*THE HON’BLE SRI JUSTICE K.G. SHANKAR +C.R.P.No.5195 of 2006 % 24.06.2011 Between: #Erramreddy Indrasena Reddy … Petitioner Vs. $Palvai Amarender Reddy … Respondent ! Counsel for the revision petitioner: K. Subba Rao, Advocate Counsel for the Respondent: B. Nrayana Reddy <Gist: >Head Note: ? Cases referred: THE HON’BLE SRI JUSTICE K.G. SHANKAR C.R.P.No.5195 of 2006 Date: 24.06.2011 Between: Erramreddy Indrasena Reddy … Petitioner/ Decree holder AND Palvai Amarender Reddy … Respondent/ Judgment debtor THE HON’BLE SRI JUSTICE K.G. SHANKAR C.R.P.No.5195 of 2006 ORDER: The decree holder in E.P.No.412 of 2000 in O.S.No.126 of 1997 on the file of the II Additional Junior Civil Judge, Warangal laid this revision questioning the orders of the execution Court dated 09.08.2004. The decree holder laid the execution petition under Order 21 Rule 32 of the Code of Civil Procedure (CPC) seeking for the arrest and detention of the judgment debtor in the civil prison for not honouring the decree. Through a very well written impugned order, the execution Court dismissed the execution petition. Inter alia, the execution Court held that petition under Order 21 Rule 32 CPC would not lie and an execution petition under Order 21 Rule 35 IPC might lie against the judgment debtor. The learned Judge also held that the execution Court cannot go beyond the decree. 2. The third daughter of the decree holder by name Sobha was given in marriage to the judgment debtor in 1986. It is the case of the judgment debtor that the decree holder settled 680 square yards of house plot in Survey No.1003 situate at Hunter Road, Srinivasanagar Colony, Hanumakonda, in favour of his daughter Sobha towards pusupu kunkuma by announcing the same in the presence of the elders and the members of the family. It is the further case of the judgment debtor that he constructed a two portioned house bearing door No.1-7-859 in the plot received by his wife by way of settlement from her father, that the premises constructed by the judgment debtor consists of two portions and that the rear portion of the premises was used as residential premises and the front portion of the premises has been used as office. The wife of the judgment debtor (Sobha) gave birth to a daughter by name Keerthana and a son by name Karthik. 3. Unfortunately, Sobha died shortly after she gave birth to her son. It is indeed the case of the judgment debtor that Sobha was suffering from heart ailment even prior to her marriage and that Sobha died on account of her health problems. Be that as it may, fortunately there is no dispute about the nature of the death of Sobha, whether it was natural, owing to ill-health or was suspicious. 4. The dispute lies elsewhere. After the demise of Sobha, misunderstandings developed between the decree holder and the judgment debtor. The judgment debtor contends that the decree holder forced the judgment debtor to marry a girl, whom the judgment debtor declined to marry and that the decree holder developed contempt towards the judgment debtor since then. The decree holder on the other hand contends that the misunderstandings are in view of the attitude of the judgment debtor in attempting to grab 340 square yards constituting half of the alleged settled site. According to the decree holder, 340 square yards alone was gifted to Sobha and that the judgment debtor has been trying to lay claim over the entire 680 square yards of vacant site. 5. As disputes arose between the decree holder and the judgment debtor, the decree holder laid O.S.No.126 of 1997 against the judgment debtor in respect of 340 square yards of site. It was a suit by the decree holder against the judgment debtor seeking for perpetual injunction. The judgment debtor got a suit filed as the next friend of a minor child in O.S.No.1100 of 1998 seeking for a perpetual injunction against the decree holder. The judgment debtor in fact obtained a temporary injunction in O.S.No.1100 of 1998. 6. Alleging that despite temporary injunction against the decree holder, the decree holder trespassed on to the property covered by O.S.No.1100 of 1998 along with his supports, broke open the locks of the premises and took away the articles found therein, the judgment debtor lodged a complaint before Subedari Police Station. The complaint was registered as Crime No.6 of 1999 for the offences u/s.379, 380 and 488 IPC. The judgment debtor also filed a case as the next friend of his minor children in O.S.No.71 of 1998 on the file of the II Additional District Judge, Warangal seeking for partition of the properties of the decree holder herein as the children of the judgment debtor as well as in their capacity as the heirs of the deceased Sobha, third daughter of the decree holder. 7. Thus, the decree holder laid a suit in O.S.No.126 of 1997 on the file of the II Additional Junior Civil Judge, Warangal. The judgment debtor in his turn filed a suit in O.S.No.1100 of 1998 on the file of the same Court. The suit laid by the judgment debtor was as the next friend of his minor children. Both the suits before the learned II Additional Junior Civil Judge, Warangal were filed for perpetual injunction. The judgment debtor filed another suit on behalf of his minor children before the II Additional District Judge in O.S.No.71 of 1998 seeking for partition. That apart, he lodged a police complaint, which was registered as FIR in Crime No.6 of 1999 of Subedari Police Station. The misunderstandings were leading to the piling up of cases against both sides, so much so the elders intervened to settle the disputes between the decree holder and the judgment debtor. 