Compromise partition decree which is declaratory in nature is not executable

 The petition of compromise did not state with regard to the properties comprised in this clause, or, indeed, with regard to the properties mentioned in the other clauses, that the contending parties would be entitled to take possession of their respective shares by execution. The compromise settled the extent of the right of each of the rival claimants, which was by no means identical in respect of the different properties; but there was no provision that the rights so fixed were to be enforced by execution of the decree. The decree was in essence declaratory in character, and tire plaintiff could not have recovered possession in execution thereof. 1
In Syama Charan Das (Supra) the question which arose for consideration was whether a separate suit is maintainable, when a declaratory decree has been passed. In the said matter a consent decree was passed by reason whereof merely a declaratory decree was passed as regards the title to the property so far as the parties thereto are concerned. Some immovable properties apart from those involved in the suit also were included in the petition of compromise, said to be the self acquired property of the plaintiff and the defendant therein stating that the former had some share in the said properties as specified therein. 12 24. In the aforementioned situation, it was opined: “The petition of compromise did not state with regard to the properties comprised in this clause, or, indeed, with regard to the properties mentioned in the other clauses, that the contending parties would be entitled to take possession of their respective shares by execution. The compromise settled the extent of the right of each of the rival claimants, which was by no means identical in respect of the different properties; but there was no provision that the rights so fixed were to be enforced by execution of the decree. The decree was in essence declaratory in character, and tire plaintiff could not have recovered possession in execution thereof.” 

Calcutta High Court

Syama Charan Das vs Satya Prosad Choudhury on 20 June, 1922

Equivalent citations: 70 Ind Cas 427

Bench: A M Chotzner

1. These appeals are directed against the decree in a suit for recovery of possession of immoveable property upon establishment of title. The lands are fomprised in two schedules attached to the plaint and originally belonged to a family of Choudhuries, whose pedigree is set out below:

GURITDAS CHOUDHURI

|

------------------------------------------------

| | |

Rasik Chandra Ramratna Chaitanyacharan, | | defendant No, 7. | |

Satya Prosad, |

plaintiff. |

---------------------------------------------------------- | | | | Rajani Jamini Kamini Nalini Ranjan, Ranjan, Ranjan, Ranjan, defendant defendant defendant defendant No. 3. No. 4. No. 5. No. 6.

2. On the 9th February 1900 Rasik Chandora, the father of the plaintiff, instituted a suit against his two brothers, Ramratana and Chaitanyacharan, for declaration of title to various properties which, he asserted, belonged to the joint family, for partition, for accounts and for incidental reliefs. The claim was contested; but on the 20th July 1904 a petition of compromise was filed in Court and on the 30th July 1904 a consent decree was made thereon in due course. During the pendency of that litigation the properties now in dispute had been sold and had passed but of the hands of the members of the family. The lands comprised in the first schedule were brought to sale in execution of a decree for money against Ramratna and were purchased by one Naba Kisor Chaudhury on the 8th April 1904, that sale was confirmed on the 18th April 1904. The purchaser, as has transpired, sold the property on the 18th April, 1906, to Syama Charan Das, who is the first defendant in this litigation. The lands in the second schedule were sold for arrears of revenue on the 10th September 1902 and were purchased by Sarada Charan Guha, the second defendant in this litigation, whose title took effect retrospectively from the 26th June 1902, the date of default. On the 15th July 1916 the plaintiff commenced this litigation for establishment of his title and for recovery of possession. He joined as defendants his surviving uncle and his cousins, as also the assignee from the purchaser at the execution sale and the purchaser at the revenue sale. The claim was contested only by the two purchasers defendants. As regards the second defendant, the suit has been dismissed by both the Courts, inasmuch as he acquired an unimpeachable title by his purchase at the sale for arrears of revenue, and we are not concerned with him in this appeal. As regards the first defendant, the Trial Court dismissed the suit; but upon, appeal, the Subordinate Judge-has reversed that decision. The plaintiff has, however, been awarded a decree, not in respect of an one-third share as claimed' by him, but only with regard to "fan one-fourth share, on the basis-of the petition of compromise which eliminated iii the consent decree in the previous litigation. Two appeals have been preferred against this decree. The first defendant has appealed on the two-fold ground that the suit is not maintainable and that the claim is barred by limitation. The plaintiff has appealed on the ground that he should have been awarded a one-third instead of a one-fourth share. Three points have thus emerged for consideration from the arguments addressed to us, namely, first, is the suit maintainable; secondly, is the suit barred by limitation; and thirdly, is the plaintiff entitled to an one-third or an one-fourth share.

