Delhi High Court
Dr. Poonam Khanna vs Dr. V.P. Sharma on 6 April, 2010
Author: Shiv Narayan Dhingra
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Reserve: 11th February, 2010
Date of Order: 6th April, 2010
CM(M) No. 526/2008
% 06.04.2010
Dr. Poonam Khanna ... Petitioner
Through: Petitioner-in-person
Versus
Dr. V.P.Sharma ... Respondents
Through: Petitioner-in-person
JUSTICE SHIV NARAYAN DHINGRA
1. Whether reporters of local papers may be allowed to see the judgment? Yes.
2. To be referred to the reporter or not? Yes.
3. Whether judgment should be reported in Digest? Yes.
JUDGMENT
By this petition under Article 227 of the Constitution of India, the
petitioner has assailed two orders of the learned Guardianship Judge one
dated 17.1.2008 and another dated 4.3.2008. By first order, the Guardianship
Judge entertained a second petition in respect of guardianship of the child
because of non compliance of the settlement arrived at between the parties
in an earlier similar petition. However, the learned Judge framed a
preliminary issue about the maintainability of the petition. By order dated
4.3.2008, the learned Guardianship Judge disposed of this preliminary issue
of maintainability and held that the second petition was maintainable.
2. It is undisputed fact that for the custody of the child (who
physically is aged 30 years but mentally is stated to be aged 06 years) a
petition was filed by the petitioner earlier and during pendency of that petition
a compromise was arrived at between the parties and a settlement deed was
executed between the parties and the Guardianship Petition was disposed of
in terms of the settlement. The learned Guardianship Judge entertained the
second petition primarily on the ground that the respondent did not comply
with the earlier settlement arrived at between the parties. In para 17 of order
dated 4.3.2008, the Guardianship Judge observed as under:
"17. Such is the conduct of the respondent that even
though she was given an option to go in for mutual
compliance of the balance clauses of settlement, even
though the petitioner is ready and willing to comply with the
settlement to his part, respondent flatly refused to comply
her part. It is also pointed out by petitioner that even
Hon'ble High Court has many times observed that
respondent is just keen to continue litigation unabatedly."
3. It is settled law that where a suit/petition is disposed of in terms
of compromise arrived at between the parties, the compromise between the
parties is enforceable like a decree of the Court. Whether the suit is decreed
by way of compromise or it is decreed after adjudication of the dispute
between the parties, the decree passed by the Court has same force. Merely
because one of the parties has failed to comply with the terms of the
compromise as settled between them would not give a fresh cause of action
to either of the parties to institute a suit on the same cause of action again.
The only course available to the party is to go for execution or for contempt of
the Court. A compromise decree can be enforced through execution and
where the compromise provides for doing certain act on the part of other party
and the party refuses to do the acts, the Court can enforce the decree like any
other decree taking resort to different provisions of Order 21 CPC and
wherever necessary, the Court can appoint its own officer for execution of the
documents. The court can enforce its orders through legal coercion wherever
necessary.
4. I consider that the learned Guardianship Judge exceeded his
jurisdiction of re-entertaining a Guardianship petition in respect of child on the
ground that the respondent had failed to comply with the terms of the earlier
compromise arrived at between the parties. The order dated 4.3.2008 of the
learned Guardianship Judge is hereby set aside. However, the respondent
herein would be at liberty to get the earlier compromise enforced through
court of law.
5. I also consider that it is obligatory on every Court to ensure that
the orders of the Court passed after adjudication or as a result of compromise,
are enforced and if a party files any petition or institutes proceedings contrary
to compromise, such party should not be heard in the proceedings, until and
unless such party complies with the terms of the compromise.
The petition is allowed. The order of the learned Guardianship
Judge dated 4.3.2008 entertaining the petition is hereby set aside.
April 6, 2010 SHIV NARAYAN DHINGRA, J.
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