w w w . L a w y e r S e r v i c e s . i n



India Media Services Pvt Ltd v/s Newsprint Trading And Sales Corporation

    Appeal No. ---------

    Decided On, 18 May 2007

    At, High Court of Judicature at Calcutta

    By, THE HONOURABLE MR. JUSTICE K.J. SENGUPTA

    For the Appearing Parties: --------------



Judgment Text

(1). NOW this is the turn of the plaintiff to apply with the aforesaid application for execution of decree dated 17th March, 2004 in contrast to their earlier stand when third defendant made an application on earlier occasion for execution of the said decree. Earlier application of the third defendant was not allowed by this Court on technical ground. However, liberty was given to it to make a fresh attempt for execution of the same. The fact of the case is very interesting to show how both the litigants can prolong a settled issue to unsettle and do not like to come to real and logical conclusion to bury the hatchet and this will be revealed from the following short fact:


(2). SOMETIME in late 2002 the plaintiff instituted a civil suit being suit No. 486 of 2002 against the defendants in this Hon'ble Court praying for a decree of U. S. $ 54,65,491 for the price or newsprint sold and delivered together with interest thereon. The suit was entertained by the Court having found that part of the cause of action as pleaded in paragraphs 21 and 22 of the plaint arose within the jurisdiction of this hon'ble Court by granting leave under Clause 12 of Letters Patent. In the plaint it is alleged by the plaintiff that there were previous agreements dated 7th September, 2000 and 12th June, 2002 for transfer of property situate in Hyderabad in satisfaction of the price of the newsprint, but according to the plaintiff the agreement had become unexecutable. The third defendant in its affidavit dealing with allegations made in the application for the Judgment upon admission containing reproduction of paragraph 26 has denied the Correctness of the same. The third defendant specifically contended that the said agreement was lawful, valid and subsisting. After institution of the suit the plaintiff filed two applications being G. A. No. 4200 of 2002 and G. A. No. 4203 of 2002. In one of the said applications the plaintiff claimed judgment upon admission against the defendants jointly and/or severally. In the other application the plaintiff claimed attachment before Judgment. Both the applications came up for hearing before The hon'ble Mr. Justice Jayanta Kumar Biswas on 11th March, 2004. On that date the third defendant expressed his willingness to settle the said suit by transferring its property at Hyderabad in favour of the plaintiff in satisfaction of the claim of the plaintiff in the said suit and accordingly, by the order the defendant Nos. 3 and 4 were directed to file affidavits that they were willing to transfer the said property. The said affidavit containing undertaking of the defendant No. 3 was filed on 12th March, 2004 by one N. Gopalan, Chief Manager (Legal) of the third defendant. The said defendant undertook transfer of the said property in favour of the plaintiff by executing deed written on stamp paper and completed all the legal formalities within the period fixed by the Hon'ble Court. By an order dated 15th March, 2004 the said affidavit was accepted by this Hon'ble Court. On the basis of their affidavit of undertaking settlement in the form of the suggested order was drawn by and between the plaintiff and the defendant No. 3 and finalized by their respective advocates. The said suggested order was presented before this Hon'ble Court by the learned Senior Advocate of the plaintiff and the defendant No. 3 and the Hon'ble Court was invited to pass a decree in terms of the suggested order. On 17th March, 2004 the order was passed by this Hon'ble Court. Accordingly, the said decree was passed. The said order dated 17th March, 2004 was drawn up upon notice to the Advocate on record of the defendant No. 3 by the department. The decree was drawn up, completed and filed without any objection of the defendant No. 3. The sum and substance of the decree is that the defendant No. 3 shall transfer the said Hyderabad property in terms of the agreement dated 7th September, 2002 read with agreement dated 12th June, 2002 for consideration of Rs. 21 crores and 10 lakhs and the defendant No. 3 was further directed and ordered to execute and register the sale deed with appropriate registration office at Hyderabad and in default, the Registrar, Original Side shall execute and register the sale deed in the name and on behalf of the defendant No. 3. No action was taken thereafter until the plaintiff in or about one week of June, 2003 made an application for contempt alleging that the defendant No. 3 did not discharge undertaking given to the Court, however, the said contempt application was dismissed. Appeal preferred therefrom was also dismissed on the ground that the contempt application was not maintainable.