3. As regards the first question, the defendant-appellant has contended that this is in substance a suit on the decree in the previous litigation, and a suit of this description is not maintainable, specially as an application granted for execution of the former decree, if made at the date of institution of the present suit, would have been successfully met by the plea of limitation. The question, how far a suit is maintainable on the basis of a decree in a previous litigation between the same parties, was investigated by this Court in the case of Kali Charan Nath v. Sukhada Sundari Debi 30 Ind. Cas. 824 : 22 C.I.J. 272 : 20 C.W.N. 58. It there pointed out that the principle on which an action is allowed to be maintained on a judgment is that where a Court of competent jurisdiction has adjudicated a certain sum to be due from one person to" another, a legal obligation arises to pay that' sum on which an action of debt to enforce the judgment may be maintained; see the decision of Baron Parks in Williams v. Jones (1845) 13 M. & W. 628 : 67 R.R. 767 : 2 D. & L. 680 : 14 L.J. Ex. 145 : E.R. 262. But this principle is subject to the qualification that an action is permissible only where the judgment cannot be enforced in some other way. This was indicated by Lord Tenderden, C.J., in Henley v. Soper (1828) 8 B. & C. 16 : 2 Man. & Ry. 153 : 6 L.J. (O.S.) K.B. 210 : 108 E.R. 949 when he observed as follows: there is a great difference between the "decree of a Colonial Court and of a Court of Equity in this country. The Colonial Court cannot enforce its decrees here, a Court of Equity in this country may, and, therefore, in the latter case there is no occasion for the interference of a Court of Law, in the former there is to prevent a failure of justice." This shows that the Courts should refuse to take cognizance of actions on decrees, when the Court which made the decree can enforce it, thereby rendering the action superfluous:. Sadler v. Robins (1808) 1 Camp. 253; Carpenter v. Thornton (1819) 3 B. & Ald. 52 : 22 R.R. 299 : 106 E.R. 582; Henderson v. Henderson (1844) 6 Q.B. 288 : 66 R.R. 384 : 13 L.J.Q.B. 274 : 9 Jur. 755 : 115 E.R. 111. Consequently, although it has been held that an action will lie on a judgment which finally establishes a debt, whether the judgment be English or Foreign Grant v. Easton (1884) 13 Q.B.D. 302 : 53 L.J.Q.B. 68 : 49 L.T. 645 : 32 W.R. 239; Nouvion. v. Freeman (1889) 15 App. Cas. 1 : 59 L.J. Ch. 337 : 62 L.T. 189 : 38 W.R. 581; Pemberton v. Hughes (1899) 1 Ch. 781 : 68 L.J. Ch. 281 : 47 W.R. 354 : 80 L.T. 369 : 15 T.L.R. 211; Hodsoll v. Baxter (1858) E1. B1. & E1. 884 : 113 R.R. 929 : 28 L.J.Q.B. 61 : 4 Jur. (N.S.) 556 : 6 W.R. 686 : 120 E.R. 739; Clydesdalf Bank v. Schroder and Co. (1913) 2 K.B. 1 : 82 L.J.K.B. 750 : 106 L.T. 955 : 17 Com. Cas. 210 : 56 S.J. 519; Gibson and Co. v. Gibson (1913) 3 K.B. 379 : 82 L.J.K.B. 1315 : 109 L.T. 445 : 29 T.L.R. 665, Shaw v. Allen (1914) 30 T.L.R. 631 still, if an English judgment can be enforced in some other way it is an abuse of the process of the; Court to bring an action upon it: Pritchett v. English and Colonial Syndicate (1899) 2 Q.B. 428 : 86 L.J.Q.B. 801 : 47 W.R. 577 : 81 L.T. 206.

