IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT :
THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN
TUESDAY, THE 16TH MARCH 2010 / 25TH PHALGUNA 1931
WP(C).No. 20091 of 2007(P)
-------------------------AGAINST THE ORDER DATED IN EP. 48/2005 IN OS.158/1996 of SUB COURT, PALA
....................
PETITIONER(S):
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RAVEENDRAN S/O.KESAVAN, KURUPPUTHIYIL, THEKKEMADATHIL, VADAKKEMURIKARA, VADAKKEMURI VILLAGE, VAIKOM.
BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA)
RESPONDENT(S):
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1. PAVITHRAN S/O.KESAVAN, RESIDING AT PAZHAYATHARAYIL, THEKKEDAM PURAYIDATHIL, PEEDIKAMALAYIL, VADAKKEMURI KARA, VADAKKEMURI VILLAGE, VAIKOM TALUK.
2. OMANA, W/O PAVITHRAN, RESIDING AT PAZHAYATHARAYIL, THEKKEDAM PURAYIDATHIL, PEEDIKAMALAYIL, VADAKKEMURI KARA, VADAKKEMURI VILLAGE, VAIKOM TALUK.
ADV. SRI.T.A.UNNIKRISHNAN FOR R1 SRI.P.P.BIJU FOR R1
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
## W.P.(C) No.20091/07
## APPENDIX
## PETITIONER'S EXHIBITS:
|1.|EXHIBIT P1|:|True copy of the gift deed no.192/1988.|
|---|---|---|---|
|2.|EXHIBIT P2|:|True copy of the compromise terms.|
|3.|EXHIBIT P3|:|True copy of the decree dated 16.01.1999 of Sub|
||||Court, Pala.|
|4.|EXHIBIT P4|:|True copy of the partition suit O.S No.84/2001 before|
||||the Sub Court, Kottayam.|
|5.|EXHIBIT P5|:|True copy of the joint written statement filed by|
||||defendants 1 and 3 to 12.|
|6.|EXHIBIT P6|:|True copy of the written statement of petitioner|
||||in O.S No.84/2001.|
|7.|EXHIBIT P7|:|True copy of the execution petition No.48/2005|
||||in O.S No.158/1996 of Sub Court, Pala.|
|8.|EXHIBIT P8|:|True copy of the objection filed by the petitioner.|
|9.|EXHIBIT P9|:|True copy of the order dated 2.2.2006.|
|10.|EXHIBIT P10|:|True copy of the judgment in W.P.(C) No.10988/2006.|
|11.|EXHIBIT P11|:|True copy of the order dated 31.5.2007.|
## RESPONDENT'S EXHIBITS: NIL
//True copy//
P.A TO JUDGE
## S.S.SATHEESACHANDRAN, J
------------------------------------W.P.(C) No.20091 OF 2007 -------------------------------Dated this the 16[th] day of March 2010
## JUDGMENT
The executability of a compromise decree was challenged contending that the decree is inexecutable in view of the terms and conditions incorporated under that decree. The execution court after hearing both sides negatived the challenge and directed the execution of the decree as indicated under the order. Ext.P11 is the copy of that order. Propriety and correctness of that order is challenged in the writ petition invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India.
2. Writ petitioner along with his father as a coplaintiff filed a suit as O.S No. 158 of 1996 before the Sub Court, Pala claiming his exclusive title and possession over 80 cents of property scheduled in the plaint, on the basis of the gift deed executed by the father in his favour. The defendants in the suit were his brothers and sisters, and also the wife of one of his brother, the respondent. The respondents herein were the 1[st] and 2[nd] defendants in that suit and the 2[nd] defendant is the wife of the 1[st] defendant. During the course of the trial, a compromise was entered between the plaintiffs and 1[st] and 2[nd] defendants, on
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which the other defendants were removed from the party array in the suit. A compromise decree was passed on the terms agreed upon by the plaintiffs and the 1[st] and 2[nd] defendants, the respondents herein, by which 40 cents out of plaint item No.1 was agreed to be conveyed to the 1[st] defendant on his conveying 5 cents out of his share in the adjoining property in favour of the 1[st] plaintiff. The 80 cents of property over which one half was agreed to be conveyed to the 1[st] defendant formed part of 1 acre 30 cents of land. In the 56 cents, excluding 80 cents in the above property, adjacent to the 40 cents of the plaintiff, close to the share of the plaintiff, 11 cents, the defendant from his share, that too of 11 cents, shall convey 5 cents of property by sale deed, as adjacent to the share of the plaintiff was another term of the compromise. On such terms, the compromise was settled, which was accepted and a decree passed accordingly by the court. The 1[st] defendant had later moved for execution imputing default on the part of the writ petitioner, the 2[nd] plaintiff. The 1[st] plaintiff, father, had meanwhile passed away. The respondent in the execution petition, the writ petitioner (2[nd] plaintiff in the previous suit) resisted the execution contending that without giving effect to the terms of the compromise in full, it cannot be executed. It was canvassed that the petitioner in the execution petition (1[st]
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respondent) has already filed a suit for partition in which one among the defendants, one of the sisters of the parties, has raised a contention that she has exclusive title over the 56 cents of property in respect of which the 1[st] respondent promised to convey 5 cents of property in favour of the writ petitioner. Since the terms of the promise as covered by the decree atleast with respect to allotting of the 5 cents of property in the 56 cents from the share of the 1[st] respondent as agreed to could not be given effect to, the plaintiff cannot be compelled to execute a conveyance deed in respect of the 40 cents of property under the decree was the case canvassed by the writ petitioner. The learned Sub Judge after appreciating the materials produced negatived that objection passed the impugned order directing the writ petitioner to execute a sale deed in respect of the 40 cents of property in favour of the 1[st] respondent as stipulated under the compromise decree. The 1[st] respondent was also directed to execute a sale deed in respect of the 5 cents of property out of his share in the 56 cents of property as agreed under the compromise decree. Correctness of that order is assailed in the revision.