(3). THEREAFTER the plaintiff filed an application being Execution Case no. 8 of 2005 complaining of such defects in title of the defendant No. 3 over the said property by reason of non-registration of compromise decree by Hyderabad Registering Authority. At the same time the defendant No. 3 filed an execution application being G. A. No. 3035 of 2004 by which enforcement of the aforesaid order was claimed. Both the said applications of the plaintiff and the third defendant were disposed of by this Court by a Judgment and order dated 21st November, 2005 and thereby and thereunder the application taken out by the plaintiff was dismissed and it was held that there was no defect in title for execution of conveyance for sale of the property then alleged by the plaintiff. However, relief could not be granted on the execution application as the same was not in proper form. In the said Judgment and order the submissions of defendant No. 3 was recorded that it had accepted the decree dated 17th March, 2004 and also its readiness and willingness to transfer the said property in terms of the decree, only grievance was that the plaintiff was causing delay in execution of the said decree. The said Judgment and order dated 21st November, 2005 was appealed against by the plaintiff unsuccessfully. Thereafter the present application has been taken out on the tabular statement for the following reliefs: (a) Direction be given for service of notice of this application upon indian Express Newspapers (Bombay) Limited having its registered office at Express Towers, Nariman Point, Mumbai -400021. (b) The Defendant No. 3 be directed to join Indian Express Newspapers (Bombay) Limited having registered office at Express Tower, nariman Point Mumbai - 400021 for conveying ownership of the property at Gang - Mahal Village, Tank Bund Road. Hyderabad more fully described in schedule hereunder free from all encumbrances in terms of the add compromises decree dated march 17, 2004 and jointly with Indian Express Newspaper (Bombay) Ltd. to execute and register the deed of conveyance, a draft whereof is annexed hereto and marked with Letter "i" or alternatively appointed by the Hon'ble Court for settling the deed of conveyance in accordance with the Compromise Decree dated march 17, 2004. (c) Delivery of vacant and peaceful possession of the said Hyderabad property fully described in schedule hereunder to the plaintiff and/ or its authorized representative immediately upon execution and registration of deed of conveyance and if necessary a Receiver be appointed for taking over possession and handing over vacant peaceful possession of the said Hyderabad property. (d) In default of the defendant No. 3 executing and registering the deed of conveyance jointly with Indian Express Newspaper (Bombay) Limited as vendor, the Registrar of Original Side of the hon'ble Court be empowered and directed to execute and register the deed of conveyance referred to in prayer (a) above for and on behalf of and in the name of the defendant No. 3 and the said indian Express Newspaper (Bombay) Limited. (e)In the event of failure of the defendant No. 3 in delivering the vacant and peaceful possession of an area of 3960 sq. meter or any portion of the said Hyderabad property described in schedule hereunder and/or conveying the title of the said Hyderabad property in its entirety, an order be passed for attachment of the property 6, 6/1, 6/2, 6/3, and 6/4, Brunton Road Bangalore - 1. 1, Queens Road, Civil Station, Bangalore and 4, Vidhana Veedhi bangalore belonging to the defendant No. 3 and if the defendant no. 3 do not arrange for delivery of vacant and peaceful possession of the said portion of the said property within six months from the date of the order, the said attached property be sold through the Receiver appointed by this Hon'ble Court and out of the sale proceeds, the amount of compensation of Rs. 4. 26 crores or such other amount as this Hon'ble Court may think fit and property be paid to the plaintiff/decree holder and the balance amount, if any, to the defendant No. 3. (f) Ad-interim order in terms of prayers above. (g) Such further or other order or orders be made and/or direction be given in the interest of justice.


