GH MOHD Vs. AB HAMID
LAWS(J&K)-1993-11-7
HIGH COURT OF JAMMU AND KASHMIR
Decided on November 26,1993

Gh Mohd Appellant
VERSUS
Ab Hamid Respondents

JUDGEMENT

- (1.)THIS is all about the compromise decree dated 26 -11 -1984 passed in the suit of the respondent, by the learned Sub -Judge, Poonch. The decree admittedly does not contain any specific clause regarding its execution in case of non -compliance of its terms by the judgment debtor. The all important question that arises for consideration is: whether such a decree is executable without any stipulation regarding its executability?
(2.)THE controversy arises out of a suit filed by the respondent praying that defendant -petitioners be restrained from obstructing the flow of water discharged from his house from the land comprised in Khasra No. 433 of village Smodh. It appears that the parties lived in Kacha houses at the time of institution of the suit and the water discharged from their houses used to get absorbed in the compound and then would flow towards the land of Krishen lal and Tota Ram and therefrom into a Nallah. It further seems that after the petitioners constructed their pacca house, Krishen lal stopped flow of water from their house constraining them to purchase the land of Krishen lal for a consideration of Rs. 36,000/ -. They are said to have constructed a pacca drain thereafter with an underground pipe to channelise the flow of water from their house into the Nallah.
(3.)DURING the pendency of the suit the parties entered into a compromise and submitted the compromise deed dated 10 -11 -1984 before the Court upon which the decree was passed. The decree stipulated that the discharge of water will continue to be the same as before and defendants will not cause any obstruction in the same and the drainage of water will remain joint . It transpires that the petitioners allegedly obstructed the flow of water from the house of the respondent constraining him to file an application for execution of the decree. The petitioners filed their objections which have been overruled by the executing court by order dated 7 -3 -1991 directing the petitioners to allow the flow of water of the house of the decree -holder through underground pipe by removing cement plaster of the floor of their house on their expense within 15 days from the date of the order . The petitioners took an appeal against the order of the executing court which was dismissed on 19 -12 -1992 amongst others on the ground that the same was incompetent and not maintainable. Hence this revision petition.
Mr. Salaria, learned counsel for the petitioners has assailed the order of the executing court primarily on the ground that the decree dated 26 -11 -1984 is a declaratory decree and thus, was not executable and even if it be treated to be a compromise decree, it still could not be executed as the same did not contain any specific stipulation that it would be so executed in the event of non -compliance of its terms. He also submitted that the executing court had fallen in error by looking into the plaint of the respondent to find out the position regarding the discharge of water as it existed before the compromise between the parties. According to him, the Court should SIC ordered evidence to determine what was the mode of discharge of water prior to the compromise between the parties. He also resisted the objections that his revision petition was time barred and in support of his submissions relied upon AIR 1970 Calcutta 34, AIR 1966 J&K 13, AIR 1953 Orissa 74 and AIR 1933 Allahabad 269.



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