IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 18.09.2009 CORAM THE HON'BLE MR. JUSTICE K.CHANDRU APPLICATION NOS.1293 TO 1296 OF 2008 IN E.P.NOS.132 AND 134 OF 2003 ORDER Two execution proceedings in E.P.Nos.132 and 134 of 2003 were ordered by the learned Master on 11.1.2008, directing the first respondent to pay a sum of Rs.30,36,923/- indivudually and the first and second respondents to pay a sum of Rs.5,10,750/- jointly or severally on or before 11.02.2008, failing which an order of attachment in respect of the properties of judgment debtors/respondents mentioned in the execution petition Nos.132 and 134 of 2003 will be passed automatically. 2.Thereafter, these four applications were taken out by the judgment debtors to stay all further proceedings in E.P.Nos.132 and 134 of 2003 and to set aside the orders of the learned Master, dated 11.1.2008 in E.P.Nos.132 and 134 of 2003. 3.The judgment debtors have taken out these applications, stating that a decree passed in C.S.No.895 of 2003 is a compromise decree. It embodies the terms of understanding arrived between the parties to regulate their affairs amicably. It also grants rights to both parties and imposes obligation upon both parties. Unless a party fulfills the obligation cast upon him, that party cannot seek to enforce any obligation owned to him. The compromise decree casts an obligation upon the plaintiffs to supply a flat to the defendants at a particular place. It also gives the plaintiffs the option to supply a flat at any other place, subject to the defendants identifying the same and indicating their intention to the plaintiffs. 4.In the instant case, the defendants never identified any alternate site or alternate flat so as to enable the plaintiff to convey the same to the defendants. The plaintiffs are ready and willing to convey only an appropriate flat to the defendants upon the defendants' suitably identifying the same. The defendants were also liable to give No Objection Certificate to enable the plaintiffs to obtain electricity connection for the flats in the suit property. The defendants deliberately refused to give NOC. On account of same, the plaintiffs were put to irreparable loss. The defendants were guilty of breach of promise, which they had agreed to perform under the compromise decree. Therefore, they cannot enforce reciprocal promise. The compromise decree comprises of several cross obligations. The applicants were obliged by the decree to discharge any of the obligations set out in the execution petitions. Since the compromise decree embodies reciprocal promise within the meaning of Section 51 of the Indian Contract Act and the execution petitioners having failed to perform their obligations, cannot compel the defendants to perform their obligations. Hence the execution petitions are not maintainable. 5.It was also stated that only one of the defendants came forward to file the execution petition and without the written authority of the other, it is barred under Order 39 Rule 18 of the O.S. Rules. The defendant also did not construct the building in accordance with the compromise decree. There were several flats constructed. It is for the defendant petitioner to identify the flat of her choice. Therefore, she cannot ask for compensation or rent for the flats she failed to choose. The claim made by the defendant is exorbitant. The other application. The execution petitions have to be dismissed since simultaneous execution against a person and property is barred by law. Since leave of the court was not obtained, the execution petitions will have to be dismissed. The claim on the strength of Clause 17 of the decree is improper. Hence the claim under Clause 14 of the decree was also improper. 6.It was further stated that item No.4 of annexure 2 to E.P.No.134 of 2003 did not belong to the applicant. Hence the execution petition in this regard is not maintainable. The learned Master had overlooked all these. Therefore, it was prayed that the order of the learned Master, dated 11.1.2008 in E.P.Nos.132 and 134 of 2003 should be se aside. Pending the set aside, the stay of further proceedings must be given. 7.It is seen from the records that this Court by a judgment and decree, dated 30.4.2001 in C.S.No.895 of 2000 and Tr.A.No.1706 to 1709 of 2001, passed a decree on the basis of a memo of compromise signed between the parties. Clauses 14 to 17 of the Memo of Compromise reads as follows: "14.That in default of giving effect to regularise the defective and unfructified conveyances as stated in clause (10) supra shall pay the value at the rate of Rs.250/- (Rupees two hundred and fifty only) per sq.ft in respect of such undivided interest not regularised at the time of completion of the project. 15.That the regularisation so done shall be confirmed to the extent of proportionate interest held by the 1st plaintiff herein. 16.That all the expenses including sales tax if any relating to work of the project shall be borne by the 1st plaintiff herein. 17.That the 1st plaintiff herein having paid a compensation at the rate of Rs.5000/- (Rupees five thousand only) totalling Rs.35,000/- (Rupees thirty five thousand only) vide cheque No.340814 dated 20.4.01 of Kasi Housing for the period from 1st October 2000 to 30th April 2001 shall pay at the same rate till delivery is effected and the 1st plaintiff herein shall be entitled to a rebate at the rate of Rs.250/- per flat in respect of each flat that has been delivered." 