4. The rule enunciated in Kali Charan Nath v. Sukbada Sundari Debi 30 Ind. Cas. 824 : 22 C.L.J. 272 : 20 C.W.N. 58 has been substantially accepted elsewhere. We are not unmindful that in Lakhrani Kaur, v. Dhanraj Singh 32 Ind. Cas. 634 : 14 A.L.J. 102 Walsh, J. held that a suit was maintainable on the basis of a prior decree, even where the decree was barred by limitation. The opinion expressed by Walsh, J., was, however, doubted by Sir Henry Richards C.J., and Rafique, J., on appeal, though they affirmed his decision on other grounds; Dhanraj Singh v. Lakhrani Kaur 35 Ind. Cas. 601 : 38 A. 509 : 14 A.L.J. 709 and the case was subsequently overruled in Ramanand v. Jairam 59 Ind. Cas. 632 : 18 A.L.J. 1001 : 2 U.P.L.R. (A) 379 : 43 A. 170. The balance of judicial opinion is thus in favour of the view that where by a former adjudication a, person became entitled to a" remedy by process (c)f execution for the recovery of possession, and has, by his own laches, lost this remedy, he cannot be permitted to revert to the position which he held prior to the institution of that suit and to ask for a remedy in a fresh suit. This view is supported by the decisions in Doobee Singh v. Jowkee 3 Agra. H.C.R. 381 : Agra. F.B. Ed. 1874; 172; Ram Jus v. Ram Narain 2 N.W.P.H.C.R. 382; and Sheikh Golam Hossein v. Alla Rukhee Beebee 3 N.W.H.C.R. 62. The decisions of the Madras High Court in Sanjeeviyah v. Nanjiyah 4 M.H.C.R. 453; Muttuvelu Pillai v. Vythilinga Pillai 5 M.H.C.R. 185; Ranganasary v. Shappani Asary 5 M.H.C.R. 375 at p. 377; Sungam Narayan Pillay v. Sandira Pillai 6 M.H.C.R. 13; and Periasami Mudaliar v. Seetharama Chettiar 27 M. 243 : 14 M.L.J. 84 (F.B.), affirm the view that as against the judgment-debtor himself or as against his legal representative who as such is equally bound by the, judgment, the remedy under the statutory processual law of this country is only, by way of execution of the decree, and no, suit can be brought upon the judgment to obtain the identical relief already granted thereby. To the same effect are the decisions of the Bombay High Court in Manchharam Kalliandas v. Bakshe Saheb 6 B.H.C.R. 231; Kisan Nandram v. Anandram Pachaji 10 B.H.C.R. 433; Sayad Nairudin v. Venkatesh Prabhu 5 B. 382 : 3 Ind. Dec. (N.S.) 251; Fakirapa v. Pandurangapa 6 B. 7 : 3 Ind. Dec. (N.S.) 461 and Merwanji Nowroji v. Ashabai 8 B. 1 : 4 Ind. Dec. (N.S.) 375 where mention is made of the practice which at one time prevailed in Bombay and sanctioned the institution bf suits on judgments of Small Cause Courts of Savill v. Dalton (1915) 3 K.B. 174 : 84 L.J. K.B. 1583 : 113 L.T. 477 : 59 S.J. 562. The development of the law on the subject in this Court is outlined, in the case of Kali charan v. Sukhada Sundari Deli 30 Ind. Cas. 824 : 22 C.L.J. 272 : 20 C.W.N. 58 where the earlier decisions in Sandes v. Jomir Shaikh 9 W.R. 399; Moonshi Golam Arab v. Curreembux 5 C. 294 : 4 C.L.R. 477 : 2 Ind. Dec. (N.S.) 798;Attermoney Dossee v. Hurry Doss Dutt 7 C. 74 : 4 Shome. L.R. 192 : 9 C.L.R. 357 : 3 Ind. Dec. (N.S.) 597; Annoda Prasad v. Nobakishore Roy 21 Ind. Cas. 519 : 18 C.L.J. 362 : 18 C.W.N. 173; Ashi Bhushan Dasi v. Pelaram Mandal 21 Ind. Cas. 519 : 18 C.L.J. 362 : 18 C.W.N. 176 andKalikananda Mukherjee v. Bipro Das Pal Choudhury 26 Ind. Cas. 436 : 19 C.W.N. 18 : 21 C.L.J. 265 are reviewed. The essence of the matter is that a suit is not maintainable en a prior decree if the relief claimed in the suit has already been granted by the decree and Could have been obtained by enforcement thereof in execution proceedings. The rule, recognised in this qualified form, avoids the danger of the possibility of an infinite succession of suits on decrees for the enforcement of a singly cause of action. The case: for the plaintiff must now be tested from this stand-point.

