M/S. Pushpa Sahkari Avas Samiti Ltd vs M/S. Gangotri Sahkari Avas S.Ltd.& Ors

The present appeals by special leave are directed against the judgment and order dated 10.01.2002 and 07.03.2003 passed by the learned Single Judge of the High Court of Judicature at Allahabad in Civil Revision No. 341 of 1997 and Review Application No. 38861 of 2002 respectively. The facts as uncurtained in the two appeals are that the appellant as plaintiff initiated a civil action forming subject matter of suit No. 501 of 1995 against the respondent and others for permanent injunction. In the suit, the parties entered into a compromise and on the basis of the compromise, a decree was drawn up on 06.09.1996. The terms and conditions of the compromise were made a part of the decree. Be it noted, the compromise between the parties stipulated certain conditions and one such condition was that within a span of six months' time, the defendant would pay a certain sum to the plaintiff. For the sake of clarity and convenience, the said clause of the compromise is reproduced hereunder:-

2. In the petition for compromise which formed a part of the decree, there were other stipulations but they are not necessary to be stated for the adjudication of these appeals. As has been indicated earlier, the decree was drawn up on 06.09.1996.

4. Aggrieved by the aforesaid order, the first respondent preferred Civil Revision No. 341 of 1997. The learned Single Judge noted the contentions and subsequent orders that were passed in the execution petition. The revisional court opined that no other objection could be raised for the first time in the revision and hence, no finding was warranted to be recorded on the said score.

15. In view of the aforesaid authorities in the field, the submission of Mr. Dubey that the executing court could not have entertained the execution proceeding solely because it was instituted before the expiry of the period stipulated in the compromised decree despite the factum that by the time the Court adverted to the petition the said period was over, is absolutely unacceptable.

17. Tested on the anvil of the aforesaid principle, it is difficult to accept the stand that the decree had become inexecutable, and, accordingly, we repel the same.

19. In view of our aforesaid premised reasons, we arrive at the irresistible conclusion that the executing court did not commit any error by entertaining the execution petition. The learned Single Judge in civil revision has annulled the said order without any justification. While so doing, he had not dealt with other objections raised by the Judgment-debtor on the ground that they are raised for the first time. On a query being made, Mr Dwivedi, learned senior counsel for the petitioner, fairly stated that the said objections were raised in a different manner in the objection filed under Section 47 of the Code and the revisional court should have been well advised to deal with the same on merits. Regard being had to the aforesaid analysis, we set aside the order passed in civil revision and remit the matter to the High Court to deal with the objections on merits. As it is an old matter, we request the learned Chief Justice of the High Court of Allahabad to nominate a learned Judge to dispose of the civil revision within a period of six months. It is hereby made clear that the parties shall not seek unnecessary adjournment before the revisional court and should cooperate so that the revision shall be disposed of within the timeframe.

20. Consequently, the appeals are allowed to the extent indicated hereinabove leaving the parties to bear their respective costs.

March 30, 2012.