JUDGMENT
Arun Kumar, J.
(1) The decree holders in the present Execution Petition, were defendants in a suit (bearing No. 2366/1988) filed in this Court by the present Judgment Debtors. The parties to the said suit as well to the present execution petition are children of Late Sardar Iqbal Singh Monga. A compromise was arrived at between the parties in the said suit and an application Under Order 23 Rule 3 Civil Procedure Code was filed containing the terms of the compromise. On the basis of the compromise a decree was passed on 24th April, 1990 and the suit stood disposed of. The present execution potion has been filed by the defendants in the said suit for execution of the decree passed therein. Under the compromise decree the following properties were allotted to the defendants who are the decree holders in the present petition:-
(I)Plot No.S62, Shalimar Garden, District Ghaziabad, (U.P) – Shri Amarjit Singh can get the same transferred, mutated in his own name from the concerned authorities. This plot is at present mortgaged with the Canara Bank, Gurudwara Road, Karol Bagh, New Delhi-110 005 Branch. The Plaintiffs shall endeavor to get the same cleared from the bank within 250 days, following after the compromise being made a decree of this Hon’ble Court.
(II)Tenancy right with respect to property bearing No.59/36, Rohtak Road, New Delhi- Mr. Balbir Singh who is already staying there, shall pay rent, obtain receipt and get the electricity and water connections transferred in his own name.
(III)Tenancy right with respect to flat No. A-7, Prehlad Market, Karol Bagh, New Delhi – Mr. Rajwant Singh staying there shall pay rent, obtain receipt from the landlord, and get the electricity and water connections transferred in his own name. Flat No. A-8, Prehlad Market, Karol Bagh, New Delhi – Mrs. Satinder Kaur can get the same transferred in her own name from landlord, pay rent, obtain receipt and get the electricity and water connections etc.
(IV)Two telephones bearing Nos. 592155, and 5724056 – Mr. AmarJit Singh shall get the telephone be ring No. 592155 transferred in his own name and Mr. Blabir Singh will get the telephone bearing No.5724056 transferred in his own name from the concerned authorities.
(2) C/IN addition to above, the Plaintiffs shall endeavor to pay a sum of Rs. 10.25 lakh (Rupees ten lakh, twenty five thousand only) to Defendants in 60 days following after this compromise being made a decree of this Hon’ble Court. THE decree holders have sought assistance of this Court in the following manner:- (a) That the Immovable Property commonly known as A-249, Vikaspuri,New Delhi measuring 12 mts. x 27 mts. and bounded as : North: A-277 South: Road East: A-250 West: A-248 with all rights, title, interest and superstructure if any constructed thereon may kindly be attached and directed to be sold and the sale proceeds to the extent of Rs. 10.25 Lakhs may be paid to the decree holder. (b) That the business premises of M/s. Bright ways Garment Emporium being property No.6/78, W.E.A. Karol Bagh,New Delhi will all its fittings, fixtures, stocks be directed to be sold and sale proceeds paid to the decree holder to be satisfaction of the claim/decree. (c) That direction be issued to the judgment debtors to get Telephone No. 592155 shifted and transferred in the name of the decree holder No.1 and to their premises, Pulmohan Flats, Punjabi Bagh,New Delhi (d) That judgment- Debtors be further directed to clear the encumbrance of Canara Bank from plot No.862, Shalimar Garden, Ghaziabad which has fallen to the share of decree holder and get the title deeds released and delivered to the decree holder.
