Code of Civil Procedure, 1908 – s.47 – Questions to be determined by the Court executing decree – Execution of a compromise decree passed in a suit – Defendant-respondent became decree holder and the plaintiff-appellant became judgment debtor – Executing Court in the execution petition modified the compromise decree by varying the area allotted to the parties under the compromise decree and allotted them some different portions – Review petition by the defendantrespondent – Petition allowed and the modifications made by the Executing Court in the original compromise decree further modified – Thereagainst writ petition by the plaintiffappellant challenging the orders passed by the Executing Court, the order passed on review petition as well as the order directing the delivery of possession – Dismissed by the High Court – Correctness:
Held: Executing Court has to strictly conform to the decree under execution and if the decree provides for reciprocal obligations, it must ensure compliance of those conditions by both the parties in pith and substance, unless the decree is a nullity which is not the case herein – Executing Court has no jurisdiction to vary the terms of the decree – It is only where the dispute as to the identity of the land which has to be given as part of the obligation to the other side arises, the court can decide the same – In the instant case, no dispute of identity of the land falling into the shares of both the parties – Compromise decree clearly describes the portions of land falling into the shares of the parties – Thus, the Executing Court has to ensure that both the parties fulfil their obligations and exchange the land as per the decree and to see that the sale deed is executed as directed – Merely for the reasons that exchange of some portions of the land may not be practicable for the reason that constructions on it are not as per the sanctioned map or that part of it has been sold off, immaterial – Since the Executing Court in passing the orders has gone beyond its jurisdiction and instead of directing for the execution of the decree as it stands, altered its terms by changing certain portions of the land allotted to the parties, the same are unsustainable in law – Both the orders and the consequential order set aside – Execution Court to execute the decree in its terms and tenor. [Paras 24, 27, 29-31]
As published in the Supreme Court Reports, Supreme Court of India. Headnotes prepared by: Nidhi Jain. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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