8. The cases were consequently referred to Lok Adalat, Warangal. The Lok Adalat, Warangal passed an award u/s.21 of the Legal Services Authorities Act, 1987 on 28.08.2009. The Lok Adalat award was that O.S.No.126 of 1997 was decreed conditionally. The conditions were that the judgment debtor should pay Rs.1,48,000/- to the decree holder before the end of November, 1999. On such payment, the house plot measuring 340 square yards which was the subject matter of O.S.No.126 of 1997 should be “retained” by the judgment debtor. 9. The award further ordered that the house plot should be retained by the decree holder in case of default by the judgment debtor in the payment of Rs.1,48,000/- payable by the judgment debtor to the decree holder before the end of November, 1999. The decree holder claimed that the judgment debtor did not comply with the condition and committed default in paying Rs.1,48,000/- to the decree holder within the time prescribed and that the judgment debtor, however, has been interfering with the 340 square yards covered by O.S.No.126 of 2007. E.P.No.412 of 2000 consequently was laid by the decree holder under Order 21 Rule 32 CPC. As already pointed out, the execution petition was dismissed by the execution Court. 10. The point for consideration is whether the execution in E.P.No.412 of 2000 would lie under Order 21 Rule 32 CPC and whether the decree holder is entitled to the relief of arrest and detention of the judgment debtor in the civil prison as prayed for. 11. This is a case of an unfortunate award by the Lok Adalat. I deem it appropriate to quote the Lok Adalat award verbatim for the purpose of subsequent discussion. The operative portion of the award is “In view of the compromised effected in O.S.No.1100/98 and settled in Lok Adalath the suit of the plaintiff in O.S.126/97 is decreed conditionally as under: O.S.No.126/97 on the file of II Addl.M.M. is decreed conditionally. The defendant shall pay Rs.1,48,000/- to the plaintiff in O.S.126/97 by the end of November, 1999. On such payment the property house plot measuring 340 sq.yards out of sy.no.1003, shall be retained by the defendants. In case of demise of the plaintiff before November, 1999, the house plot will devolve on Y. Leela and B. Geeta, the daughters of plaintiff in O.S.126/97. In default house plot will be retained by the plaintiff.” 12. As can be seen from the award, the Lok Adalat did not touch O.S.No.71 of 1998 on the file of the II Additional District Court, Warangal nor did consider Crime No.6 of 1999 of Subedari Police Station. The award was confined to O.S.Nos.1100 of 1998 and 126 of 1997 on the file of the II Additional Junior Civil Judge, Warangal. This is not unfortunate but is curious. When there are disputes between the rival parties and when the Lok Adalat acts as an Arbitrator to resolve the disputes between the contending parties, usually, all disputes are referred to the Lok Adalat except those disputes which are prohibited by law from being entertained by the Lok Adalat. Even then, the partition suit laid by the judgment debtor on behalf of his children and the FIR lodged by the judgment debtor were not referred to the Lok Adalat as can be seen from the award. What is unfortunate is the inappropriate manner in which the award was drafted. After declaring that the judgment debtor (referred to as the defendant in the award) should pay Rs.1,48,000/- to the decree holder (referred to as the plaintiff in the award) before the end of November, 1999, the award at the end stated that the house plot should be retained by the plaintiff in case of default. In between the clause as to the period before which the judgment debtor should pay the money and the default clause, another condition was incorporated. Inter alia, the confusion is whether the default clause was in respect of the first part of the award or the second part of the award. 13. The operative portion of the award may be intersected into various directions. The award did not speak about the fate of O.S.No.1100 of 1998 as to whether it was decreed or dismissed. With reference to O.S.No.126 of 1997, the award reads: i) O.S.No.126 of 1997 was decreed conditionally; ii) The judgment debtor shall pay Rs.1,48,000/- to the decree holder before the end of November, 1999; iii) If such payment is made, the judgment debtor shall retain 340 square yards of house plot, which was subject matter of O.S.No.126 of 1997; iv) If the decree holder dies before the end of November, 1999, the house plot of 340 square yards which was subject matter of O.S.No.126 of 1997 should devolve upon Leela and Geetha, the surviving daughters of the decree holder; and v) In default, the house plot should be retained by the decree holder. 14. There is any amount of confusion and controversy regarding the actual possession of the 340 square yards of plot, which is the subject matter of O.S.No.126 of 1997. It is the stand of the decree holder that the decree holder has been in possession of the same. On the other hand, it is the case of the judgment debtor that a total extent of 680 square yards of house site was settled by the decree holder in favour of his daughter Sobha and that the extent of 340 square yards of house plot forming the subject matter of O.S.No.126 of 1997 was part of the property so settled by the decree holder upon his daughter Sobha. The judgment debtor claimed that after the demise of Sobha, he has been in possession of the entire 680 square yards of house plot part of which is the subject matter of O.S.No.126 of 1995. On the other hand, it is the case of the decree holder that the property covered by O.S.No.126 of 1997 had been in his possession throughout. 