Smt. Radhesh Singh vs Vineet Singh & Ors
2014 Latest Caselaw 2626 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                         Date of decision: 22nd May, 2014.
+                            CS(OS) 1938/2008

       SMT. RADHESH SINGH                                       ..... Plaintiff
                   Through:             Mr. Prabhjit Jauhar, Adv.
                                    Versus
       VINEET SINGH & ORS                                    ..... Defendants
                    Through:            Mr. Jeevesh Nagrath & Ms. Avsi
                                        Malik, Advs. for D-1 to 3.
                                        Mr. Naaren Nath Survaria, Adv. for
                                        D-3.
                                        Ms. Anuradha Mukherjee and Ms.
                                        Shreya Som, Advs. for D-4.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
IA No.13523/2008 (of D-1 to 3 u/O 7 R-11 CPC)

1.

The plaintiff, on 15th September, 2008 has filed this suit, (i) for

declaration that the Compromise Decree dated 31 st May, 1984 in Suit

No.335/1982 of this Court has become unexecutable and unenforceable in

law and is of no consequence; (ii) for partition of property No.17, Rajdoot

Marg, Chanakyapuri, New Delhi, claiming a 50% share therein; and, (iii) for

permanent injunction restraining the defendants from dealing with the said

property or disturbing the possession of the plaintiff thereof, pleading:

(a) that the father of the plaintiff and the defendant No.4 Smt.

Ravinder Kumari and of the predecessor of the defendants No.1 to 3

was the owner of property No.17, Rajdoot Marg, Chanakyapuri, New

Delhi admeasuring 375 sq. yds. and died intestate leaving the

plaintiff, the defendant No.1 and the predecessor of the defendants

No.1 to 3 as his only legal heirs;

(b) that the plaintiff instituted Suit No.335/1982 in this Court for

partition of the aforesaid property and of the other estate left by the

father, claiming 1/3rd share therein and impleading the defendant No.4

and predecessor of the defendants No.1 to 3 as defendants thereto;

(c) that though initially the predecessor-in-interest of the

defendants No.1 to 3 (who was the brother of the plaintiff) contested

the said suit, ultimately a compromise application was filed therein

and the said suit was disposed of on 31st May, 1984 in terms of the

compromise;

(d) that under the said compromise, the predecessor of the

defendants No.1 to 3 got 2/3rd share in the said property and

defendant No.4 got the remaining 1/3rd share in the said property, as

the plaintiff released her 1/3rd share in the property and it was also

agreed that the stamp duty for the decree shall be borne by the parties

equally;

(e) that the statement of the plaintiff in the aforesaid suit

relinquishing her 1/3rd share in the property in favour of the

predecessor of the defendants No.1 to 3 could not have extinguished

the claim to the extent of 1/3rd share of the plaintiff in the said

property as neither the said compromise was ever got registered nor

any final decree upon stamp paper was ever prepared or registered; in

fact, no stamp papers for passing the decree were filed;

(f) that the plaintiff had agreed to relinquish her 1/3rd share in the

property on the assurance of the predecessor of the defendants No.1

to 3 that the property would be sold and 1/3rd sale proceeds would be

paid to the plaintiff but the same was not done inspite of repeated

requests and reminders of the plaintiff;

(g) that the predecessor-in-interest of the defendants No.1 to 3

expired on 9th December, 2005 and though the plaintiff called upon

the defendants No.1 to 3 also to fulfil the promise and assurance

made by their predecessor, but they refused;

(h) that the property though was in occupation of a tenant after the

consent order dated 31st May, 1984 but fell vacant in the year 2008;

(i) that the defendant No.4 is crippled and is not able to manage

her 1/3rd share in the said property and to protect herself against the

defendants No.1 to 3 appointed the plaintiff as her attorney in respect

of her 1/3rd share;

(j) that in the meanwhile 12 years lapsed from the consent order

dated 31st May, 1984, without the stamp papers for engrossment of

the decree thereon being deposited and the decree became

unexecutable and unenforceable in law as held in Dr. Chiranji Lal

Vs. Hari Das (2005) 10 SCC 746;

(k) that the defendant No.4, in order to compensate the plaintiff,

vide Relinquishment Deed dated 26th August, 2008 relinquished half

of her 1/3rd share in favour of the plaintiff vide registered

Relinquishment Deed dated 26th August, 2008;

(l) that the plaintiff is in actual and legal possession of the

property;

(m) that the plaintiff is now the owner of 50% share of the property

i.e. her own 1/3rd share and half of the defendant No.4‟s 1/3rd share.

2. The suit came up before this Court first on 16th September, 2008

when it was prima facie observed that the 1/3rd share of the defendant No.4

in the property, being her separated share in a partition suit, 50% thereof

could not be „relinquished‟ in favour of the plaintiff who had under the

partition no share in the property and tantamounted to transfer of immovable

property which could be either by gift or sale, by paying ad valorem stamp

duty and not by relinquishment. It was further prima facie observed that

notwithstanding the decree in pursuance to compromise in the earlier

partition suit being not drawn up, the plaintiff would remain bound thereby

and cannot reclaim partition. Summons of the suit were nevertheless issued.