(4). THIS execution application has been resisted this time by the third defendant on various grounds. Since a point has been taken that the decree is a nullity and not executable this Court thought it fit to ask the third defendant to argue on this point. Mr. S. B. Mukherjee, senior Advocate, appearing with M/s. P. K. Das and Debal Banerjee, senior Advocates, contends firstly that the decree is a nullity since this court lacked inherent jurisdiction to pass such a decree. To elaborate his argument Mr. Mukherjee has said that the suit was a money suit and all the averment and statement made in the plaint are related to money claim. But the decree was passed far transfer of an immovable property viz. decree for specific performance of an agreement for sale of immovable property and this Court had no jurisdiction because the property situates outside the jurisdiction of this Court admittedly. According to Mr. Mukherjee the defect of jurisdiction as arisen not merely related to territorial one but inherent one as the subject matter of the suit does not empower the Court to pass the decree for specific performance. He contends that although the Court may have jurisdiction to entertain the suit in order to pass money decree, but not the decree of other nature. The jurisdiction of the Court extends not only to entertain the suit but also to pass a decree concerning subject matter of the lis pending between the parties. In other words, the Court deciding the suit cannot pass any decree, it likes, not even by consent of parties because consent of the parties, cannot confer jurisdiction on the Court to pass any decree or order whatever it likes. In support of his contention he has relied on the Judgment reported in air 1969 SC 823.


(5). HE, further, says that it is true that on earlier occasion his client made an aphlication for passing appropriate order on the strength of the decree by his client. Since it is a question of inherent lack of jurisdiction which goes to root of the matter, this point can be agitated at any and every time, even in a collateral proceeding. In support of his contention he has relied on the Judgment reported in 2005 (7) SCC 791 (Harshad Chiman Lal Modi v. DLF Universal Ltd. and Anr.)


(6). HE then contends the decree passed by the Court relates to land and the land admittedly does not situate within the territorial limit of this Court. This Court cannot pass a decree concerning and/or relating to land if the land does not situate within the territorial limit of this court. In support of his contention he has drawn attention of this Court to the following Judgments reported in AIR 1950 FC 83, at page 96 and 97, (paragraph 47), AIR 1954 SC 340 at page 342, paragraph 6, AIR 1960 cal 123 at page 128, paragraph 17, 2004 (8) SCC 706 at page 712 paragraph 9, and 2005 (7) SCC 791.


(7). HE would urge that it is wrong to contend that the aforesaid decree is a consent one. It will appear that none of the parties signed which is obligatory under the provision of Order XXIII Rule 3 of Code of Civil procedure. The said decree cannot be termed to be a consent decree. In support of his submission he has relied in this context on the two decisions reported in AIR 1988 SC 400 and AIR 1991 SC 2234.


(8). EVEN assuming the aforesaid decree is a consent one then it is not executable as the same contains reciprocal rights and obligations and if the plaintiff decree holder does not perform his part of such obligation in the manner within the time prescribed by the decree the same is not executable. He has brought for assistance of the Court on this point, the decision of the Supreme Court reported in AIR 1956 SC 359.


