Karnataka High Court
Smt. Kumari vs D Venugopal on 25 March, 2025
Author: R Devdas
Bench: R Devdas
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CRP No. 664 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF MARCH, 2025
BEFORE
THE HON'BLE MR JUSTICE R DEVDAS
CIVIL REVISION PETITION NO. 664 OF 2024
BETWEEN:
SMT. KUMARI
AGED ABOUT 54 YEARS
W/O THYAGARAJAN
SREERAMANAGAR
OORGAUMPET, KGF - 563115
...PETITIONER
(BY SRI. VINAYA KEERTHY M., ADVOCATE)
AND:
1. D VENUGOPAL
AGED ABOUT 72 YEARS
S/O DEVASIGAMANI
Digitally signed by BEHIND SUIT PROPERTY
KRISHNAPPA LAXMI
YASHODA SREERAMANAGAR
Location: HIGH OORGAUMPET, KGF - 563 115.
COURT OF
KARNATAKA
2. D JAYARAM
AGED ABOUT 68 YEARS,
S/O DEVASIGAMANI
BEHIND SUIT PROPERTY
SREERAMANAGAR
OORGAUMPET, KGF - 563 115
...RESPONDENTS
(BY SRI.D.VENUGOPAL, R1 - PARTY-IN-PERSON
SRI. G.S.SREEDHARA., ADVOCATE FOR R2)
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CRP No. 664 of 2024
THIS CRP IS FILED UNDER SECTION 115 OF CPC,
AGAINST THE ORDER DATED 21.08.2024 PASSED IN
EX.NO.31/2023 ON THE FILE OF THE II ADDITIONAL CIVIL
JUDGE AND JMFC, K.G.F, PARTLY ALLOWING THE PETITION
AND ETC.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE R DEVDAS
ORAL ORDER
The petitioner, who is arrayed as a judgment debtor
at the hands of the 1st respondent herein in Execution
Petition No.31/2023 on the file of the leaned II Additional
Civil Judge and JMFC., K.G.F., is before this Court
aggrieved of the impugned order at Annexure-A, dated
21.08.2024, wherein the learned Judge has allowed the
execution petition and passed an order restraining the
petitioner herein from causing obstructions to the decree
holder to remove the stone slabs standing in the adjacent
property of the petition schedule property.
2. It is not disputed that the petitioner herein had
filed a suit in O.S.No.367/2019 on the file of the learned II
Addl. Civil Judge and JMFC., K.G.F., wherein the 1st
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respondent is defendant No.2 and respondents' brother
Sri.Jayaram is defendant No.1. The petitioner herein had
filed a suit seeking mandatory injunction to direct the
defendants not to interfere with the peaceful possession
and enjoyment of the plaintiff's suit schedule property; to
direct the defendants not to remove the stones from the
suit schedule property which is also covered with the
building. A compromise petition was filed by the parties,
wherein the parties agreed as follows:
"4. That the Plaintiff and the Defendant
No.2 have hereby agree and declare that the
Plaintiff is in possession and enjoyment of the
suit schedule property measuring East to West
36 feet and North to South 23 feet with build up
area of 16' X 10 squares. Plaintiff agreed that
she will pay a sum of Rs.22,000/- towards value
of the stone slabs standing on the suit schedule
property and the Defendant No.2 agreed for the
same and he will receive the above said amount
and the plaintiff agreed that she will not claim
adjacent property other than the suit schedule
property mentioned above. Further, the
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Defendant No.2 will not press for the Counter
Claim filed by him under Order VIII Rule 6A of
the CPC.
5. That the parties hereto have agree
and declare that they have no further claim
against each other except the terms agreed in
this compromise petition and the Defendant
No.1 have to objections for the above said
terms and conditions."
3. Accordingly, the decree was drawn in terms of the
compromise petition by the learned Civil Judge. It is also
not disputed that the petitioner herein being the plaintiff
paid a sum of Rs.22,000/- towards the stone slabs in
favour of the 1st respondent/defendant No.2 and the 1st
respondent, party-in-person admitted having received the
said sum of Rs.22,000/- from the petitioner/plaintiff.
However, thereafter, the 1st respondent filed an execution
petition contending that the petitioner herein created
problem in not allowing the decree holder to remove the
stone slabs standing in the adjacent property belonging to
the decree holder.
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4. The petitioner herein appeared before the
executing court, filed statement of objections and
contended that the execution petition filed by the decree
holder is not maintainable either in law or on facts and the
same is liable to be dismissed. It was contended that the
decree holder has no right to file the execution petition
and the decree holder has no right, title and interest over
the suit schedule property and the decree holder is a
stranger to the suit schedule property. It was contended
that the petitioner herein is the absolute owner in
possession and enjoyment of the petition schedule
property and that she had purchased the property from
the 1st respondent herein under a registered sale deed
dated 11.02.2002. It was contended that in terms of the
compromise decree passed in O.S.No.367/2019, the
original plaintiff paid a sum of Rs.22,000/- for the stone
slabs to the decree holder. It was therefore contended that
if the execution petition is allowed, at any moment the
decree holder may remove the stone wall attached to the
petition schedule property and it would further lead to
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multiplicity of proceedings and the original plaintiff will be
put to irreparable loss and injury. Nevertheless, the
executing court has passed the impugned order allowing
the execution petition while passing an order restraining
the petitioner herein from causing obstructions to the
decree holder to remove the stone slabs standing in the
adjacent property of the petition schedule property.
5. Learned Counsel for the petitioner has reiterated
the arguments put forth before the executing court and
submits that in the compromise petition or in the decree
drawn by the trial court, no where it is stated that the
plaintiff had agreed to permit defendant No.2 to remove
the stone slabs, even after the plaintiff paying a sum of
Rs.22,000/- to defendant No.2 in terms of the decree.
