Mohd. Amin vs Mohd. Iqbal
2009 Latest Caselaw 1394 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI


+             EFA (OS) No. 15/2008 & CM No. 5726/2008


%                                       Date of decision : 15.04.2009


MOHD. AMIN                ...   ...    ...    ...    ...     ...    ...APPELLANT
                              Through : Ms. Nandita Rao &
                                        Mr. Rahul Kumar,
                                        Advocates.

                                -VERSUS-

MOHD. IQBAL               ...   ...    ...    ...     ...    ...   RESPONDENT
                              Through : Mr. K.K. Bhuchar &
                                        Mr. Anshuman Sood,
                                        Advocates.


CORAM :

HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA

1.        Whether the Reporters of local papers
          may be allowed to see the judgment?            No

2.        To be referred to Reporter or not?             No

3.        Whether the judgment should be
          reported in the Digest?                        No


SANJAY KISHAN KAUL, J. (ORAL)

1. Admit.

2. At request of learned counsel for the parties, the

appeal is taken up for final disposal at this stage.

3. The present appeal raises a question of law as to

whether a compromise filed in suit proceedings could

be enforced through execution proceedings even

though the suit was dismissed as withdrawn at the

specific request of the parties.

4. The appellant in the year 1989 filed a suit for

permanent injunction against the respondent to

restrain him from interfering in any manner with the

appellant's right of peaceful enjoyment and possession

or encroaching or entering upon or carrying out any

construction activity on the property bearing Municipal

No. 268, Jamia Nagar, Okhla, New Delhi. The parties

thereafter entered into an Agreement on 25.02.1991.

The said Agreement is based on factual matrix stating

that the appellant is the exclusive owner and in

possession of the land comprising of 8430 sq. mtrs.

including residence, servant quarters and out-house

constructed on the same and that out of the said area,

6000 sq. mtrs. was to be developed as a Multi-storeyed

Group Housing Complex. In respect to the said

development, an Agreement had been entered into

with M/s. Unitech Ltd. The respondent was alleged to

be in illegal and unauthorized possession of piece of

land measuring 435 sq. yds. since the year 1974 which

land fell in the land to be utilized for the project and in

respect of which the suit had been filed by the

appellant. It is noticed in the compromise that the

learned Single Judge by an Order dated 27.11.1989

restrained the respondent from constructing on the

piece of land during the pendency of the suit and the

settlement was being entered into to avoid any future

litigation.

5. In terms of the aforesaid settlement, the respondent

handed over possession of the land measuring 435 sq.

yds. along with construction thereon to the appellant

(clause 8 of the Agreement). Some of the other

important clauses insofar as the present dispute is

concerned are as under :-

"10. That without prejudice to the aforesaid, it is hereby specifically agreed by and between the parties that if for any reasons, the aforesaid Multi-storeyed Group Housing Project is abandoned the area of the plot measuring 435 sq. yds. shall be reverted to the Second Party and this Agreement shall become null and void and the Second Party shall be free to use the said land according to its desire.

11. That First Party and Second Party both hereby agree to withdraw the aforesaid suit No. 331 of 1989 titled as Mohd. Amin Vs. Mohd. Iqbal pending in the court of Delhi, New Delhi simultaneously with the signing of this Agreement.

... ... ... ... ... ... ... ...

19. That all disputes, differences relating to the technical aspects and arising out of and in connection with this Agreement or interpretation of the provisions of the Agreement, shall be referred to the Project Architect, as Sole Arbitrator, whose decision shall be final and binding on the parties hereto. The provisions of Indian Arbitration Act, 1940 or any statutory modification thereto shall be

applicable to such arbitration. The venue shall be at Delhi."

6. The parties having entered into the aforesaid

settlement moved an application under Order XXIII Rule

3 of the Code of Civil Procedure, 1908 (for short, 'CPC')

annexing a copy of the compromise Agreement as

Annexure - A and praying to the Court to record the

compromise between the parties and dispose of the

suit in terms thereof.

7. On 25.02.1991, the statements of the parties were

recorded and thereafter the Order was passed by the

learned Single Judge. The operative portion of the

Order is as under :-

"Both the parties have undertaken that they will be bound by the terms of the compromise, as recorded in Ex. P - 2.

Under these circumstances, plaintiff has sought permission of this Court to withdraw the suit. Permission granted. Suit is dismissed as withdrawn. I direct that parties shall be bound by the terms of compromise Ex. P - 2."

8. It appears that the project had not taken off. The

respondent claimed that the project stood abandoned

while according to the appellant, the developer was

taking necessary steps for development. The

respondent filed an execution petition, which was

disposed of by the learned Single Judge of this Court in

terms of the Order dated 12.03.2004 recording that in

view of the suit being dismissed as withdrawn, there

was no decree in favour of any of the parties and that

no question of entertaining execution petition on behalf

of the decree holder would arise on the basis of clause

10 of the Agreement, which was a new contract

between the parties. The respondent was left to seek

his other remedies on the basis of clause 10 of the

Agreement in accordance with law. The respondent

aggrieved by the said Order preferred an appeal, i.e.,

EFA (OS) No. 13/2004, which was disposed of in terms

of an Order dated 18.11.2005 of the Division Bench.