(3) Judgment Debtors have filed their objections to the execution petition in the form of a reply which bears the date 2nd January, 1992. I may note at the outset that there is no challenge to the compromise recorded by this court between the parties and to the compromise decree dated 24th April, 1990. Counsel for the judgment debtors/objectors has at the time of hearing pressed the following objections only:- 1 .The tenancy rights with respect to flat No.B-3, Prehlad Market, Western Extension Area, Karol Bagh New Delhi had fallen to the judgment debtors in terms of the decree and the decree holders have instead of getting the same transferred in favor of the judgment debtors and putting them in possession thereof, have surrendered the possession of the flat to the landlord by accepting some “pugree”. 2. The decree holders have to meet the liabilities of the father which are to the tune of about Rs. 13.5 Lakhs to the extent of 2/3rd. 3. Under Clause 4(C) regarding payment of Rs. 10.25 Lakhs to the decree holders the judgment debtors had only to make an “endeavor” to pay the same within 60 days after the compromise being made a decree of the court. 4. Clause 5 of the compromise precludes the decree holders from instituting any suit, petition/application against the judgment debtors regarding properties of Late Sardar Iqbal Singh and, therefore, they are not entitled to file the present execution petition. 5. Property bearing No.249, Vikas Puri, New Delhi which had fallen to the share of the judgment debtors has already been sold by them, therefore, the same cannot be attached or sold in the present proceedings.
(4) The argument of the learned counsel for the judgment debtors in substance is that unless the decree holders comply with their obligations under the decree, the judgment debtors cannot be called upon to comply with their obligations. Hereinafter, I shall proceed to deal with the aforesaid objections raised on behalf of the judgment debtors.
(5) Flat B-3.Prehlad Market. W.E.A.Karol Bagh. New Delhi So far as this flat is concerned, the compromise decree provides as under :- (iii) Tenancy rights with respect to flat No.B-3,-Prehlad Market, Karol Bagh, New Delhi – to pay rent to the landlord, obtain receipt and to get the electricity and water connections transferred in their own name.
(6) This clause appears in the list of properties allotted to the plaintiffs in the suit who are the judgment debtors in the present proceedings before me. In the said clause there is no mention as to in whose possession the same was at the time of the compromise. In fact, regarding other tenancy premises which are the subject matter of the compromise wherever any party was in possession of any premises it has been so stated in the clause itself. In the present clause under reference no such mention has been made. The decree holders deny having been ever in possession of the said flat and they submit that is why their name is not mentioned in the clause as being inpossession thereof and they further submit that if they were in possession of the said flat it would have been provided in the compromise itself that they will handover possession thereof to the party to which the flat was allotted within a specified time. The decree holders, therefore, submit that it is for the judgment debtors to take steps to get possession of the flat in question and if any assistance or co-operation is required from their end in this behalf, they are willing to offer the same.
(7) The judgment debtors/objectors have not placed anything on record to show what steps they took about taking possession of the said flat after the decree. It is only in response to the execution petition that they have raised the question of the decree holders not giving them possession of the flat. Under the circumstances, I am of the view that it is for the party to whose share the tenancy rights with respect to a particular property have fallen to take steps regarding getting possession of the same and the other party who is prima facie not shown to be ever in possession of the said flat cannot be made responsible for the same. Mere allegation that the decree holders have surrendered the possession of the flat to the landlord and accepted huge “pugree” for the same is of no value. The objectors have not shown anything which may lead one to believe that the decree holders were in possession of the flat in question at the time of passing of the compromise decree. The objection of the judgment debtors is without any merit and substance and the same is liable to be rejected. Accordingly and in the backdrop of what has been stated in this connection hereinbefore, I reject this objection. If the judgment debtors have any cause of action regarding the flat in question, they are free to pursue their legal remedies in that behalf. Liabilities Of The Father
