Amitav K. Gupta, J. - (1.) This revision is directed against the order dated 03.08.2016 passed by Sub Judge-VII, Ranchi, in Misc. Case No.121 of 2015 arising out of Execution Case No.4 of 2012, rejecting the application filed under Section 47 of the Code of Civil Procedure.
(2.) Learned counsel for the petitioner has submitted that it would be evident from the annexures (annexed in the present application) that both the parties had entered into a compromise on the terms and conditions enumerated, therein and incorporated Clause D and E as under; "D. That both the parties have duly come in possession of their respective schedule of land E. That now none of the parties have any claim or concern with respect to the schedule of land allotted to the other parties." It is argued that plain reading of the aforesaid clauses leaves no room for doubt that both the parties came in possession of the portion of land mentioned in the schedule of the land consequently nothing remained to be done by the parties in satisfaction of the compromise decree, therefore, the levying of execution was not maintainable. To buttress his argument learned counsel has placed reliance on the decision rendered in the case of Pushpa Devi Bhagat Vrs. Rajinder Singh and Others, 2006 5 SCC 566 and canvassed that the Supreme Court in the aforementioned case has held that when there is satisfaction of the claim then the compromise decree cannot be enforced by levying of execution as there is no subsisting obligation to be performed by the parties in pursuance to the decree. It is contended that the court below has committed manifest error in not appreciating the fact that as per the terms and conditions the parties have admitted that they are in possession of the schedule land consequently no obligation was left to be performed by either of the parties. It is contended that the executing court has exceeded its jurisdiction in going behind the decree which is not tenable in law in view of the obtaining facts of the case.
(3.) Per contra, learned counsel, for the opposite party, has canvassed that the ratio of Pushpa Devi Bhagat has been considered and discussed in the impugned order. That the order is in consonance with the settled proposition of law enunciated by the Supreme Court. It is argued that in the case of Mahalaxmi Cooperative Housing Society Limited and Others Vrs. Ashabhai Atmaram Patel and Others, 2013 4 SCC 404, the Supreme Court, in para 40, has referred to the decision rendered in Pushpa Devi Bhagat and the provision of Rule 3 Order 23 have been analysed and exhaustively discussed. It has been observed that Order 23 Rule 3 contains two parts; the first part refers to the situation where an agreement or compromise is entered into in writing and signed by the parties and the court being satisfied that the said suit has been adjusted either wholly or in part on the terms and conditions of the agreement can pass a decree and such a decree is executable. That the second part contemplates that when the plaintiff apprises the court that the defendant has satisfied his claims with respect to the subject matter of compromise and no obligation for performance survives by either of the parties, then the enforcement or levying of an execution is not maintainable. It is contended that in the instant case it is admitted that both the parties had mutually consented and agreed to compromise the matter on the terms enumerated in clause D and E of the compromise petition. It is submitted that the recital of possession with respect to the petitioner was only symbolic, therefore, with an intent and object to ensure that the terms of compromise were acted upon and given effect to, both the parties had mutually agreed to incorporate Clause 4, in the compromise petition which reads as under; "4. That thus in view of the compromise the suit may be decreed on its terms and accordingly the decree be pressed which shall be executable under the law.";