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TMI Blog2017 (5) TMI 437X X X X Extracts X X X X X X X X Extracts X X X X ..... ovides that the said owner would hand over the physical possession of the tea garden to the said intending purchaser upon payment of the stipulated sum. It is not in dispute that the said owner handed over the possession of the tea garden to Mr. Dhingra and also executed an irrevocable power of attorney in his favour authorizing and empowering him to run, manage and carry on the business of the said tea garden. It was further stipulated therein that Mr. Dhingra would obtain a necessary permission from the office of the Deputy Commissioner of Jalpaiguri for effecting such transfer and entire transaction shall be completed on or before 1st January, 1989. The time was thereafter extended and it was further agreed that the sale would be effected in favour of the nominee of Mr. Dhingra with the Toonbarrie Tea Company Pvt. Ltd. and the payment already made would be treated to have been made in terms of the original agreement dated 12th March, 1988. Alleging that the said owner failed and neglected to perform his part of obligation under the said agreement a suit being C.S. 486 of 1991 was filed by Mr. Dhingra as well as the said nominee company in the original side of this Court for spec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er associates entered into the office of the said intending purchaser company and removed all important papers therefrom and prayed for cancellation of the nomination. It further transpires therefrom that a Partition Suit No. 88 of 2016 is pending before the Civil Judge (Senior Division), 4th Court at Alipore between the aforesaid brothers. During the pendency of the execution proceeding the original owner died by making and publishing his last will and testament appointing Joint Executors namely Gopal Prasad Jain and Satyajit Sikdar and an application for probate was filed before the competent Court. An objection was filed in the said probate proceeding which ultimately ended into a compromise and the heirs of the said original owner being the applicants in the instant application became the owners to the extent of half share in respect of the tea estate. The present petitioner says that the decree holder did not discharge its obligation under the said settlement in not only paying the balance consideration money but also did not meet out the other liabilities of the tea estate viz. provident fund, interest thereupon, gratuity, labour wages, labour statutory obligation, unsecure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the parties on the basis of a post decretal facts." All the aforesaid points were considered and determined in a judgment dated 28.09.2011 delivered by me on the aforesaid two applications which were ultimately dismissed. The resultant effect of the said order was that the claim of Santosh Kumar Agarwal in his application was not found tenable as well as the claim of the judgment debtor that the compromise decree is inexecutable and be declared as null and void were negatived. The said order was challenged both by the decree holder as well as the judgment debtor in separate appeals before the Division Bench of this Court which were registered as APO 387 and 388 of 2011. The Division Bench categorically observed that the dismissal of the applications and the observations recorded thereupon do not require any interference and proceeded to dismiss the aforesaid appeals with a request to the executing Court to proceed with the execution application. However, leave was granted to the parties to raise the contentions of reciprocal obligations before the executing Court in the following words:- "In a decree of the like nature, where parties would have reciprocal obligation to disch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 07 arising out of suit no. 486 of 1991 (Khem Chand Dhengra Anr. Vs. Prabir Roy Chowdhury & Ors.) pending before this Hon'ble Court till disposal of this application; c. Ad-interim orders in terms of prayer (b); d. Costs including full advocate's fees be borne by the plaintiffs/ decree holders;" It would be a mere repetition of the facts to narrate the averments made in the instant application and the only distinguishing facts discernable therefrom are that the terms and conditions of the settlement involves reciprocal obligations and failure to perform the part of the obligation entrusted upon the judgment debtor renders the decree inexecutable. In essence, the decree holder wanted the dismissal of the execution application for non-performance of the part of the obligation by the judgment debtor and acting in derogation with the terms of settlement. The judgment debtor namely the AGR Plantations Pvt. Ltd. denies the allegations made by the decree holder in the instant application and asserted that they performed their part of the obligation in terms of the settlement and the decree holder have acted in departure therefrom and prayed that the execution application be allowed. