CHICAGO BUILDERS AND REAL ESTATES (P) LTD. REP. BY ITS MANAGING DIRECTOR, C. NAJEEB v. M.K.ALIKOYA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **WEDNESDAY, THE 2[ND] DAY OF MARCH 2022 / 11TH PHALGUNA, 1943 CRP NO. 659 OF 2019** **AGAINST THE ORDER/JUDGMENT IN OS 285/2011 OF PRINCIPAL MUNSIFF COURT, ERNAKULAM** ## **REVISION PETITIONER/S:** 1 CHICAGO BUILDERS AND REAL ESTATES (P) LTD. REP. BY ITS MANAGING DIRECTOR, C. NAJEEB, AGED 54 YEARS, S/O. K. K. MOIDU, RESIDING AT THAMANNA, S.R.M.ROAD, KOCHI - 682018 AND HAVING ITS REGISTERED OFFICE AT CHICAGO PLAZA, RAJAJI ROAD, ERNAKULAM, KOCHI - 682035. 2 C. NAJEEB AGED 54 YEARS AGED 54 YEARS, S/O. K. K. MOIDU, RESIDING AT THAMANNA, S.R.M.ROAD, KOCHI - 682018 BY ADV VARGHESE C.KURIAKOSE ## **RESPONDENT/S:** M.K.ALIKOYA AGED 65 YEARS BUSINESS, S/O. KOYOTTY, ARFANA S.S. ROAD, THALASSERY, PIN - 670104, REP. BY HIS POWER OF ATTORNEY HOLDER, MR. KRISHNA VARMA RAJA. BY ADVS. SRI.BASIL MATHEW SRI.NINAN JOHN SMT.SANJANA SARA VARGHESE ANNIE **THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 27.10.2021, THE COURT ON 02.03.2022 DELIVERED THE FOLLOWING:** CRP No.659 of 2019 -2- ## **ORDER** Dated this the 02[nd] day of March, 2022 The revision petitioners are the judgment debtors in E.P.No.169 of 2013 on the files of the Principal Munsiff's Court, Ernakulam. The execution petition is filed by the respondent, seeking to enforce the compromise decree in the suit (O.S.No.285 of 2011) filed by him. The terms of mediation incorporated in the decree sought to be executed are as under; “(i) The defendant agrees to join the association of owners of Chicago plaza builders and pay the maintenance for date of formation. (ii) The defendant agrees to allot the lobby to the owners association with a condition that a staff will be placed in the counter till 6 p.m and subsequently the tenants/owners conducting business after 6 p.m will provide the staff in the counter. CRP No.659 of 2019 -3- (iii) Accounts from date of completion till formation of association and all amounts spent subsequently till date, will be given by the defendant and the same will be settled between both parties within 6 months. (iv) All accounts between the parties will be discussed and settle within 6 months. (v) All the defects in the building including the lift and basement will be rectified and both the plaintiff and defendant will cooperate.” 2. Alleging non-compliance of the decree, the execution petition is filed seeking the following reliefs; “(i) Issue notice to judgment debtor under Order 21 Rule 32 requiring them to showing cause as to why punitive measures should not be adopted against them for willfully violating the decree. (ii) Thereafter if no sufficient explanation is offered by judgment debtors, then they may be CRP No.659 of 2019 -4- detained in civil prison for willfully violating the decree. (iii) Grant such other relief as may be prayed for by the decree holder and which the Hon'ble court deems fit and proper during the course of trial of the above execution petition.” 3. In the execution petition, the revision petitioner moved an application (E.A.No.520 of 2017), requiring the court to hear the question of maintainability as a preliminary point. The maintainability question was raised primarily on the ground that the decree was not executable. It was contended that Clause 1 of the decree require the petitioner to join the Association of Owners of Chicago Plaza Builders and to pay maintenance from the date of its formation. Clauses 3 and 4 envisage settlement of accounts between the parties within six months. In the execution proceedings itself, the parties have raised rival claims. The judgment debtor contends CRP No.659 of 2019 -5- that an amount of Rs.36,57,500/- is due from the decree holder. On the other hand, the decree holder is contending that the judgment debtors have to pay an amount of Rs.17,97,920/- to the Owners Association. The rival contentions call for an adjudication with respect to the liabilities of the parties, which is beyond the scope of the execution proceedings. The other ground of challenge in that going by the terms of the decree, an execution petition under Order XXI Rule 32 is not maintainable since, what is sought to be enforced is not a decree for injunction specific performance. 4. By the impugned order, the learned Munsiff dismissed the application holding that, the parties being bound by the compromise decree, the execution court cannot compel them to go for a separate process of adjudication. Reliance was placed on Section 47 of CPC and Rule 285 of the Civil Rules of Practice to find that all CRP No.659 of 2019 -6- questions arising between the parties to the decree can be determined by the executing court. 