3. The defendants No.1 to 3 have applied for rejection of the plaint, on

the grounds:

(I) that the consent order dated 31st May, 1984 binds the parties;

(II) that the suit is barred by Section 11 of the Civil Procedure

Code (CPC), 1908 owing to the consent order dated 31 st May, 1984

supra;

(III) that the plaintiff herein was the plaintiff in Suit No.335/1982

also in which also she had claimed 1/3rd share in the property; the

plaintiff in the compromise in the said suit abandoned her claim for

1/3rd share in the property and cannot file a second suit claiming a

share in the property;

(IV) that the consent order dated 31st May, 1984 had attained

finality;

(V) that the rights of the parties under the Courts‟ order dated 31st

May, 1984 cannot be extinguished on technicalities as non-stamping;

(VI) that the judgment dated 31st May, 1984 was not required to be

stamped inasmuch as only the shares in the property were

ascertained/declared, with the defendant No.1 and the predecessor of

the defendants No.1 to 3 continuing as owners and no separation or

division of the property by metes and bounds was effected;

(VII) that the consent judgment dated 31st May, 1984 was passed on

a family settlement arrived at between the parties, to put an end to

litigation, and the parties have acted in consonance therewith for 24

years and it is the settled law that family settlements have to be given

effect to and have to be enforced and ought not to be negated and

nullified on technicalities;

(VIII) that even if the judgment dated 31st May, 1984 were to be held

to be required to be stamped, the said technicality would not defeat

the substantive settlement between the parties and cannot disturb the

rights of the parties;

(IX) that even in the lifetime of the father, the predecessor-in-

interest of the defendants No.1 to 3 had filed a suit against the father

and in which a decree dated 29th April, 1981 was passed by the

Additional Senior Special Judge, Patiala, Punjab declaring the

predecessor of the defendants No.1 to 3 to be the owner of 2/3rd share

in the property and the father to be the owner of the 1/3rd share in the

property; the said decree had also attained finality;

(X) that the suit impugning the consent order dated 31 st May, 1984,

filed after expiry of more than 24 years therefrom, is barred by time;

(XI) that there could be no relinquishment by the defendant No.1 of

her 50% share in the property.

4. Before proceeding further, certain subsequent events may be noticed,

only to complete the narrative. In view of the doubts raised in the order

dated 16th September, 2008 supra as to the relinquishment by the defendant

No.4, the plaintiff has produced a Gift Deed dated 21st October, 2008

executed by defendant No.4, gifting half of her 1/3rd share in the property in

favour of the plaintiff. The defendant No.4 (who at the time of institution of

the suit was defendant NO.1 in the suit) was also transposed as the plaintiff

No.2 in the present suit and was being represented by the same Advocate as

the plaintiff. However since then, the defendant No.4 has filed CS(OS)

No.1912/2012 for cancellation of the Relinquishment Deed and Gift Deed

aforesaid and for other reliefs and has also refused to join the plaintiff in the

present suit and has disengaged the Advocate for the plaintiff and has been

re-transposed as the defendant No.4 in the suit.

5. Before proceeding further, another aspect may be clarified. Though

the plaintiff in the plaint has also pleaded that she had agreed to the

compromise in the earlier suit on the representation of the predecessor of the

defendants no.1 to 3 that the property will be sold and 1/3 rd sale proceeds

shall be given to the plaintiff but no relief in the suit has been claimed on

the said basis and in fact the said claim even if any of the plaintiff would

also be barred by time. The plaintiff as aforesaid has sought declaration that

the compromise decree dated 31st May, 1984 in the earlier suit for partition

has become unexecutable and unenforceable as per the dicta of the Supreme

Court in Dr. Chiranjilal supra and is of no avail for the reason of neither

party thereto filing the stamp paper for engrossing of the decree for partition

and the same being not registered. As a consequence of the said declaration,

the plaintiff has claimed the relief of partition of the property and the

ancillary relief of injunction. The defendants no.1 to 3 seek rejection of the

plaint contending that the judgment dated 31st May, 1984 continues to bind

the parties and non-engrossing on stamp paper of the compromise decree in

the earlier suit for partition and / or non-registration thereof does not take

away the efficacy thereof.

