Karnataka High Court
Sri.K.K.Monnappa vs Sri.K.K.Poovaiah on 27 January, 2025
Author: Hemant Chandangoudar
Bench: Hemant Chandangoudar
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CRP No. 472 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27 TH
DAY OF JANUARY, 2025
R
BEFORE
THE HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR
CIVIL REVISION PETITION NO. 472 OF 2015 (IO)
BETWEEN:
SRI. K.K.MONNAPPA
S/O. LATE K.D.KALAPPA,
AGED ABOUT 67 YEARS,
TEACHER (RETIRED),
GOVERNMENT MIDDLE SCHOOL,
NANJARAYAPATNA VILLAGE AND POST,
KUSHALNAGAR HOBLI,
SOMWARPET TALUK,
KODAGU DISTRICT-571234.
...PETITIONER
(BY SRI. AKSHAYA GOWDA AND
SRI. KETHAN KUMAR, ADVOCATES)
AND:
1. SRI. K.K.POOVAIAH
S/O. LATE D. KALAPPA,
AGED ABOUT 63 YEARS,
Digitally signed by B
RESIDING AT NO. M.G.P.284,
K
MAHENDRAKUMAR
Location: HIGH
SARADANAGAR, TIPUTTUR-572202.
BK
MAHENDRAKUMAR COURT OF
KARNATAKA
DHARWAD BENCH
Date: 2025.02.20
16:40:29 +0530 2. SRI. K.K.SOMAIAH
S/O. LATE K.D.KALAPPA,
AGED ABOUT 53 YEARS,
MANAGER, SYNDICATE BANK,
NO.1010, 14TH MAIN, 4TH STAGE,
T.K.LAYOUT, MYSORE-570 009.
3. SMT. K. K. BOJAMMA
W/O. C. C. BOJAPPA,
AGED ABOUT 57 YEARS,
HALUGUNDA VILLAGE,
HARANGI POST, SOMWARPET TALUK,
KODAGU DISTRICT-571 236.
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CRP No. 472 of 2015
4. SMT. K. K. BOJAMMA
W/O. MEDUMANE VITTAL,
AGED ABOUT 48 YEARS,
R/O. SAVANUR VILLAGE AND POST,
PUTTUR TALUK, D.K.DISTRICT.
5. SMT. K. N. NETHRAVATHI
W/O. KOMBARANA SUBBAIAH,
AGED ABOUT 45 YEARS,
R/O. KALOOR VILLAGE AND POST,
MADIKERI TALUK, KODAGU-571201.
6. SMT. K. K. PADMAVATHI
W/O. I.G.BOLLAPPA,
AGED ABOUT 38 YEARS, TEACHER,
PARANE VILLAGE AND POST,
MADIKERI TALUK, KODAGU-571201.
7. SMT. K. K. MACHAMMA
W/O. LATE K.D.KALAPPA,
AGED ABOUT 70 YEARS,
C/O. C.C.BOJAPPA,
HALUGUNDA VILLAGE,
HARANGI POST, SOMWARPET TALUK,
KODAGU-571236.
...RESPONDENTS
(BY SRI. JAGADEESHA GOWDA, ADVOCATE FOR R2;
NOTICE TO R3 AND R6;
R7- DEAD AND THERE IS NO LRs OF DECEASED R7)
THIS CIVIL REVISION PETITION IS FILED UNDER SEC.115 OF
CPC,1908, PRAYING TO, CALL FOR RECORDS IN OS.NO.113/1999
ORDER ON IA NO.II DATED 17.04.2015 ADDL. CIVIL JUDGE, AND
JMFC, MADIKERI AND SET-ASIDE THE IMPUGNED ORDER DATED
17.04.2015 IN O.S.NO.113/1999 ON THE ADDL. CIVIL JUDGE AND
JMFC, MADIKERI AND ETC.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR
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CRP No. 472 of 2015
ORAL ORDER
The petitioner challenges in this civil revision petition the
order dated 17.04.2015 passed by Addl. Civil Judge and JMFC,
Madikeri, rejecting the I.A. No. II in O.S. No. 113/1999 filed by the
petitioner, wherein the petitioner had sought a directive to refer the
compromise decree dated 18.06.2001, passed by the Trial Court,
Madikeri in the said suit for partition and separate possession, for
registration in the Office of Sub-Registrar.
