Rajiv Sahai Endlaw, J. - (1.)EXECUTION is sought of a compromise decree dated 28th May, 2009 in CS(OS) No. 1567/2008 for partition of portion of property No. 16/273, Joshi Gali No. 9, Joshi Road, Karol Bagh, New Delhi. Notice of the execution petition was issued and objections in the form of E.A. No. 309/2012 have been filed by the Judgment Debtor (JD) in which pleadings have been completed. The counsels were heard on 18th April, 2013, to a little extent yesterday, and have been heard further today.
(2.)FOR appreciating the controversy in objections under adjudication, suffice it is to state:
(i) that the defendant No. 1 in the suit namely Smt. Tripta Nath supported the suit of the plaintiff (Decree Holder (DH) herein) for partition;

(ii) that the JD who was the defendant No. 2 in the suit, in his written statement admitted the share of the plaintiff DH and the two defendants in the property, as pleaded by the plaintiff DH;

(iii) that accordingly vide order dated 30th September, 2008 in the suit, a preliminary decree was passed, declaring the plaintiff DH, defendant No. 1, and the defendant No. 2 JD to be entitled to 1/3rd share each in the said property;

(iv) that the parties were thereafter referred to mediation, which was unsuccessful;

(v) that a Local Commissioner was appointed to suggest the mode of partition and who submitted his report;

(vi) that however, when the suit was listed on 15th May, 2009, i.e. after the Local Commissioner had filed his report, the counsel for the plaintiff DH, the counsel for the defendant No. 1 as well as the counsel for the defendant No. 2 JD informed that the parties had agreed for an amicable settlement for partitioning the property by metes and bounds and sought time for filing the compromise application. The suit was accordingly adjourned to 22nd May, 2009;

(vii) that on 22nd May, 2009, again time was sought by the counsels for all the three parties for filing a joint application setting out the terms of Settlement. The suit was accordingly adjourned to 28th May, 2009;

(viii) that the parties filed I.A. No. 7401/2009 under Order XXIII Rule 3 of CPC in which the terms between plaintiff DH and defendant No. 2 JD were set out as under:

(i) Defendant No. 2 has agreed to sell his 1/3rd share in the suit property to the plaintiff at a total price of Rs. 22,50,000/ - (rupees twenty two lacs fifty thousands only).

(ii) The plaintiff has agreed to pay Rs. 22,50,000/ - to defendant No. 2 towards full and final consideration for 1/3rd share of defendant No. 2 in the suit property.

(iii) Defendant No. 2 agrees and confirms that on receipt of Rs. 22,50,000/ - (rupees twenty two lacs fifty thousands only) from plaintiff, the defendant No. 2 shall be left with no right, title and/or interest in the suit property, and he shall simultaneously on receipt of banker's cheque/draft for Rs. 22,50,000/ - hand over peaceful and vacant possession of part of suit property occupied by him to the plaintiff or to plaintiff's nominated representative.

(iv) Defendant No. 2 has sought three months and fifteen days to enable him to arrange an alternative accommodation so as to vacate the portion of suit property under his occupation. Therefore, it is agreed between the parties that plaintiff would make a payment of Rs. 22,50,000/ - to defendant No. 2 within three months and fifteen days from the date of recording compromise in the Hon'ble Court, and simultaneously on receipt of bank draft/banker's cheque from plaintiff for Rs. 22,50,000/ -, the defendant No. 2 shall hand over vacant and peaceful possession of the suit property to the plaintiff or to plaintiff's representative.

(v) On the receipt of Rs. 22,50,000/ - defendant No. 2 shall execute all necessary sale documents in respect of sale of his 1/3rd share in the suit property in favour of the plaintiff or his nominee. The defendant No. 2 also confirm and acknowledge that he shall duly cooperate and shall always be ready and willing to execute any further documents that may be required in future for transfer of his share in the suit property in favour of plaintiff.

(vi) Defendant No. 2 undertakes and binds himself not to damage and/or cause any loss to the portion of suit property in his occupation while vacating the premise and/or while taking out his articles, luggage and belongings. Defendant No. 2 further undertakes to hand over the portion of the suit property in habitable condition.