3. I heard the counsel on both sides. The learned counsel for the writ petitioner reiterating the objections raised
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before the learned Sub Judge that the decree is inexecutable for the reason that the 1[st] respondent is incapable of conveying the 5 cents of property out of his share of 11 cents in the 56 cents as agreed to in the compromise decree contended that the compromise decree which contemplate reciprocal obligations and conditional performance by the parties cannot be given effect to where its performance is not possible, and the court below went wrong in passing the impugned order. The learned counsel relied on **“Chen Shen Ling v Nand Kishore Jhajharia” (AIR 1972 SCC 726)** to contend that where the compromise decree imposed mutual obligation on both the decree holder and the judgment debtor in such a way that the performance by one was conditional on the performance by the other it cannot be executed by directing one of the parties to perform his part alone. Perusing the impugned Ext.P11 order with reference to the submissions made by the counsel on both sides, I find the decision has no applicability in the facts and circumstances of the case. That was a case where the judgment debtor agreed to pay certain sum immediately on the passing of the decree and the rest in instalments. There was a reciprocal obligation on the part of the decree holder to return the goods to the judgment debtor on payment of the first instalment. The question that arose for
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consideration was whether the payment made by the judgment debtor immediately on passing of the decree, which he had complied with, has to be treated as the first instalment, or any subsequent payment to be made later as instalment towards the balance sum which was agreed to be paid in instalments. The decree holder contended that the conditional obligation arose only on payment by the first instalment and not on payment immediately on passing of the decree. That objection to the executability of the decree was negatived in that case and in that context the observations canvassed by the learned counsel was expressed by the apex court. At any rate as already stated, that decision and the principles laid down thereunder have no application or parallel to the present case. The defence canvassed by the writ petitioner against the executability of the decree is built upon the case that there was an agreement under the compromise decree by which the defendant had agreed to convey 5 cents of property adjacent to the 11 cents of property, the share of the writ petitioner, in the 56 cents of property adjoining to the 80 cents of the property which was agreed to be divided between the the parties under the compromise. Parties when entered in such a compromise knew perfectly well that the remaining 56 cents excluding 80 cents was undivided, and as
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coowners, each and everyone, till division, has right over the whole property. A division could be effected as indicated and given expression to in the compromise deed in respect of that property, perhaps, was the consensus arrived by the writ petitioner and the 1[st] respondent. But it has to be noted that such a compromise was entered removing all the other defendants in the suit who too, it appears, have right over the said property. Whether they have any such right or not is not question to be resolved in the present proceedings. Five cents of property cannot be conveyed by the respondent as indicated under the compromise decree will no way assist the plaintiff to wriggle out of the compromise decree where it is seen that the terms of the compromise were settled when the 56 cents of property remained undivided and the 1[st] respondent enjoyed only an undivided share over that property. When that be the position, the direction given by the court below that on execution of the sale deed for 40 cents of the property by the writ petitioner, the defendant too has to execute on the same day a sale deed for 5 cents of property out of his share in the 56 cents of property adjoining that 80 cents is proper, valid and correct. Whether it be a compromise decree, or one passed on merits, the execution court is duty bound to execute such decree. The execution of a decree should not be
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made futile on mere technicalities or objections canvassed unless the decree is shown to be incapable of being executed under any provision of law. A rational approach has to be followed by the court keeping in view the prolonged factum of litigation resulting in passing of the decree in favour of the litigant. As a general rule the execution court should not find ways to dismiss the execution application but as far as possible make every endeavour to see the decree of the court is executed. In the present case the conclusion formed by the court below after analysing the decree, and also considering the objections canvassed, that the decree is executable and the directions issued that the compromise decree, has to be given effect to deserve only to be approved. I do so. Writ petition is dismissed.
Sd/-
S.S.SATHEESACHANDRAN JUDGE
//TRUE COPY//
vdv
P.A TO JUDGE
