Laxmi Narayan v. Mr. Shankar Lal Sukhwal

HIGH COURT OF JUDICATURE FOR RAJASTHAN ATJODHPUR S.B. Civil Revision Petition No. 160/2019 Laxmi Narayan S/o Late Shri Magan Lal Tripathi (Tabda), AgedAbout 59 Years, B/c Sukhwal Brahmin, R/o New Killa Road,Opposite Lic Office And Income Tax Office, Tehsil And DistrictChittorgarh (Raj.). ----Petitioner Versus 1. Kailash Narayan S/o Late Shri Magan Lal Tripathi (Tadba),B/c Sukhwal Brahmin, R/o New Killa Road, Opposite LicOffice And Income Tax Office, Tehsil And DistrictChittorgarh (Raj.).B/c Sukhwal Brahmin, R/o New Killa Road, Opposite LicOffice And Income Tax Office, Tehsil And DistrictChittorgarh (Raj.). 2. Tulsi Ram S/o Late Shri Magan Lal Tripathi (Tadba), B/cSukhwal Brahmin, R/o New Killa Road, Opposite Lic OfficeAnd Income Tax Office, Tehsil And District Chittorgarh(Raj.).Sukhwal Brahmin, R/o New Killa Road, Opposite Lic OfficeAnd Income Tax Office, Tehsil And District Chittorgarh(Raj.). 3. Gopal Lal S/o Late Shri Magan Lal Tripathi (Tadba), B/cSukhwal Brahmin, R/o New Killa Road, Opposite Lic OfficeAnd Income Tax Office, Tehsil And District Chittorgarh(Raj.).Sukhwal Brahmin, R/o New Killa Road, Opposite Lic OfficeAnd Income Tax Office, Tehsil And District Chittorgarh(Raj.). ----Respondents For Petitioner(s): Mr. Radhey Shyam Mankad For Respondent(s) : Mr. Shankar Lal Sukhwal Mr. Chetan Prakash Soni HON'BLE MR. JUSTICE KULDEEP MATHURJudgment 02/08/2022 In this Civil Revision Petition, the assail is to the order dated31.07.2019 passed by learned District Judge, Chittorgarh, inExecution Civil Case No.132/2018(201/2018) by which theapplication filed under section 47 and section 151 of CivilProcedure Code, raising objection to the execution of final decreedated 30.10.2017, by the petitioner was dismissed. Filtering the unnecessary details, the facts which arenecessary for adjudication for the instant revision petition are thatthe respondent No. 1 (plaintiff therein) filed a suit for partition ofthe suit property against the defendants i.e. the petitioner andrespondent Nos. 2 and 3 before the court below stating inter aliathat the plaintiff and all three defendants were in joint possessionand ownership of undivided immovable property situated at NewQila (किला) Road, opposite Offices of LIC and Income Tax,Chittorgarh. It was further averred that the aforementioned property waspurchased by their father Late Shri Magan Lal (who passed awayon 20.08.2006) from one Shankar Puri vide registered deed dated27.10.1955 and construction was also undertaken by Late ShriMagan Lal. The mother of the plaintiff and the defendants passedaway before Late Shri Magan Lal leaving behind plaintiff anddefendant Nos. 1, 2 and 3 as legal heirs of Shri Magan Lal. In theplaint, it was prayed that the property in question may bepartitioned among the plaintiff and defendants by metes andbounds as they are Class-I heirs, having equal shares. The defendants filed a joint written statement admitting thefacts averred in the plaint. The suit was decreed vide order (CivilOriginal Case No.45/2016) dated 08.03.2017 along with apreliminary decree, entitling the parties to the suit i.e. plaintiff anddefendant Nos. 1, 2 and 3 to receive equal share in the propertyand land of Late Shri Magan Lal i.e. ¼, on the basis of admittedfacts by virtue of Order 12 Rule 6 CPC. A joint application was moved by the descendants of LateShri Magan Lal to prepare the final decree on the basis of agreement/compromise arrived at by them. The suit was decreedvide order dated 30.10.2017, along with final decree partitioningthe suit property on the basis of agreement reached by mutualconsent of the plaintiff and defendants nos. 1, 2 and 3. The defendants filed a joint written statement admitting thefacts averred in the plaint. The suit was decreed vide order (CivilOriginal Case No.45/2016) dated 08.03.2017 along with apreliminary decree, entitling the parties to the suit i.e. plaintiff anddefendant Nos. 1, 2 and 3 to receive equal share in the propertyand land of Late Shri Magan Lal i.e. ¼, on the basis of admittedfacts by virtue of Order 12 Rule 6 CPC. A joint application was moved by the descendants of LateShri Magan Lal to prepare the final decree on the basis of agreement/compromise arrived at by them. The suit was decreedvide order dated 30.10.2017, along with final decree partitioningthe suit property on the basis of agreement reached by mutualconsent of the plaintiff and defendants nos. 1, 2 and 3. The respondent No. 1 filed an application for execution