15. Now the controversy is as to who is in possession of this piece of 340 square yards of house plot. Sri K. Subba Rao, learned counsel for the decree holder contended that the decree holder has been in possession of the same and that it is evident from the last sentence of the award that the decree holder should retain the disputed property in case of default by the judgment debtor in paying Rs.1,48,000/- to the decree holder within the stipulated time. 16. He submitted that the award deployed the word “retained” and did not order that the decree holder should take possession of the property. His contention consequently is that the decree holder has been in possession of the EP schedule property. 17. Sri B. Narayana Reddy, learned counsel for the judgment debtor applied the same logic to the contention of the judgment debtor claiming that the judgment debtor has been in possession of the plaint schedule property. In the award, it was recited that the judgment debtor shall reopen the EP schedule property in the event the judgment debtor complies with the condition of payment of Rs.1,48,000/- within the time stipulated by the award. Thus, the award used “shall be retained” in respect of the EP schedule property in favour of the decree holder as well as the judgment debtor. It is the contention of the learned counsel for the judgment debtor that if the possession of the decree holder is upheld on the strength of the recital in the award that the decree holder shall retain the EP schedule property, the logic would apply with equal vehemence to the claim of the judgment debtor since the award ordained that the judgment debtor himself should retain the EP schedule property in the event he complied with the condition of payment of money. As already pointed out, this is the unfortunate situation where the award was drafted rather in a haphazard manner. Where the award deployed the usage of the word “retention” of the property both in favour of the decree holder as well as in favour of the judgment debtor, there is no alternative but to construe that the Lok Adalat did not issue any finding as no one could raise before the Lok Adalat that the property had been in the possession of the decree holder or the judgment debtor. It would appear that the award used the word “retain” in a very loose and general sense. I am not prepared to draw any adverse inference either in favour of the decree holder or in favour of the judgment debtor from the award prima facie to determine as to who is in possession of the EP schedule property between the decree holder and the judgment debtor. 18. The execution Court went into this aspect and repeatedly considered the recitals of the award that the judgment debtor should retain the EP schedule property in the event he complied with the conditional terms of the award. Unfortunately, the last sentence of the award the award again deployed the same word “retain” inasmuch as the award concluded that the decree holder should retain the EP schedule property in the event the judgment debtor committed default. It would appear to a slip on the part of the execution Court in the otherwise extremely well written order. I shall make it clear that it is not possible to determine as to who amongst the decree holder and the judgment debtor has been in possession of the EP schedule property from the recitals in the award. I shall look at the overall evidence let in by both sides to determine this aspect. 19. Curiously, the award recited that in the event the decree holder died, before the end of November, 1999, EP schedule property should devolve upon the surviving daughters of the decree holder. First, the award did not state that the EP schedule property should devolve upon the daughters of the decree holder on the occurrence of both the conditions, viz., the death of the decree holder, and more important, the commission of default by the judgment debtor. The award reads as if in the event the decree holder dies before the end of November 1999, the EP schedule property automatically devolves upon the surviving daughters of the decree holder irrespective of the judgment debtor complying with the condition of payment of Rs.1,48,000/-. Prima facie, it could not have been the intention of either side in view of the conditions (i) to (iii) referred to by me that if the judgment debtor complied with the condition, the judgment debtor would acquire title to the EP schedule property. At any rate, it is not for the execution Court much less for the revisional Court to go into the mind of the parties and the Lok Adalat at the time of the granting of the award by the Lok Adalat. The award of the Lok Adalat deserves to be read as it is and understood. However, not only by the end of November, 1999, even by 2000 when the execution petition was laid, the decree holder was alive. Consequently, the term in the award that the surviving daughters of the decree holder shall take possession of the EP schedule property in the event the decree holder dies before the end of November, 1999 has outlived itself and has no force as of now. The fate saved the decree holder and the judgment debtor from entering into another lis regarding the meaning and the effect of condition No.(iv) of the award of the Lok Adalat. In fact, Condition Nos. (i) to (iii) and (v) of the award constitute one side, Condition No.(iv) of the award is an oddman. As Condition No.(iv) outlived itself , the rest of the conditions would come into play. 20. The award ordained that the judgment debtor shall be entitled to the EP schedule property in the event he paid Rs.1,48,000/- to the decree holder before the end of November, 1999. The award further envisages that in the event the judgment debtor committed default, the decree holder should be entitled to the EP schedule property. Admittedly, the judgment debtor did not pay the amount of Rs.1,48,000/- mentioned in the award. The judgment debtor, however, contended that he did not commit any default for the default clause to come into operation. 