6. The question, whether the judgment dated 31st May, 1984 in the

earlier suit for partition continues to bind the parties or not is a pure

question of law. Neither counsel has argued that the determination of the

effect of,

(i) no decree in terms of judgment dated 31 st May, 1984 having

been drawn up;

(ii) no stamp duty on the decree having been thus paid;

(iii) no registration of the decree having been effected; and,

(iv) the execution of the judgment dated 31st May, 1984 being

barred by time as per Dr. Chiranji Lal supra,

on the judgment dated 31st May, 1984 requires the recording of any

evidence. If it were to be held that owing to all or either of the aforesaid

factors, the judgment dated 31st May, 1984 is of no consequence and the

parties have to be relegated to the original position of the plaintiff and the

defendant No.4 having 1/3rd share each and the defendants No.1 to 3

together having remaining 1/3rd share, the plaintiff would be entitled to

maintain this suit for partition. In such situation, the claim of the plaintiff to

another 50% of the defendant No.4‟s 1/3rd share will have to await the

outcome of CS(OS) No.1912/2012. However if it were to be held that the

parties continue to be governed and bound by the judgment dated 31st May,

1984 under which the plaintiff has no share in the property, the plaintiff

would have no right to claim partition thereof on that basis. The claim of

the plaintiff in such eventuality to 50% share out of defendant No.4‟s 1/3 rd

share will again be dependent on outcome of CS(OS) No.1912/2012. Thus,

in my opinion, the outcome of the suit itself is dependent on the findings in

this application under Order VII Rule 11 CPC and no triable issue is found

to arise.

7. The counsel for the defendants no.1 to 3 in his written submissions

has contended:-

(i) that the compromise decree dated 31st May, 1984 was not

required to be stamped in as much as the same only declared

the predecessor of the defendant no.1 to 3 to be the owner of

2/3rd share and the defendant no.4 to be the owner of 1/3rd share

in the property and nowhere provided for separation or division

of the property by metes and bounds; reliance in this regard is

placed on Section 2(15) of the Indian Stamp Act, 1899 defining

an instrument of partition and on para 7 of Manjeet Kaur Vs.

Amarjeet Kaur 2005 (83) DRJ 475 and para 41 of K.N.

Khanna Vs. B.K. Khanna 87 (2000) DLT 286 (DB);

(ii) that the compromise decree is based on a Family Settlement

and has been accepted and acted upon for 24 years and such

Family Settlements have to be given effect to and are not to be

defeated on technicalities; reliance is placed on paras

9,10,18,19 &24 of Kale Vs. Deputy Director of Consolidation

AIR 1976 SC 807 and on paras 11 & 13 of Hansa Industries

(P) Ltd. Vs. Kidarsons Industries (P) Ltd. 2006 (8) SCC 531;

(iii) that even if it were to be held that the decree was required to be

stamped, even then the failure to do so will not render the

decree invalid as Stamp Act is a fiscal measure and substantive

rights of the parties under the said decree cannot be defeated on

account thereof; reliance in this regard is placed on para 5 of

Hindustan Steel Ltd. Vs. M/s. Dilip Construction Co. AIR

1969 SC 1238, paras 22 to 26 of Dr. Chiranjilal supra, paras

18,20,28&29 of Sh. Dhanraj Gupta Vs. Smt. Savitri

Malhotra 1996 II AD (Delhi) 429 and on para 15 of Savitri

Malhotra Vs. Ram Nath Malhotra 60 (1995) DLT 677;

(iv) that the plaintiff never claimed any share in the rent of the

property from the year 1984 till September, 2008;

(v) that the compromise decree dated 31st May, 1984 did not

require registration; reliance in this regard is placed on para 2

of Bachan Singh Vs. Karta Singh JT 2001 (10) SC 64, paras

4,6,7,9,12,15,17 & 18 of Som Dev Vs. Rati Ram (2006) 10

SCC 788, paras 13 & 14 of Uma Devi Yadav Vs. Lt. Col. Gaj

Singh Yadav (Retd.) 87 (2000) DLT 15 (DB), para 6 of P.K.

Nangia Vs. L&DO Officer AIR 1988 DEL 260 and on paras

36 to 38 of K. Raghunandan Das Vs. Ali Hussain Sabir 2008

(13) SCC 102;

(vi) reference is also made to para 31 of Amteshwar Anand Vs.

Virendra Mohan Singh AIR 2006 SC 151 to contend that a

decree is not required to be registered, being a composition

deed;

Though the counsel for the defendants No.1 to 3 has also referred to

judgments on the bar of Section 11 of the CPC and Order XXIII Rule 1 (4)

of the CPC but need is not felt to refer thereto as it is felt that if the

challenge to the compromise judgment / decree dated 31 st May, 1984 is

accepted and it is held that the same is of no avail and the parties are

relegated to the original position, the said provisions cannot then come in

the way of the plaintiff seeking remedies with respect to her right in the

property. Similarly need is not felt to refer to the judgments referred to by

the counsel for the defendants No.1 to 3 on the aspect of the Courts‟ powers

to strike out vexatious, frivolous claims / pleadings and to summarily

dismiss frivolous and vexatious litigation.

