Aravindakshan v. Sarojini and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE M.N.KRISHNAN** **THURSDAY, THE 17TH JANUARY 2008 / 27TH POUSHA 1929** **CRP.No. 1024 of 2007** **------------------------------AGAINST THE ORDER DATED 12/11/2007 IN EP. 119 /2006 IN OS.182/1986 OF PRINCIPAL SUB COURT, PALAKKAD .........................................** ## **REVN. PETITIONER: 2ND RESPONDENT/IST DEFENDANT** **---------------------------------------------------------------------------------** **ARAVINDAKSHAN, CHERUVATTATHU HOUSE, PUTHOOR AMSOM, PALAKKAD TALUK, PALAKKAD DISTRICT.** **BY ADV. SRI.N.SUKUMARAN SRI.S.SHYAM** **RESPONDENTS/PETITIONERS 1 TO 5 AND 6TH RESPONDENT/DEFENDANTS 2 TO 6 AND PLAINTIFF:** **-------------------------------------------------------------------------------------------------------------** **1. SMT.SAROJINI, RAMA MANDIRAM, VRYUTHACHALAM, SOUTH ARCODE, SELAM ROAD, TAMIL NADU.** **2. SMT.CHANDRIKA, KARAKPOOR, SOUTH SIDE, 638, WEST BENGAL.** **3. SMT.SUKANYA, RAM NIVAS, ARIYUR, THEKKEMURI, OTTAPALAM.** **4. SMT.PADMAVATHY, COTTAGE 14, ALIHAR ROAD, DELHI.** **5. SMT.HEMA RAMANATHAN, JAYASREE, KOPPAM AMSOM, PALAKKAD.** **6. DR.VENUGOPAL, S/O.SARASWATHY AMMA, ARICOD JUNCTION, CHITTUR VILLAGE, CHITTUR TALUK.** **R1 TO R5 BY ADV. SRI.O.RAMACHANDRAN NAMBIAR SRI.GEEN T.MATHEW SRI.ANTONY MATHEW --- R6** **THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 17/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **M.N.KRISHNAN, J** ## **=====================** ## **C.R.P. No.1024 OF 2007** ## **=====================** ## **Dated this the 17[th] day of January 2008** ## **O R D E R** This revision petition is preferred against the order of the Sub Court, Palakkad in E.P.No.119 of 2006 in O.S.No.182 of 1986. The execution petition is filed by the petitioners for getting delivery of the property as per the terms of the final decree on deposit of Rs.14 lakhs. The court below considered the objections raised by the respondents and granted an order directing the plaintiff and defendants 2 to 6 to deposit Rs.14 lakhs with a further direction to receive that demand draft and hand over the key of the building before the court on 20.11.2007. 2. The brief facts necessary for the disposal of the revision petition are stated as follows: The suit is one for partition with respect to one out of 8 shares in the property which was so declared by a preliminary decree and during the pendency of the final decree respondents 7 to 9 died in a road accident, whose rights devolved upon the plaintiff and defendants 2 to 6 and therefore by virtue of the operation of the death of defendants 7 to 9, the plaintiff is entitled to one out of 7 shares and defendants 1 to 6 one out of 7 CRP 1024/2007 -:2:- shares each. During the pendency of the final decree proceedings a compromise was entered into between the parties and it was filed before the court. A perusal of the compromise petition would reveal that the 2[nd] respondent, viz., the revision petitioner herein has agreed to surrender all his right, title and interest in the property for a sum of Rs.14 lakhs and it further stipulates that the petitioners will pay the amount to the 2[nd] respondent, viz., the revision petitioner herein by demand draft within six months. It was also agreed that the 2[nd] respondent will hand over the key of the building to the first petitioner or her Advocate and receive the demand draft. This compromise was filed on 8.6.2003. In pursuance of the compromise the court passed a final judgment on 15.6.2005. The court recorded the compromise and passed a final decree in terms of the compromise petition,i.e. (1) allotting the decree schedule property in full to the share of defendants 2 to 6 and plaintiff jointly, (2) directing defendants 2 to 6 to pay the 1[st] defendant a sum of Rs.14 lakhs by demand draft within six months when he will hand over the key of the building to the 2[nd] defendant or her Advocate and receive the demand draft. 3.Now the contention raised by the petitioner is to the effect that there is no executable decree as such in the light of the factum of the nonfulfillment of the terms of the compromise and secondly the executing court CRP 1024/2007 -:3:- has no power to extend the period stipulated in the decree for deposit of the amount. So far as the first point is concerned let me consider which is the relevant date to be taken into consideration. It is true that the compromise petition is filed as early as on 8.6.2003. The compromise petition gets the approval of the court only by virtue of passing an order on the basis of that compromise petition. When it is so, the real date that has to be reckoned can be only from the date when an order is passed on the basis of the compromise. I do not know the reason why such a long time was taken by the parties or the court to get an order in a final decree petition when a compromise petition had been filed. When a final decree is passed it becomes an executable decree. It is true that conditions are attached in that final decree order. By passing the final decree, the court on the original side puts an end to the suit. There is no dispute between the parties with respect to the factum that no appeal is preferred against the final decree passed in the case. So there is a valid conclusive final decree as far as the parties are concerned. Thereafter, the plaintiff and defendants 2 to 6 through their Advocate on 21.9.2005 