IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 13TH NOVEMBER 2009 / 22ND KARTHIKA 1931 CRP.No. 441 of 2007() --------------------- ORDER IN E.P.23/06 IN OS.33/2002 of MUNSIFF MAGISTRATE COURT, ERATTUPETTA .................... REVN. PETITIONER/ JUDGEMENT DEBTOR/PLAINTIFF ----------------------------------------------- E.P.THOMAS, EDAYAL, VALLICHIRA KARA AND VILLAGE. BY ADV. SRI.P.C.HARIDAS SRI.THOMAS T.VARGHESE RESPONDENTS/ DECREE HOLDER/DEFENDANT -------------------------------------- 1. K.C.SIVADASAN, S/O.SANKARAN, KAKKANATTY OZHUKAYIL, PALA KARA. (DIED) * ADDL.R2 AND R3 IMPLEADED 2. K.S.RAMAKRISHNAN, KAKKANATT OZHUKAYIL, PALA KARA. 3. K.S.RAJAPPAN, KAKKANATT OZHUKAYIL, PALA KARA (AROMA TAILORS, PALA). *ADDL.R2 AND R3 ARE IMPLEADED AS PER THE ORDER DT. 9.7.08 IN I.A.NO.1208 OF 2008. **ADDL.R4 TO R6 IMPLEADED 4. K.R.REGIMON, KAKKANATT OZHUKAYIL, PALA. 5. K.S.SASI, KAKKANATT OZHUKAYIL, PALA. 6. K.S.CHANDRIKA, KAKKANATT OZHUKAYIL, PALA. **ADDL.R4 TO R6 ARE IMPLEADED AS PER THE ORDER DT.19.8.08 IN I.A.NO.1869/08. ADV. SRI.PHILIP T.VARGHESE SRI.K.GOPALAKRISHNA KURUP FOR R2-6 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 19/10/2009, THE COURT ON 13/11/2009 PASSED THE FOLLOWING: S.S. SATHEESACHANDRAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - C.R.P.No.441 of 2007 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 13th November, 2009 ORDER The revision is directed against the order dated 9.3.2007 in E.P.No.23 of 2006 in O.S.No.33 of 2002 passed by the learned Munsiff, Erattupetta. The judgment debtor in the above execution petition is the revision petitioner, and the decree holder, the respondent. The decree executed in the proceedings was a compromise decree passed in a suit for perpetual prohibitory injunction. Petitioner/judgment debtor instituted the above suit to restrain the respondent/defendant from evicting him forcefully from the plaint schedule building. The respondent resisting the suit claim contended that the registered sale deed in respect of the plaint schedule property was executed in favour of the plaintiff/judgment debtor/revision petitioner as a security towards a loan transaction for a sum of Rs.One lakh on an agreement to reconvey the property on discharge of the debt within the time provided. The parties entered into a compromise in the suit by which petitioner/plaintiff agreed to execute a sale deed in respect of the plaint property in favour of the respondent/defendant subject to payment of the sum stated within CRP No.441/07 - 2 - the time fixed. Compromise stipulating the terms thereunder was accepted by the court and the suit was decreed in terms thereof. The terms of the compromise provided for payment of the sum agreed upon for reconveyance of the property on or before 25.10.2004. The respondent moved the execution petition on the basis of the compromise decree contending that there was default on the part of the petitioner/plaintiff to execute the sale deed. The execution sought for was resisted by the petitioner imputing default on the part of the respondent/decree holder. He also raised objections that the court had no jurisdiction to entertain the execution petition as the amount fixed under the decree was beyond its pecuniary limits, that the decree has become inexecutable by lapse of time since the time fixed under the compromise for payment was over, and that the charges subsisting over the property had been cleared by the petitioner/plaintiff expending substantial sums etc. The execution court, after considering the objections raised, negatived them as not sustainable and ordered the judgment debtor to execute the sale deed in favour of the respondent/decree holder on deposit of the sum specified in the compromise decree with the amount which the judgment debtor had paid to the bank to clear the encumbrance over the property, with interest, within the time fixed. It was also ordered CRP No.441/07 - 3 - that in default of the execution of the sale deed after such deposit, the respondent/decree holder can get the sale deed executed through court. In the event of default of the decree holder to deposit the amount within the time fixed, it was held he would lose all his right over the property and it shall remain in the absolute ownership and possession of the judgment debtor. Correctness and propriety of the above order passed by the execution court is challenged in the revision. 