8. Inspite of the question of law having been framed in the order dated

16th September, 2008 while issuing summons of the suit itself, neither

counsel during the hearing on 21st April, 2014, argued on the effect of a

judgment not followed by a decree i.e. what is to be the effect of the consent

judgment in which the plaintiff has given up a share in the property but in

terms of which no decree was drawn. The counsel for the defendants no.1 to

3 / applicants has however thereafter filed additional written submissions

referring to:-

(a) paras 14,15 & 16 of S. Hadit Singh Obra Vs. S. Daljit Singh

1975 (XI) DLT 287 (DB) laying down that it is for the Court to

draw up a decree and no application is required to be made by

either party for the same and the failure of the Court to draw up

a decree will not prejudice the rights of the parties to a decree

and that a decree holder is entitled to execute the executable

part of the decree irrespective of whether a decree is drawn up

or not;

       (b)    paras 1,2, 13 & 16 of G.C. Kumar Vs. Ashok Kumar 92

              (2001) DLT 1 (DB) also to the same effect;

       (c)    para 6 of Jagat Dhish Bhargava Vs. Jawahar Lal Bhargava

(1961) 2 SCR 918 also observing that drawing up of a decree is

a duty of the Court and is beyond the litigants control;

(d) paras 5 & 6 of Abdul Saliq Khan Vs. Nahid Khan 179 (2011)

DLT 347 laying down that a compromise is binding inter se the

parties as an agreement / contract, the decree notwithstanding

and no claim contrary thereto can be made; and,

(e) paras 10,11 & 17 of S. Jaswant Singh (deceased by LRs) Vs.

S. Darshan Singh (deceased by LRs) AIR 1992 Delhi 80 to

buttress the bar of Order XXIII Rule 1(4) of the CPC.

9. The counsel for the plaintiff in his written submissions has

contended:-

A. that a second suit for partition of a property is maintainable;

reliance in this regard is placed on Kamala Vs. K.T. Eshwara

(2008) 7 SCALE 436;

B. that the compromise decree dated 31st May, 1984 extinguished

1/3rd share of the plaintiff in the property and thus created new

rights for the first time in the property and was required to be

stamped and registered; the parties also contemplated stamping

thereof and the compromise application provided that the stamp

duty will be payable by the predecessor-in-interest of the

defendants no.1 to 3 and the defendant no.4;

C. reliance is placed on Vijay Kumar Sawhney Vs. Inder Dev

Sawhney 145 (2007) DLT 194 to contend that stamp duty is

payable under Article 45 r/w Section 2(xv) as well as Article

15 of the Stamp Act, 1899 as applicable to Delhi on a partition

decree;

D. reliance is also placed on B.S. Goel Vs. The Registrar, High

Court of Delhi AIR 2007 Delhi 72 (DB) as laying down that

where the stamp duty required to be paid for drawing up of a

compromise decree has not been paid and the decree is not

drawn up, it is a nullity in the eyes of law;

E. that a document required to be stamped and not stamped is

inadmissible in evidence; reference is made to Jamunabai Vs.

Sharadabai 1998 (2) HLR 629 and to Hari Singh Vs. Shish

Ram 2002 (2) HLR 667;

F. reliance is placed on Rakesh Kumar Gupta Vs. Umesh Kumar

Gupta 143 (2007) DLT 639 (DB) as laying down that a

partition decree is required to be stamped;

G. reliance is placed on Bhoop Singh Vs. Ram Singh Major

(1995) 5 SCC 709 to contend that the compromise decree dated

31st May, 1984 was compulsorily registrable and in the absence

of registration cannot be looked at for any purpose; and,

H. that since the plaintiff in any case has acquired 50% of the 1/3rd

share of the defendant no.4, the suit is maintainable and partial

rejection of the plaint is not permissible; reliance in this regard

is placed on D. Ramachandran Vs. R.V. Janakiraman (1999)

3 SCC 267 and Roop Lal Sathi Vs. Nachhattar Singh Gill

(1982) 3 SCC 487.

10. Before dealing with the rival contentions, the essential ingredients of

the compromise arrived at in the earlier suit for partition may be noticed.

The compromise application admittedly signed and filed by the plaintiff

herein as well as the predecessor of the defendants no.1 to 3 and the

defendant no.4 recorded:

(i) that they had arrived at an amicable settlement regarding

accounts and partition of joint Hindu family left by their father

late Sh. Rit Mohinder Singh who had acquired the same from

ancestral nucleus;

(ii) that they were seeking a final decree in terms of the "Family

Settlement";

(iii) the details of the family settlement were described as;

(a) that upon payment of Rs.1,00,000/- by the predecessor of

the defendants no.1 to 3 to the defendant no.4, the

plaintiff and the defendant no.4 shall cease to have any

right, title or interest in the residential house No.B-58,

Model Town, Patiala which thereupon shall be solely

owned and possessed by the predecessor of the

defendants no.1 to 3 and the defendant no.4 who was

residing with her family in the portion of that house shall

vacate the same within two months of the receipt of the

said amount;

(b) that the subject property will be owned by the

predecessor of the defendants no.1 to 3 with 2/3rd share

and the defendant no.4 with 1/3rd share respectively with

effect from 11th July, 1981 and the plaintiff shall have no

interest therein and the predecessor of the defendants

no.1 to 3 and the defendant no.4 shall continue as joint

co-owners of the property till such time that they may or

may not like to divide the same by metes and bounds;

(c) that the plaintiff released all her right, title or interest in

respect of both, the property at Patiala and the subject

property in favour of the predecessor of the defendants

no.1 to 3 and the defendant no.4 and was left with no

claim or right in any of these properties;

(d) that all other accounts of the estate has been settled;

(e) that the liability of the properties to the estate duty had

already been met by the predecessor of the defendants

no.1 to 3 and future liability if any accruing will also be

met by him only;

(f) that the said settlement also superseded the decree of the

Court of the Sub-Judge, First Class, Patiala.

