TMI Blog2003 (8) TMI 592X X X X Extracts X X X X X X X X Extracts X X X X ..... ct Court, Alappuzha. The lower appellate Court allowed the appeal, set aside the decree and judgment passed by the trial Court and dismissed the suit. The plaintiff filed S.A.574 of 1996 before this Court. This Court by judgment dated 3.9.1991 set aside the decrees passed by both the courts and remanded the suit to the trial Court for a de novo disposal after giving both sides an opportunity to amend the pleadings, if necessary, and adduce further evidence. After remand, the trial Court again decreed the suit on 26.7.1993. The respondent was allowed to recover plot No. 2 shown in red shade in Ext.C3 plan appended to the decree. The revision petitioner was directed to demolish and remove a portion of the building situated in the plaint schedule property. Mesne profits was also allowed. The revision petitioner filed A.S.34 of 1994 before the District Court, Alappuzha. While the appeal was pending before the District Court, the matter was referred to Lok Adalat under Section 20 of the Legal Services Authorities Act ( Act for short). The matter was taken up by the Lok Adalat, District Legal Services Authority, Alappuzha held on 5.10.1999. An award was passed on that day itself. Subsequ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atre in that property. Subsequently a partition took place between the co-owners on 29.8.1967. Schedule No. 3 was allotted to the share of the respondent. A portion of the theatre constructed by the revision petitioner is situated in that property. The respondent filed the suit for recovery of property after demolition and removal of a portion of the theatre building situated in the plaint schedule property. The suit was decreed and while the appeal filed by the defendant against that decree and judgment was pending before the District Court, the matter was settled through Lok Adalat. The plaintiff-decree holder has filed this Execution Petition alleging that the revision petitioner has committed breach and he is not prepared to execute the sale deed as per the terms of the award and hence he is entitled to get the sale deed executed through court on deposit of Rs. 9,50,000/- and he is also entitled to get a portion of the building demolished at the expense of the revision petitioner. The revision petitioner filed an objection contending that the Execution Petition is not maintainable. It was specifically contended that as per the terms of the award, the decree holder is bound to p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id in such case shall be refunded in the manner provided under the Court Fees Act, 1870 (7 of 1870). (2) Every award made by a Lok Adalat shall be final and binding on all the parties to the dispute, and no appeal shall lie to any court against the award. Though Section 21 provides that the award shall be deemed to be a decree of the court, the manner of execution is not stated in the said section. The court which is competent to execute the award passed by the Lok Adalat is also not stated. In this connection, it is pertinent to note that under Section 19 of the Legal Services Authorities Act, Lok Adalat has got jurisdiction not only to determine and arrive at a compromise or settlement between the parties to a dispute in respect of a pending case alone, but to a matter which is falling within the jurisdiction of, and not brought before any court. So, an award can be passed in pre-litigation stage also. Even in such cases, the court which is competent to execute the award is not stated in the Section. Section 14 of the Kerala Buildings (Lease and Rent Control) Act provides that an order passed by the Rent Control Court can be executed by a civil Court as if it is a decree passed b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. But, the Lok Adalat is not a court and does not possesses any of the powers of a civil Court conferred on it under the provisions of the Code of Civil Procedure. It is a body created under the provisions of a statute and is having only those powers conferred on it under the provisions of the Legal Services Authority Act. The Lok Adalat only certifies an agreement entered into between two parties as true and the original award itself is to be signed by the parties and the panel constituting the Lok Adalat. There is no provision which enables a party to a compromise decree to affix his signature in the decree. So, the time fixed by the parties for the performance of a particular act and reduced into writing and signed by the parties and attested by the panel of Lok Adalat stands on an entirely different footing from a compromise decree passed by a civil Court. So, the civil Court gets no jurisdiction to vary the terms of the award or extend the time agreed to between the parties to such an award. 