Kerala High Court

Chicago Builders And Real Estates ... vs M.K.Alikoya on 2 March, 2022

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
                 THE HONOURABLE MR.JUSTICE V.G.ARUN
WEDNESDAY, THE 2ND DAY OF MARCH 2022 / 11TH PHALGUNA, 1943
                         CRP NO. 659 OF 2019
     AGAINST THE ORDER/JUDGMENT IN OS 285/2011 OF PRINCIPAL
                      MUNSIFF COURT, ERNAKULAM
REVISION PETITIONER/S:

       1       CHICAGO BUILDERS AND REAL ESTATES (P) LTD.
               REP. BY ITS MANAGING DIRECTOR, C. NAJEEB, AGED
               54 YEARS, S/O. K. K. MOIDU, RESIDING AT
               THAMANNA, S.R.M.ROAD, KOCHI - 682018 AND HAVING
               ITS REGISTERED OFFICE AT CHICAGO PLAZA, RAJAJI
               ROAD, ERNAKULAM, KOCHI - 682035.
       2       C. NAJEEB
               AGED 54 YEARS
               AGED 54 YEARS, S/O. K. K. MOIDU, RESIDING AT
               THAMANNA, S.R.M.ROAD, KOCHI - 682018
               BY ADV VARGHESE C.KURIAKOSE

RESPONDENT/S:

               M.K.ALIKOYA
               AGED 65 YEARS
               BUSINESS, S/O. KOYOTTY, ARFANA S.S. ROAD,
               THALASSERY, PIN - 670104, REP. BY HIS POWER OF
               ATTORNEY HOLDER, MR. KRISHNA VARMA RAJA.
               BY ADVS.
               SRI.BASIL MATHEW
               SRI.NINAN JOHN
               SMT.SANJANA SARA VARGHESE ANNIE


           THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD
ON     27.10.2021,    THE   COURT   ON   02.03.2022   DELIVERED   THE
FOLLOWING:
 CRP No.659 of 2019

                                 -2-



                               ORDER

Dated this the 02nd day of March, 2022

The revision petitioners are the judgment

debtors in E.P.No.169 of 2013 on the files of the

Principal Munsiff's Court, Ernakulam. The

execution petition is filed by the respondent,

seeking to enforce the compromise decree in the

suit (O.S.No.285 of 2011) filed by him. The terms

of mediation incorporated in the decree sought to

be executed are as under;

"(i) The defendant agrees to join the

association of owners of Chicago plaza builders

and pay the maintenance for date of formation.

(ii) The defendant agrees to allot the

lobby to the owners association with a condition

that a staff will be placed in the counter till 6

p.m and subsequently the tenants/owners

conducting business after 6 p.m will provide the

staff in the counter.

CRP No.659 of 2019

(iii) Accounts from date of completion till

formation of association and all amounts spent

subsequently till date, will be given by the

defendant and the same will be settled between

both parties within 6 months.

(iv) All accounts between the parties

will be discussed and settle within 6 months.

(v) All the defects in the building

including the lift and basement will be rectified

and both the plaintiff and defendant will co-

operate."

2. Alleging non-compliance of the decree,

the execution petition is filed seeking the

following reliefs;

"(i) Issue notice to judgment debtor under

Order 21 Rule 32 requiring them to showing cause

as to why punitive measures should not be adopted

against them for willfully violating the decree.

(ii) Thereafter if no sufficient explanation

is offered by judgment debtors, then they may be CRP No.659 of 2019

detained in civil prison for willfully violating

the decree.

(iii) Grant such other relief as may be

prayed for by the decree holder and which the

Hon'ble court deems fit and proper during the

course of trial of the above execution petition."

3. In the execution petition, the revision

petitioner moved an application (E.A.No.520 of

2017), requiring the court to hear the question

of maintainability as a preliminary point. The

maintainability question was raised primarily on

the ground that the decree was not executable.

It was contended that Clause 1 of the decree

require the petitioner to join the Association of

Owners of Chicago Plaza Builders and to pay

maintenance from the date of its formation.

Clauses 3 and 4 envisage settlement of accounts

between the parties within six months. In the

execution proceedings itself, the parties have

raised rival claims. The judgment debtor contends CRP No.659 of 2019

that an amount of Rs.36,57,500/- is due from the

decree holder. On the other hand, the decree

holder is contending that the judgment debtors

have to pay an amount of Rs.17,97,920/- to the

Owners Association. The rival contentions call

for an adjudication with respect to the

liabilities of the parties, which is beyond the

scope of the execution proceedings. The other

ground of challenge in that going by the terms of

the decree, an execution petition under Order XXI

Rule 32 is not maintainable since, what is sought

to be enforced is not a decree for injunction

specific performance.