(iv) The parties thus sought a final decree of declaration-cum-

partition and agreed that the stamp duty thereon shall be borne

between the predecessor of the defendants no.1 to 3 and the

defendant no.4 equally;

Statements of the parties in support of the aforesaid compromise

application were recorded and vide order dated 31st May, 1984, a final

decree in terms of the compromise was passed with the compromise

application forming part of the decree.

11. The aforesaid judgment/order dated 31st May, 1984 putting its

imprimatur to the compromise between the parties and disposing of the suit

for partition in terms thereof has attained finality, though undoubtedly the

decree ordered to be passed has not been drawn.

12. I have wondered, what is the difference between a judgment and a

decree. Section 2(9) of the CPC defines "judgment" as the statement given

by the judge on the grounds of a decree or order and Section 2(2) defines a

"decree" as a formal expression of an adjudication which so far as regards

the Court expressing it, conclusively determines the rights of the parties

with regard to all and any of the matters in controversy in the suit. Section

33 of the CPC provides that the Court, after the case has been heard, shall

pronounce judgment and on such judgment, a decree shall follow. Similarly,

Order XX Rule 1 provides that the Court, after the case has been heard shall

pronounce judgment and Rule 6 of Order XX provides that the decree shall

agree with the judgment and besides containing the number of the suit, the

name and description of the parties their address and particulars of the

claim, shall specify clearly the relief granted or other determination of the

suit. Rule 6A of Order XX, as it stood prior to the amendment with effect

from 1st July, 2002, provided that every endeavour shall be made to ensure

that the decree is drawn up as expeditiously as possible and in any case

within 15 days from the date on which the judgment is pronounced and

further provided that so long as the decree was not drawn up, the last

paragraph of the judgment shall be deemed to be the decree for the purpose

of execution. After the amendment, the same provides that as soon as the

decree is drawn, the judgment shall cease to have the effect of a decree for

the purposes of execution or for any other purpose. Order XXI Rule 11

provides that where a decree is for the payment of money, the Court may on

the oral application of the decree-holder, at the time of passing of the

decree, order immediate execution thereof by arrest of the judgment-debtor.

13. Though the first impression from the aforesaid provisions of the CPC

may be that the judgment and the decree are two different things with, what is

pronounced and signed by the Judge being a judgment and what is

subsequently prepared by the Office / Registry of the Judge in terms of Order

XX Rule 6 of the CPC is the decree but on deeper consideration it is found that

what is pronounced and signed by the Judge is a judgment as well as decree

with the factual position, issues arising, analysis of the evidence, findings

based on the reasons on the issues, being the judgment and the result thereof

being the decree. It cannot be ignored that it is the Judge who passes the

decree. Drawing up thereof within the meaning of Order XX Rule 6 of the CPC

is a separate and independent act which is subsequent to the passing of the

decree. Else, the final order in the judgment amounts to passing of a decree by

the Judge. It is for this reason only that there is no hiatus between the judgment

and the decree. It is again for this reason only that the judgment, under Order

XX Rule 6A and under Order XXI Rule 11, is executable even prior to the

drawing up in the form provided under Order XX Rule 6 of the decree. My

understanding thus is that a decree is passed by the Court even if for the time

being there is no decree drawn up in the form provided under Order XX Rule 6

of the CPC. The passing of the decree is therefore independent and earlier to

the drawing up of a decree. I draw support in holding so from an old judgment

of the High Court of Gujarat in Bai Vasanti Vs. Suryaprasad Ishvarlal Patel

AIR 1969 Guj. 152, and have been unable to find anything to the contrary.

Reference in this regard can also be made to the judgment of the Full Bench of

the High Court of Allahabad in Gopal Singh Visharad Vs. Jahoor Ahmad

MANU/UP/0719/2011 where also it was observed that almost all the High

Courts are unanimous with the view that decree comes into existence on the

date of judgment even though it is signed later; as soon as the judgment is

pronounced, decree is there; in law it comes into existence though it is not

formally prepared and signed on the same date. Though Special Leave

Petitions against the said judgment have been granted but it appears, not on the

said aspect.

14. Reference in this regard can also be made to West Bengal Essential

Commodities Supply Corporation Vs. Swadesh Agro Farming & Storage

Pvt. Ltd. (1999) 8 SCC 315 to the effect that the decree becomes

enforceable the moment the judgment is delivered and merely because there

is a delay in "drawing up of the decree", it cannot be said that the decree is

not enforceable till it is prepared; this is so because an enforceable decree in

one form or another is available to a decree holder from the date of the

judgment. The same view was reiterated in Dr. Chiranji Lal (supra) also. I

have in Manoranjana Sharma Vs. Naresh Kumar Manshani

MANU/DE/3121/2013 held that though the amendment with effect from 1 st

July, 2002 to Rule 6A of Order XX of the CPC was not noticed in Dr.

