Prannath Jutthi (Zutshi) vs Hindustan Petroleum Corporation
2023 Latest Caselaw 11095 MP

                                                -( 1 )-                 S.A. No. 216 of 2012


                              IN THE HIGH COURT OF MADHYA PRADESH
                                           AT GWALIOR BEFORE
                                HON'BLE SMT. JUSTICE SUNITA YADAV
                                      SECOND APPEAL NO. 216 of 2012
                   Between:-
                   PRANNATH JUTTHI (ZUTSHI) S/O SHRI
                   JAGJEEVAN NATH JUTTHI, AGED ABOUT
                   55 YEARS, OCCUPATION: BUSINESS. R/O.
                   NEAR RELIABLE PETROL PUMP A.B.ROAD
                   IN FRONT OF OLD JUJGI, DIST. GUNA
                   (MADHYA PRADESH)

                                                                                .... APPELLANT

                   (BY         SHRI      SANTOSH            AGRAWAL-
                   ADVOCATE)

                   VS

                           HINDUSTAN      PETROLEUM            CORPORATION,             GAUTAM
                           NAGAR, GOVINDPURA, BHOPAL TH:UDAYRAJ MORYA S/O
                           SHRI R.S.MORYA SO CALLED SALES OFFICER HINDUSTAN
                           PETROLEUM         CORPORATION,              BHOPAL          (MADHYA
                           PRADESH)
                                                                        ......... RESPONDENT
                    (BY SHRI HARISH DIXIT, ADVOCATE )
               -------------------------------------------------------------------------------------
                  Whether approved for reporting :

                  Reserved on :- 06/07/2023

Signature Not Verified
Signed by: SANJAY
NAMDEORAO DURGEKAR
Signing time: 19-07-2023
04:46:22 PM
                                                  -( 2 )-              S.A. No. 216 of 2012


                                                  JUDGMENT

(Passed on 18/07/2023)

1. This second appeal under Section 100 of CPC has been filed

against the judgment and decree dated 01/12/2011 passed by III

Additional District Judge, Guna (M.P.) in First Appeal No. 32-A / 2011

arising out of order dated 25/04/2011 passed by Third Additional Judge

to the Court of First Civil Judge, Class-II, Guna (M.P.) in Civil Suit

No.262-A/1984.

2. The necessary facts for disposal of the present appeal, in short, are

that the appellant is owner of land admeasuring area 100X200 Sq. feet

situated at A.B. Road, Guna, which was given on lease to respondent on

30.06.1960 for 20 years, but after 20 years respondent started to raise

some unauthorized construction on the land in question, hence, the

appellant had to file a Civil suit for injunction before Civil Judge, Class

II Guna, which was registered as Civil Suit No. 262-A/1984, after taking

appearance, the respondent company compromised with appellant on the

terms of a detail application under Order 23 Rule 3 of C.P.C. was filed.

As per terms of compromise, respondent was permitted to continue to

run his business upto 30.06.2010, thereafter the premises was to be Signature Not Verified Signed by: SANJAY NAMDEORAO DURGEKAR Signing time: 19-07-2023 04:46:22 PM

-( 3 )- S.A. No. 216 of 2012

vacated by respondent by removing all the fixtures and fittings. The

learned court below after affording opportunity of hearing to both the

parties accepted the compromise and decreed the suit in terms of

compromise and application under Order 23 Rule 3 of CPC was attached

as part and parcel of a decree. After decree of compromise, both the

parties acted upon as per terms settled under compromise, and even after

expiry of period given to run the business to respondent, the respondent

did not vacate the premises, hence appellant has to file an application for

execution of compromise decree.

3. In the execution proceedings, respondent submitted objection

under Order 21 Rule 58 of C.P.C. raising objection that the judgment

debtor has died and the original suit was filed for perpetual injunction

and through execution of decree tenanted premises cannot be evicted

and appellant has no right to file execution unless decree for eviction is

not granted and the execution has been filed time barred.

4. The appellant submitted reply of application under Order 21 Rule

58 of C.P.C. denying each and every objection and asserted that there is

no attachment of property, hence, the application under Order 21 Rule

58 of C.P.C. is not maintainable. The appellant further submitted that the Signature Not Verified Signed by: SANJAY NAMDEORAO DURGEKAR Signing time: 19-07-2023 04:46:22 PM

-( 4 )- S.A. No. 216 of 2012

application of compromise is a part and parcel of the decree and in

clause 4(g) of the application there is terms for handing over vacant

premises to the appellant. The appellant further submitted that after

amendment in C.P.C. the compromise under Order 23 Rule 3 of C.P.C

can be done beyond the scope of dispute in suit, hence, the compromise

is legal, therefore, the court accepted it and now respondent is estopped

from challenging the compromise decree. The appellant further

submitted that after hearing on the objection, the learned trial court

rejected the objection holding that the execution proceeding is well

within limitation and also rejected the objection for bringing the Legal

representative on record and directed the appellant to amend the title

within 3 days and issued warrant of possession.

5. Being aggrieved by the order dated 25.04.2011, the respondent

preferred appeal under section 96 of the C.P.C. which was not

maintainable as the matter was not decided on merits and also judgment

debtor cannot object the decree, even then learned appellate court has

allowed appeal on the ground that there is no decree under section 12 (1)

of M.P. Accommodation Control Act for eviction, hence possession

under execution of compromise decree can not be granted, vide Signature Not Verified Signed by: SANJAY NAMDEORAO DURGEKAR Signing time: 19-07-2023 04:46:22 PM

-( 5 )- S.A. No. 216 of 2012

impugned judgment.