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d into a decree, its nature for the purpose of reciprocal performance can be seen by the executing Court and may refuse to execute the decree if its nature requires so. The terms and conditions are reproduced as under:- "Schedule above referred to Terms of Settlement After protracted discussions and negotiations the parties herein in order to avoid further litigation as also expenses have amicably settled all disputes and differences which are the subject matter of the above suit and No. 404 of 1993 and all proceedings including appeals thereunder, the following terms. a) Shri Santosh Kumar Agarwala and M/s/ A.G.R. Plantations Pvt. Ltd. both of 240B, A.J.C. Bose Road, Calcutta - 700 029 are added as party defendants. b) Shri Bhupatish Roychoudhury agrees to sell and Shri Santosh Kumar Agarwal agrees to buy Toonbarrie Tea Estate which is the subject matter of the above litigations. c) At the request of Shri Santosh Kumar Agarwal herein and for the consideration price of Rs. 63,00,000/- (Rupess Sixty three lacs only) to be paid to Shri Bhupatish Roy Choudhury, the defendant herein has agreed that the sale is to be made in favour of M/s. AGR Plantations Pvt. Ltd. nominee of Shri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment. j) Shri Santosh Kumar Agarwala is agreeable to reimburse the legal expenses incurred through leslie & Khettry on the basis of the Bill given by them. k) Sri Santosh Agarwala the added defendant herein shall continue making payment of reserved monthly lease rent and/or monthly rent of Rs. 50,000/- (Rupees Fifty Thousand Only to Mr. Bhupatish Roy Chowdhury in respect of the suit property without any abatement and/or deduction whatsoever for the period until the sole in respect of the said suit property is completed by execution and registration conveyance in favour of Mr. Santosh Kumar Agarwala. l) The shortfall on account of payment of monthly lease rent and/or monthly rent shall be made good on or before the execution of the conveyance deed. m) Save as hereinabove stated the parties shall have no claim against each other. Each party would bear and pay their own legal costs." Section 51 of the Contract Act deals with the reciprocal promises. The said provision contemplates where a contract consists of reciprocal promises to be simultaneously performed, it is not obligatory on the promisor to perform his part of the promise unless the promisee is ready and willing to perfor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ligation and therefore the execution application is incompetent. On the other hand, the learned Advocate appearing for the decree holder also traveled beyond the limited scope indicated in the order of the Division Bench in arguing that the time was not the essence of the contract and there was no default in performing his part of the obligation. It is sought to be contended before this Court that the judgment debtor has violated the terms of the settlement not only in obtaining the forcible possession but also putting a third party in possession which necessitated the amendment in the reliefs indicated in the tabular statement and to such effect a supplementary affidavit has been affirmed and filed in the suit and the executing Court should allow the execution application by molding the relief on the subsequent events. In case of Jai Narain Ram Lundia -Vs- Kedar Nath Khetan & Ors. reported in AIR 1956 SC 359 the Apex Court was considering a case arising from an execution proceeding where the decree for specific relief of a contract was sought to be executed. The nature of the decree as it appears therefrom was the direction to sale certain shares in the private limited company t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmance from the other is conditional on his readiness and ability to perform his own obligations. The reason is, as we have explained, that to hold otherwise would be to permit an executing court to go behind the decree and vary its terms by splitting up what was fashioned as an indivisible whole into distinct and divisible parts having separate and severable existence without any interrelation between them just as if they had been separate decrees in separate and distinct suits." The ratio deducible from the above report is that in case of reciprocal obligation the party applying for execution must show that he has performed his part of obligation and is ready and has ability to perform and the judgment debtor has failed to perform his part of an obligation. The scope of the executing Court is limited and must confine to the terms of the decree. Any interpretation which would frustrate the tenet of the decree should be avoided as the executing Court cannot travel beyond the same. The segregation and / or splitting up of various terms of the settlement by an executing Court would amount to a voyage beyond the periphery of the decree and it would not be wrong to say that the terms ..... X X X X Extracts X X X X X X X X Extracts X X X X
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