Chiranji Lal (supra) but the said amendment would not make any difference

inasmuch as though the amended Rule 6A does not contain the express

provision as earlier contained "that so long as the decree is not drawn up,

the last paragraph of the judgment shall be deemed to be the decree for the

purpose of execution, but still provides that as soon as the decree is drawn,

the judgment shall cease to have the effect of a decree for the purposes of

execution or for any other purpose". It was held that the same implies that

till the decree is drawn up, the judgment shall have the effect of a decree for

the purpose of execution also.

15. From the aforesaid, it follows that it is not as if there is no decree

dated 31st May, 1984 in existence. The decree is very much in existence

having been passed on 31st May, 1984 itself. The only thing which has not

happened is that the decree is not drawn up in terms of Order XX Rule 6 of

the CPC.

16. Dr. Chiranji Lal supra basing whereon the suit is filed, was only

concerned with the aspect of limitation for execution of a decree and in that

context held that such limitation prescribed under the Limitation Act, 1963

could not be made unilaterally dependent upon the action of the parties of

not taking steps for having the decree drawn up. The question as to what is

to be the effect of such a decree being not drawn up in terms of Order XX

Rule 6 or the execution of the decree becoming time barred, on the rights of

the parties which were adjudicated by the judgment and decree, did not

come up for discussion or adjudication in Dr. Chiranji Lal. I am in this lis

concerned with the said aspect.

17. Before proceeding to examine the legality of the said aspect, it may

be noticed that the plaintiff herein, under the compromise judgment dated

31st May, 1984, gave up her rights, claims, title and interest in the subject

property and in the Patiala property and confirmed settlement of other

accounts with respect to the joint Hindu family and estate left by the father.

The plaintiff under the said judgment was left with no surviving claim /

interest and was thus not a decree-holder in any way and was not to get

anything under the said judgment or in execution of the decree which was to

follow the same. In fact, as far as the defendant no.4 was concerned, she

also did not have any need for execution of that decree. The defendant no.4

though was entitled to a sum of Rs.1,00,000/- from the predecessor of the

defendants no.1 to 3 under the said decree but was not required to execute

the decree for recovery of the said amount as the cessation of the rights of

the defendant no.4 in the Patiala property and vacation of the portion thereof

in occupation of the defendant no.4 was made dependent upon the said

payment; if the predecessor in interest of the defendants no.1 to 3 was not to

make the said payment, the defendant no.4 was to continue in occupation of

the portion of the Patiala property in her possession and continue to have

1/3rd right in the Patiala property. As far as the subject property is

concerned, the predecessor of the defendants no.1 to 3 and the defendant

no.4 were left with 2/3rd and 1/3rd undivided share respectively therein and

there was no need for execution by either party of the compromise with

respect to the subject property also. The occasion for the predecessor of the

defendants no.1 to 3 to seek execution of the compromise judgment dated

31st May, 1984 would have accrued only if the defendant no.4 inspite of

receiving Rs.1,00,000/- did not vacate the portion of the property. It would

thus be seen that there was nothing executable in the judgment dated 31 st

May, 1984. That explains perhaps the conduct, of neither of the parties

bothering to have the decree in accordance with the judgment dated 31 st

May, 1984 prepared.

18. In my opinion the non-drawing up of a decree in terms of Order XX

Rule 6 of the CPC, for whatsoever reason and whether attributable to the

parties or to the Court or its administration cannot obliterate the judgment

and the decree which has already been passed and cannot be said to revive

the rights which have been settled and adjudicated by the judgment and

decree. I am unable to digest a proposition to the contrary. Judgment which

is the result and outcome of the toil of the parties to prove their case which

is disputed by the other and of sweat of the brow of the Judge cannot in my

opinion be permitted to be wasted by the administrative lapse of preparing a

decree in terms thereof, particularly when as aforesaid, from the tenor of the

judgment and decree there is no need for execution thereof. I am therefore

of the opinion that though non drawing up of the decree or non applying for

the execution thereof may bar execution if was required of the judgment but

cannot revive the rights which have been settled/created/extinguished by the

judgment. What becomes barred is only the right of the party entitled to

something under/as per the judgment from another party to the lis to seek

the assistance of the Court therefor. In my opinion, the position is the same

as what has been held qua the statute of limitation. What becomes barred is

the remedy and not right. Thus, if in the judgment and decree, it has been

held that a person has no right in the property and such person is not

required to do anything further in favour of the party who may have been

found entitled to the property, non drawing up of the decree or non

execution thereof cannot in my opinion entitle that person to re-agitate the

right which has been negated.

19. As far back as in Mahomed Hossein Vs. Kokil Singh

MANU/WB/0066/ 1881, a Division Bench of the High Court of Calcutta

held that merely because the right to take out execution upon a decree is

barred by limitation, does not mean that the decree itself has ceased to

subsist. It was held that the decree remains and will ever remain in full

force as an adjudication of the rights of the parties, whether execution can

be taken out upon it or not. It was yet further held that a decree subsists

forever unless it is set aside or reversed by some competent authority.

