Pritam Dass and others vs Chairman, Muslim Auqaf, Jammu

A suit between the parties was pending some time back which was ultimately compromised in the High Court, and the High Court passed a decree

in terms of the compromise arrived at between the parties. This compromise decree was passed on 16.8.1971 and amended subsequently on the

application of one of the parties, on 28th of April, 1972.

On 2.8.1982 the present appellants filed a suit against the respondent, by which they sought a mandatory injunction against the

defendantrespondent to the effect that he should complete the construction of the shops in terms of the compromise laid down in the decree passed

by the High Court on 16.8.1971 and 28.4.1972 and handover the possession of the shop in accordance with the compromise arrived at by him

with the appellantsplaintiff. The case of the plaintiffsappellants was that by virtue of the compromise arrived at by the parties, the

defendantrespondent had to handover a shop to the plaintiff after the reconstruction of the khokha which was in possession of the plaintiff, and

who had handed it over to the defendant. The appellants submit that after handing over the khokha in accordance with the terms of the agreement,

the shop was constructed but it was not partitioned in accordance with the compromise and possession was not handed over to the plaintiff.

The suit was resisted by the defendant/respondent, and the main objection taken was that in view of Section 47 of the CPC the suit was not

maintainable. Since, this is a second appeal, this Court is not going to deal with all the issues. Mr. Khajuria appearing for the appellants submits

that the compromise arrived at between the parties in the High Court was in fact a fresh agreement between the parties, and his clients had a right

to move the Court for its execution, whereas counsel for the respondent submitted that the compromise had merged into the decree of the High

Court and no suit would lie for execution of the decree in view of bar created under Section 47 of the CPC. Both the Courts below have agreed

with the contention of defendantrespondent. It will be profitable to reproduce Section 47 of the CPC, as under:

Questions to be determined by the Court executing decree (1) All questions arising between the parties to the suit in which the decree was

passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing

decree and not by a separate suit.

From a persual of Section 47 CPC it becomes crystal clear that once the issues have been settled by the Court in terms of a decree, the only

course open for the parties is to go for the execution of the decree, and a separate suit is barred. Even if it is accepted that the terms of

compromise arrived at between the parties created fresh rights and obligations in the parties, still it remains a fact that the compromise had become

a decree of the High Court. Since the appellants have not chosen to come to the High Court for execution of the decree, the suit was clearly

barred. Section 47 of CPC does not make a distinction between a decree passed on a compromise and a decree passed after contest. It clearly

lays down that all questions arising between the parties in a suit which has been decreed, have to be taken up in execution, and no suit would lie

against the same.

For these reasons, I do not find any merit in this appeal, which is accordingly, dismissed.