2. I heard the counsel on both sides. Learned counsel for the petitioner/judgment debtor had reiterated the objections raised before the execution court to contend the decree is inexecutable as the balance amount fixed under the compromise decree had not been paid within the time stipulated. Specific terms of the compromise should be implemented within the time fixed is highlighted by the counsel. Nonpayment of the sum within such period was fatal. Subsequent event after the time fixed as to the judgment debtor discharging the encumbrance over the property to a society treatimg himself as the owner of the property is also highlighted by the learned counsel to contend that the decree was no longer executable. On the other hand, learned counsel for the respondent/decree holder contended that as rightly held by the court below time for payment CRP No.441/07 - 4 - was not the essence of the decree. The decree can be executable only on default of one or other party to comply with the terms after the expiry of the time fixed for such compromise. That being so, the execution petition, after the time fixed for payment of the balance sum imputing default on the part of the judgment debtor to execute the sale deed is perfectly maintainable, submits the counsel. So far as the amount paid by the judgment debtor to the society to clear the encumbrance over the property, it is submitted that the execution court has taken care to order reimbursement of such amount with interest at 18% by the decree holder, and so much so, the judgment debtor cannot canvass any grievance thereof. The nonenforceability of the execution of the decree on the premise that the compromise does not provide for a specific provision as to its executability as contended by the judgment debtor is also resisted by the learned counsel for the respondent/decree holder placing reliance in Sreedharan v. Bhaskaran (1986 KLT 102) pointing out that the absence of such a clause in the compromise decree would not strip the executability of the decree. 3. In the given facts of the case, the terms of the compromise entered by the parties by which the suit was disposed of have much CRP No.441/07 - 5 - significance. Terms of compromise which are stated in the memorandum of revision, in respect of which there is no dispute, read thus: “i) By paying Rs.2,35,000/- to the revision petitioner the respondent shall get the plaint schedule property reconveyed. Out of the said amount an amount of Rs.35,000/- was paid to the revision etitioner on the same day. The balance amount of Rs.2,00,00/- should be paid on or before 25.10.2004 and to get the property reconveyed. ii) In case of default to pay the balance sale consideration of Rs.2,00,000/- the revision petitioner is entitled to get the same realised with interest @12% from the schedule properties and in case of failure of the respondent the advance amount of Rs.35,000/- paid would be forfeited. iii) on receipt of the balance sale consideration the revision petitioner shall execute sale deed in respect of the property in favour of the respondent or to the person nominated by him. iv) Subject to the terms and conditions above it was decided by both parties to withdraw all the contentions in the plaint and in the counter claim. v) The terms provided in the compromise shall be CRP No.441/07 - 6 - implemented within 25.10.2004.” The decree passed in tune with such compromise in the suit for injunction in which there was a counter claim as well by the defendant, with both parties withdrawing their contentions in the plaint and the counter claim indicate that it was in the nature of a decision entered in a suit for specific performance with a time limit fixed for deposit of balance sale price for registering the conveyance deed over the property involved within the time agreed upon. The court has not fixed the time for completion of the conveyance, but, parties have mutually agreed upon the period fixed for payment and execution of the deed of reconveyance. Payment of balance sale price of Rs.2,00,000/- to get a sale deed of reconveyance of the property was fixed with the outer limit on 25.10.2004. Compromise decree is dated 30.9.2004. The execution petition was filed by the respondent on 22.8.2006, much later to the date fixed for payment of the balance sale consideration. Meanwhile, the petitioner had discharged the outstanding liability due on the property to the tune of Rs.1,46,557/- to a c-operative bank which according to him was cleared bonafide believing that the decree by lapse of time has become inexecutable. The court below has negatived the contention CRP No.441/07 - 7 - of the petitioner that the forfeiture clause provided under the compromise decree in the event of nonpaying of the balance sale consideration within the time fixed is decisive, as the court has power to extend the time fixed by the compromise decree. The amount that was paid by the petitioner to the bank to discharge the liabilities outstanding on the property was also taken care of directing the