20. To the same effect is the judgment of the Division Bench of the High

Court of Kerala in Velayudhan Vs. Receiver MANU/KE/0690/1993.

Relying on several earlier judgments of the High Courts of Allahabad,

Bombay and Calcutta, it was held that even though the execution of the

decree may be statute barred, the judgment debt is not thereby extinguished

and that because the right to take out execution upon a decree is time barred,

it does not follow that the decree itself has ceased to subsist. The decree

was held to remain in full force as an adjudication of rights of the parties,

whether execution can be taken out upon it or not.

21. Reference may lastly be made to the judgment of the Division Bench

of our own High Court in Union of India Vs. Syed Shah Nasir Hussain

AIR 1982 Delhi 300. In this case, the Government had brought out a suit for

possession of certain lands. A consent decree was passed therein which

provided that a perpetual lease would be granted in favour of the defendant

with respect to a portion of the said land and with respect to rest of the land,

it was agreed that possession thereof will be taken over by the Government.

However, the Government did not execute the decree and the execution

thereof became barred by time. Thereafter, when the Government attempted

to take possession of the land, a suit for permanent injunction was filed

averring that the Government having not executed the earlier decree, had

lost the right to possession of the said land. The Division Bench of this

Court held that the non execution will bar the remedy of execution at best

and would not create any rights in the land in favour of the judgment-debtor,

execution of the decree for recovery of possession whereof had become

barred by time. It was yet further held that non execution of the decree did

not affect the Government‟s title to the land and the said title would not

extinct by the remedy of execution of decree for recovery of possession

thereof becoming barred by time. It was yet further held that once the

judgment-debtor in the compromise had renounced his title to the remaining

land, the title thereto vested in the Government.

22. Reference at this juncture may also be made with benefit to the

judgment of the High Court of Patna in Md. Sanjer Ali Vs. Bibi Hasina

Khatoon MANU/BH/0190/2007. The facts were, that in a suit for

declaration of a gift deed as void, a compromise was arrived at, at the

appellate stage and a compromise application was filed and was allowed and

the suit ordered to be decreed in terms thereof and as per which the property

was agreed to be partitioned between some of the parties with one of the

parties being not allotted any share therein. After nearly two decades, the

original decree of the first Court was sought to be executed on the ground

that no decree in terms of the compromise having been prepared, the decree

of the first Court was executable. It was held that when a compromise

petition records the disposal of the entire properties in the suit amongst the

parties to the suit and the said compromise is accepted by the Court, then the

order of the Court amounts to a final decree.

23. Similarly, the High Court of Gujarat also in Bai Vasanti (supra) held

that the Court‟s statement expressing its satisfaction that there is an

agreement or compromise adjusting the suit amounts to a judgment because

it provides the ground to the Judge for making an order to record the

compromise and that upon said judgment as directed by the provisions of

Order XXIII Rule 3, a decree has to be passed and which is passed as

aforesaid at the time of the judgment itself. It was further held that even if

the judgment did not contain any specific direction for passing a decree, a

direction to the office to prepare a decree necessarily implies the recording

of compromise and passing a decree. It was yet further held that the order

to draw up a decree necessarily implies that the judge has passed a decree

and as aforesaid a decree comes into existence immediately when a

judgment is pronounced, in terms of Section 33 of the CPC.

24. From the aforesaid discussion it follows that the order dated 31 st May,

1984 in the earlier suit for partition accepting the compromise arrived at

between the plaintiff and the defendant no.4 and the predecessors of the

defendants no.1 to 3 and decreeing the suit in terms of the compromise

amounts to a judgment and decree which continues to bind the parties

notwithstanding a decree in terms of Order XX Rule 6 of the CPC having

not been drawn and notwithstanding neither party having applied for

execution thereof and the said execution having become barred by time.

25. The next question for consideration is whether the aforesaid judgment

and decree dated 31st May, 1984 was required to be stamped and registered

and if so what is the impact thereof - whether owing to being not stamped

and not registered it can be said that the rights claimed by the plaintiff in the

earlier suit in the subject property, notwithstanding the same having been

extinguished under the judgment and decree dated 31st May, 1984 stand

revived.

26. As far as the question of stamping is concerned the Division Bench of

this Court in K.N. Khanna supra held that it is not every decree in a partition

suit which would be required to be drawn up on a stamp paper. It was held

that only those decrees will be required to be drawn up on a stamp paper

which divide any property in severality amongst co-owners. Finding in the

facts of that case that the decree only defined the shares of the parties in the

property, it was held that the same was not required to be drawn on a stamp

paper. It was clarified that only such of the decrees are required to be drawn

on a stamp paper, which allot and vest particular share in each co-sharer.

The same view was reiterated by another Division Bench in Sushil Kumar

Gupta Vs. Smt. Prem Gupa MANU/DE/0364/2013.