5. The previous suit instituted by the father of the plaintiff was for declaration of title to the properties then in dispute as joint family properties, for partition, for accounts, and for incidental reliefs. If the parties had proceeded to trial, and if the plaintiff had been successful, a decree to this effect would no doubt have been made in his favour. The parties, however, came to terms and a consent decree was passed. This decree, as appears from an examination of the petition of compromise, was merely declaratory of the rights of the litigants; it did not entitle the then plaintiff to take possession by execution. The properties now in suit were included in the second Clause of the petition of compromise which was in these terms that in the immoveable properties, which are mentioned in the plaint as the self-acquisitions of the plaintiff and the defendants, whether standing in their own names or in the names of others, the plaintiff will have a four-annas, share, the second defendant a four-annas share, and the representatives of the first defendant the remaining eight annas share." The petition of compromise did not state with regard to the properties comprised in this clause, or, indeed, with regard to the properties mentioned in the other clauses, that the contending parties would be entitled to take possession of their respective shares by execution. The compromise settled the extent of the right of each of the rival claimants, which was by no means identical in respect of the different properties; but there was no provision that the rights so fixed were to be enforced by execution of the decree. The decree was in essence declaratory in character, and tire plaintiff could not have recovered possession in execution thereof. This is in accord with the opinion expressed in Doobee Singh v. Jewkee Ram 3 Agra. H.C.R. 381 : Agra. F.B. Ed. 1874;

172. and Sri Krishna Tata Chariar v. Singara Chariar 4 M.H.C.R. 453; that a decree which merely declares the rights of parties and does not direct any act to be done, is incapable of execution. In such an event, a separate suit will lie to enforce the rights declared by the decree, and in fact a regular suit affords the only method of enforcement of such "right This doctrine has been applied in a familiar class of cases,, namely, where the right of the plaintiff to maintenance has been declared by the decree, but the decree does not direct the defendant to pay the allowance at stated periods. Nawazish Ali Beg v. Vilaytee Khartum 2 Agra H.C.R. 23; Madhavrao v. Ramrao 22 B. 267 : 11 Ind. Dec. (N.S.) 761; but it is otherwise if the decree is so framed as to be capable of execution from time to time. Ashutosh Bannerjee v. Lukhimoni Debya 19 C. 139 : 9 Ind. Dec. (N.S.) 538; Matangini Dassee v. Chooneymoney Dassee 22 C. 903 : 11 Ind. Dec. (N.S.) 598. The distinction is illustrated by other class of cases including cases where the relief sought is recovery of Possession; Girija Kanta v. Mohim Chandra 35 Ind. Cas 294 : 23 C.L.J. 587 : 20 C.W.N. 657. Shama Charan Chatterji v. Madhub Chandra Mookerjee 11 C. 93 : 5 Ind. Dec. (N.S.) 820; Goba Nathu Barola v. Sakharam Teju Patil 59 Ind. Cas. 366 : 44 B. 977 : 22 Bom. L.R. 1101; Mahomed Ibrahim v. Meera Oommal 7 Ind. Cas. 558 : (1910) M.W.N. 368 : 8 M.L.T. 379; Mohammad Nasiruddm v. Bhagwana 22 Ind. Cas. 663 : 12 A.L.J. 31 Here the principle applies that where a decreed merely declaratory and does not require to be carried into effect by process of execution, the right thereby ascertained and declared exists independently of any process for enforcing it, Consequently the present suit for recovery of possession cannot be deemed to be barred.