ofdecree dated 30.10.2017. The petitioner raising objections to theexecution application, filed an application under Section 47 CPCand Section 151, CPC, stating inter alia that a preliminary decreedated 08.03.2017 was passed, declaring parties to the suitentitled to ¼ share in the suit property by metes and bounds.Stating further that the decree was ‘declaratory’ in nature andthus, not executable. The application was dismissed vide orderdated 31.07.2019 holding that the final decree dated 30.10.2017was passed on the basis of consent and compromise enteredbetween the parties. The final decree therefore, cannot be termedas ‘declaratory’ in nature. Since, the final decree had been passedon the basis of consent and compromise between the parties, thedefendant-petitioner is estopped from raising any objection forgrant of possession between the parties. Aggrieved by the orderdated 31.07.2019, the petitioner has preferred the instant revisionpetition. Learned counsel for the petitioner emphatically submittedthat the final decree dated 30.10.2017 was a declaratory decreewhich declared merely the rights of the decree-holder qua thejudgment-debtors. Since, there is no command issued to thejudgment debtor to obey. The executing court could not issue anyprocess beyond the decree. The counsel placed reliance onjudgments rendered by the Hon’ble Supreme Court of India in Food Corporation of India v. S.N. Nagarkar 2002 AIR SCW 466,Bimal Kuma and Anr. v. Shakuntala Devi & Ors. 2012 AIRSCW 2091, State of Madhya Pradesh v. Mangilal Sharma1998 AIR SCW 466, Rachakonda Venkat Rao & Ors. v. R.Satya Bai through LRs & Anr. 2003 AIR SCW 4717 andPushpa Devi Bhagat (Dead) by LR v. Rajinder Singh & Ors.2006 AIR SCW 3549. The counsel also relied on the judgment ofHon’ble Orissa High Court in the case of Khalli Rath v. EppiliRamachandra, AIR 1953 ORISSA 74. Per Contra, learned counsel for the respondents submittedthat the final decree dated 30.10.2017, was passed partitioningthe suit property on the basis of mutual consent and agreementbetween the parties to the suit. The same is not merely a‘declaratory’ decree but a ‘partition’ decree, finally deciding therights of the parties over the suit property. The executing courthas powers to ensure delivery of actual possession, as per theterms of compromise which formed part of the final decree. Heard Shri Radhe Shyam Mankad, learned counsel for thepetitioner and Shri Shankar Lal Sukhwal, learned counsel for therespondents and perused the impugned order dated 31.07.2019passed by District Judge, Chittorgarh in Case No.132/2018(201/2018). Admittedly, the petitioner and the respondents are in jointpossession and ownership of the suit property. On the basis ofmutual consent and agreement between the parties, a final decreewas drawn entitling the parties to ¼ share in the suit property,passed on 30.10.2017. The decree is not merely ‘declaratory’ innature because it was for possession on the basis of a compromise Heard Shri Radhe Shyam Mankad, learned counsel for thepetitioner and Shri Shankar Lal Sukhwal, learned counsel for therespondents and perused the impugned order dated 31.07.2019passed by District Judge, Chittorgarh in Case No.132/2018(201/2018). Admittedly, the petitioner and the respondents are in jointpossession and ownership of the suit property. On the basis ofmutual consent and agreement between the parties, a final decreewas drawn entitling the parties to ¼ share in the suit property,passed on 30.10.2017. The decree is not merely ‘declaratory’ innature because it was for possession on the basis of a compromise arrived at between the parties. Execution petition for possessionof the property according to the share mentioned in the finaldecree cannot held to be not maintainable. The final decree is tobe executed by delivery of actual possession and the decree-holder is always entitled to take actual possession. The judgmentsrelied upon by learned counsel for petitioner are not applicable inthe facts and circumstances of the present case as the final decreedated 30.10.2017 was passed on the basis of compromise arrivedbetween the parties, which is not merely a ‘declaratory’ decree.The final decree dated 30.10.2017 was executable and decree-holder is entitled to proceed for execution seeking delivery ofactual possession. Thus, the executing court rightly dismissed theapplication filed under Section 47 and Section 151 CPC. Therevision petition is therefore, dismissed. No order as to costs. 100-KshamaD/- (KULDEEP MATHUR),J