27. The decree dated 31st May, 1984 also does not divide the property by

metes and bounds and merely provides that the predecessor of the

defendants no.1 to 3 will have 2/3rd share therein and the defendant no.4

would have 1/3rd share therein. The same thus did not require to be stamped

and cannot be said to be suffering from any deficiency of stamp duty.

28. As far as the aspect of registration is concerned, the same is also no

longer res integra. The Division Bench of this Court in Uma Devi Yadav (as

also other judgments aforesaid cited by the counsel for the defendants no.1

to 3) supra has reiterated that a compromise decree, if found to be bona fide

in the sense that the compromise is not a device to obviate payment of stamp

duty and frustrate the law relating to registration, would not require

registration. In that case also, one of the parties to the compromise decree

had given up his share in the property. It was still held that the same was not

registrable. It was further held that a compromise decree or a decree based

on family settlement operates as an estoppel and such a decree is binding on

the parties and must be given effect to unless it is proved that the same was

obtained by fraud, misrepresentation, coercion or undue influence. The

compromise decree dated 31st May, 1984 in the present case also is based on

a family settlement and it is not the case of the plaintiff that the compromise

was not bona fide or that the compromise was a device to obviate payment

of stamp duty and frustrate the law relating to registration. Similarly, as

aforesaid, the plaintiff has not approached this Court for setting aside of the

compromise decree dated 31st May, 1984 on the ground of the same having

been obtained by fraud, misrepresentation or undue influence.

29. It thus follows that the compromise decree dated 31 st May, 1984 was

not compulsorily registrable and cannot be said to be of no avail for the

reason of being not so registered.

30. In view of the aforesaid discussion it follows that the plaintiff is

bound by the compromise decree dated 31st May, 1984 and the factum of the

same having not been executed or the execution thereof being barred by time

has no consequence on the efficacy thereof. The plaintiff is thus not entitled

to the relief sought of declaration. Under the said compromise decree dated

31st May, 1984 the plaintiff has no share in the subject property No.17,

Rajdoot Marg, Chanakyapuri, New Delhi. The plaintiff is thus not entitled to

maintain a suit for partition of the said property on the plea of having 1/3 rd

share therein as the plaintiff claimed in the suit in which the compromise

decree dated 31st May, 1984 was passed. The plaintiff not having 1/3 rd share

in the said property is also not entitled to the relief of injunction with respect

to the said property.

31. As far as the claim of the plaintiff to 50% out of 1/3 rd share of the

defendant no.4 in the said property is concerned, as aforesaid the defendant

no.4 has filed CS(OS) No.1912/2012 challenging the same. Though the

plaintiff filed an application for rejection of the plaint in that suit but the said

application was dismissed vide order dated 21st April, 2014. The claim of the

plaintiff for partition on the basis of the said 50% out of 1/3rd share of the

defendant no.4 cannot be, as aforesaid, adjudicated till the decision of

CS(OS) No.1912/2012.

32. In this context another interesting facet may be noted.

33. The plaintiff claims 50% out of the 1/3rd share of the defendant no.4

on the basis of a Relinquishment Deed executed by the defendant no.4 in

favour of the plaintiff prior to the institution of this suit and also on the basis

of a Gift Deed executed by the defendant no.4 with respect thereto in favour

of the plaintiff. A perusal of both i.e. the Relinquishment Deed as well as

Gift Deed and to both of which the plaintiff is a party shows that the plaintiff

therein also admitted that the said 1/3rd share of the defendant no.4 in the

property is in accordance with the compromise decree dated 31st May, 1984.

Though the plaintiff in this suit was claiming the decree dated 31 st May,

1984 to be of no consequence but still in the Gift Deed executed after the

institution of the suit still recited that the 1/3rd share of the defendant no.4

was in accordance with the compromise decree dated 31 st May, 1984. The

plaintiff has clearly been approbating and reprobating and which shows the

mala fides and abuse of the process of the Court by the plaintiff. The

plaintiff is liable to be non-suited on this ground as well.

34. The Full Bench of this Court in Rajneesh Kumar Singhal Vs. The

State (National Capital Territory of Delhi) 89 (2001) DLT 511 held that it

is an elementary rule that a party litigant cannot be permitted to assume

inconsistent positions, to play fast and loose, to blow hot and cold, to

approbate and reprobate, to the detriment of the opponent. The plaintiff

herein, while on the basis of the Relinquishment Deed and Gift Deed

claiming 50% out of the 1/3rd share of the defendant No.4, is relying on the

defendant No.4 having got the said 1/3rd share under the judgment and

decree dated 31st May, 1984 and on the other hand challenging the said

judgment and decree dated 31st May, 1984. The same is impermissible.

35. The application thus succeeds and is allowed. The claim of the

plaintiff in the suit, for the relief of declaration and for partition of property

No.17, Rajdoot Marg, Chanakyapuri, New Delhi to the extent of having 1/3 rd

share therein as a heir of her father who was the owner of the said property

and consequently for injunction qua the property is rejected as barred by

law.

The application is disposed of.

RAJIV SAHAI ENDLAW, J.

MAY 22nd, 2014 bs/pp/gsr