Rameshwar Prasad Juyal vs Dulari Devi

Lok Pal Singh, J

Present writ petition, under Article 227 of the Constitution of India, arises out of the judgment and order dated 09.07.2018 passed by Civil Judge (Sr. Div.) Pauri Garhwal in Civil Execution No. 04 of 2016 Rameshwar Prasad Juyal vs. Smt. Dulari Devi and judgment and order dated 27.11.2018 passed by District Judge Pauri Garhwal in Civil Revision No. 17 of 2018 Rameshwar Prasad Juyal vs. Smt. Dulari Devi.

Brief facts, leading to the present case are that petitioner filed Original Suit No. 24 of 2009, Rameshwar Prasad Juyal vs. Smt. Dulari Devi, seeking relief of demolition, possession and prohibitory injunction against the respondent defendant with the averments that 1 Nali land, bearing plot no. 3764, 3765, 3766 and 3768 was purchased by the wife of the petitioner/plaintiff in the years 1985 in which house is constructed and there is a an orchid. Thereafter, petitioner/plaintiff has purchased another 8 muthi land from the Omkar Singh (seller), situated at Pauri Kotdwar Motor Road and further purchased 5 Muthi Land in khasra no. 3764. Again, petitioner/plaintiff purchased 13 Muthi land in Khasra No. 3763 in the year 2002 mentioned at the bottom of the plaint, property in dispute has been shown as east side-house of respondent defendant, west side- house of Surendra Singh Rawat and land of Darshan Singh, north side- land and house of plaintiff/ petitioner and south side- Pauri Kotdwar Motor Road. Respondent contested the suit by filing her written statement. During the pendency of the suit, parties arrived to a compromise and suit was disposed of in terms of compromise. Terms of compromise between the parties are extracted hereunder:-

"आज दिनांक 23/8/2012 को मध्यस्थगणों के साथ दोनों पक्षकार व उनके अधिवक्ता गणों के समक्ष इस समझोता केन्द्र में श्री आर0 पी0 पोखरियाल एडवोकेट व श्री के पी नेनवाल एडवोकेट के द्वारा मध्यस्थता करने के उपरान्त निम्नवत समझोता हुआ है।

1 कि विवादित खेत नम्वरान 3763 व 3764 जो कि प्रतिवादी व वादी के मध्य विवादित है कि समब्नध में यह तय हुआ कि वादी के मौके जो आर0 सी0 पिल्लर 3764 में बनें है, के दक्षिण पूर्वी पिल्लर (प्रथम ) से 1 मी0 भू0 भाग छोड़कर जो दक्षिण पश्चिम की ओर कोटद्वार रोड के सामान्तर करेगी तथा जिसकी लम्बाई प्रतिवादी की बॉउर्न्डी से 6/1/2 मी0 उत्तर पश्चिम की तरफ होगी। जिस पर वादी का कोई आपत्ति नहीं है। तथा प्रतिवादी को खेत न0 3764 व 3763 के शेष भू0 भाग पर जो कि 7/1/2 मी0 लम्बा व सड़क तक चौड़ाई के भाग पर निर्माण करने पर प्रतिवादी व उसके कारिन्दों को कोई आपत्ति नही होगी। यह सुलह नामा पक्षकारों की सहमती व उनके अधिवक्ताओं के द्वारा उनके हस्ताक्ष्रों को सत्यापित कर प्रस्तुत किया जाता है।

अतः मध्यस्थता/सुलह नामा प्रस्तुत है।"

Respondent was not satisfied by the compromise, thus, she instituted a miscellaneous case no. 3 of 2012 titled Smt. Dulari Devi vs. Rameshwar Prasad Juyal seeking cancellation/declaration of compromise decree as null and void. The trial court having considered the material available before it and also having considered the fact that compromise took place between the parties before the Lok Adalat, the same is binding upon the parties and dismissed the case filed by the respondent by its judgment and order dated 06.10.2015. The compromise decree dated 23.08.2012 has attained finality.

Petitioner/decree holder instituted execution case no. 4 of 2016 stating therein that the suit filed by the respondent for setting aside the compromise decree dated 23.08.2012 has been dismissed by the court vide its judgment and decree dated 06.10.2015. The judgment debtor has not complied with the compromise decree and has not laid the boundary wall thus judgment debtor be compelled to complied with the decree on her cost so the compromise decree passed in the favour of the petitoiner be satisfied.

