- (1.) The brief and relevant facts are that there was an agreement of sale between the parties dated 19th July, 1959, with regard to H. No. 592-R (B-XVIII)-387, Model Town, Ludhiana. The sale price was fixed at Rs. 11,000/- out of which an amount of Rs. 5,000/- was paid in advance by the purchaser, i.e., Jagtar Singh, petitioner, and possession was delivered to him. An additional amount of Rs. 1,000/- was paid by him on 2nd August, 1959, as per terms of the agreement; the balance amount of Rs. 5,000/- was left to be paid before the Sub Registrar. The respondent/vendor Balbir Singh filed a suit for mandatory injunction against Jagtar Singh, the vendee, which was decreed by the trial Court on 31st January, 1966. However, the said decree was set aside in appeal on 16th May, 1966. Balbir Singh, vendor, thereupon filed RSA No. 1207/6 in this Court in which a compromise was entered into between the parties and in view of that the appeal was dismissed on 6th December, 1976. According to the said compromise a sum of Rs. 16,000/- was paid in cash to Balbir Singh in this Court. In addition, a sum of Rs, 1,000/- was paid to him on account of expenses for the execution of the sale deed. After recording the statements of the parties, this Court passed the following order :- "Jagtar Singh respondent has paid Rs. 16,000/- and Rs. 1,000/- as half the expenses for the execution of the sale deed to Balbir Singh appellant in terms of the compromise. The appellant shall get the sale deed executed within one month from today. If for any reason, there is delay not due to the appellant's own fault but due to the authorities concerned, and the sale deed is not executed within the aforesaid period then the appellant will make an application for some more time within two days of the completion of one month. Consequently, appeal stands dismissed." Upon this, Balbir Singh vendor filed a review application in this Court which was dismissed vide order dated 25th January, 1977. Not only that, contempt proceedings were taken against Balbir Singh in which he was convicted, though in appeal the order of conviction was set aside. Balbir Singh, vendor, thereafter filed a second suit on 28th January, 1977 for declaration that he could not be called upon to execute the sale deed unless a sum of Rs. 24,000/- more is paid to him, which was dismissed on 3rd October, 1977. Appeal against the said judgment and decree of the trial Court was also dismissed as time-barred. Regular Second Appeal preferred before this Court too failed on 14th March, 1980. The vendor Balbir Singh is said to have approached the Supreme Court by way of special leave petition which met the same fate. When Balbir Singh, vendor, failed to execute the sale deed after obtaining the entire sale price in the High Court, Jagtar Singh filed a suit for specific performance of the original agreement dated 19th July, 1959 and the compromise recorded in the High Court dated 6th December, 1976. The suit was filed on 3rd October, 1979. It was contested on behalf of Balbir Singh, primarily on the ground that it was barred by time and that no such suit was maintainable. The trial Court found that Jagtar Singh was not entitled to a specific performance of the agreement in terms of the compromise. According to the findings of the trial Court, the proper course for the plaintiff-Jagtar Singh was to have moved the appropriate Court for execution of the order of the High Court dated 6th December, 1976, passed in RSA No. 1207/66. The suit was also held to be barred by time. Against the said judgment and decree, Jagtar Singh filed an appeal in the Court of Additional District Judge, Ludhiana. On the last date of hearing, i.e., 16th March, 1989, it was directed by this Court that the said Civil Appeal No. 16/1988 pending in the Court of Additional District Judge, Ludhiana be transferred to this Court so that the same may be disposed of along with the present civil revision. The said appeal now registered as RFA 772/1989 is, thus, also before this Court. Meanwhile Jagtar Singh, vendee, sought execution of the order of the High Court in which the sale deed was got executed through Court. As the said order was passed ex parte, Balbir Singh filed objections to the execution and also prayed for setting aside the ex parte order directing execution of the sale deed through the agency of the Court. The said objections were contested on behalf of Jagtar Singh, decree-holder. On the pleadings of the parties, the executing Court framed as many as six issues. Issue No. 2 being the most important which read as under :- "Whether the order executed by alleged decree-holder was non-executable for the reasons alleged in the objection petition ? If so, to what effect ?" On this issue, the executing Court held that the order dated 6th December, 1976, passed by the High Court was not executable before the trial Court with the result that the entire proceedings taken in the execution shall become illegal because it has already been held that the objections before the executing Court u/s 47 Code of Civil Procedure, are maintainable while disposing of Issue No. 1.
(2.) The learned counsel for the petitioner submitted that the view taken by the trial Court was wholly wrong, illegal and it has, thus, acted illegally and with material irregularities in the exercise of its jurisdiction. In support of his contention he referred to (Sahu) Shyam Lal V. M. Shayamlal, 1933 AIR(All) 649 Lal Singh V. Mohan Singh and others, 1934 AIR(Lah) 623 Sodhi Mohinder Singh V. Shrimati Rajinder Kaur and others, 1966 CurLJ 91 and Amarnath Radha Ram and others V. Smt. Malan w/o L. Ram Chand, 1954 AIR(P&H) 259 On the other hand, the learned counsel for the judgment-debtor submitted that the order dated 6th December, 1976 passed on compromise in the High Court was not executable and, therefore, the view taken by the executing Court in this behalf was perfectly legal and valid. According to the learned counsel, the said order was passed prior to the amendment in Order 23 Rule 3 of the Code of Civil Procedure and since the compromise related to matters extraneous to the suit, the same could not be incorporated in the decree in a suit, particularly, when the compromise was not the subject matter of the suit as such. In support of his contention, he referred to Smt. Dharmon V. Firm Hira Lal Sheo Parshad and others,1975 RajdhaniLR 185; Munshi Ram V. Banwari Lal deceased, 1962 AIR(SC) 903 and Bimal Kumar Gayen and others V. Amiya Gopal Mondal and others, 1975 AIR(Cal) 387
(3.) After hearing the learned counsel for the parties and going through the case-law cited at the Bar, I am of the considered opinion that the view taken by the executing Court in this behalf is wrong and illegal and it has thus, acted illegally and with material irregularities in the exercise of its jurisdiction. The order passed on 6th December, 1976 by this Court after recording the statements of the parties has already been reproduced earlier. It clearly stipulates that the respondent, i.e. Balbir Singh shall get the sale deed executed within one month from today. That being so, it was obligatory on the part of Balbir Singh to get the sale deed executed, particularly, when the entire amount of Rs. 16,000/- had been paid to him in the High Court itself. Not only that, his subsequent suit for declaration that he could not be called upon to execute the sale deed in favour of Jagtar Singh in respect of the property in dispute unless and until he had been paid a sum of Rs. 24,000/- more, had already been dismissed. The said matter had come in this Court in Regular Second appeal No. 55 of 1980 which was dismissed on 14th March, 1980. It was observed, therein that "the matter came up before the High Court in R.S.A. No. 1207 of 1966 decided on 6th December, 1976, when Rs. 16,000/- were paid to the appellant in Court and he agreed to execute the sale deed in favour of the respondent within one month from 6th December, 1976. Instead of abiding by this condition, the appellant filed the suit out of which the instant second appeal arises.";