@JUDGMENTTAG-ORDER
Shivappa, J.@mdashThough this Case was heard and reserved for Orders, for certain clarification it was posted for further arguments. Further arguments heard.
2. The petitioners herein have challenged the order dated 28.3.1990 passed by the learned District Judge, Mysore in Ex. Case No. 68/87, overruling the objections filed by the Judgment Debtors and ordering issue of delivery warrant for the delivery of the property to the decree-holder.
3. To appreciate the contentions urged in this case the facts in brief may be stated thus:
One Chikkaranojappa had given the suit schedule property, namely, ''Ranappa Choultry'' for charitable purposes. The property was given for the benefit of the public at large for the use of the pilgrims and public. The income derived from the said property was being utilised for feeding the devotees in Nanjangud. Thus a Public Charitable Trust was created during his life time and a Settlement Deed also came into existence amongst his heirs wherein there is a recital that the property in question has been given for charitable purposes and he also appointed trustees M/s. Lakshmanna @ Nanappa, Seenappa and Krishnoji Rao to manage the affairs of the Choultry. Chikkaranojappa had a son by name Kendaganna Swamy and he filed a suit in O.S.42/48-49 and his wife Seethabayamma, represented Kendaganna Swamy as next friend in the suit. In the said suit there was a compromise decree. Condition No. 1(b) in the said Compromise decree reads thus:
"The defendants will only manage the suit property for and on behalf of the first plaintiff who is the absolute owner thereof and such management shall only be during the life-time of the defendants."
The three Trustees died on 23.5.1979, 9.11.1976 and 20.7.1960. After the death of the Trustees, their heirs, the present petitioners and other heirs continued to manage the property. The respondent herein i.e. K. Sadananda, who is the adopted son of Kendaganna Swamy and Seethabayamma filed Execution Petition in Ext. Case No. 68/87 before the Court below contending that he was the adopted son and legal representative of Kendaganna Swamy and Seethabayamma. The petitioners herein filed objections contending that the Execution Petition is not maintainable and the petitioner was not the adopted son of Kendaganna Swamy and the compromise decree obtained in 1953 but not on merits and at best it was only a contract and therefore sought for dismissal of the Execution Petition.
4. The learned District Judge referred to the registered Deed of Adoption dated 6.11.1960 and also the H.R.C. proceedings in HRC. 759/83 on the file of the Addl. First Munsiff, Mysore. The xerox copy of the said document Ext.P.3, the Adoption Deed, shows that on 6.11.1960 since the original decree holders did not have any children they adopted K.Sadananda. The original decree holders have expressed in the said document that K. Sadananda would be entitled to all their properties as their adopted son. There is also material to show that except the respondent there are no other legal representatives to the original decree/holders. In fact in H.R.C. 156/67 on the file of the First Munsiff, Mysore, the father of the petitioners admitted that Sadananda, the petitioner in that H.R.C. case was adopted to Kandagannaswamy. In view of Section 16 of the Hindu Adoption and Maintenance Act, 1956 raised a presumption and to disprove the adoption, burden is on the party who denies the same. Section 16 of the said Act reads thus:
"Whenever any document registered under any law for the time being in force is produced before any Court purporting to record an adoption made and is signed by the person giving and the person taking the child in adoption, the Court shall presume that the adoption has been made in compliance with the provisions of this Act, unless and until it is disproved."
Once the presumption is attracted the burden to disprove the fact will be on the petitioners and they have not chosen to adduce any evidence to disprove the same. They have not even examined themselves and therefore there is no option left to the Court but to record a finding that K.Sadananda is the adopted son of the original decree-holders and entitled to execute the decree.
5. The only question that calls for determination is whether the decree is executable ?
The learned Counsel for the petitioners relied on the Decisions reported in (1) K.G. RAJASHEKARAPPA v. B.S. SHANTHAKUMAR AND ANR. ILR 1981 (Kant) 1112 and (2) ANADAPPA AND ANR. v. HIRALAL by LRs ILR 1979 (Kant) 2113 contended that this Court has taken the view that a compromise decree has to be understood in pursuance of the conditions enumerated therein. Adding a word to the compromise decree or substracting a word from it is uncalled for. In this case Clause 1 (b) of the Compromise decree, extracted above, shows that the defendants will only manage the suit property for and on behalf of the first plaintiff who is the absolute owner thereof and such management shall only be during the life-time of the defendants. So that ownership vests with the plaintiff and the management only vests with the defendants.