Respondent filed an objection under section 47 CPC stating therein that the suit for demolition and possession was filed in regard to the land mentioned in the plaint. Though, compromise took place between the parties but this compromise did not disclose the correct position of the location of the property mentioned in the compromise decree which is to be executed, therefore, being the compromise decree vague in its nature, the same is not executable. Besides other grounds taken in the objection this was the main ground. The Execution Court heard the counsel for the parties, and, after having considered the nature of compromise decree found that the compromise decree is ambiguous and uncertain as the spot map is not annexed with the compromise so enable the court to execute the decree in its terms. Thus, the Execution Court has decided to verify the location of the property in dispute as well as the property mentioned in the compromise so the compromise decree may be executed. The Execution Court to ascertain the location, appointed Sri Pradeep Kumar Bhatt, Advocate Commissioner who after spot inspection to submit the report, so the court may determine the issue involved before the court as the compromise decree is vague and ambiguous. Mr. Pradeep Kumar Bhatt, Advocate Commissioner has submitted the report on 12.10.2017 stating therein that the compromise decree is ambiguous and the determination and directions could not ascertain, therefore, it is not feasible to find out the position of the land to execute the compromise decree.

The petitioner raised objection to the report of the Advocate Commissioner, that Advocate Commissioner has not submitted the correct report, therefore, any other mode be adopted by the court so the ambiguity in the compromise decree be sort out and decree be executed. The Execution Court to find out the solution directed SDM Pauri to submit a report, having considered the averments of the compromise, after inspection of the spot. The S.D.M. appointed Tehsildar Pauri to inspect the spot in the light of the compromise decree dated 23.08.2012 and submit its report in this regard to the Execution Court. Tehsildar with the help of Revenue Inspector, Pauri and Revenue Inspector Nadalsyun, Tehsildar Pauri submitted its report on 04.05.2018. It is mentioned in the report that from the language of the compromise, exact meaning of compromise decree could not be ascertained. The decree holder was not convinced with the report and filed its detailed objection that the Tehsildar has not submitted the report as per the spot inspection.

Execution Court having considered the compromise decree dated 23.08.2012 as well as the fact that both the parties have admitted the fact that house of judgment debtor is exists on plot but it is not clear from the compromise decree from which boundary 6 and ½ mtr., length is to be measured, and, since boundaries and dimension are not clear, it is not possible to find out the actual measurement of land plot no. 3764 and 3763. Execution Court has tried its level best to find out the correct meaning of the compromise, so the compromise decree may be executed in its term. Since, no map was annexed with the compromise and its decree, and the compromise decree is vague and the Advocate Commissioner as well as Tehsildar could not explain the correct meaning of compromise despite the spot inspection. Execution Court having considered the plaint, written statement, compromise decree report of Advocate Commissioner, and report submitted by the Tehsildar Pauri has held that the compromise decree, being vague is not executable and dismissed the execution case.

Feeling aggrieved, petitioner preferred civil revision no. 17 of 2018 before the District Judge. The revisional court after considering the facts and circumstances of the case, and also terms of the compromise decree, report of the commissioner as well as report of the Tehsildar Pauri (paper no. 41C) recorded its finding that the compromise decree is vague and in non-executable and dismissed the revision.

Heard Mr. Rajendra Dobhal, Senior Advocate assisted by Mr. Ranjan Ghildiyal, Advocate for the petitioner and Mr. Rakesh Thapliyal, Advocate with Mr. Pankaj Chaturvedi and Mr. Anil Bisht, Advocates for the respondent.

Mr. Rajendra Dobhal, Senior Advocate appearing for the petitioner urged that both the courts below tried to find out that in which manner the compromise decree be executed. He would submit that it was the bounden duty of the execution court to make all efforts so the compromise decree may be executed. He would further submit that the compromise decree is not waste paper; it should be implemented in its term. He would submit that since, compromise decree dated 23.08.2012 has attained finality and miscellaneous case no. 3 of 2012 has been dismissed by the Civil Judge (Sr. Div.), therefore, decree is executable and same should not be thrown away without its execution. Learned counsel for the petitioner, in support of his submission, placed reliance upon the judgment of Hon'ble Apex Court in the case of Banwari Lal vs. Chando Devi (1993) 1 SCC 581 and emphasized upon para no. 9. Para 9 of the judgment is extracted hereunder:-