2. The Trial Court vide order dated 17.04.2015 had
dismissed the I.A. No. II in O.S. No. 113/1999, observing that there
is no provision of authority vested in the Trial Court to direct any
authority to register the compromise decree, more so when the
said compromise decree was drawn on 18.06.2001 and that the
petitioner herein had filed the I.A. No. II after a lapse of 13 years.
3. Aggrieved, the petitioner prefers the instant civil
revision petition on 03.09.2015. However, the petitioner had failed
to array the legal representatives of the deceased respondent No.
1, who had passed away on 25.12.2001, and the I.A. No. 1/2017
filed for condonation of 5637 days of delay in arraying the
necessary legal representatives was dismissed by this Court, vide
order dated 22.06.2024. It was further clarified that respondent No.
1 or his legal heirs would not be bound by any orders passed by
this Court.
4. The learned counsel for the petitioner submitted that
the respondent No.1/plaintiff's suit for partition and separate
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possession in O.S. No. 113/1999 ended in a compromise and
subsequently, a compromise decree dated 18.06.2001 came to be
passed by the Trial Court.
4.1. Thereafter, despite the petitioner/defendant No.2's
efforts, respondents have allegedly consistently refused to adhere
to the compromise decree, compelling the petitioner to prefer Ex.C.
No. 34/2007 before the Trial Court of Madikeri. The respondent No.
2 filed the objections contesting, inter alia, the maintainability of the
execution petition against the compromise in O.S. No. 113/1999
without there being a final decree proceedings. The said execution
petition, however, came to be dismissed vide order dated
18.02.2012.
4.2. Thereafter, the petitioner preferred an interlocutory
application I.A. No. II in O.S. 113/1999 seeking a direction to the
jurisdictional Sub-Registrar to register the compromise decree
dated 18.06.2001. The same was dismissed vide order dated
17.04.2015 (impugned order). In the meanwhile, the petitioner
preferred a second execution petition viz. Ex. C. 11/2012, before
the Trial Court of Madikeri, and is currently pending for
consideration on the file of Addl. Civil Judge and JMFC,
Kushanagar.
4.3. The learned counsel concluded that the impugned order
is contrary to the settled law as that in a partition suit, there is no
limitation prescribed for drawing up of final decree. He further
places reliance upon the decision of the Apex court in the case of
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AIR 2010 SC 577 (AK Lakshmipathy v. Rai Saheb Pannalal),
wherein the Hon'ble Supreme Court has held that there is no
period of limitation for registration of the compromise decree.
5. The learned counsel for respondent No. 2 has filed
vakalath, and respondents No. 3 to 6 were served, but remain
unrepresented.
6. Heard the learned counsel and perused the material
on record.
7. The issue that arises for consideration is whether a
compromise decree passed by the Trial Court in a suit for partition
and separate possession can be executed by instituting final
decree proceedings?
8. It is evident from the material on record that the suit for
partition and separate possession filed by respondent No. 1-plaintiff
in O.S. No. 113/1999 was concluded through a compromise decree
dated 18.06.2001. The respondent No. 1-plaintiff passed away on
25.12.2001, and as recorded above, vide order dated 22.06.2024,
the legal representatives of the respondent No. 1 are not bound by
any order passed in this petition.
9. The respondent No. 2 was arrayed as the judgment
debtor in the execution petitions, Ex. C. 34/2007 and Ex. C. No.
11/2012. A perusal of the order dated 18.02.2012 passed in Ex. C.