(9). MR. A. K. Mitra, learned Senior Advocate appearing with Mr. J. K. Mitra, learned Senior Advocate and Mr. R. P. Mukherjee, learned advocate contends that it is not disputed that this Hon'ble Court has jurisdiction to entertain the suit as it was filed on obtaining leave under clause 12 of the Letters Patent and no application for revocation of leave was made by the defendant No. 3. It is not disputed further that the learned Counsel and Advocate on record of the parties had authority to deal with the matter in the manner as was contained in the suggested order handed over to the Court by the learned Senior Counsel for the parties. The learned lawyers are agents of the parties under Order III and Rule 2 of the Civil Procedure Code. The learned Counsels' power to settle the matter has remained untouched even after the amendment of Civil Procedure Code, 1976. To draw support of this part of argument he has brought a decision of the Supreme Court reported in AIR 1991 sc 2234. He says that the Court has competence to pass a decree irrespective of the subject matter of the suit under Order XXIII Rule 3 of the Code of Civil Procedure. Court has jurisdiction to pass a decree in respect of the immovable properties situate outside the territorial jurisdiction as the power of this Court emanates from the provision of article 261 (3) of the Constitution of India. He says that this has been settled by a Judgment of learned single Judge reported in AIR 1961 CAL 422. He says that even prior to 26th January, 1950 a Civil Court in a money suit could competently pass a decree declaring a charge over immovable property situates outside the jurisdiction. He refers to a decision of this Court reported in 50 CWN 447. He then contends that the decree for execution of deed of conveyance in respect of Hyderabad property in terms of the agreements dated 7th September, 2000 and 12th June, 2002 previously in between the parties is not a case of lack of territorial jurisdiction. Therefore, there has been no case of lack of inherent jurisdiction of this Hon'ble Court to pass the decree dated 17th march, 2004. His further contention is that the provision of Order XXIII rule 3 of the Civil Procedure Code is a procedural matter and does not take away the Court's right to settle or compromise the suit as it has been held by the Supreme Court in a case reported in AIR 1991 SC 2234. The instant case is covered by the Judgment reported in AIR 2003 SC 4596. He urges there is yet another point that the instant decree was passed not only under the provision of Order XXIII Rule 3 but also upon admission under Order XII Rule 6 of the Civil Procedure Code. The admission may be oral or in writing and on the basis of the oral admission the instant decree was passed, even if it is assumed that this is not a consent decree the admission was made by the recognized agent viz. the learned Counsel of the third defendant. Therefore, this decree should be treated to be one upon admission also. The facts stated in affidavits of the plaintiff will reveal how the settlement was arrived at to resolve the suit. The proposal for settlement was considered by the Court for two days viz. 11th March, 2004 and on 15th March, 2004 and thereafter the decree was passed.


(10). HE then contends that the plea of nullity is hit by the principle of estoppel and/or res judicata and also hit by the principle of approbate and reprobate. The third defendant has received the benefit of the settlement and got the interim Order vacated concerning Bangalore property as it is recorded in the decree itself. The plaintiff in the earlier execution Case No. 8 of 2005 had clearly approved of the said decree which was admitted by them to be executable and obviously not a nullity. It is contended that decree dated 17th March, 2004 can include properties outside the scope of the suit and outside the territorial jurisdiction. It is contended that although the plaintiff has prayed for directions for execution of a document, the Executing Court has the power to grant delivery of possession, relief of possession being corollary to or consequential to execution of documents. The agreements dated 7th September, 2000 and 12th June, 2002 as part of the decree as drawn up and provides for delivery of possession. According to Mr. Mitra there is no obligation left to be discharged, as provision of section 230a of the income Tax Act has been omitted by the Finance Act, 2001 with effect from 1st June, 2001. Similarly provisions of Chapter XX (269 UC of income Tax Act) shall not apply in relation to transfer of any immovable property with effect on or after 1st July, 2002. Draft conveyance in accordance with consent decree has duly been forwarded in or about january, 2006 by the plaintiff to the defendant No. 3. The plaintiff is ready with the money for payment of stamp duty and registration charges. Therefore, the executing Court should be pleased to direct the defendant No. 3 to deliver possession in terms of the agreement. Section 55 of the Transfer of Property Act envisages delivery of possession and the Court executing a decree for execution of a document can, in terms of section 55 of the Transfer of Property Act, pass the relief of delivery of possession which is nothing but performance of further acts and things to give full effect to the decree. In this connection he has referred to a decision of the Madhya Pradesh High Court reported in AIR 1963 m. P. 86 (Dadulal Hanumanlala v. Smt Deo Kunwar Bai w/o. Shantilal durg ). A decree simply for execution of a document is a valid decree and may be executed, Mr. Mitra refers to a decision reported in AIR 1926 cal 975 in case of Ashwini Coomar Banerjee v. Ram Gopal Mukerjee and ors)..


