1. This is a time barred revision-application under Section 115 of the Code of Civil Procedure in which a prayer has been made that a decree dated 21-12-1990 passed by IVth Additional District Judge, Jhansi on the basis of the compromise filed in Original Suit No. 137 of 1988 Allahabad Bank v. Sunder Theatre and the subsequent order dated 7-11-1997 passed by VIth Additional District Judge, Jhansi in Misc. Case No. 15 of 1993 arising out of Execution Case No. 2 of 1991 be set aside.
2. Counter and rejoinder affidavits have been exchanged. Heard Sri P.P Srivastava, Senior Advocate, assisted by Smt. Sadhna Upadhyay, learned counsel for the applicant-revisionist and Sri P.K Bisaria for the opposite party No. 1-Allahabad Bank, Jhansi (Civil Line Branch).
3. Briefly stated, the facts of the case are that Sunder Theatres (Nandani Talkies), Civil Lines, Jhansi and its partners took a loan of Rs. 6,56,000/- on 7-11-1977 and executed a pronote as well as created an equitable mortgage. The amount of loan was not paid and consequently, Allahabad Bank, Civil Lines Branch, Jhansi opposite party No. 1 was compelled to file Original Suit No. 137 of 1988 for recovery of Rs. 15,97,728/- with stipulated interest at the rate of 17% per annum. A decree under Order 34, Rule 4, CPC was also prayed for. A compromise was entered into between the parties and ultimately the suit was decided in terms of compromise and decree was passed on 21-12-1990. As per the compromise decree, payment was to be made by the defendant-judgment debtor by 28-2-1991 and in case of failure to pay the amount under the decree, they were liable for the costs of the suit (litigation expenses) and interest at 6% per annum w.e.f 30-4-1988. In spite of the decree passed on compromise, payment was not made and consequently, the decree-holder Bank filed an application for execution which was registered as Execution Case No. 2 of 1991. An objection was filed challenging the validity of the decree itself on 29-7-1991 and subsequently, a formal objection under Section 47, CPC was filed by the judgment-debtors on 26-4-1993 which was registered as Misc. Case No. 15/1993. The decree holder-Bank filed another Execution Application No. 1 of 1994 for recovery of the decretal amount by means of the detention in civil prison of the judgment debtors, i.e partners/Managing Directors of the Sunder Theatres. Another objection under Section 47, CPC registered as Misc. Case No. 23 of 1995 was filed. For the disobedience of the orders of the Court, the decree holder Bank filed a Misc. Case No. 36 of 1996 under Order 39, Rule 2(a), CPC arising out of Execution Case No. 2 of 1991. It appears that the two execution cases and the two miscellaneous cases under Section 47, CPC were taken together. In Misc. Case No. 15/93, under Section 47, CPC, statement of Mukund Lal Mehrotra one of the judgment debtors and the Managing partner of Sunder Theatres was examined. His statement commenced on 2-4-1994 and was concluded on 3-7-1995, i.e, after the expiry of about 15 months from the initial date of his entering the witness box. After the evidence of Mukund Lal Mehrotra had been concluded and the Misc. Case No. 15 of 1993 was fixed for argument, an application was moved on behalf of the judgment debtors to recall Mukund Lal Mehrotra, A.W 2 for further examination and clarification on the point that he had not entered into the compromise in a representative capacity. By the impugned order dated 7-11-1997, the learned Court below has rejected the application under Order XVIII, Rule 17, CPC to recall Mukund Lal Mehrotra for further examination at the instance of the judgment debtor-revisionist. Aggrieved by the order dated 7-11-1997 the present applicant-revisionist (Judgment-debtors) filed a writ petition in this Court, which was registered as Civil Misc. Writ No. 4 of 1998. This writ petition was dismissed on 8-1-1998 by Hon'ble S.R Singh, J., with the following observations:—
“Heard Sri D.C Saxena appearing for the petitioner.
Impugned herein is an order rejecting application under Order 18, Rule 17 of the CPC in a pending execution case. The order is thus an interlocutory order, the legality of which can be examined by the superior Court in appeal or revision or writ petition after the final decision of the execution case. In this view of the matter, I am not inclined to entertain the writ petition at this stage.
The petition is accordingly dismissed at this stage”.
4. After the dismissal of the writ petition on 8-1-1998 the present revision application was failed on 19-2-1998 to challenge the order dated 7-11-1997. The revision application is obviously barred by time. An application for condonation of delay under Section 5 of the Limitation Act has been moved along with an affidavit of Arvind Mehrotra. Taking into consideration the fact that the judgment debtor-revisionists have pursued their remedy in a wrong Court and the writ petition has been dismissed and the tone and tenor of the order passed in the writ petition is that the judgment debtor-revisionists have an alternative remedy, I am inclined to condone the delay in filing revision application and proceed to consider merits of the case.
5. Sri P.P Srivastava, learned counsel for the judgment-debtor-revisionists urged that the Court below has erred in rejecting the application moved under Order XVII, Rule 17, CPC to recall Mukund Lal Mehrotra for re-examination, inasmuch as, it was the fault of the counsel who has not put a particular question about the capacity in which Sri Mehrotra-witness had entered into the compromise in the suit. It was also urged that the decree passed in suit No. 137 of 1988 is a nullity as the compromise was arrived at and filed without the leave of the Court as per requirement of Order XXIII, Rule 3-B, CPC, and this Court as well as executing Court is competent to go into the question of the validity and executionality of the decree itself. Sri P.K Bisaria, learned counsel for the Allahabad Bank decree holder repelled all the above submissions and urged that the present revision application against interlocutory order dated 7-11-1997 is not maintainable in view of the observations made in Civil Misc. Writ No. 4 of 1998 and in any case, the question of executability of the decree is to be decided by the executing Court where objections under Section 47, CPC are pending consideration.