34/2007 reveals that the Ld. Trial Judge was of the opinion that the
reliefs sought in the execution petition, and the scheduled
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properties annexed thereto did not tally with the compromise
decree. Subsequently, it appears upon further perusal that the
petitioner has preferred a second Ex.C. 11/2012 on 16.07.2012
which is currently pending consideration on the file of Addl. Civil
Judge and JMFC, Kushgalnagar. The same however, cannot
proceed until the said compromise decree is registered with the
jurisdictional Sub-Registrar.
10. A comparison of the scheduled properties annexed to
the O.S. No. 113/1999 and the contents of the compromise decree
dated 18.06.2001 passed therein indicates that the compromise
decree comprises immovable properties other than that which were
the subject matter of the suit for partition instituted by the now-
deceased respondent No. 1. Therefore, upon a conjoint reading of
Section 17(1)(b) of the Registration Act, 1908 and sub-section
(2)(vi) thereof, leads to the conclusion that the said compromise
decree is to be mandatorily registered. However, it is undisputed
that the same has not been registered till date, and that there has
been a lapse of more than 13 years in the registration thereof, as
on the date of filing of the instant petition. Therefore, the same is
rendered unenforceable in execution proceedings. Section 24 of
the Registration Act, 1908 stipulates that no document other than a
will, shall be accepted for registration unless presented for that
purpose within four months from the date of its execution.
11. However, a careful scrutiny of the contents of the
compromise decree reveals that the said decree at paragraph no.
(2) at page no. (5) states that upon withdrawal of a suit filed against
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KK Ponnappa (respondent No.1) pending before the Civil Court of
Madikeri, the contesting coparceners therein (who are petitioner
No. 1 and respondent Nos. 1 and 2 herein) are to prefer before the
panchayat an application to conduct a survey of the lands and
thereafter, partition them in separate identifiable parcels of land in
favour of Sommayya (respondent No.2) and Monappa (petitioner),
in accordance with the terms agreed in the compromise decree.
Therefore, it may be reasonably inferred that where a decree of a
Court envisages a partition between coparceners upon the conduct
of future survey of the partible estate by the panchayatdhars, and
does not specifically delineate the properties falling to the share of
each coparcener, there yet remains a conclusive adjudication of
the partition dispute. Therefore, the said compromise decree, even
if purported to have been a final decree, is no more than a
preliminary decree, which is to be followed by a final decree
containing the apportionment of the partible estate in favour of
each of the contesting coparceners.
12. A review of the dismissal order dated 18.02.2012
passed in the first execution petition, Ex.C. 34/2007, reveals that
the contesting coparcenary parties involved in the O.S. No.
113/1999 failed to adhere to the terms and conditions stipulated in
the compromise decree. In Ex.C. 34/2007, respondent No. 2
specifically objected, asserting that the panchayathdars had neither
conducted a survey of the properties nor demarcated their
boundaries as outlined in the compromise decree, making it
unsuitable for execution proceedings. The respondent No. 2 had
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further contended therein that the petitioner who was obligated to
pay a sum of Rs.3,00,000/- to Respondent no.2 had failed to do so.
13. The instant civil revision petition does not seek to alter
the terms of the compromise decree dated 18.06.2001 passed in
O.S. No. 113/1999 or to reopen the partition finalized therein. The
petitioner's limited grievance pertains to the non-implementation of
the compromise decree dated 18.06.2001 and seeks a directive to
the execution court to enforce the terms of the decree concerning
the petitioner's coparcenary share as stipulated therein. However,
the petitioner's attempt to initiate execution proceedings prior to a
conclusive adjudication of the partition dispute was improper and
premature. It is noteworthy that the petitioner has approached this
Court under its revisional jurisdiction, seeking a directive to the trial
court to conclude the proceedings related to the substance of the
matter in O.S. No. 113/1999.
14. At this juncture, it is pertinent to refer to the relevant
decisions of the courts of law and the principles enunciated therein.