(11). FROM the argument of both the parties in this matter it appears to me that the following questions are involved to decide the said execution application: i) Whether the decree is a nullity having regard to the aforesaid facts narrated? ii) Whether this question can be agitated at this stage? iii) Whether the decree and order passed is a consent decree under the provision of Order XXIII Rule 3 of the Code of Civil Procedure? iv) Whether the relief sought for in the application can be granted by this Court?


(12). IT is urged by Mr. Mukherjee that the decree is not a valid one as the same cannot be said to have been passed on compromise under order XXIII Rule 3 of the Code. Consent has not been recorded in a document written and signed by the parties. As such, the same is not enforceable. He also contends that if it is not a decree on compromise the Court had no jurisdiction to pass a decree for specific performance in a money suit and as such the same is nullity more so when the property admittedly situates outside territorial limit of this Court.


(13). THE suit is admittedly for recovery of money and an application for Judgment upon admission was made therein. In the said application, in course of hearing, the parties negotiated for settlement ultimately the same was arrived at although there was no agreement in writing formally signed by the parties, thereafter above decree was passed. The plaintiff, in lieu of money, agreed to accept the property in satisfaction of its claim. Such satisfaction was recorded in passing the decree.


(14). IN order to understand the scope and ambit of the Order XXIII rule 3 the same is required to be quoted hereunder: "compromise of suit.-Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise in writing and signed by the parties, or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject-matter of the suit, the Court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith so far as it relates to the parties to the suit, (emphasis supplied) whether or not the subject matter of the agreement, compromise or satisfaction is the same as the subject-matter of the suit. Provided that where it is alleged by one party and denied by the other that an adjustment or satisfaction has been arrived at, the court shall decide the question; but no adjournment shall be granted for the purpose of deciding the question, unless the Court, for reasons to be recorded, thinks fit to grant such adjournment. "


(15). UPON careful reading of the aforesaid provision it is evident that rule 3 consists of two components for compromising a suit. The suit can be compromised in two ways. One can be by way of adjustment either, whole or part of the claim by lawful agreement or compromise and in second case the defendant may satisfy the plaintiff's claim either wholly or partly basing subject matter of the suit. Both courses of action for compromise of the suit are available. The golden Rule of interpretation of statute is that when meaning of a portion thereof is clear upon plain reading, such meaning and interpretation have to be given and not to import any other thing to defeat the very purpose of the statutory provision. If the parties chose to adjust by lawful agreement or compromise then the same must be done in writing and such writing must be signed by the parties. Without the same the decree passed thereon cannot be a valid and lawful document for enforcement. But if the parties chose to second course of the compromise viz. the defendants otherwise satisfy the plaintiff in respect of its claim then no document is mandatorily required to be executed nor to be signed and such satisfaction can be accepted by the Court and be recorded without any such agreement.