21. The case of the judgment debtor is that the decree holder and the judgment debtor entered into a compromise at the behest of mediators and that the terms of the mediation inter alia are that the decree holder shall return the articles taken away by him from the house of judgment debtor, that the decree holder shall return the value of the Indra Vikas Patras where the minors were nominees, that the value of the articles and Indra Vikas Patras should be adjusted towards part of Rs.1,48,000/- payable by the judgment debtor to the decree holder and that if there is any balance due, the judgment debtor should pay the same to the decree holder within the time stipulated. The learned counsel for the judgment debtor contended that the decree holder did not abide by the agreement and failed to return the articles taken away by him from the house of the judgment debtor in the EP schedule property and that he did not inform the judgment debtor as to what amount is still due after giving credit to the value of the articles taken away by the decree holder from the house of the judgment debtor and after giving credit to the value of the Indira Vikas Patras so as to enable the judgment debtor to pay the same by way of compliance of the condition imposed against him to pay Rs.1,48,000/-. Indeed, the judgment debtor examined himself as RW.1 and examined 3 other witnesses in support of his case. The judgment debtor let in evidence regarding the understanding between him and the decree holder. I do not wish to go into and decide whether the judgment debtor proved the terms of the compromise between the decree holder and the judgment debtor since what is sought to be executed is the award of the Lok Adalat. The execution Court is concerned with the award and not with the other terms of compromise between the decree holder and the judgment debtor as long as the compromise had not been recorded by the Court and had not become part of the decree. Therefore, it is irrelevant as to what were the alleged terms of the compromise. What is germane to the enquiry is as to what the terms of the award are and whether the award became executable. I, therefore, reject the plea of the judgment debtor in limini in respect of his claim as to the terms of compromise reached between him and the decree holder. 22. Once the defence set up by the judgment debtor regarding the circumstances in which he did not pay Rs.1,48,000/- to the decree holder within the stipulated time is negatived, the claim of the decree holder that the judgment debtor did not comply with the conditions automatically stands proved. That apart, the judgment debtor as RW.1 himself admitted that he did not pay Rs.1,48,000/- on or before 30.11.1999 in terms of the Lok Adalat award. Where the decree holder is seeking to execute the award, other terms of compromise as alleged by the judgment debtor do not come into play, as they were not part of the award. The award alone should be read to determine the terms of the award and to execute the same. 23. As already pointed out, the word “retain” as used in the award does not help in determining the person in possession of the EP schedule property, for the reasons already enumerated. Apart from the wording of the award, the decree holder himself admitted as PW.1 that structures exist in the EP schedule property and that he did not know who had made those constructions. Indeed, the judgment debtor contended that the decree holder settled as much as 680 square yards of house plot in favour of Sobha and that the members of the family of Sobha including the judgment debtor and the children had been in possession of the property ever since the settlement. It is the decree holder who claimed that 340 square yards out of the alleged 680 square yards alone was settled in favour of Sobha and that the remaining 340 square yards of house plot constituting the EP schedule property was not settled in favour of Sobha and had been in the possession of the decree holder himself. 24. In the execution petition, the decree holder had been proceeding on the assumption that he had been in possession of the plaint schedule property. In column No.9 of EP No.412 of 2000, the decree holder contended that the judgment debtor has been interfering with the possession of the plot and that the judgment debtor had been trying to trespass into the EP schedule property. Indeed, the decree holder did not specifically contend anywhere that he has been in possession of the schedule property. However, a plain reading of column No.9 of the execution petition would indicate that the case of the decree holder is that he has been in possession of the EP schedule property, that the judgment debtor has been interfering with the possession of the decree holder over the EP schedule property, that the activity of the judgment debtor is tantamount to violation of the award and that the judgment debtor, therefore, shall be detained in the civil prison for a period of 30 days. Thus, it is the case of the decree holder that an injunction has been granted in favour of the decree holder and that the judgment debtor violated the decree exposing himself to punishment under Order 21 Rule 32 CPC. 25. I, therefore, would first verify whether the award granted such a perpetual injunction in favour of the decree holder. Evidently, the decree holder claimed in the suit in O.S.No.126 of 1997 that he has been in possession of the EP schedule property. It is equal true that the judgment debtor in his turn has been asserting that he has been in possession of the entire 680 square yards of house plot including the