4. By the impugned order, the learned

Munsiff dismissed the application holding that,

the parties being bound by the compromise decree,

the execution court cannot compel them to go for

a separate process of adjudication. Reliance was

placed on Section 47 of CPC and Rule 285 of the

Civil Rules of Practice to find that all CRP No.659 of 2019

questions arising between the parties to the

decree can be determined by the executing court.

4. Adv.Varghese C.Kuriakose, learned

Counsel for the revision petitioners, assailed

the impugned order by contending that the decree

in question does not conclusively determine the

rights of the parties with regard to the matters

in controversy in the suit and cannot therefore

be termed as a 'decree' falling under Section

2(2) of CPC. It is contended that, execution of

the compromise decree calls for settlement of

accounts for which a separate preliminary decree

has to be passed as stipulated in Order 20 Rule

16. Further, the executing court is bound to

execute the decree as it stands, without adding

anything to it. As against this settled position,

even after entering a finding that it is

essential to figure out the exact amount due to

the judgment debtor before initiating punitive

measures, the learned Munsiff went on to hold CRP No.659 of 2019

that such adjudication can be done in the

execution proceedings itself. According to the

learned Counsel, the executing court committed

gross illegality in relying on Section 47 for

dismissing the application. Reliance is placed on

the following decisions to contend that the

executing court cannot go beyond the decree;

Deepa Bhargava and another v. Mahesh Bhargava and

others [(2009) 2 SCC 294] and Rameshwar Dass

Gupta v. State of U.P. And another [(1996) 5 SCC

728]

5. Adv.Basil Mathew, learned Counsel for

the respondent, submitted that, after having

entered into a compromise decree, the attempt of

the judgment debtors all throughout has been to

wriggle out of the decree. Not only did they fail

to act in terms of the decree, but deliberately

remained ex-parte before the execution court so

as to protract the proceedings. The decree holder CRP No.659 of 2019

had filed a statement in the execution court

showing the amount due. Having failed to file

objections to that statement, the judgment

debtors cannot contend that the liability can be

quantified only after adjudication. Reliance is

placed on the decision of the Apex Court in

Brakewal Automotive Components (India) Private

Limited v P.R.Selvam Alagappan [AIR 2017 SC 1577]

to contend that a decree would become

inexecutable only when it is passed by a court

lacking inherent jurisdiction or is a nullity and

is rendered as non est and thus inexecutable.

6. In the instant case, the parties arrived

at a compromise to bring their adversarial claims

to rest and to put an end to the litigative

battle. Order 22 Rule 3 provides for passing of a

decree in terms of the compromise, if it is

proved to the satisfaction of the court that a

suit has been adjusted wholly or in part by the CRP No.659 of 2019

compromise. The question therefore is whether,

after having caused the court to pass a

compromise decree, the judgment debtors can

contend that decree is not executable. In this

regard, it may be pertinent to note that the

revision petitioners have not preferred appeal

against the decree. Instead they have chosen to

challenge the maintainability of the decree in

the execution proceedings. In such circumstances,

the executing court was fully justified in

resorting to Section 47 of CPC, since all

question arising between the parties to the suit

in which the decree was passed, relating to the

'execution', 'discharge' or 'satisfaction' of

decree have to be determined by the court

executing the decree and not by a separate suit.

The words 'execution, discharge or satisfaction'

in Section 47 defines the limits of the scope of

enquiry to be made.

CRP No.659 of 2019

7. In Jai Narain Ram Lundia v Kedar Nath

Khetan [AIR 1956 SC 359], the jurisdiction of

the executing court to decide whether the

defendant is in a position to perform his part of

the decree had arisen for consideration. The

question was answered as under;

"23.The only question that remains is whether the executing court can consider whether the defendant is in a position to perform his part of the decree. But of course it can. If the executing court cannot consider this question who can? The executing court has to see that the defendant gives the plaintiff the very thing that the decree directs and not something else, so if there is any dispute about its identity or substance nobody but the court executing the decree can determine it. It is a matter distinctly relating to the execution, discharge and satisfaction of the decree and so under Section 47 of the Civil Procedure Code, it can only be determined by the court executing the decree. And as for the first court's conclusion that it could not decide these matters because it was not the court that passed the decree, it is enough to say, as the High Court did, that Section 42 of the Code expressly gives the court executing a decree sent to it the same powers in executing such decree as if it had been passed by itself."

CRP No.659 of 2019

8. The learned Munsiff has rightly referred

to Rule 285 of the Civil Rules of Practice, since

the provision indicates that all questions

falling within Section 47 of the Code shall be

heard and determined after recording all

evidence, oral and documentary, in the same

manner as in a suit. Therefore, it is well within

the power of the executing court to decide the

rival contentions with respect to the payments to

be made in terms of the decree. For that, no

separate suit or a preliminary decree as