15. In the case of Tara Pada Ray v. Shyama Pada Ray
and Ors. AIR 1952 CAL 579, the High Court of Calcutta addressed
a situation where a partition was effected by metes and bounds in
pursuance of a preliminary decree passed in a partition suit, and
upon expiry of 15 years since effecting of the partition, the plaintiff
had approached the High Court in appeal, against the dismissal of
an application praying for issuance of final decree, the High Court
had dismissed the same on the grounds that a partition had already
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been effected and that the parties had been in separate possession
in accordance with such partition.
15.1. The Court however, observed that the parties are
entitled to ask the Court to complete proceedings that are left
incomplete on the passing of a preliminary decree by taking steps
to complete the proceedings in the suit by passing a final decree. It
categorically opined that "although, therefore, the accepted
proposition is that once a preliminary decree is passed by the
Court, it is open to the parties to come up subsequently with prayer
to take further steps for the passing of a final decree, there is an
important exception to the general rule. On proof of changed
circumstances, as in the present case, when it is found that there is
no necessity or room for the application of the general rule, as the
parties had already taken advantage of the directions contained in
the preliminary decree, the exception to the general rule comes into
play. The Court cannot and would not in equity take any further
steps". Furthermore, it opined that the right to claim partition is
subject to the existence of the divisible joint properties and that
such a right may be invoked "not only when a suit is filed by a party
for effecting partition and before a preliminary decree is passed,
but is equally applicable at every stage of the partition suit".
15.2. The Court further observed that upon the declaration of
the rights of the parties through the passing of the preliminary
decree, the parties were not precluded from amicably settling their
disputes. However, it held that where a partition was effected
pursuant to such an amicable settlement and the parties had
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entered into separate possession of the properties in accordance
with the settlement, the parties would be estopped from seeking
further steps for the passing of a final decree. This is because the
coparcenary estate would have ceased to exist, and any such step
would amount to reopening an already effected partition, unless
there existed a challenge to the compromise decree on the
grounds that it was not recorded in accordance with law.
16. In the case of Varadarajulu Reddiar v. Venkata
Krishna Reddiar and Others (1967) 2 MLJ 342, the High Court of
Madras, while allowing the revision petition of the plaintiff to the
extent of localizing unspecified rights, dealt with an appeal against
the granting of an application by certain defendants. The
defendants sought to treat a compromise decree passed in a
partition suit as a preliminary decree, requested the appointment of
a commissioner to divide the properties as per the compromise
decree, and prayed for a final decree. The Court opined, "the
compromise decree proceeds as if it is a final decree, but whether
a decree is final, preliminary, or partly preliminary and partly final
must be determined by reference to the decree itself, and not by
the description given to the decree by the parties."
16.1. The Madras High Court further observed that the Civil
Procedure Code contemplates the possibility of a composite
decree, and that the real nature of a final decree can be
ascertained in the answer to the question of whether the passing of
the subject decree has finally adjudicated the rights of the parties,
by dividing the suit properties by metes and bounds, and declaring
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the respective rights of the parties in the particular properties duly
identified or identifiable, and thereafter, if necessary, institute
execution proceedings.
16.2. Therefore, where the terms of the decree indicate a
final disposal of the suit, and there remains nothing further to be
done to specify the rights of the parties, it shall be a final decree.
The Court further reiterated that where the parties had already
taken advantage of the directions contained in the preliminary
decree, the Court cannot and would not in equity take any further
steps for the passing of the final decree.
16.3. Similarly, the Madras High court also opined that the
fact that parties to partition suit had compromised shall not affect
the position of the parties to seek a final decree, "unless the terms
are so clear that the parties did not require or expect further relief
from Court in the very proceedings. It is open to the parties by
compromise to just have their rights declared and put an end to the
suit. If that be the case then there can be no further proceedings in
the very suit, and if any party is thwarted in securing the relief
provided, his remedy where there is no decree capable of
execution may be another suit". It further continued that "a decree
on compromise can be either preliminary or final or composite in
character".
