BISWANATH SOMADDER, J. - (1.) THE present appeal and application arises out of a judgment and order dated 27th March, 2008 passed by the learned trial court. By the said judgment and order dated 27th March, 2008, the learned trial court dismissed an application filed by the petitioner, being the appellant herein, for recalling of an earlier order dated 3rd May, 2005, passed on an execution application.
(2.) THE order dated 3rd May, 2005 records that the judgment-debtors, being the respondents herein, and the decree-holder, being the petitioner/appellant before us, had settled the matter between themselves and had entered into a compromise and the execution application, based on which the order dated 3rd May, 2005 was passed, was disposed of on the basis of such compromise said to have been arrived at between the parties. The case of the petitioner before the learned trial court as well as before us is that the order dated 3rd May, 2005 should be recalled since the judgment-debtors/respondents in the execution proceeding perpetrated fraud on the decree-holder and made over a property to the decree-holder, without having obtained occupancy certificate from the Nasik Municipal Corporation, binding the decree-holder to an obligation for payment. The petitioner/appellant submits before us that the property, being a showroom, cannot be enjoyed by them, and as such, neither the decretal debt was discharged nor has any obligation to pay arisen, in terms of the compromise, so far as the petitioner/appellant is concerned. The learned advocate for the petitioner/appellant submits that since the judgment-debtors/respondents obtained the compromise by perpetrating fraud on the decree-holder, the order dated 3rd May, 2005, which records such compromise, is liable to be recalled and that the learned trial court erred in law by not doing so. On the other hand, learned advocate appearing on behalf of the judgment- debtors/respondents has taken us through the terms of settlement which form the basis of the compromise, particularly clauses 5, 13, 14, 17 and 18 thereof and submits that the judgment-debtors/respondents have duly fulfilled their part of their obligation in terms of the terms of compromise and the recalling application filed before the learned trial court by the decree-holder was a mere ploy to avoid discharge of their obligation under the terms of compromise in respect of rent payable for use of the showroom. The learned advocate for the judgment- debtors/respondents also hands up a copy of the occupancy certificate issued by the concerned municipal corporation. He further submits that the compromise was effected upon due satisfaction of the court, on the basis of the terms of settlement, and the petitioner/appellant has raised a plea of fraud by making allegations which are wholly beyond the scope of the obligation of the judgment-debtors/respondents under the terms of compromise. He, thus, submits that the learned trial court had rightly dismissed the application for recalling of the order dated 3rd May, 2005 and prays for dismissal of the appeal.
(3.) WE have perused the order of the learned trial court as well as the terms of compromise, based on which the order dated 3rd May, 2005 was passed. We have also perused the occupancy certificate issued by the municipal corporation, handed up by the learned advocate for the judgment- debtors/respondents during the course of hearing. We have taken note of the fact that under clauses 17 and 18 of the terms of compromise it has been stated as follows: - "17. Immediately upon surrender of the lease in respect of the show room premises and delivery of possession thereof by the respondent/judgement debtor No. 1 to the respondent/judgement debtor nos. 2, 3 and 4, the said respondents/judgement debtors will hand over possession of the show room premises to the petitioner/decree holder for the purpose of fulfilling its agency obligations of letting out/leasing the same in the manner envisaged herein. From the date of delivery of possession the petitioner/decree holder will have three months time within which to let out or lease the show room premises, failing which the petitioner itself will be deemed to have taken the show room premises on rent @ Rs. 10/- per square feet per month. In the event the petitioner manages to let out or lease out the said premises to any third party or entity before expiry of three months from the delivery of possession of the show room premises, its right to appropriate rent received from the show room premises shall accrue forthwith, failing which the same shall be deemed to be accrued on the expiry of the three months from the date of delivery of possession. 18. In the event of any acquisition and/or requisition of the show room premises or by intervention of any other case whether statutory or otherwise it becomes impossible for the petitioner/decree holder to realize any rent or charge in respect of the show room premises and consequently to appropriate the same against satisfaction of its decretal dues, as settled, it will be open to the petitioner/decree holder to seek recourse to other remedies to realize the same from the respondents/judgement holders. In the event, however, and so long as the rents are realizable in respect of the show room premises, the petitioner/decree holder will not seek any other legal or other remedy and recourse against the respondents/judgements debtors for realization of its decretal dues as settled." ;