"9. Section 96(3) of the Code says that no appeal shall lie from a decree passed by the Court with the consent of the parties. Rule 1A(2) has been introduced saying that against a decree passed in a suit after recording a compromise, it shall be open to the appellant to contest the decree on the ground that the compromise should not have been recorded. When Section 96(3) bars an appeal against decree passed with the consent of parties, it implies that such decree is valid and binding on the parties unless set aside by the procedure prescribed or available to the parties. One such remedy available was by filing the appeal under Order 43, Rule 1(m). If the order recording the compromise was set aside, there was no necessity or occasion to file an appeal against the decree. Similarly a suit used to be filed for setting aside such decree on the ground that the decree is based on an invalid and illegal compromise not binding on the plaintiff of the second suit. But after the amendments which have been introduced, neither an appeal against the order recording the compromise nor remedy by way of filing a suit is available in cases covered by Rule 3A of Order 23. As such a right has been given under Rule 1A(2) of Order 43 to a party, who challenges the recording of the compromise, to question the validity thereof while preferring an appeal against the decree. Section 96(3) of the Code shall not be a bar to such an appeal because Section 96(3) is applicable to cases where the factum of compromise or agreement is not in dispute."

There is no dispute that the compromise decree dated 23.08.2012 has attained finality and it should be executed and should not be thrown away. The ratio of the judgment (supra) is not applicable in the present case as the same is not the issue before this Court. The core issue before this Court is as to whether the compromise decree dated 23.08.2012, which has attained finality between the parties is executable?

Learned senior counsel for the petitioner to buttress his submission would submit that compromise decree, so passed, though may be vague in its term but execution court should have made efforts to find out the possible view of its execution by collecting evidence and taking into consideration the plaint averments, documents filed by the parties. He would further submit that compromise decree should not be thrown away on account of the fact that it is non-executable. To buttress his arguments he placed reliance upon the judgment of Hon'ble Apex Court in the case of Bhavan Vaja and ors. vs. Solanki Hanuji Khodaji (1973) 2SCC 40 and emphasized on para no.20. Para 20 of the judgment is extracted hereunder:-

It is true that an executing court cannot go behind the decree under execution. But that does not mean that it has no duty to find out the true effect of that decree. For construing a decree it can and in appropriate cases, it ought to take into consideration the pleadings as well as the proceedings leading up to the decree. In order to find out the meaning of the words employed in a decree the court, often has to ascertain the circumstances under which those words came to be used. That is the plain duty of the execution court and if that court fails to discharge that duty it has plainly failed to exercise the jurisdiction vested in it. Evidently the execution court in this case thought that its jurisdiction began & ended with merely looking at the decree as it was finally drafted. Despite the fact that the pleadings as well as the earlier judgments rendered by the Board as well as by the appellate court had been placed before it, the execution court does not appear to have considered those documents. If one reads the order of that court, it is clear that it failed to construe the decree though it purported to have construed the decree. In its order there is no reference to the documents to which we have made reference earlier. It appears to have been unduly influenced by the words of the decree under execution. The appellate court fell into the same error. When the matter was taken up in revision to the High Court, the High Court declined to go into the question of the construction of the decree on the ground that a wrong construction of a decree merely raises a question of law and it involves no question of jurisdiction to bring the case within Section 115, Civil Procedure Code. As seen earlier in this case the executing court and the appellate court had not construed the decree at all. They had not even referred to the relevant documents. They had merely gone by the words used in the decree under execution. It is clear that they had failed to construe the decree. Their omission to construe the decree is really an omission to exercise the jurisdiction vested in them.

On the other hand, Mr. Rakesh Thapliyal, Advocate appearing on behalf of the respondent would submit that compromise decree is vague in its term and the Execution Court has made all efforts to find out the possible view of its execution by collecting evidence , taking into consideration the plaint averments, documents filed by the parties, report of the Advocate Commissioner and also report of the Tehsildar Pauri. The revisional court has categorically considered the fact that despite the efforts made by the execution court, report filed by the Tehsildar could not help the execution court. In support of his contention, learned counsel for the respondent placed reliance upon the judgment of Calcutta High Court in the case of Saraswat Trading Agency vs. Union of India and others decided on 04.03.2004 and also on the judgment of Kerala High Court in the case of Kunju Kunju Chandran vs. Velouthakunju Raghvan and anr. decided on 06.06.2005.

The ratio of the judgment cited by the learned counsel for the respondent are not applicable in the present case, as the judgments (supra) are in regard to a decree found to be nullity.