17. In the case of K.K. Khosla v. Addl. District Judge
XIV, Lucknow and other, 2013 SCC OnLine All 14040, the High
Court of Allahabad dealt with the issue of inter alia, "whether
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compromise decree in the present case is merely a declaratory one
and having no clause for execution in case of its breach". Negating
the contention that the compromise decree therein was
inexecutable, whereby, the defendant had agreed to vacate suit
property (shop) within a stipulated period, the High Court placed
reliance on the decision in the case of Harihar Pandey v. Mangala
Prasad Singh (AIR 1986 All 9) and held that even where there was
no execution clause in case of default, still the compromise decree
was executable, and dismissed the writ petition preferred by the
defendant against the dismissal of the objections raised on the
issue of executability of the said compromise decree.
17.1. The Court, in Harihar Pandey, had further observed
that there cannot be any real difference between an injunction
granted by the Court upon adjudication of rights and a self-invited
injunction under a compromise decree. It observed that "if the
prohibition and/or positive mandates mentioned in the compromise
to regulate their future mode of conduct were intended to be
enforced as an injunction then, notwithstanding the fact that no
injunction is specifically granted under the decree, it must be held
to be one for injunction".
17.2. The Allahabad High Court further referred to the case
of Prakash Chand Khurana v. Harnam Singh (1973) 2 SCC 484,
wherein the Apex Court had observed that "it is never a pre-
condition of the executability of a decree that it must provide
expressly that the party entitled to a relief under it must file an
execution application for obtaining that relief". The Apex Court
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therein had further observed that it cannot be presumed that
despite the passing of a compromise decree, there continued to
exist differences between the parties thereto, unless the same
were apparent. It further held that the compromise may create new
rights and between parties but, it will all depend on the language of
compromise and that the executing Court shall not go into the
pleadings, evidence, etc., unless, it were to be absolutely
necessary to gather correct intention of parties in case of some
ambiguity in the terms of compromise.
17.3. A further reference was made to a decision of the High
Court of Rajasthan in the case of Devdutta Dheer v. Janaki
Vallabh (AIR 1986 Raj 170), where the High Court of Rajasthan
had observed that when a defendant had agreed to handover
possession of the disputed property to the plaintiff in a compromise
decree, it meant that the parties to the dispute had agreed for a
passing of a decree for ejectment against the defendant, within a
stipulated period, and the same was to be executable.
17.4. A reference was further made to the decision of the
High Court of Kerala in the case of V.N. Sreedharan v. Bhaskaran
(AIR 1986 Ker 49) wherein, the Court observed that executability is
one of the main incidences of decree, including a compromise
decree, and that unless the executability of the compromise decree
is restricted by the terms thereof, or by the provisions of any
supervening legislative enactments, the executable character of the
decree is not lost.
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The Kerala High Court opined, "the emerging position is that
the non-inclusion of a particular clause in a compromise decree
that in the event of non-performance of the conditions in it the party
concerned is entitled to apply for execution and get the conditions
enforced through Court will not render the decree inexecutable".
17.5. A further reference was made to another decision of
the High Court of Kerala in the case of Gopinath Nair v. Madhavan,
1984 ILR (1) Ker 464, wherein the Court observed that "the rights
under a decree have to be realised by execution unless the party
liable readily discharges his obligation under the decree. A
compromise decree is also a decree...Simply because a decree is
a compromise decree, it cannot be said that the decree is not
executable. It cannot also be said that unless there is a direction in
the compromise decree, to [execute and realise the right conferred
by the decree, the decree cannot be executed".
17.6. Further referring to the decision rendered by the Apex
Court in the case of By ram Pestonji Gariwala (1992) 1 SCC 31,
wherein it was observed that a compromise decree may
incorporate not only matters falling within the subject matter of the
suit, but also those which are collateral to it, the Allahabad High
Court concluded that the compromise decree therein was not
beyond the scope of the suit, inasmuch as a decretal of suit for
possession in terms of a compromise decree would automatically
entail in consequence the dispossession of the defendant.