(ix) that as far as the defendant No. 1 Smt. Tripta Nath was concerned, she agreed to jointly occupying the property with the plaintiff DH and consented to the terms between the plaintiff DH and the defendant No. 2 JD;

(x) that the aforesaid compromise was allowed and the suit, on 28th May, 2009, was decreed in terms of the compromise application;

(xi) that the defendant No. 2 JD filed Review Petition No. 357/2009 seeking review of the compromise decree dated 28th May, 2009. Since the same was not found on record, the suit file has been requisitioned and the review application perused. It was inter alia the case of the defendant No. 2 JD in the review petition dated 1st September, 2009 that he signed the compromise application under threat, coercion, undue influence and pressure of the plaintiff DH and he was not willing to dispose of his share in the property to the plaintiff DH for Rs. 22,50,000/ - and more so when the value of his share was more than Rs. 35 lakhs;

(xii) that the said review application came up before the suit Court on 11th September, 2009 when finding no merit therein, the same was dismissed;

(xiii) that the defendant No. 2 JD filed FAO(OS) No. 171/2010 against the dismissal of his review application and which was also dismissed vide order dated 22nd April, 2010 and which order had attained finality;

(xiv) that the plaintiff DH filed an application dated 10th March, 2010 being I.A. No. 3333/2010 in the suit pleading that the plaintiff who is otherwise a permanent resident of United Kingdom (UK), to fulfill his obligations under the compromise, came to India in the second week of September, 2009 and approached the defendant No. 2 JD to honour his obligations under the compromise but the defendant No. 2 JD informed that he would wait for the decision on his review application and the defendant No. 2 JD inspite of dismissal of the review application had not fulfilled his part of the compromise and seeking a direction to the defendant No. 2 JD to execute sale documents against receipt of Rs. 22,50,000/ - from the plaintiff DH;

(xv) Notice of the said application being I.A. No. 3333/2010 was issued to the defendant No. 2 JD on 16th March, 2010 for 3rd May, 2010;

(xvi) that on 3rd May, 2010, the application was adjourned to 19th July, 2010 on joint request of the parties;

(xvii) that on 19th July, 2010, the defendant No. 2 JD was directed to comply with the terms of the compromise within ten days.

(xviii) that on 17th August, 2010, the defendant No. 2 JD stated that he was intending to file a Special Leave Petition in the Supreme Court; vide order of the said date, the defendant No. 2 JD was again directed to perform his part of the compromise within fifteen days;

(xix) that the defendant No. 2 JD filed I.A. No. 12977/2010 seeking modification of the compromise in the form of alternative settlement as proposed by him. This application was dismissed on 24th September, 2010 and as far as the application being I.A. No. 3333/2010 filed by the plaintiff DH was concerned, the same was also disposed of vide order dated 17th August, 2010 granting liberty to the plaintiff DH to execute the decree;

(xx) that thereafter this execution petition was filed.

The defendant No. 2 JD in his objections has pleaded:

(a) that the DH has failed to make and tender payment of Rs. 22,50,000/ - to the JD by means of bank draft or banker's cheque on or before 10th September, 2009 i.e. when the period of three months and fifteen days expired, as stipulated in the compromise decree dated 28th May, 2009;

(b) that time bound payment on or before 10th September, 2009 by the DH was a condition precedent for the JD to perform his obligations under the compromise decree;

(c) that thus the JD stands excused and discharged from performing his obligations under the compromise decree and the compromise decree now stands vitiated and cannot be executed;

(d) that the payment sought to be made by the DH through the execution petition amounts to alteration of the compromise decree which is not permissible in law;

(e) that the execution petition has not been instituted by a duly authorized person.

(3.)IN the aforesaid state of affairs, being prima facie of the opinion that the objections by the JD are in abuse of the process of the Court, the counsel for the JD was at the beginning of the hearing cautioned that in the event of the objections being dismissed, this Court would also consider whether the JD, in addition to being liable under the compromise decree to be dispossessed from the portion of the property in his possession and to compulsorily convey his 1/3rd share therein to the DH, would also not forfeit his right to recover Rs. 22,50,000/ - from the DH. The counsel for the JD was asked to inform the JD present in Court of the said fact. The counsel, in the presence of the Court, informed the JD of the said risk and the JD gave his consent to pursue the objections subject to the said risk.