respondent to pay such sum with 18% interest for the period specified by the court within the time fixed by the court. View taken by the court below that the time fixed in the compromise decree can be extended by the court for payment of the balance sale consideration is proper and correct and the challenges impeaching the same by the petitioner cannot be sustained. But, all the same, it is noticed, the court below has lost sight of one material aspect presented in the case that he who seeks equity shall also do equity. Time fixed for payment of balance sale consideration was on or before 25.10.2004. The respondent did not pay the sum within such period and he approached the court for executing the decree, nearly, about two years later, after the petitioner had expended substantial sum to clear off the liability outstanding over the property to a bank to avoid its sale for realisation of that debt. Reimbursement of the sum paid by the petitioner to the bank with interest till such payment CRP No.441/07 - 8 - within the time fixed by the court is not sufficient to enable the respondent to get a reconveyance deed over and above payment of the balance sale consideration covered by the decree. Principles applicable in deposit of the balance sale consideration in a decree of specific performance where a time limit had been fixed by the court under the decree is applicable in the present case as well where the respondent has admittedly not paid the purchase price within the time limit fixed under the compromise decree. It is perfectly open to the court to extend the time for deposit in the compromise decree which as already indicated has all the character of a decree passed in a suit for specific performance. But, in doing so, it should be ensured that equity shall be done to the opposite party while granting extension of time to the petitioner. During the period of two years after the time fixed for reconveyance of the sale deed on payment of the balance sale consideration, before the presentation of the execution petition by the respondent there must have been substantial rise in the price of the property. The time lag after the outer limit fixed for payment of balance sale consideration cannot go unnoticed by the court when the execution of the decree is sought for belatedly as if no injury had been caused to the other side by the nonpayment of the balance sale consideration within the period fixed. CRP No.441/07 - 9 - So much so, where extension of time is granted for payment of the balance sale consideration and especially to execute the decree of reconveyance of the property, the respondent has also to be ordered to compensate the petitioner the injury suffered by him in view of delay in paying the balance sale consideration for the period of which the sale price of the property has increased substantially. In extending equity in favour of the respondent he has to be directed to do equity to the petitioner as well. The learned counsel appearing for the respondent fairly submitted at the time of hearing that compensation fixed by this court, having regard to the facts and circumstances of the case, will be acceptable to the respondent for reconveyance of the property in terms of the compromise decree, and remission to the court below to consider that question be avoided as it may result in delay in completion of the proceedings. The extent of the property covered by the decree is stated to be 18 Ares 15 Sq. metres and it comprises of a building as well. Taking into account the time lag after the time fixed for deposit and reconveyance in presenting the execution petition the extent of the land involved for reconveyance, and the likely escalation of price over the land during the period in respect of which, of course, no data is available, I find a sum of Rs.1000/- per cent taking the area roughly as 40 cents, which CRP No.441/07 - 10 - comes to Rs.40,000/-, has to be paid by the respondent in addition to the sums covered by the decree as compensation to the petitioner/judgment debtor to get belated execution of the decree, and thus, obtain reconveyance of the property. So, in addition to the amount already fixed by the court which is stated to have been deposited, the petitioner shall pay a sum of Rs.40,000/- to the respondent as a condition precedent for getting the decree executed in terms of the compromise decree on the basis of extended period by orders of the court. Compensation so fixed shall be paid by the respondent within a period of six weeks from the date of this order failing which the order of the court below shall stand set aside, and the execution petition dismissed. Revision is disposed as above. srd/bkn S.S. SATHEESACHANDRAN, JUDGE