(8) The argument raised by Counsel for the judgment debtors in this connection is that as the sons of late Sardar Iqbal Singh Monga both parties are under pious obligations to pay his debts and liabilities. Further it is submitted that there are liabilities to the extent ofRs.13.5 Lacs of late Sardar Iqbal Singh and the decree holders being four out of the six children left behind by the deceased, they are liable to meet the same to the extent of 2/3rd. In the compromise no mention has been made about the liabilities of S. Iqbal Singh and, therefore, no provision has been made about their repayment. The objector has annexed to his objection petition a list of the liabilities which shows that the liabilities are mainly regarding the business of M/s. Bright ways Garments. The said business Along with the tenancy rights of the premises in which it .was carried on has fallen to the share of the judgment debtors. Along with the business the judgment debtors have been allocated the goods, stock in trade, fixtures, tenancy rights of the premises, trade name, goodwill etc. of the said business. It follows that the party who gets the business Along with its assets inherits the liabilities also. The liabilities cannot be passed on or required to be shared by the decree holders who have nothing to do with the business after the compromise. Therefore, the judgment debtors cannot be permitted to urge that the decree holders should share the liabilities of Sardar Iqbal Singh Monga to the extent of 2/ 3rd. This objection also is totally misconceived and untenable and is, therefore, rejected. Payment Of RS. 10.25 Lakhs The relevant term in the compromise regarding this is:- “(C)Inaddition to above, the plaintiffs shall endeavor to pay a sum of Rs. 10.25 lakh (Rupees ten lakh, twenty-five thousand only) to defendants in 60 days following after this compromise being made a decree of this Hon’ble Court”
(9) Regarding this payment the judgment debtors submit as under:- A)The payment is to be made 60 days following the compromise being made a decree of the Court. The decree was drawn only some time in August/September 1991 and, therefore, the time will start running from that date. B) The word used is “endeavor” and. therefore, it does not mean that they must pay. C) The judgment debtors are willing to pay the amount provided the decree holders can out their part of the obligations under the decree particularly handing over. of possession of flat B-3,Prahlad Market (discussed above) and meeting the liabilities of S.Iqbal Singh to the extent of 2/3rd (discussed as above).
(10) Regarding the submission (A) above, the decree passed by this Court bears the date 24.4.1990 and, therefore, according to the plain language of clause (C) quoted above, I am of the view that the time should start running from that date. In any case, even after August/September 1991 when the formal decree has been drawn upadmittedly, 60 days period has already expired and the judgment debtors can not be today heard in support of this submission.
(11) Regarding submission (B) the use of the word “endeavor” cannot be interpreted to mean that the liability is not firm and determined. In other words it cannot be said that the liability depends on the discretion of the judgment debtors. The word “endeavor” has to be read to go with the time factor contained in the clause i.e. the endeavor has to be to pay the amount within 60 days. Thus, the use of the word “endeavor” does not mean that if the judgment debtors fail in their endeavor they need not pay the amount.
(12) Regarding submission (C), which the judgment debtors have raised in fact in relation to the entire execution petition, I feel that if the judgment debtors are aggrieved about any action or any inaction on the part of the present decree holders in complying with the terms of the decree, the judgment debtors are fire to take their independent action in accordance with law. They cannot be heard to lay down conditions in the present proceedings for compliance of the decree specially when the conditions sought to be put by them have been found to be untenable as per the discussion herein before. Clause 5 Of The Compromise Clause 5 of the compromise reads as under :- “THAT the defendants shall not file any suit, petition/application against the plaintiffs for recovery of any property or make due/claim in lieu of properties of whatsoever in nature belonging to late S.Iqbal Singh or family”.
(13) On the basis of this clause the learned counsel has urged that the decree holders are precluded from moving the present execution petition. I do not find any substance in the said submission. The said clause cannot be permitted to be used to defeat the very compromise in which it is contained. Any party who feels aggrieved regarding non-implementation of the compromise decree can seek execution of the decree. Any view contrary to this will mean that a party can frustrate the entire compromise. This could not be the mention of the compromise. Therefore, the objection is not sustainable and is hereby rejected.
(14) I have already observed that the judgment debtors cannot lay down such conditions like insisting of first compliance of their part of the obligations under the decree by the decree holders before they can be called upon to comply with their obligations under the decree. If such preconditions are permitted to be raised and enforced, it may not be possible to implement a decree at all. The judgment debtors are free to take appropriate steps for seeking enforcement of the conditions under the decree which according to them remain to be unsatisfied.
(15) Under the circumstances, the objections to the execution of the decree urged on behalf of the judgment debtors are dismissed. There will, however, be no orders as to costs.
(16) For consideration of E.A.81/92 and other pending execution applications the matter be listed on 7-8-1992.