The ratio of the judgments cited by the counsel for the petitioner (supra) is that it is the duty, caste upon the Execution Court to make all efforts so the decree, if it is vague for any reasons, may be executed and it may not be thrown as a waste paper.

Having considered the ratio of the judgments (supra) I am of the considered view that the Execution Court after considering the plaint averments, documents produced by the parties, compromise decree, report of Advocate Commissioner and report of the Tehsildar has arrived to the conclusion that the compromise decree is vague and no meaning could be gathered from the compromise decree, so after taking any meaning of it the decree cannot be executed. Secondly, feeling handicapped to execute the compromise decree, the Execution Court dismissed the execution case by its judgment and order dated 09.07.2018. The revisional court also recorded the categorical findings in this regard. Execution Court has tried its level best to execute the compromise decree but could not succeed in its efforts. Thus, I do not find fault in exercising jurisdiction by the execution court as well as the revisional court.

It is settled position in law that if decree is nullity cannot be executed, being any of the reason, but when the compromise decree is passed, the court has to execute the decree.

It is apt to note that suit for seeking decree of demolition, possession and prohibitory injunction was filed by the respondent against the petitioner. From the perusal of the compromise decree it transpires that neither the judgment debtor agreed to handover the possession after demolition of the construction nor it was agreed between the parties that judgment debtor shall hand over the possession to the decree holder. What has been decided by the parties by way of compromise is that respondent defendant shall raise the construction parallel to the Kotdwar Road, keep distance of 6.5 mtr. towards north and the plaintiff would not raise any objection. Similarly, construction raised by the decree holder plaintiff in view of the compromise, the defendant shall not raise any objection.

A perusal of the prayer made in the execution application transpires that the prayer has been made, seeking direction to the defendant to raise boundary wall. There is nothing in the compromise decree that the respondent shall raise the boundary wall. Thus, the execution application has been filed beyond the terms of the compromise decree. This issue was not raised by the respondent in her objection that the relief claimed in execution application is not tenable as there is no compromise decree against the judgment debtor that she will raise the wall. However, Execution Court made all efforts to decide the execution case. Both the courts below, after considering the plaint averments, documents filed by the parties, report of the Advocate Commissioner and report of the Tehsildar have recorded concurrent finding of fact that the decree cannot be executed and same is non-executable.

The Hon'ble Apex Court in the case of Radhey Shyam vs Chhabi Nath (2015) 5 SCC 423, has held that the jurisdiction of this Court under Article 227 of the Constitution of India is neither appellate nor revisional. The plenaly jurisdiction of this Court under this Article can be invoked in three contingencies firstly the subordinate courts failed to exercise the jurisdiction vested in it; secondly the subordinate court has exercise the jurisdiction not vested in it and; thirdly the subordinate court exercise the jurisdiction with irregularity, illegality which has occasion to failure of justice with party aggrieved.

Beside the fact that both the courts below, having considered the entire material available on record have recorded the concurrent finding of the fact that compromise decree being vague is not executable. This Court is of the view that the relief has been claimed in the execution application that the judgment debtor be directed to raise the construction of boundary wall, but there is no such compromise decree in this regard. Thus, the execution application, otherwise not tenable.

None of the ingredients in exercising plenaly jurisdiction make out in the present case. The Hon'ble Apex Court in the case of Radhey Shyam has held as follows:-

"31. Under Article 227 of the Constitution, the High Court does not issue a writ of certiorari. Article 227 of the Constitution vests the High Courts with a power of superintendence which is to be very sparingly exercised to keep tribunals and Courts within the bounds of their authority. Under Article 227, orders of both Civil and Criminal Courts can be examined only in very exceptional cases when manifest miscarriage of justice has been occasioned. Such power, however, is not to be exercised to correct a mistake of fact and of law.

The essential distinctions in the exercise of power between Article 226 and 227 are well known and pointed out in Surya Dev Rai and with that we have no disagreement. But we are unable to agree with the legal proposition laid down in Surya Dev Rai that judicial orders passed by a Civil Court can be examined and then corrected/reversed by the writ Court under Article 226 in exercise of its power under a writ of certiorari. We are of the view that the aforesaid proposition laid down in Surya Dev Rai is contrary to the ratio in Mirajkar and the ratio in Mirajkar has not been overruled in Rupa Ashok Hurra."

Thus, in view of the findings recorded above, this Court does not find any illegality, perversity or jurisdictional error in the impugned judgment and order recorded by the courts below. The writ petition is devoid of merits, is dismissed.

No order as to costs.