issued a notice to the revision petitioner intimating that they are ready with the amount of Rs.14 lakhs and they had requested the revision petitioner to come and collect the amount and hand over the key in terms of the final decree. To this, the revision petitioner sent a reply CRP 1024/2007 -:4:- notice on 13.10.2005. This reply notice is very vague. It only states that there is no compromise petition filed with the junction of all the parties and no decree has been passed. So it is submitted that no cause of action or there is no right for the plaintiff and defendants 2 to 6 to have sent such a notice. So, at least immediately after the passing of the final decree, the plaintiff an defendants 2 to 6 have moved in the right direction to get the property on tendering the amount. But to their dismay the first defendant totally denies everything and ultimately that has resulted in the filing of the execution petition. It is true that the final decree is passed with a condition to deposit the amount. Only on deposit of amount it confers a right on the plaintiff and defendants 2 to 6 to have the property delivered in their favour. Now the crucial question to be decided is whether the executing court can extend time for deposit of the amount. 4.The Apex Court in the decision reported in **Thomas v. Thomas Job (2005(3) KLT 1042(SC)** was considering the question of the legality of the execution of an award passed by the Lok Adalat wherein there is a stipulation for deposit of an amount within the stipulated time. The Apex Court held that the executing court has the power to extend time in appropriate cases. A reference to paragraphs 5 and 22 of the said judgment would show the same. CRP 1024/2007 -:5:- 5. Learned counsel for the respondents had cited the decision of the Madras High Court reported in G.Rangaraju v. Meenakshi Ammal(AIR 1984 Madras 147). In that case the said court held that “even in the case of a compromise decree the executing court could in a proper case and to further the ends of justice extend under Section 148 C.P.C. the time for payment fixed in the decree. Since the contract between the parties get merged in the order of the court by passing a compromise decree and the court thereafter had the freedom to act to further the ends of justice, such freedom could not be curtailed by pleading that the executing court could not rewrite the contract entered into by the parties or that it could not go back on the decree”. The Madras High Court had relied on the decision of the Apex Court reported in AIR 1983 SC 428. So the power of the court to extend the time fixed between the parties in a compromise decree can be extended provided there are adequate and sufficient grounds for the same. Though the compromise petition was filed as early as on 8.6.2003, the right or entitlement of the parties to act upon the terms of the compromise will come into effect only when the court passes an order on the basis of that compromise. That takes place only on 15.6.2005. On 21.9.2005 itself, the plaintiff and defendants 2 to 6 have expressed their readiness to pay the amount and to get the key. Unfortunately, the petitioner sent a reply almost CRP 1024/2007 -:6:- refuting every point. So, one cannot find fault with the plaintiff or defendants 2 to 6 for non-depositing the amount within the stipulated period. They were forced to come to the court in the form of an execution petition and thereafter I am informed as per the order of the court that they had deposited the amount within the date stipulated by the Sub Judge. 6. Therefore, I feel this is a fit case where it has to be held that the discretionary jurisdiction has to be exercised judiciously in favour of the plaintiff and defendants 2 to 6 to extend the time for making payment and on that technical ground of non-depositing the amount within the time the right accrued to them shall not be thrown out. As discussed earlier, it is seen that in the two decisions referred to by me above, both parties were on the executing side only and therefore such an extension is possible by the executing court also which is in control of the matter. Therefore, I do not find any ground to interfere with the decision rendered by the learned Sub Judge and his direction to deposit Rs.14 lakhs and to get delivery of the property on deposit is confirmed. At the same time, it has to be stated that though the compromise is entered into as early as in 2003, the decree is passed only in 2005 and the amount is deposited only in November, 2007. Even if the date where the final decree is taken as the crucial date the plaintiff and defendants 2 to 6 could have deposited the amount at least on CRP 1024/2007 -:7:- or after 15.12.2005. Therefore, I find that the doctrine of justice, equity and good conscience make the court to direct the plaintiff and defendants 2 to 6 to pay simple interest at the rate of 6% on the amount of Rs.14 lakhs from 15.12.2005 till the date of deposit made by them. They are directed to deposit that amount also within six weeks from today and on deposit the first defendant is directed to hand over the key and possession to the plaintiff and defendants 2 to 6 or as authorized by them and in the event of not handing over the same voluntarily, the plaintiff and defendants 2 to 6 can request the court to deliver the property to them through Amin. C.R.P is disposed of as above. ## **M.N.KRISHNAN, JUDGE** ## **Cdp/-**