The Division Bench took note of the fact that while

permitting withdrawal of the suit, it was directed that

the parties would be bound by the terms of the

compromise and, thus, the observations of the

Executing Court that clause 10 of the Agreement was a

new Agreement between the parties does not appear

to be correct. The Order dated 12.03.2004 was set

aside and the matter remanded back to the Executing

Court to decide afresh in the light of the observations

made in the appeal.

9. The appellant preferred a Special Leave Petition

against this Order, but the same was dismissed vide

Order dated 10.04.2006.

10. Learned Single Judge thereafter again proceeded to

decide the execution petition filed by the appellant.

Learned Single Judge took note of the plea of the

appellant that no time-limit had been fixed by virtue of

the Agreement dated 25.02.1991 within which the

judgment debtor along with the builder had to carry out

the construction. Thus, clause 10 of the Agreement, as

pleaded by the Agreement, would come into operation

only when the developer abandoned the project. This

had not happened. Learned Single Judge, however,

concluded that in view of the Order of the Division

Bench dated 18.11.2005 regarding clause 10 of the

Agreement not bringing into force a new Agreement,

the Agreement formed a part of the decree and would

be subject matter of execution. It was further noticed

that where no time was fixed, reasonable time would

have to be assumed and, in the present case, sixteen

years had gone by since the execution of the

Agreement. The warrants of possession were

consequently directed to be issued.

11. The appellant aggrieved by the aforesaid Order filed

the present appeal in which notice was issued and

learned counsel for the respondent made a statement

on 28.05.2008 that he will not take any further action

in pursuance to the impugned order. The appeal has

thereafter been heard now.

12. The substratum of the case of learned counsel for the

appellant is that in view of the suit having been

dismissed as withdrawn, there was no decree passed,

which was capable of execution and the remedy of the

respondent, if any, lay elsewhere. On the other hand,

learned counsel for the respondent submits that part of

the Order, which records the factum of the

compromise, is executable.

13. Learned counsel for the respondent has relied upon a

judgment of the Division Bench of this Court in Hardit

Singh Obra v. Daljit Singh, ILR (1974) II Delhi 571. In

the facts of the said case, an application under Order

XXIII Rule 3 of the CPC was filed. It was observed that

if the compromise is legal, there is no discretion in the

Court to add or vary the terms and the Court must pass

a decree in accordance with the compromise. The

decree holder in such a situation has the right to

execute the executable part of the decree. The Court

having added the words that the suit was dismissed

was held to imply that the original relief in the plaint

stood rejected to avoid contradiction.

14. We find that the basis of the compromise application is

the Agreement dated 25.02.1991. The compromise,

thus, envisages in clause 11 that the Agreement

between the parties that the suit would be withdrawn.

Thus, the parties were conscious of the fact that having

entered into the compromise, no decree was to be

prayed before the Court, but the suit was to be

withdrawn. The application filed by the parties, though

under Order XXIII Rule 3 of the CPC, prayed for

recording of the compromise between the parties and

disposal of the suit. The object of the parties was clear

that they wanted to place on record the compromise

arrived at between the parties, but did not seek to

obtain a decree in terms of the compromise, which

would be executable. It is in these circumstances that

the suit has been dismissed as withdrawn, though the

parties were to be bound by the terms of the

compromise.

15. The case of the respondent is predicated on the plea

that the project stood abandoned while the stand of the

appellant is that the execution of the project is still on

the card. If any rights arise for enforcement by the

respondent, in our considered view, the same cannot

be through the process of execution as the suit itself

was dismissed as withdrawn. This was not a mistake as

in the case of Hardit Singh Obra's case (supra). The

Order was consciously passed on the basis of the

understanding between the parties as contained in the

Agreement dated 25.02.1991 that the suit should be

dismissed as withdrawn. We may also notice that the

Division Bench while passing the earlier Order dated

18.11.2005 had only remanded the matter to be re-

examined by the Executing Court in view of the

observations that clause 10 of the Agreement was not

a new Agreement between the parties. There was no

final finding in respect of the various controversies

raised in the appeal. An order for a decree or order to

be executable must contain finality as to the nature of

directions, which are capable of execution. A dismissed

suit can hardly give rise to an execution of a decree.

There is no separable part of the decree, which is

capable of execution in the present case. No doubt,

the Agreement between the parties is binding in view

of the statements recorded of the parties and the Order

passed, but that only gives an imprimatur of the Court

on the Agreement. The validity of the Agreement is not

disputed, but the enforcement of the Agreement is in

question as also the mode and manner of the same.

16. We are, thus, of the considered view that the

respondent could not have sought execution of the

decree in a suit, which was dismissed as withdrawn on

the prayer of the parties and it is for the respondent to

take recourse to appropriate legal remedies in

accordance with law for enforcement of the rights

under the Agreement dated 25.02.1991, if so advised.

17. The appeal is accordingly allowed, the impugned Order

dated 30.11.2007 is set aside and the execution

petition filed by the respondent is dismissed with

liberty to the respondent to take out appropriate legal

proceedings for enforcement of the Agreement dated

25.02.1991 in accordance with law, if so advised.

18. The parties are left to bear their own costs.

SANJAY KISHAN KAUL, J.

April 15, 2009 SUDERSHAN KUMAR MISRA, J. madan