Smt. Gyan Devi vs Smt. Leela Devi @ Narayani And Ors.
2007 Latest Caselaw 1110 Del

JUDGMENT

Mukundakam Sharma, C.J.

1. By filing this appeal, the appellant has challenged the orders dated 8th January, 2007 and 13th March,2007 passed by the learned Single Judge in the execution petition registered as Ex.P. No. 118/2005.

2. A suit was filed by the respondent No. 1/decree holder for partition along with the relief of permanent injunction and declaration in respect of property No. B-134, Jamrudpur, New Delhi (hereinafter referred to as 'the suit property'), which was registered as CS(OS) No. 1623/1995. During the pendency of the aforesaid suit, the parties and the legal representatives of late Shri Mam Raj Meena, who are the absolute owner of the suit property arrived at a settlement. The terms and conditions of the said settlement were put in writing under the settlement deed executed by the parties thereto on 18th April, 2000. In view of the aforesaid settlement arrived at, a settlement deed was prepared and the said settlement deed was filed in the suit praying for passing a compromise decree in terms of the settlement. In terms thereof, a compromise decree was passed in the said suit being CS(OS) No. 1623/1995 under judgment and decree dated 2nd August, 2000. The said compromise decree has become final and binding and has not been questioned.

3. It is recorded in the said decree that it is agreed to by the parties that the property in question be sold and the parties would receive their respective shares after the sale of the aforesaid property. Since it was not possible for the parties to find a prospective buyer, a prayer was made in the execution case for appointment of a Receiver, who would be entrusted with the duty to dispose of the property and to distribute the share to each parties in accordance with the decree. In terms of the prayer made, the learned Single Judge passed an order on 8th January, 2007 appointing a Receiver of the property in question directing him to find a buyer, to the satisfaction of all the three parties. It was also observed in the said order that the Receiver shall be permitted to sell the said property to the said buyer. The matter was again listed before the Court on 13th March, 2007 in view of the applications filed by the present appellant giving a proposal that the said applicant / appellant herein shall pay Rs. 10 lacs to the respondent No. 1 herein in terms of the deed of settlement so that the ancestral property may not be sold. The aforesaid prayer was rejected by the learned Single Judge in view of which the present appeal is preferred.

4. We have heard Mr. A.S. Chandhiok, Sr. Advocate, Mr. S.K. Luthra, Advocate and other Advocates, who appeared and argued the matter on behalf of the parties. Mr. A.S. Chandhiok submitted before us that in terms of the compromise arrived at between the parties, the respondent No. 1 is entitled to get only Rs. 10 lacs, which the appellant is ready and willing to pay directly to the respondent No. 1 and on payment of the same, it should be ordered that the decree passed on compromise would stand satisfied. So far as payment of Rupees one lac to the minor son is concerned, it was stated that in the meantime he has become major and that his case would also be taken care of by the appellant after an opportunity is granted to the appellant. It was prayed that sale of the property in question be stayed by this Court.

5. Mr. S.K. Luthra, Advocate, however, vehemently opposed the aforesaid prayer contending, inter alia, that the settlement has been arrived at between the parties which is being given effect to by the Executing Court. It is also submitted that this Court cannot and should not go behind the decree as it is the bounden duty of the Executing Court to get the decree executed. In support of the said contention, Mr. Luthra sought support from the decision of the Supreme Court in Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman and Ors. .

6. In the light of the aforesaid stands taken, we have perused the records. During the pendency of the aforesaid suit seeking for a decree for partition filed by the respondent No. 1, a settlement was arrived at amongst the parties, who have been the legal representatives of Shri Mam Raj Meena, who was the absolute owner of the suit property, which is sought to be sold through the process of the Executing Court. The aforesaid legal representatives agreed to sell the suit property to a prospective buyer on the terms and conditions specifically mentioned in the settlement deed prepared and executed by the parties. In terms thereof 1/3rd of the total sale consideration was to go in favor of Smt. Gyan Devi. It is also agreed that out of the said 1/3rd share Smt. Gyan Devi shall pay Rs. 10,00,000/- (Rupees ten lacs only) to Smt. Leela Devi, respondent No. 1 herein, without any deductions whatsoever. It is also agreed that Rs. one lac would be paid under the terms and conditions of the settlement to Master Lalit Kumar, who was a minor. But it is agreed that he has attained majority as of now.

