Sh. Abdul Saliq Khan vs Shri. Nahid Khan & Ors.
2011 Latest Caselaw 1144 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                              Date of Judgment: 25.02.2011

+                  RSA No. 30/2011



SH. ABDUL SALIQ KHAN                   ...........Appellant
                  Through: Mr. B.B. Gupta, Advocate.

                   Versus

SHRI. NAHID KHAN & ORS.                          ..........Respondent.
                 Through:            None.


CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

     1. Whether the Reporters of local papers may be allowed to
        see the judgment?

     2. To be referred to the Reporter or not?             Yes

     3. Whether the judgment should be reported in the Digest?
                                                          Yes


INDERMEET KAUR, J. (Oral)

1. The present appeal has impugned the judgment and decree

dated 30.10.2010 wherein a direction had been given to the trial

judge to draw up the formal decree in terms of its judgment dated

03.07.2006; further holding that the order dated 03.07.2006 was

an executable order as the statements of the parties were binding

upon them. The executing court on 15.02.2010 had dismissed the

execution petition holding that the order dated 03.07.2006 (passed

in suit no. 1333/1995) was a suit which had been dismissed as

withdrawn/compromised; such an order was not a "decree" and as

such not executable. The impugned judgment on 30.10.2010 had

allowed the appeal against the afore-noted order.

2. This is a second appeal. Before this court, it has been urged

that a substantial question of law has arisen as the impugned

judgment has committed a perversity in giving a direction to the

trial court to draw up a decree; executing court had rightly

dismissed the execution petition upholding the objections of the

appellant as the executing court could not have gone behind the

decree, there was no decree in the eyes of law; it was only an

order; it was rightly held that such an order was not an executable

order.

3. Learned counsel for the appellant has relied upon a Division

Bench Judgment of this court reported in 158 (2009) Delhi Law

Times 531 Mohd. Amin Vs. Mohd. Iqbal to support his submission.

It is stated that this judgment can be applied on all four squares to

the case in hand. It is pointed out that in this case also; the parties

had entered into a settlement whereby in terms of their

compromise agreement, the suit stood dismissed as withdrawn;

Division Bench of this court has held that such a compromise

arrived at between the parties did not amount to a decree and was

not executable. The afore-noted ratio would apply to the facts of

the instant case.

4. The submissions made by the learned counsel for the

appellant have no force. The present suit i.e. Suit no. 1333/1995

had been filed by the plaintiff against the defendant for declaration

and permanent injunction. In the course of trial on 25.04.2006,

when part cross-examination of DW-1 had been recorded, both the

parties had agreed that there are chances for compromise and the

matter be sent to the Mediation Centre for mediation. The parties

were directed to appear before the learned mediator. The

mediator, on 15.05.2006, had recorded an order that the parties

have settled their disputes and the terms of the settlement were

incorporated in the said order. It had further noted that the

parties agree that the cases filed by them against each other would

be withdrawn after the execution of their settlement; matter was

referred back to the court for 01.06.2006 for recording their

statements and for passing appropriate orders as per law. The

terms of settlement as recorded before the mediator were

reiterated on oath before the court. Plaintiff had stated in the last

line on oath-

"I withdraw my suit as dismissed as withdrawn/compromised."

Statement of defendant no. 1, Nahid Khan, was also recorded

wherein he had accepted this statement of the plaintiff as correct.

The following order was thereafter passed by the Civil

Judge:-

"Present: Sh. A.H. Bharti, counsel for the plaintiff.

Sh. Swaranjeet Singh, counsel for the defendant no. 1. The

present suit has been compromised in the Mediation Centre. The

statement of the plaintiff and defendant recorded. Both the

statements are signed by their respective counsels. The plaintiff

made statement that the suit be dismissed as

withdrawn/compromised in terms of the statement made by him

today in the court.

Keeping in view of the statement of both the parties, the

present suit is dismissed as withdrawn/compromised. The parties

are bound by their respective statements made in the court. File

be consigned to record room after necessary compliance."

Thus, Order dated 03.07.2006 was admittedly passed

pursuant to the compromise recorded between the parties which

was a compromise effected before the Mediation Cell; parties had

been referred to Mediation under the orders of the court. This was

essentially an order which was passed under Section 89 of the code

of Civil Procedure (hereinafter referred to as „Code‟.