8.Subsequent to the passing of the decree, insolvency notices were issued in I.N.Nos.187 and 184 of 2004. Thereafter, A.Nos.234 and 235 of 2005 were filed to set aside the insolvency notices. By an order, dated 29.6.2005, the insolvency notices were set aside and the applications were allowed. Against the said order, Appeals in OSA Nos.202 and 203 of 2006 were filed. The Division Bench, by a common judgment, held that for the issuance of notice under Section 9(2) of the Presidency Towns Insolvency Act, 1909, there must be a decree or an order for payment of money. In the instant case, the court was unable to notice any decree or order for payment of money. Hence the order to set aside the insolvency notices was confirmed in the O.S.As. 9.Since the terms of the compromise was not adhered, execution proceedings were initiated. In the E.Ps., the applicants have filed counter affidavits and written submissions were also made, including an additional written submissions. It was thereafter, the learned Master passed the order, dated 11.1.2008. 10.It was stated that the properties mentioned in E.P.Nos.132 and 134 of 2003 are liable to be attached subject to condition that the first respondent/judgment debtor fails to pay a sum of Rs.30,36,923/- individually and the respondents 1 and 2 fail to pay a sum of Rs.5,10,750/- jointly and severally on or before 11.02.2008, failing which an order of attachment will be passed automatically. However, the application for arrest is not to be made in respect of E.P.No.133 of 2003 and the same was liable to be rejected. In the result, the attachment orders were made, but the arrest request was rejected. 11.The learned counsel for the applicants/judgment debtors contended that if there is no decree as contemplated by the Division Bench as set out above, the question of EP may not arise. 12.The respondent had also filed a common counter affidavit, stating that the first applicant/judgment debtor is a proprietorship concern and one K.M.Vidyasagar is its proprietor. The second applicant/judgment debtor is the father of K.M.Vidyasagar. The first applicant remained ex- parte throughout the proceedings. The terms of the compromise decree under execution is comprised of independent obligations to be fulfilled within the time stipulated therein, failing fulfillment, monetary compensation is alternatively provided. Under the terms of the decree in Clauses 6,17,10 and 19, the decree holder is entitled for a sum of Rs.35,47,673/-. There was no reciprocal or inter-link obligation created and the applicants are left to work out their remedies by way of an independent execution proceedings. 13.It was further stated that leave was granted for simultaneous execution by the Master on 6.2.2003 and no consent need be obtained from the other party to the compromise decree under Order 39 Rule 18 of the Original Side Rules as the other defendant was only a formal party and not entitled to any joint benefit. The fact that insolvency proceedings were not allowed to be proceeded with is not an issue which can have bearing on these proceedings. Merely because an application was filed before the insolvency court that will not operate as a stay of the execution. There is no principle of resjudicata arose in this matter. Hence the order of the learned Master does not call for any interference. 14.M.R.Tholgappian, learned counsel for the respondent relied upon the judgment of the Supreme Court in Jai Narain Ram Lundia Vs. Kedar Nath Khetan and others reported in AIR 1956 SC 359 for the purpose of contending that in case there are decrees where the obligations imposed are severable it can be executed. He referred to the following passage found in paragraph 18 of the said judgment, which is as follows: "18....When a decree imposes obligations on both sides which are so conditioned that performance by one is conditional on performance by the other execution will not be ordered unless the party seeking execution not only offers to perform his side but, when objection is raised, satisfies the executing Court that he is in a position to do so. Any other rule would have the effect of varying the conditions of the decree : a thing that an executing Court cannot do. There may of course be decrees where the obligations imposed on each side are distinct and severable and in such a case each party might well be left to its own execution. But when the obligations are reciprocal and are interlinked so that they cannot be separated, any attempt to enforce performance unilaterally would be to defeat the directions in the decree and to go behind them which, of course, an executing Court cannot do. The only question therefore is whether the decree in the present case is of this nature. We are clear that it is." 15.The learned counsel also relied upon the judgment of the Supreme Court in Pawan Kumar Gupta Vs. Rochiram Nagdeo reported in AIR 1999 SC 1823 for the purpose of contending that unless an issue is directly and substantially an issue in a former suit between the same parties, Section 11 of CPC cannot be pressed into service. The order of the Division Bench in the insolvency proceedings thus cannot have any bearing. He, therefore, referred to the following passages found in paragraphs 16 and 19 of the said judgment, which is as follows: "16.The rule of res judicata incorporated in S.11 of the Code of Civil Procedure (CPC) prohibits the Court from trying an issue which "has been directly and substantially in issue in a former suit between the same parties," and has been heard and finally decided by that Court. It is the decision on an issue, and not a mere finding on any incidental question to reach such decision, which operates as res judicata. It is not correct to say that the party has no right of appeal against such a decision on an issue though the suit was ultimately recorded as dismissed. The decree was not in fact against the plaintiff in that first suit, but was in his favour as shown above. There was no hurdle in law for the defendant to file an appeal against the judgment and decree in that first suit as he still disputed those decisions on such contested issues. ..... 