4. Adv.Varghese C.Kuriakose, learned Counsel for the revision petitioners, assailed the impugned order by contending that the decree in question does not conclusively determine the rights of the parties with regard to the matters in controversy in the suit and cannot therefore be termed as a 'decree' falling under Section 2(2) of CPC. It is contended that, execution of the compromise decree calls for settlement of accounts for which a separate preliminary decree has to be passed as stipulated in Order 20 Rule 16. Further, the executing court is bound to execute the decree as it stands, without adding anything to it. As against this settled position, even after entering a finding that it is essential to figure out the exact amount due to the judgment debtor before initiating punitive measures, the learned Munsiff went on to hold CRP No.659 of 2019 -7- that such adjudication can be done in the execution proceedings itself. According to the learned Counsel, the executing court committed gross illegality in relying on Section 47 for dismissing the application. Reliance is placed on the following decisions to contend that the executing court cannot go beyond the decree; _**Deepa Bhargava and another v. Mahesh Bhargava and others [(2009) 2 SCC 294]** and_ _**Rameshwar Dass Gupta v. State of U.P. And another [(1996) 5 SCC 728]**_ 5. Adv.Basil Mathew, learned Counsel for the respondent, submitted that, after having entered into a compromise decree, the attempt of the judgment debtors all throughout has been to wriggle out of the decree. Not only did they fail to act in terms of the decree, but deliberately remained ex-parte before the execution court so as to protract the proceedings. The decree holder CRP No.659 of 2019 -8- had filed a statement in the execution court showing the amount due. Having failed to file objections to that statement, the judgment debtors cannot contend that the liability can be quantified only after adjudication. Reliance is placed on the decision of the Apex Court in ## _**Brakewal Automotive Components (India) Private**_ _**Limited v P.R.Selvam Alagappan [AIR 2017 SC 1577]**_ to contend that a decree would become inexecutable only when it is passed by a court lacking inherent jurisdiction or is a nullity and is rendered as _non est_ and thus inexecutable. 6. In the instant case, the parties arrived at a compromise to bring their adversarial claims to rest and to put an end to the litigative battle. Order 22 Rule 3 provides for passing of a decree in terms of the compromise, if it is proved to the satisfaction of the court that a suit has been adjusted wholly or in part by the CRP No.659 of 2019 -9- compromise. The question therefore is whether, after having caused the court to pass a compromise decree, the judgment debtors can contend that decree is not executable. In this regard, it may be pertinent to note that the revision petitioners have not preferred appeal against the decree. Instead they have chosen to challenge the maintainability of the decree in the execution proceedings. In such circumstances, the executing court was fully justified in resorting to Section 47 of CPC, since all question arising between the parties to the suit in which the decree was passed, relating to the 'execution', 'discharge' or 'satisfaction' of decree have to be determined by the court executing the decree and not by a separate suit. The words 'execution, discharge or satisfaction' in Section 47 defines the limits of the scope of enquiry to be made. CRP No.659 of 2019 -10- 7. In _**Jai Narain Ram Lundia v Kedar Nath**_ _**Khetan [AIR 1956 SC 359]**_ , the jurisdiction of the executing court to decide whether the defendant is in a position to perform his part of the decree had arisen for consideration. The question was answered as under; _“23.The only question that remains is whether the executing court can consider whether the defendant is in a position to perform his part of the decree. But of course it can. If the executing court cannot consider this question who can? The executing court has to see that the defendant gives the plaintiff the very thing that the decree directs and not something else, so if there is any dispute about its identity or substance nobody but the court executing the decree can determine it. It is a matter distinctly relating to the execution, discharge and satisfaction of the decree and so under Section 47 of the Civil Procedure Code, it can only be determined by the court executing the decree. And as for the first court's conclusion that it could not decide these matters because it was not the court that passed the decree, it is enough to say, as the High Court did, that Section 42 of the Code expressly gives the court executing a decree sent to it the same powers in executing such decree as if it had been passed by itself.”_ CRP No.659 of 2019 -11- 8. The learned Munsiff has rightly referred to Rule 285 of the Civil Rules of Practice, since the provision indicates that all questions falling within Section 47 of the Code shall be heard and determined after recording all evidence, oral and documentary, in the same manner as in a suit. Therefore, it is well within the power of the executing court to decide the rival contentions with respect to the payments to be made in terms of the decree. For that, no separate suit or a preliminary decree as contemplated under Order 20 Rule 16, is warranted. The contention that the execution petition seeking remedy under Order 21 Rule 32 is not maintainable, since the decree is not for specific performance, cannot also be countenanced. The suit, though one for permanent prohibitory injunction, was settled and a compromise decree passed at the instance of the parties. In such circumstances, the contention CRP No.659 of 2019 -12- based on Order 21 Rule 32 can only be perceived as hyper-technical. As held in _**Brakewal**_ _**Automotive Components (India) Private Limited** ,_ a decree of a court of law being sacrosanct in nature, the execution thereof ought not to be thwarted on mere asking and on untenable and purported grounds having no bearing on the validity or the executability thereof. For the aforementioned reasons, the civil revision petition is dismissed. Sd/- ## **V.G.ARUN** ## **JUDGE** Scl/