- (1.) D. K. Seth, J. The order dated 13-10-1993 passed by Sri Krishna Kumar District Judge, Haridwar in Civil Revision No. 11 of 1993 reversing the order dated 2-2-1993 passed by Sri Ram Ashrey Singh, Munsif Magistrate, Roorkee in Misc. Case No. 9 of 1987, is under challenge by means of this writ petition.
(2.) THE petitioner's case, inter alia, was that the respondents No. 3 and 4 herein as plaintiffs instituted a case being S. C. C. Case No. 5 of 1984 before the learned Munsif Magistrate, Roorkee for eviction of the petitioner as defendants. THE said suit was decreed on 2-12-1986, which became final. Accordingly, execution was levied by the plaintiffs decree-holder, in which the petitioner-defendant judgment-debor had filed objection under Section 47 of the Code of Civil Procedure, wherein it was alleged that subsequent to the decree there was a compromise between the parties by virtue whereof the property was let out to the petitioner judgment-debt or. THE learned Munsif Magistrate by an order dated 2-2- 1993 allowed the said objection in the resultant Misc. Case No. 9 of 1987. Against which a Revision preferred by the decree-holder, being Civil Revision No. 11 of 1993, which was allowed by order dated 13-10-1993 passed by the District Judge, Haridwar. It is this order, which is impugned in the present writ petition. Sri S. K. Singh, learned counsel appearing with Sri V. K. Singh, learned coun sel for the petitioner submits that in view of subsequent agreement under the con tract or compromise the decree passed in SCC Case No. 5 of 1984 was no more executable and, as such, should be struck off. He contends that since it was an act of the party through which fresh contract has been entered into the same, cannot be interfered with by the executing Court in the execution of the said decree. Sri H. S. Nigam, learned counsel for the respondents on the other hand con tends that writ petition under Article 226 of the Constitution is not maintainable in the facts and circumstances of the case and that the compromise having not been certified, the same cannot be looked into and as such objection under Section 47 should be rejected and the decree should be executed.
(3.) ADMITTEDLY, the alleged compromise dated 22-2-1987 does not have the seal of the court and was alleged to have been arrived at out of court. The decree holder, however, questioned the genuineness of the compromise. The case made out in the objection under Section 47 of the Code of Civil Procedure is that there was subsequent agreement which is evident by the said compromise or agreement, by reason whereof the decree stands satisfied and, as such, was no more executable. It is no compromise within the meaning of Order XXIII, Rule 4 of the Code of Civil Procedure, having the seal of the court which could have entered into prior to the decree either in the trial Court or even in the appellate Court. The present com promise alleged to have been entered into after the decree and levy of execution, the same at best can be termed as an adjustment within the meaning of Order XXI, Rule 2 of the Code of Civil Procedure. Order XXI, Rule 2 of the Code of Civil Procedure prescribes that such adjustment are to be certified by the court. In the present case, admittedly the petitioner had applied for treating the application under Section 47 of the Code of Civil Procedure, as an application under Order XXI, Rule 2 of the Code of Civil Procedure. But the same was rejected. Therefore, there was no such adjustment certified by the court. Therefore, the alleged adjustment can not have any bearing on the execution proceeding.;