(16). IN this case I find that upon conscious deliberation and full understanding third defendant offered to satisfy the plaintiff's claim by transferring Hyderabad property in lieu of money claim and the plaintiff has accepted the same and such satisfaction, in my view, has been recorded by the Court by passing decree. The fact of deliberation and mutual understanding between the parties will be gathered from the order dated 15th March, 2004 and then in the decree itself. The Division bench of Patna High Court in case of Kripal Garain and Ors. v. Shyamnarain and Anr. , reported in AIR 1985 Patna 372 has held exactly what I thought of, in paragraphs 3 and 7 of the said Judgment. Their Lordships have interpreted while relying on the Division Bench Judgment of Punjab and Haryana High Court (AIR 1983 PM 393):] ". . . . . . . . . . . . . It is in this set of facts the aforesaid Bench decision of the Punjab and Haryana High Court held that such a compromise falls squarely within the second part of O. XXIII R. 3 Civil P. C. , which pertains to the satisfaction of the plaintiff by the defendant with regard to the subject matter of the suit, and thus it did not require a written document to be signed by the parties themselves before it could be acted upon. This decision has clearly pointed out the distinction between the first part and the second part of R. 3 or O. XXIII, Civil P. C. The first part visualizes a lawful agreement or compromise arrived at out of Court by the parties. It is only such a type of lawful agreement or compromise which requires to be 'in writing and signed by the parties'. It has been rightly pointed out in that decision that the requirements of 'in writing and signed by the parties' appended to the first part of O. XXIII R. 3, Civil P. C. was to correct the abuse of setting up of an oral agreement or compromise outside Court and the attempt to prolong the matters by leading evidence thereof. It is for this reason that the Legislature mandated that such agreement or compromise must not only be written, but equally it must be signed by the parties. "


(17). A single Bench of the Patna High Court has also held in the similar line in case of Javandra Prasad Sinha v. Nand Kishare Jha and Ors. , reported in AIR 1985 Patna 310. In paragraph 9 it is held that Rule 3 of order XXIII of the Court discloses two distinct kinds of classes of compromise in suits. The first part of the Rule visualizes a lawful agreement or compromise arrived at out of the Court by the parties. By the amendment of 1976, it is this kind of agreement or compromise which requires to be in writing and signed by the parties. Then again in paragraph 10 it is said that the true import of second part of Rule 3 of Order XXIII embodies within itself all such other cases where the defendant satisfies the plaintiff in respect of the whole or any part of the subject matter of the suit and such cases, in themselves, make a distinct class by itself. The Legislature has designedly used the word 'or' in Rule 3. Distinct terminology has been used separating lawful agreements or compromises from the satisfaction of the plaintiff by the defendant in respect of the whole or any part of the subject matter of the suit. The word 'satisfaction' has been used in contradistinction to the words 'adjustment' by agreement or compromise by the parties. Hence, the requirement of 'in writing and signed by the parties' does not apply to the altogether different situation where the defendant satisfies the plaintiff in the alternative under the second part of Rule 3 of Order XXIII of the Code.


(18). MR. Mukherjee's contention is that the decree is a nullity because the Court has passed such decree which is not the subject matter of the suit. I am of the opinion that this contention has no force in view of the legal position as visualized under Order XXIII Rule 3 of the Code of Civil Procedure. It will appear therefrom that once it is established that the compromise arrived at lawfully either under the first part or under second part of the said Rule discussed above then the jurisdictions of the Court to accept compromise or satisfaction is not confined to the subject matter of the said suit unlike trial of the lis on contest. The decisions cited by Mr. Mukherjee, in support of this portion of the submission, are clearly distinguishable as in those cases the initiation of the proceedings was bad as the Court concerned had inherently lacked jurisdiction since the stage of initiation. In this case, the suit has been filed lawfully and upon lawful invocation of the jurisdiction under Clause 12 of the Letters Patent, therefore, the Court does not lack jurisdiction or authority on any count either territorial or in the subject matter. After initiation the said decree was passed upon recording satisfaction of the claim of the plaintiff in the said decree. Plea of inherent lack of jurisdiction is entertainable if from the inception the lis is brought in an inappropriate form and further if the court passes a decree which is not recognizable under the law only then the decree can be challenged on the ground of jurisdiction. It is true in this case that had the instant decree been passed by the Court upon contestation then certainly the decree could have been impugned on the above count and the ground.