7. The parties accepted that they shall not interfere with the rights of the parties of the 5th part (Smt. Gyan Devi) in selling the property in question so long the said party of the 5th part sells the suit property to the prospective buyer at the market value to the highest bidder. It was also agreed to that 1/3rd of the total sale consideration shall be given to Shri Ram Sunder Meena. It was further agreed to amongst the parties that upon selling the property at the market value, the total sale consideration received would be distributed in the following manner:

a. 1/3rd of the total sale consideration of the property is to go in favor of the appellant out of which she shall have to pay an amount of Rs. 10 lacs to the respondent No. 1

b. 1/3rd of the total sale consideration was to go in favor of respondent No. 2 herein

c. Out of the remaining 1/3rd of the sale consideration, an amount of Rs. one lac was to be paid to Master Lalit Kumar, who was minor and the balance sale consideration was required to be spent for construction/opening of Dharamshala and charitable institutions at religious places, in the memory of late Shri Mam Raj Meena and Smt. Rattan Devi.

8. In terms of the aforesaid settlement arrived at amongst the parties, a compromise decree was also passed on the prayer made by all the parties in the suit. The compromise decree has become final and binding. The said compromise decree is sought to be given effect to and executed by way of selling the property at which stage the aforesaid application came to be filed by the appellant herein praying for stay of sale of the property on the ground that the appellant is prepared to pay the amount of Rs. 10 lacs to the respondent No. 1 so as to save the ancestral property.

9. We have considered the aforesaid prayer giving due consideration thereof. However, in the facts and circumstances of the case, it appears to us that we are not in a position to accept the said submission. The parties have settled the matter on terms and conditions specifically recorded in a settlement deed. Compromise decree has been passed on the said terms and conditions. Intention of the parties and the terms and conditions of settlement now stand incorporated in a decree passed by this Court. The settlement decree passed must be executed and should not be interfered with, by modifying the decree or going behind the decree. This Court cannot go behind the decree and pass an order which is not contemplated by the terms and conditions of the settlement arrived at amongst the parties. A decree that has become final and binding cannot be reopened. The decree includes and postulates payment of 1/3rd sale consideration, as stipulated, for charitable purpose, after payment of Rs. 1 lac to Mr.Lalit Kumar. Even if the appellant agrees to pay Rs. 10 lacs to the respondent No. 1, the same would not have the effect of setting aside the decree passed. The remaining portion of the settlement decree still requires implementation. Clear terms of the settlement is that 1/3rd of the total sale consideration shall have to be paid to the respondent No. 2 and out of the remaining 1/3rd sale consideration, a sum of Rs. one lac is to be paid to Master Lalit Kumar and the remaining consideration amount shall have to be spent for construction/opening of Dharamshala and charitable institutions at religious places, in the memory of late Shri Mam Raj Meena and Smt. Rattan Devi. Unless the property is put to sale in terms of the deed of settlement in an auction, the terms and conditions of settlement cannot be given effect to and implemented as 1/3rd of the total sale consideration minus one lac of rupees cannot be invested and spent for construction/opening of Dharamshala and charitable institutions. Even if Rs. 10 lacs is paid, that does not bring in a solution and would not in any manner amount to implementation of the decree passed by the Court. Decree once passed unless set aside or held to be nullity, has to be implemented and if required executed. It is not the case of the appellant and others supporting the appellant that the decree has been set aside or is a nullity. The amount equivalent to 1/3rd of the total sale consideration cannot not be ascertained so long the property is not put to sale. Without 1/3rd of the sale consideration being separated and utilised for Dharamshala and charitable institution in terms of the decree, the said decree will not be satisfied.

10. In that view of the matter, we are unable to persuade ourselves to accept the contention of the counsel appearing for the appellant. We find no merit in this appeal and the same is dismissed.