Learned Counsel would therefore submit that the decree
passed by the trial court and the relief sought for by the
decree holder is not an executable one.
6. The 1st respondent, party-in-person has read out
the contents of the compromise petition and strenuously
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argued that the terms of the compromise petition are very
clear that the plaintiff has agreed that she will not claim
any rights over the adjacent property other than the suit
schedule property mentioned in the suit. It is therefore
contended by the 1st respondent, party-in-person that the
plaintiff cannot cause any interference if defendant No.2
seeks to remove the stone slabs from his property, since
the plaintiff has admitted that she is the absolute owner of
property measuring 36 x 23 feet only.
7. Recently, this Court had an occasion to consider
similar such situation where an execution petition was filed
by one of the parties to compromise decree, seeking to
execute one of the terms of the decree. This Court
noticed that the Hon'ble Apex Court in the case of Pushpa
Devi Bhagat Vs. Rajinder Singh and Others, (2006) 5 SCC
566, had an occasion to dealt with a similar situation
where the suit was decreed in terms of a compromise
agreement where the defendants undertook to vacate the
suit premises on a particular date and with certain other
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conditions. However, since the defendant did not vacate
the premises on the date agreed upon, an execution
petition was filed by the plaintiff. The Apex Court held
having regard to Order 43 of CPC, that Order 43 Rule 1(m)
had earlier provided for an appeal against the order under
Rule 3 Order 23 recording or refusing to record an
agreement, compromise or satisfaction. But, clause (m)
of Rule 1 of Order 43 was omitted by Act No.104 of 1976,
w.e.f., 01.02.1977. Simultaneously, a proviso was added
to Rule 3 Order 23 which provides that where it is alleged
by one party and denied by the other that an adjustment
of satisfaction has been arrived at, the court shall decide
the question. It was further noticed that Rule 3A was also
added in Order 23 w.e.f., 01.02.1977 barring any suit to
set aside a decree on the ground that the compromise on
which the decree is based was not lawful. Further, it
would be relevant to notice that the ruling of the Apex
Court considering the provisions contended in Order 23.
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8. It was further held by the Hon'ble Apex Court
that the said Rule consists of two parts. The first part
provides that where it is proved to the satisfaction of the
court that a suit has been adjusted wholly or in part by
any lawful agreement or compromise in writing and signed
by the parties, the court shall order such agreement or
compromise to be recorded and shall pass a decree in
accordance therewith. The second part provides that
where a defendant satisfies the plaintiff in respect of the
whole or any part of the subject matter of the suit, the
court shall order such satisfaction to be recorded and shall
pass a decree in accordance therewith. It was held that
the first part refers to situations where an agreement or
compromise is entered into in writing and signed by the
parties. The said agreement or compromise is placed
before the court. When the court is satisfied that the suit
has been adjusted either wholly or in part by such
agreement or compromise in writing and signed by the
parties and that it is lawful, a decree follows in terms of
what is agreed between the parties. The
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agreement/compromise spells out the agreed terms by
which the claim is admitted or adjusted by mutual
concessions or promises, so that the parties thereto can
be held to their promise/s in future and performance can
be enforced by the execution of the decree to be passed in
terms of it. On the other hand, the second part refers to
cases where the defendant has satisfied the plaintiff about
the claim. This may be by satisfying the plaintiff that his
claim cannot be or need not be met or performed. It can
also be by discharging or performing the required
obligation. Where the defendant so 'satisfies' the plaintiff
in respect of the subject-matter of the suit, nothing further
remains to be done or enforced and there is no question of
any 'enforcement' or 'execution' of the decree to be
passed in terms of it.
9. Having regard to the exposition of the law at the
hands of the Apex Court, and having regard to the
compromise decree drawn in O.S.No.367/2019, no where
did the plaintiff agree to permit defendant No.2 or
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defendant No.1 to remove the stone slabs. On the other
hand, what was agreed was that the plaintiff shall pay
Rs.22,000/- towards the value of the stone slabs standing
on the suit schedule property and defendant No.2 agreed
for the same and he has received the said amount at the
hands of the plaintiff. In the execution case, what is
alleged by the defendant No.2 is that when he proceeded
to remove the stone slabs, the plaintiff is causing
obstructions. Therefore, the plaintiff is right in objecting to
the execution case. There is no executable decree that
has been passed in O.S.No.367/2019. On the other hand,
if defendant No.2 seeks to remove the stone slabs for
which value has been already been paid by the plaintiff,
the plaintiff has every right to object to such an action
which would be contrary to the agreed terms and decree
passed in O.S.No.367/2019. However, if defendant No.1
still seeks to remove the stone slabs on the ground that
the stone slabs are situated in his property, it would be a
new cause of action, and defendant No.2 will have to file a
fresh suit if so advised. At any rate, there is no
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executable decree passed in O.S.No.367/2019, insofar as
the claim now sought to be made by defendant No.2.
10. In that view of the matter, the execution case
should have been dismissed at the hands of the learned II
Addl. Civil Judge and JMFC., K.G.F., while upholding the
objections filed by the judgment debtor.
11. Consequently, the Civil Revision Petition is
allowed. The impugned order dated 21.08.2024 passed in
Execution Petition No.31/2023, is hereby quashed and set
aside. Consequently, the Execution Petition stands
dismissed as not maintainable.
Ordered accordingly.
12. Pending I.As., if any, stand disposed of.
Sd/-
(R DEVDAS)
JUDGE
DL
CT: JL
