suit was filed for partition of the suit properties and in this case

also the parties arrived at a compromise and one of the terms of the compromise was that the Plaintiff had to pay to the Defendant a sum of Rs.

2002/ - on the occasion of the marriage of the Defendant's son and daughter. When the Defendant sought to execute the compromise decree an

objection was taken that the decree was extraneous to the suit. Rejecting this contention the Gujarat High Court observed thus (at p. 226):

The expression 'so far as it relates to the suit' has been given a wide interpretation se as to include matters which form a consideration and are

thereby intimately connected with the subject-matter and the court need not confine operative part of the decree only to what is strictly speaking

the subject-matter of the suit as seen from the frame of the suit or the reliefs claimed.

Taking guidance from the decision referred to above, I am of the view that the compromise decree giving the relief of possession of the suit

property to the Appellant was a decree which related to the suit within the meaning of Rule 3 of Order 23 of the CPC The Respondent had filed

the suit for a declaration of his right to a half share (sic) the suit property and of his right to possession of the same. Under the terms of (sic)

compromise decree the Respondent was (sic) in possession of the suit property and he was entitled to remain in possession of the (sic) property

until the balance of Rs. 10,000/ - was paid to him. On the payment of (sic) said balance the Respondent was to hand over possession of the suit

property to the Appellant. Therefore the compromise decree provided that in the event of the balance of Rs. 10,000/- being paid to the

Respondent. (sic) decree for possession of the suit property should be passed in favour of the Appellant. Under the above circumstances the

decree for possession of the suit property in favour of the Appellant was a decree which (sic) related to the suit and such a decree (sic) well within

the competence of the court (sic) pass under Order 23, Rule 3 of the Code of Civil Procedure.

The learned Counsel for the Respondent has referred to the following de(sic) in support of his contention that the (sic) promise decree is

inexecutable, namely, (1) Duni Chand v. Shiv Lal. AIR 1957 J and K 26 (2) Nazir Ahmed v. Mst. Haneefa 1973 J and K LR 247 : AIR 1974 J

and K 43 and (3) Trilok Chand Kapur Vs. Dayaram Gupta, .

In the case first cited a decree in the suit was passed on merits for possession of the suit property in favour of the Plaintiff. In appeal the parties

arrived at a compromise and the appeal was decided in terms of the compromise. The compromise deed besides dealing with the suit property and

saying that the Appellant shall have no right or interest in the suit property also stated that the Respondents shall be the owners of the remaining

contiguous properly. This Court held that the decree so far as it related to the property other than the suit property was not executable.

In the second case cited the suit was filed for partition of immovable property of the Plaintiff's father excluding the agricultural lands. The

compromise which was arrived at between the parties however provided for the partition of not only the suit property but also the agricultural

lands. It was held that the decree providing for the partition of the agricultural lands was not executable.

In the third case cited the Plaintiff (sic)ad instituted the suit claiming a decree for Rs. 61,875/- and for a declaration that the assets of the

business 'Capri Restaurant' stood charged with the payment of the dues of (sic)e Plaintiff. The parties effected a compromise and the compromise

not only provided for the passing of a decree in favour of the Plaintiff against the Defendant for a (sic)m of Rs. 60,000/- with interest thereon (sic)

9 per cent per annum till payment (sic)nt it also provided that the first Defendant shall sell his interest in the (sic)siness of Capri Restaurant to

defendent No. 2 free from all encumbrances for (sic)e sum of Rs. 1,80,000/. The compromise (sic)o provided that out of the said sum of (sic)

1,80,000/- the second Defendant should (sic)y the Plaintiff the decretal amount of (sic) 60,000/ -. The decree was passed in terms (sic) the

compromise. On these facts it was held at the decree for the sale of the business (sic) the Capri Restaurant did not relate to the (sic) and was

therefore inexecutable.

It will be noticed that in all the three (sic)es cited by the learned Counsel for the Respondent the decrees were in respect of property other than

the suit property. These (sic)es are therefore clearly distinguishable not only from the cases cited by the learned Counsel for the Appellant but also

from the facts of the present case. The cases cited by the learned Counsel for the Respondent do not support his contention that the decree passed

in favour of the Appellant did not relate to the suit and was inexecutable. The decree passed by the trial court was one which he had jurisdiction to

pass and which he was also competent to pass under the provisions of Order 23, Rule 3 of the CPC Such a decree could not be challenged

before the executing court on the ground that it was passed without jurisdiction or was a nullity.

In the result the judgment and decree of the learned District Judge is set aside and the order of the learned Munsiff passed in execution of the

decree is restored. The appeal is allowed with costs.

Mr. J.N. Bhan learned Counsel for the Respondent prays that leave may be granted for filing the Letters Patent appeal against the judgment

just now delivered by me. Considering the nature of the questions involved, I am of the view that this is a fit case for the grant of the leave. Leave

is, therefore, granted for filing the Letters Patent appeal against the judgment of this Court.