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18. Therefore, it may be reasonably understood that a
compromise decree, even if purported to be a final decree may
nevertheless, be relegated to a preliminary decree, when the
coparcener parties to the compromise decree had not divided the
jointly held suit properties and entered into separate possession
thereof. However, in the instant case, as elucidated at paragraph
no. (10) above, the compromise decree dated 18.06.2001 was but
a preliminary decree, passed in light of the compromise entered
into by the petitioner, respondent No.1 and respondent No.2 (who
are the contesting coparceners in the yet pending O.S. No.
113/1999).
19. Enforceability is the necessary incidence of any
decree, including a preliminary compromise decree. An otherwise
legally valid compromise decree is enforceable by instituting final
decree proceedings, as any interpretation or an inference to the
contrary would result in setting at nought the compromise decree
rightfully consented to before a court of law and consequently, re-
open a partly settled partition.
20. Although the issue of executability of a compromise
decree before the execution court is not directly in issue herein,
and more so premature at this stage, it is nevertheless clarified that
any recourse to execution proceedings under Order 21 of the Civil
Procedure Code to implement a decree of the Court is an
exceptional remedy - not to be pursued, unless the judgment
debtor were to refuse to readily discharge the obligation(s)
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embraced under a final compromise decree, or otherwise imposed
by the Court in the process of adjudication.
21. Thus, where a compromise decree in a suit for partition
was passed but the partition remained uneffected and in abeyance,
remedy is always reserved with either party to seek the assistance
of the Court, by instituting final decree proceedings, to implement
or execute the already agreed upon terms of the said decree,
unless the said compromise decree were to be contested on the
grounds of the decree not having been passed in accordance with
law. However, no plea for such remedy shall be entertained when
proof of altered circumstances contrary to the terms of decree
exist, and more so when there has been a long passage of time
since the alteration of the circumstances and in the institution of
final decree proceedings.
22. It is trite law that there cannot be more than one final
decree and that earlier pronouncements are subsumed into the
final decree - the latter having wholly and comprehensively
adjudicated upon the rights of the parties, and thereby disposed of
the suit.
23. In the instant case, the parties to subject compromise
decree dated 18.06.2001 have clearly not effected the partition in
accordance with the terms of the compromise, compelling the
petitioner-defendant No. 2 to have erroneously pursued execution
proceedings, in the hope of realising, with judicial assistance, the
fruits of the preliminary compromise decree. The petitioner
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therefore, is entitled to pursue further steps to seek a final decree,
in accordance with the terms of the compromise decree dated
18.06.2001, and bring the O.S. No. 113/2001 to a close.
24. In light of the fact that final adjudication of the partition
suit in O.S. 113/1999 remains pending, the subsistence of
execution proceedings in Ex. C. 11/2012 on the file of Addl Civil
Judge, Kushalnagar, is an anomaly in law, and therefore, stands
abated.
25. In view of the foregoing, I order the following:
ORDER
i. The petition is allowed and the order dated 17.04.2015
passed in O.S. No. 113/1999 by the Addl. Civil Judge and
JMFC, Madikeri is set aside.
ii. The petitioner is at liberty to institute final decree
proceedings in O.S. No. 113/1999 in accordance with the
agreed upon terms of the compromise decree dated
18.06.2001.
iii. As per the earlier order dated 22.06.2024 (which has
attained finality), the legal representatives of the
respondent No. 1 are not bound by any order passed in
this petition.
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iv. The execution proceedings in Ex. C. 11/2012 pending on
the file of Addl Civil Judge, Kushalnagar stand abated
forthwith.
Sd/-
(HEMANT CHANDANGOUDAR)
JUDGE
AC
Ct:vh