8. Now I shall consider how far the contention raised by the revision petitioner that the decree holder is not entitled to get the sale deed executed is correct. The prayer in the Executi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecuted after depositing Rs. 9,50,000/- through court by executing the award. If the sale deed is not executed within the time limit fixed because of the failure on the part of the respondent-plaintiff, the appellant-defendant need pay only an amount of Rs. 3,50,000/- to the respondent-plaintiff. If the breach is committed by the respondent-plaintiff, he is not entitled to get recovery of possession with mesne profits also. Since the award was passed on 5.10.1999 that date can be excluded. So, the period of two years will expire on 5.10.2001. So, the sale deed has to be executed after 5.10.2000 but before 5.10.2001. According to the revision petitioner the sale deed could not be executed because of the fault on the part of the respondent, whereas the case of the respondent is that the same could not be executed because of the fault on the part of the revision petitioner. The specific case put forward by the revision petitioner was that the respondent was not ready and willing to take the sale deed within the period prescribed under the award. According to him, he made several demands. Finally, he sent a notice. Even then the revision petitioner was not prepared to execute the sale d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n was given on 4.10.2001 why the Postman took the cover to the same addressee again on 5.10.2001 is not explained. In view of the endorsement that the addressee could not be found, it is not possible to apply the presumption available under Section 27 of the General Clauses Act in this case. It would appear that on 4.10.2001 and 5.10.2001 the revision petitioner was not available in that address. The decree holder has no case that the judgment debtor was keeping away to avoid receipt of notice. In this case the burden is on the decree holder to prove that an attempt was made to serve the notice on the judgment debtor within the time allowed by law. For the reasons best known to the decree holder, he did not examine the Postman who took the notice to the addressee. In the absence of such evidence, it is not possible to accept the argument of the learned counsel for the decree holder that it must be presumed that it was served on the judgment debtor before 5.10.2001. On the other hand, it only disproves the case of the decree holder. Ext. A5 is the copy of the notice. It is very pertinent to note that that was not issued by the party, but by the Advocate of the decree holder. Even if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A8 and posted the matter for further hearing to 25.3.2003 and then to 29.3.2003. On 29.3.2003 the matter was heard and the E.P. was allowed on 5.4.2003. The decree holder was granted three days time to deposit the amount and the same was deposited. According to the revision petitioner, Ext.A7 is a latter written by his brother on 25.2.2003 in which it is written that as and when required, he is willing to help the decree holder for deposit of the amount. The relevant portion reads as follows:- If the statement contained in Ext.A7 is accepted as such, as on 25.2.2003 the decree holder had not informed his brother that he had to deposit Rs. 9,50,000/- in the court. It is very pertinent to note that the amount to be deposited was an ascertained amount. The parties had agreed that the defendant will execute the sale deed in respect of the award schedule property on receipt of Rs. 9,50,000/-. So, the respondent-plaintiff was fully aware of the fact on 5.10.1999 itself that for getting the sale deed executed he will have to pay Rs. 9,50,000/- to the judgment debtor. In addition to that amount, he will have to spent the money for purchase of the stamp paper and also to meet the registrat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intimate the decree holder that he is ready and willing to execute the sale deed. The understanding was that the portion of the theatre complex need be demolished only on receipt of the money. There is absolutely nothing on record to show that the decree holder ever asked the judgment debtor that he will take the sale deed only after the demolition of the theatre complex. Even in the pleadings he had no such case. There is no documentary or oral evidence in support of the case. So, there is no merit in the argument advanced by the learned counsel for the respondent that the sale deed could not be executed within the time agreed to by the parties and incorporated in the award due to the fault on the part of the judgment debtor. On the other hand, the irresistible conclusion possible from the proved facts is that the decree holder had no money to get the sale deed executed and he deliberately issued Ext. A2 notice on the last moment only to create evidence to show that he was ready and willing to get the sale deed executed. 11. The case put forward by the decree holder is that he was ready and willing to get the sale deed executed. I do not think that there is any need to consider t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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