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NARESH CHAND GOEL versus SMT. KUSUM GARG

High Court of Judicature at Allahabad

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Naresh Chand Goel v. Smt. Kusum Garg - CIVIL REVISION No. 346 of 2006 [2006] RD-AH 15131 (1 September 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

                                                                                  Court No. 24

Civil Revision No. 346 of 2006

Naresh Chand Goel Vs. Smt. Kusum Garg

******

Hon'ble Umeshwar Pandey, J.

Heard learned counsel for the parties.

This revision petition challenges the order of the court below dated 23.8.2006 whereby petitioner's objection under Section 47 C.P.C. has been dismissed.

There was a suit for recovery of arrears of rent and ejectment filed by the opposite-party/plaintiff in which the parties entered into compromise in the month of January, 2006 (Annexure-9 to the petition) and prayed to the court for passing a decree in terms of the compromise in the aforesaid suit. The court accordingly passed the decree and in pursuance to that the applicant was given an opportunity to get the disputed accommodation transferred through sale in his favour by 31st of May, 2006 after making payment of the sale consideration of Rs. 23,00,000/-. The aforesaid time given for the purchase of the property was also made essence of the compromise/agreement by the parties. Since the sale could not take place and the money of sale consideration was not paid the decree for delivery of possession was put in execution. It is thereafter that the objections under Section 47 C.P.C. were filed from the side of the revisionist. The court, while rejecting those objections after hearing the parties, held that since the revisionist did not comply to the terms of the compromise by depositing the aforesaid sum of Rs. 23,00,000/- with the court, these objections were wholly frivolous and were accordingly dismissed. The other objections that the court did not have jurisdiction to pass the decree were also negatived by the executing court on the ground that such objections were not pressed when the parties had entered into compromise and, therefore, those objections could not be entertained afresh after passing of the decree. It is obvious from the entire factual spectrum of this case that the parties once entered into compromise in accordance to which the court passed the decree, they have to stick to such terms of the compromise and they have no opportunity to deviate from the same in one way or the other.

The last clause of the compromise of which the applicant-revisionist did not make compliance may be reproduced below:-

"In the mean time, it is also agreed the defendant will have right, strictly up to 31.5.2006, for making payment of Rs. 23,00,000.00 (Rupees twenty three lac only) to the plaintiff, and thereafter the defendant can get a sale deed in respect of the said property executed by the plaintiff. In case, the defendant get the said sale deed executed in his favour, only then the plaintiff will not claim for possession and the arrear of rent and mesne profits. The time is essence of the contract for making the payment of Rs. 23,00,000.00 (Rupees Twenty three lac only)."

In the aforesaid terms of the compromise the defendant-revisionist specifically agreed to make the payment of the sum of    Rs. 23,00,000/- towards the sale consideration of the disputed house to the plaintiff by 31st May, 2006, but admittedly he has failed to make such payment or to make payment to the opposite-party/plaintiff or to make deposit of the same with the executing court. The learned counsel submits that the payment of sale consideration could not be made because there were certain difficulties in the execution of the sale-deed which had to be got removed by the plaintiff/opposite-party and the same were not removed till the given date (31.5.2006). Thus, it is emphasised that the date should not be made very much relevant in the present case. A perusal of the aforesaid clause itself makes it more than evident that the period for transfer of the property in favour of the applicant-revisionist was fixed strictly till 31.5.2006 only and there was absolutely no occasion for the extension of the said period as it would go counter to the  decree passed in the case. There could not be any deviation nor the court could pass any order contrary to the decree. The applicant, if was facing certain  difficulties in getting the sale executed in his favour from the opposite-party/defendant, he should have approached the court for that purpose and could have deposited the aforesaid sum of Rs. 23,00,000/- with the court itself. That would have absolved the petitioner of the responsibility placed upon him under the decree  passed in terms of the aforesaid paragraphs of the compromise. But, for the reasons best known to the revisionist he has failed in that also and, therefore, no relief could be granted to him by the executing court under Section 47 C.P.C. The other submission of the learned counsel for the revisionist regarding the lack of jurisdiction of the court passing the decree also appears to be rightly answered by the executing court. The defendant-applicant did not press any such objection as taken in the pleading while the suit was being finally disposed of in the light of the compromise reached between the parties. Since such objections were not raised at the time of passing of the decree in the suit the executing court is wholly justified in rejecting those objections when taken by the revisionist-petitioner under Section 47 C.P.C. Thus, the order of the court below rejecting the aforesaid objections does not appear to be erroneous in any respect as to warrant an interference against it in a revision under Section 115 of the Code of Civil Procedure by this Court.

The revision is wholly without merits and is hereby dismissed.

Certified copy of this order be made available to the parties within 48 hours on payment of usual charges.

01.9.2006

SUA/346-06


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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