19.Thus the second legal position is this : If dismissal of the prior suit was on a ground affecting the maintainability of the suit any finding in the judgment adverse to the defendant would not operate as res judicata in a subsequent suit. But if dismissal of the suit was on account of extinguishment of the cause of action or any other similar cause a decision made in the suit on a vital issue involved therein would operate as res judicata in a subsequent suit between the same parties. It is for the defendant in such a suit to choose whether the judgment should be appealed against or not. If he does not choose to file the appeal he cannot thereby avert the bar of res judicata in the subsequent suit." 16.The learned counsel also relied upon the judgment of the Supreme Court in Bhavsingh (dead) by LRs. Vs. Keshar Singh and others reported in 2003 (7) Supreme 79 and contended that the proceedings under the Insolvency Act and the execution proceedings under CPC are two distinct remedies available to a decree holder. For that purpose of showing an analogy, he referred to the following passage found in paragraph 18 of the said judgment, which is as follows: "18.Further, the relief which is required to be granted under the provisions of the Act of 1977 is altogether different from the relief which is granted under the Debt Relief Act. One provides for declaring the sale transaction to be null and void while other provides only for scaling down the amount of the debt and the interest. Therefore, even in the previous proceedings if it is held that the transaction was not a mortgage but a sale, that would not mean that in the present proceedings, the appellant cannot prove that the sale deed was executed for the loan amount with a specific understanding that on refund of the amount, property was to be redelivered to the transferor. In this view of the matter, even though in a previous proceeding there was a specific finding that the deed was not a mortgage deed which is a fact), the present proceeding would not be barred by the principles of res-judicata. The cause of action and reliefs in the first and second proceedings are altogether different. This is also provided under Section 3 of the Act 1977 by giving over-riding effect to the provisions of the Act. It inter alia provides that the provisions of the Act and the Rules made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force." 17.Similarly, invoking the insolvency law will not bar the EP proceedings. A reference was made to the judgment of this Court in Sudhandiran Vs. S.Krishnan reported in 2005 (5) CTC 617. In paragraph 5, it was held as follows: "5.Considering the facts and circumstance of the case, this Court is of the view that the judgment relied on by the counsel for the respondent can be made applicable to the facts of the case on hand. Just because of an application has been filed by the petitioner himself before the Insolvency Court, in the absence of any order or adjudication by the said Court, the executing Court need not stay its proceedings. Considering the above said facts as well as the oral and documentary evidence, the trial Court has rightly refused to stay the execution proceedings and dismissed the application filed by the revision petitioner herein. ...." 18.To make a distinction between the two proceedings, he referred to the decision of this Court in Madras Dock Labour Board Vs. P.Thandavakrishna Naidu reported in 1988 (I) LW 544. In paragraph 8, it was held as follows: "8. ...On a careful reading of the above provision, it is clear that this S.17 of the Presidency Towns Insolvency Act has no reference to suits or other proceedings actually pending against the debtor at the date of the order of adjudication. Hence, no leave is necessary to continue the suit commenced before the order of adjudication." 19.It was also stated that the observations of the Division Bench in the OSA against the insolvency notices cannot have bearing on deciding the validity of the order passed in the EP proceedings. For this purpose, reliance was placed upon the decision of the Supreme Court in M.P.Gopalakrishnan Nair and another Vs. State of Kerala and others reported in 2005 (3) CTC 428. The following passage found in paragraph 40 of the said judgment may be usefully reproduced below:- "40.The decision of the Kerala High Court in Krishnan (supra) did not lay down any proposition of law that the person authorized to nominate the persons of the Managing Committee should also form part of the denomination. With respect, the Full Bench in Narayanan Namboodiri (supra) misread and misinterpreted Krishnan (supra). Even assuming that the decision in Narayanan Namboodiri (supra) is correct (which it is not) it is not proper or correct to brand all Ministers of leftist Government as persons not believing in temple worship. There is no presumption that a Communist or Socialist (who may normally form part of a leftist Council of Ministers) are ipso facto non believers in god or in temple worship. Such a sweeping allegation or premise on which the prayer is based need not be correct. It depends on each individual approach. The observations in a judgment should not be, it is trite, read as a ratio. A decision, as is well known, is an authority of what it decides and not what can logically be deduced therefrom. (See Chandra Sarkar Vs. Rajesh Ranjan @ Pappu Yadav and another, 2005 (1) SCALE 385 and Haryana State Coop. Land Dev. Bank Vs. Neelam, JT 2005 (2) SC 600." 20.In the light of the above, the learned counsel stated that the order of the Master did not suffer from any illegality or infirmity. Since the request for arrest of the appellant was negatived by the Master and only attachment order was given, this Court is not inclined to interfere with the order. 21.In the light of the above legal precedents and the factual matrix involved, all the four applications deserve to be dismissed. Accordingly, they are dismissed. No costs. vvk