Section 89 (1) (d) & 2 (d) of the Code read as follows:-

"Settlement of disputes outside the Court- (1) where it

appears to the Court that there exist elements of a settlement

which may be acceptable to the parties, the Court shall formulate

the terms of settlement and give them to the parties for their

observations and after receiving the observations of the parties,

the Court may reformulate the terms of a possible settlement and

refer the same for-

      (d)    mediation"

      "(2)   Where a dispute has been referred-

      (d)    for mediation, the Court shall effect a compromise

between the parties and shall follow such procedure as may

be prescribed."

This Section has been inserted after the amendment in the

Code of Civil Procedure by the Amendment Act of 1999. Object of

the newly inserted provision is obviously to promote alternate

methods of dispute resolutions.

The Mediation and Conciliation Rules of 2004 (hereinafter

referred to as „Rules‟) were framed on 11.08.2005 by the High

Court of Delhi in exercise of its powers under Part X of the Code of

Civil Procedure read with Section 89 (2) (d).

Rule 24 (b) is relevant. It reads as:-

"Rule 24: Settlement Agreement

(b) The agreement of the parties so signed shall be

submitted to the mediator/conciliator who shall, with a covering

letter signed by him, forward the same to the Court in which the

suit or proceeding is pending."

Rule 25 (a) reads as :-

"Rule 25: Court to fix a date for recording settlement

and passing decree-

" on receipt of any settlement, the court shall fix a date of hearing

normally within seven days but in any case not beyond a period of

fourteen days. On such date of hearing, if the court is satisfied

that the parties have settled their dispute, it shall pass a decree in

accordance with terms thereof"

A cojoint reading of Rule 24 (b) and 25 (a) shows that where

an agreement has been reached between the parties with regard to

all the issues in the suit or proceeding of some of the issues, the

same shall be reduced to writing and signed by the parties or their

constituted attorney; the agreement so signed shall be submitted

to the Mediator/Conciliation who shall, with a covering letter

signed by him, forward the same to the Court in which the suit or

proceeding is pending. There is then a mandate upon the court to

pass a decree after the afore-noted settlement has been arrived at.

5. In the instant case on 03.07.2006, court had noted the

parties have arrived at settlement before the Mediator; it had

recorded this submission of the parties of oath and had passed an

order stating that the parties would be bound by their respective

statements; the suit was dismissed as withdrawn/compromised.

This compromise/withdrawal was on the basis of the statements

made by the parties which were binding inter se upon them. The

court had inadvertently not drawn up a formal decree; which was a

mandate upon it in terms of Rule 25 (a).

6. The first appellate court had rightly noted that drawing up of

the decree in these circumstances was only a formality. The parties

were bound by the terms of the settlement and if one party did not

abide by it or chose to retract from it, the other party had a right to

get it executed through a decree. It was in these circumstances

that the impugned judgment had directed the Civil Judge to draw

up a decree which was only a formality.

7. The impugned judgment suffers from no infirmity. No

substantial question of law has arisen. The judgment relied upon

by the learned counsel for the appellant reported as Mohd. Amin

(supra) is distinct on its facts. In that case, on specific averments

made by the respective parties in their compromise applications in

para 11 the suit has been withdrawn/compromised; question of

drawing up a decree had not arisen as this was on the voluntary

statements made by the parties seeking permission of the court to

withdraw their suit. In the instant case, in terms of the Rules

which are admittedly applicable and which have been formulated

pursuant to the incorporation of Section 89 in the Code and which

provision has a statutory force, it was a mandate upon the court to

have drawn up the decree in terms of the compromise recorded by

the court. It had inadvertently not done so. This was an error

which could be corrected. Such a power is available under the

Provisions 152 of the Code of Civil Procedure (hereinafter referred

to as „Code‟. The impugned judgment had accordingly ordered it to

do so.

8. Section 152 of the Code is founded on the maxim "actus

curiae neminem gravabit" i.e. an act of Court shall prejudice no

man where the decree does not correctly express what was really

decided and initiated by the court, the court has inherent power to

amend the decree so as to carry out its own meaning.

9. In AIR 2004 Gau 136 Ashutosh Das Vs. Smt. Rani Das & Ors.

where a decree passed was vague, merely stating that "the suit

would be decreed on contest with costs", without giving any

further indication at all, no decree as to what reliefs had, in fact,

been granted to the decree holder, the provisions of Section 152 of

the Code had been resorted to and the trial court had been

directed to pass necessary orders on an application to be preferred

by the judgment debtor; permission had been granted to amend

the decree.

10. No substantial question of law has arisen; appeal is without

any merit; it is dismissed.

INDERMEET KAUR, J.

FEBRUARY 25, 2011 SS