(19). IT is true that it is a trite law that the plea of inherent lack of jurisdiction can be taken up at any stage when it is sought to be enforced even in a collateral proceedings. But in my opinion there must be a limit and timing for taking such plea. The plea of inherent lack of jurisdiction must be taken at the first available opportunity and if such plea is not taken by a litigant, on contrary the person concerned has accepted and/or acquiesced by act and conduct, decree on all earlier occasions, at later stage he or she cannot turn round taking different and contradictory stand. The fairness on the part of the litigants is one of the considerations for the Court to render justice. It is difficult for a court to help a litigant who takes different pleas at different stages to his own advantage. In this ease, as rightly contended by Mr. Mitra, at earlier stage the third defendant made an application for enforcement of the decree and there was no whisper regarding unenforceability on any count. The legality and validity of the decree was forcefully urged by the third defendant, and despite contest by the plaintiff on earlier occasion the third defendant was successful in establishing that the decree is valid and subsisting but the relief could not be granted by the court because of technical difficulty. In any view of the matter this plea is hit by the principle of res judicata if not estoppel. Besides, I find it is an extreme case of approbate and reprobate on the part of the third defendant. In case of Byran Pestonji Gariwala v. Union Bank of India and ors. , reported in AIR 1991 SC 2234 the Supreme Court in paragraph 41 of the said Judgment has observed that the decree passed on compromise constitutes res judicata. While laying down this principle of law the Supreme Court has considered the earlier decision of the same Court rendered in case of Shankar Sitaram Sontakke and Anr. v. Balkrishn

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a Sitaram Sontakke and Ors. , reported in AIR 1954 SC 352 wherein it was held amongst others: "it is well-settled that a consent decree as binding upon the parties thereto has a decree passed by invitum. The compromise having been found not to be vitiated by fraud, misrepresentation, misunderstanding or mistake the decree passed thereon as the binding force of res judicata. " (20). ACCORDINGLY, I have no hesitation to hold that the decree is a valid one and it does not suffer from any illegality and infirmity, not to speak of inherent lack of jurisdiction. (21). THEN it is contented that the decree is not executable as the decree embodies mutual rights and obligations and the obligation an behalf of the plaintiff decree holder has not been discharged. I do not find any substance in this contention. Factually, both the parties were equally recalcitrant at one point of time. The plaintiff was unwilling to accept the decree but later the plaintiff realized its mistake and has come forward to accept the same. Before this matter was heard the court directed both the parties to sit for settlement and the sitting did not yield any result. From the letters and correspondences exchanged between the parties it appears to me that both the parties were agreeable to accept the decree to implement the same in mind but both sides raised frivolous objection and contention. Accordingly, on this plea the enforcement and execution of the decree cannot be refused. The decisions cited by Mr. Mukherjee on this aspect are not applicable at all in this case. (22). NEXT objection of Mr. Mukherjee as regard executability of the decree is that the relief for possession claimed in the present application cannot be granted because the decree does not provide for delivery of possession. This contention again has no force as the decree embodies the enforcement of terms of the two contracts and the same, in their turn, provide for obligation for delivery of possession. Therefore, the delivery of possession has now become part of the decree as drawn up and the same inheres in the decree itself. In this connection the following Judgments cited by Mr. Mitra may be referred to AIR 1963 MP 86. (23). THUS, this contention also fails. (24). THIS application succeeds. The defendant No. 3 is directed to execute and register deed of conveyance having joined Indian Express newspapers (Bombay) Limited, Narimanpoint, Mumbai - 400021, in favour of the applicant - plaintiff in terms of decree and order dated 17th march, 2004 as per draft being annexure I to this application upon the plaintiff's paying all costs and expenses therefor within six weeks from the date of receipt of signed copy of the minutes of this order, failing which liberty is given to mention. The defendant No. 3 is directed to deliver vacant and peaceful possession of the property in question in terms of prayer (c) of Column 10 of Tabular Statement within fortnight from date of execution and registration of conveyance. In default thereof, liberty to mention. Costs of this application is assessed at 600 gms to be paid by the third defendant. In view of this order subsequent application fails. Application succeeds but subsequent application failed.
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