6. The learned Counsel for the petitioners contended that so long as the decree does not contemplate delivery of possession, adding a word to stamp the decree with executability to deliver possession is uncalled for. He further contended that the compromise decree is not a decision by the Court. It is only in the nature of an agreement and he relied on the Decisions reported in (1)
5. Learned Counsel for the respondents contended that by declaring the right, it granted a right to recover possession, the word delivery is implied in the right. He placed reliance on the Decision reported in 1979 All LJ 1333 1979 All LJ. 1333 and contended that when the issue was concluded by a competent Court in the previous proceeding such issue need not be reopened. In the instant case the factum of adoption was admitted in the H.R.C. proceedings referred to above by the father of the petitioners. Facts admitted need not be proved and can be acted upon.
6. So far as insanity is concerned, that was an issue in O.S.20/42-43 on the file of the District Judge. Mysore. It was decided on 24.11.1945 and the Court recorded a finding that at best Kendagannaswamy may not be worldly wise, but he was not a lunatic. Therefore, the learned Counsel for the respondents submitted that reopening those issues at the execution stage is uncalled for. He relied on Decisions reported in
7. Learned Counsel for the respondents further contended that non-inclusion of the word ''delivery'' necessarily will not make the decree inexecutable and he relied on Decision in HAJI T.J. ABDUL SHAKOOR AND ORS. v. BIJAI KUMAR KAPUR AND ORS. AIR 1964 SC 875 and
"18. The next contention of the appellants is that the award is merely declaratory of the rights of the parties and is therefore inexecutable. This contention is based on the wording of clause 7 of the award which provides that on the happening of certain events the respondents "shall be entitled to take back possession." We are unable to appreciate how this clause makes the award merely declaratory. It is never a pre-condition of the executability of a decree that it must provide expressly that the party entitled to a relief under it must file an execution application for obtaining that relief. The tenor of the award shows that the arbitrator did not intend merely to declare the rights of the parties. It is a clear intendment of the award that if the appellants defaulted in discharging their obligations under the award, the respondents would be entitled to apply for and obtain possession of the property"
Executability is one of the main ingredients of a decree, whether it is compromise or otherwise, unless the right to execute the decree is restricted by expressly or by necessary implication, either by the terms of the decree or by the provisions of the Law, decree is always executable. It is not necessary that the decree must contain in it a clause for initiation of execution proceedings, in the event of non-satisfaction of or non- compliance of any terms therein. Absence of such a clause in it does not strip the decree of its executability. In Clause 1 (b) of the decree it is stated that the defendants will only manage the suit property for and on behalf of the first plaintiff who is the absolute owner thereof and such management shall only be during the lifetime of the defendants. It means that after the death of the defendants, they have no right to the property or to manage the same. If once they have no right to manage the property, though the word execution is absent, it is implied in it because absence of any such clause does not strip the decree of its executability. It is well settled that whenever a decree has to be interpreted, it has to be interpreted in the sense to give or promote the rights of the parties declared under the decree and not to frustrate it. Harmonious construction is required and should not weigh in between the words so that it may lead to multiplicity of proceedings. If such a course is adopted, it amounts to enabling the parties from approaching the Court, inspite of a declaration of right. If the contention of the petitioner that the compromise decree is not executable is accepted, it virtually amounts to frustrating the Compromise Decree recorded by the Court below in O.S.42/48-49.
8. In the instant case, in the Compromise Petition at Clause II the parties have prayed the Court to pass a decree in the foregoing terms.
A compromise made in an action, wherein the terms of the compromise contained an agreement that it should be made an order of the Court declaring the rights of the parties in pursuance of such terms of the compromise is binding on the parties. In such a situation no distinction can be made between a decree passed after contest and a decree passed on compromise. The test for enforceability is whether it can be regarded as a decision on a matter which was heard and finally decided by consent with the order of the Court. Since the terms of the compromise contained an agreement that there should be a decree of the Court declaring the rights of the parties, it is binding on the parties and on the successors in interest and such a declaration of rights need not be reopened again and the decree passed by consent binds the parties and the same is executable. There is no substance in the contention that the decree put to execution has no executable character and that the respondent is not the adopted son. Therefore, the order impugned does not suffer from any unjustness, unreasonableness or perversity in its reasonings and does not call for interference.
9. The Petition is dismissed. Parties to bear their own costs.