6. Being aggrieved by the order passed by learned appellate court,

appellant filed writ petition bearing W.P. No. 293/2012 before this Court

as the appellate court acted without jurisdiction, but the same stood

dismissed on the ground of alternative efficacious remedy to file Second

Appeal, hence, this Second Appeal is being filed challenging the

judgment dated 01.12.2011.

7. Learned counsel for the appellant submits that learned appellate

court has failed to consider that once the compromise has been recorded

by competent court and decree has been passed, the decree is binding

and nobody can question that decree, hence, the objections raised by

respondent is not maintainable and liable to be rejected. It is further

submitted that it is undisputed law that the Judgment debtor cannot

object the decree being binding on him, but the learned appellate court

has changed this concept and permitted the judgment debtor to object

the decree which has been passed in his presence. It is further submitted

that learned appellate court found that the executing court cannot go

behind the decree even then has passed impugned judgment which is

contrary to it's own view and also contrary to law as the decree on the Signature Not Verified Signed by: SANJAY NAMDEORAO DURGEKAR Signing time: 19-07-2023 04:46:22 PM

-( 6 )- S.A. No. 216 of 2012

terms of compromise was passed and acted upon. It is further submitted

that learned appellate court did not consider the fact that rules are made

to facilitate the justice and not for penalize the litigant, in the case in

hand, after finally decided the matter on the terms of compromise and

the parties waited for completion of terms of compromise then on the

last movement respondent cannot be permitted to take different plea, this

is nothing but good sign of misuse of judicial process by which on first

round of litigation the respondent who is government controlled body

have compromised for vacating the premises on particular date and after

enjoying full terms go back by the terms of compromise, if this order is

allowed to stand will occasion to failure of justice as after long litigation

and winning in the matter on the terms of compromise, the petitioner

gets nothing this lead to miscarriage of justice.

8. On the other hand, learned counsel for the respondent

supported the impugned judgment passed by the court below

and prayed for dismissal of the instant appeal being bereft of

merit and substance.

9. Heard learned counsel for the rival parties and perused

the material available on record.

Signature Not Verified Signed by: SANJAY NAMDEORAO DURGEKAR Signing time: 19-07-2023 04:46:22 PM

-( 7 )- S.A. No. 216 of 2012

10. Learned counsel for the appellant has argued that in the

light of provision of Order 21 Rule 97 of C.P.C. the

respondent has no right to to raise objections under this

provision as he is not the decree holder. He has placed his

reliance upon the judgement of Apex Court dated 06.07.2022

in the case of Shriram Housing Finance and Investment

India Limited Vs Omesh Mishra Memorial Charitable

Trust in which it is held that under Rule 97 of Order 21

C.P.C. It is only 'decree holder' who is entitled to make an

application in case he is offered resistance or obstruction by

'any person'. In that case appellant was a bonafide purchaser

therefore, it has been held that appellant can not take shelter

under the rule 97 of Order 21 C.P.C. However, in the present

case facts and circumstances are totally different. In present

case decree is not passed against the respondent but it is

passed in favour of both appellant and respondent in

accordance with the terms and conditions agreed upon by

both parties (plaintiff and defendant) in their compromise

application. Since decree is also in favour of respondent Signature Not Verified Signed by: SANJAY NAMDEORAO DURGEKAR Signing time: 19-07-2023 04:46:22 PM

-( 8 )- S.A. No. 216 of 2012

therefore, the appellant does not get any benefit from the

above case law.

11. Learned counsel for appellant also placed his reliance

upon the cases of Som Dutt (dead) by LRS Vs Govind Ram

(2000) 9, SCC, 345, Judgements of co-ordinate benches of

this court in the cases of C.R.No. 158/2012, dated

24.09.2012, Pramod Vs Kumari Alpana, M.P. No.

4007/2021 Smt Basanti Devi Garg and others Vs Sunil

Verma and others dated 03/08/22, order dated 14.08.2015

passed in W.P. No. 13504/15 and argued that in compromise

entered in Lok Adalat is not liable to be set aside. The court

has no dispute on the principles laid down in the aforesaid

cases but they are distinguishable on facts, therefore, they are

not applicable to the case in hand as in this case suit was

filed for perpetual injunction injunction not for eviction.

12. In the case in hand, original suit was not filed for eviction but

was filed for perpetual injunction before Civil Judge, Class II Guna,

which was registered as Civil Suit No. 262-A/1984. However, by the

compromise decree a tenancy has been created. The decree of trial court Signature Not Verified Signed by: SANJAY NAMDEORAO DURGEKAR Signing time: 19-07-2023 04:46:22 PM

-( 9 )- S.A. No. 216 of 2012

is vague and silent on the the status of parties as well as question of

eviction after 30.06.2010, therefore, learned first appellate court in the

light of case of Babulal Vs Nathulal 1976 M.P.L.J. 341 rightly held

that the eviction should be as per the relevant provisions of the

Accommodation Control Act. The compromise which fails the

provisions of any act or law can not be implemented.

13. Consequently, this appeal fails and is dismissed hereby.

There shall be no order as to costs.

Certified copy as per rules.

(SUNITA YADAV) JUDGE

Durgekar*

Signature Not Verified Signed by: SANJAY NAMDEORAO DURGEKAR Signing time: 19-07-2023 04:46:22 PM