6. As regards the second point, the defendant has contended that the claim is barred by limitation, inasmuch as the father of the plaintiff had lost possession in 1897 three years prior to the institution of the previous suit. This argument is based on the fallacious assumption that the present suit is based upon the original dispossession a the cause of action. The truth is that When the consent decree was made, the prior adverse possession, if any, forthwith lost its hostile character. The legal effect of the consent decree was that the parties became, from the date thereof, co-owners of joint possession and if, thereafter the defendants to that litigation continued in occupation their possession could be attributed only to their character as joint owners. They could not secretly or surreptitiously, convert their occupation into hostile possession In any event, none of the defendants had been, at the date of this suit in occupation for twelve years since the date of the consent decree, and the suit is thus clearly not barred under Article 144 of the Schedule to the Indian Limitation Act. The first defendant, who purchased pendente lite is bound by the decree in the previous suit, and is in no better position than the other defendants, whose right, title and interest had vested in him. He cannot escape the operation of Section 52 Of the Transfer of Property Act, either because he purchased at an involuntary sale: Moti Lal v. Karrabuldin 24 I.A. 170 : 25 C. 179 : 1 C.W.N. 639 : 7 Sar. P.C.J. 222 : 13 Ind. Dec. (N.S.) 121 : (P.C.) or because the suit terminated in a consent decree; Bharat Ramanuja Das v. Sarat Kamini 66 Ind. Cas. 273 : 49 C. 220 : 34 C.L.J. 96 : 25 C.W.N. 806 : (1922) A.I.R. (C.) 358.

7. As regards the third point, the plaintiff claims an one-third share independently of the compromise in the previous suit. But the consent decree binds the plaintiff equally with the defendants, and effectively bars a claim in excess of an one-fourth share; South American & Mexican Co., In re (1895) 1 Ch. 37 : 64 L.J. Ch. 189 : 12 R. 1 : 71 L.T. 594 : 43 W.R. 131, Huddersfield Banking Co. v. Lister (1895) 2 Ch. 273 : 64 L.J. Ch. 523 : 12 R. 831 : 72 L.T. 703 : 43 W.R. 567. Wentworth v. Bullen (1829) 9 B. & C. 840 : 9 L.J. (O.S.) K.B. 33 : 109 E.R. 313 : 33 R.R. 353; Kanhai Lal v. Lala Brij Lal 47 Ind. Cas. 207 : 45 I.A. 118 : 40 A. 487 : 22 C.W.N. 914 : 8 L.W. 212 M.L.T. 263 : 35 M.L.J. 459 : 16 A.L.J. 825 : (1918) M.W.N. 709 : 28 C.L.J. 394 : 5 P.L.W. 294 : 20 Bom. L.R. 1048 (P.C.). Fateh Chand v. Narsingh Das 16 Ind. Cas. 988 : 22 C.L.J. 383; Rampat v. Durga Bharthi 60 Ind. Cas. 440 : 23 O.C. 303 : 7 O.L.J. 547.

8. The result is that the decree made by the Subordinate Judge is affirmed and both the appeals are dismissed with costs.

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