6. At the outset, it may be mentioned that there is no quarrel about the legal position as has also been held in AIR 1988 All 225, Union of India v. S.B Singh (relied upon by the revisionist) that the executing Court can decide the question about the non-executability of the decree or it being nullity and that this aspect of the controversy is covered by the expression “execution, discharge or satisfaction of the decree” used in S. 47, CPC. In the instant case, admittedly a decree on the basis of compromise was passed. The compromise is sought to be avoided by the judgment debtors on the ground that since it was representative suit, the compromise could not be entered into without the leave of the Court as contemplated under Order XXIII, Rule 3(b), CPC. As a matter of fact, this question has to be dealt with by the executing Court while deciding the objections under Section 47, CPC. I, therefore, refrain from finally deciding this point and leave it open for decision by the executing Court However, a passing reference may be made to the fact that the provisions of Order XXIII, Rule 3-B, CPC are attracted in a representative suit. The relevant provision reads that no agreement or compromise shall be entered into without the leave of the Court and a compromise entered into without the leave of the Court shall be void. Now, what is the character of a representative suit is to be found in the provisions of Rule 8 of Order 1, CPC. A representative suit is that suit where there are numerous persons having the same interest in one suit and one or more of such persons may with the permission of the Court sue or to be sued or may defend such suit on behalf of, or for the benefit of all persons, so interested. In a suit of representative character the Court is obliged to give notice of the institution of the suit to all persons so interested either by personal service or where by reason of the number of persons or any other cause, such service is not reasonably practicable, by public advertisement as the Court in each case may direct. The provisions of Order XXIII, Rule 3B, CPC are applicable only to the suits which are of representative nature, as mentioned above.
7. On behalf of the judgment-debtors, emphatic reliance was placed on the decision of the Supreme Court in (1991) 4 SCC 584 : AIR 1992 SC 248, Union Carbide Corporation etc. v. Union of India etc. in which validity of compromise entered without the notice to interested persons was considered. It was held that though the provisions of Rule 3B apply to a representative suit, it does not apply propio vigore to proceedings under Art. 136 of the Constitution. Reference to the said case of the Supreme Court is otiose in the present case for one simple reason that in the instant case, it was a simple suit for recovery of money by the Bank against the debtor establishment and its partners on the basis of the pronote and equitable mortgage. Therefore, Suit No. 137 of 1988, in which a decree on the basis of compromise was filed, did not attract the provisions of Order XXIII, Rule 3B, CPC.
8. Now the question is whether the execution Court in rejecting the application under Order XVIII, Rule 17, CPC in Misc. Case No. 15 of 1993 under Section 47, CPC by its order dated 7-11-1997 has committed any illegality and whether the said order would amount to a ‘case decided’. As said above, in the objection under Section 47, CPC (Misc. Case No. 15 of 1993), the judgment-debtors examined their Managing partner Mukund Lal Mehrotra on 2-4-1994. After the evidence was concluded and the Misc. case was ripe for argument, an application was moved by the judgment-debtors to recall their own witness for further examination/clarification on the point as to under what capacity Sri Mehrotra has entered into compromise. It was urged that this question could not be put to the witness as the counsel for the judgment-debtors has inadvertently omitted to do so. The simplicity of the submission, is deceptive. The statement of Mukund Lal Mehrotra was not concluded in a day or so. As said above, it was commenced on 2-4-1994 and his evidence was concluded after about 15 months of 3-7-1995. It cannot be expected that the counsel for the judgment-debtors has inadvertently failed to put a particular question. As a matter of fact, the alleged question which is now sought to be put by recalling the witness is hardly of any consequence. The power of the Court under Rule 17 of Order XVIII is discretionary and has to be exercised with greatest care and only in exceptional circumstances. Under the garb of this rule it has been held that Courts ought not to recall a witness at the instance of a party in order to fill up the lacuna in the evidence already led. In my view, the Court below has rightly exercised its discretion in rejecting the application to recall Mukund Lal Mehrotra for further examination at the instance of judgment-debtors. Not only this, the impugned order dated 7-11-1997 is purely of interlocutory nature as it does not decide or affect the rights of any one of the parties, and, therefore, not subject to revision. The same view was taken in Civil Misc. Writ No. 4 of 1998 in which it was observed that the impugned order was interlocutory, the legality of which could be examined by superior Court in appeal, revision or writ petition ‘after the final decision of the execution case.’
9. It appears that the real purpose of moving the application to recall the witness was to frustrate the final hearing and disposal of the objection under Section 47, CPC. The judgment-debtors wanted to keep the matter alive on one ground or the other. The history of the case is pointer to the fact that even in a case of decree passed on compromise, the judgment-debtors are adopting an obstructionist attitude and in their litigative zeal are absuing the process of Court so that the payment or recovery of the amount admittedly borrowed by the judgment-debtor from the decree-holder Allahabad Bank may continue to be deferred for an indefinite period. The judgment-debtors have shown scant respect to the solemn compromise on the basis of which they had been successful in obtaining certain concessions under the decree. A decree passed on the basis of compromise cannot be thwarted or throttled on the basis of hyper-technicalities and hair-spliting, based on untenable and inapplicable grounds. The present case may well be cited as an example to illustrate the common saying that it may be easy for the decree-holder to obtain a decree but very difficult to get it executed.
10. In the result, the revision-application fails as on factual and legal matrix the executing Court has committed no illegality or material irregularity in passing the impugned order dated 7-11-1997. The revision application is accordingly dismissed. Interim order passed on 21st, Feb. 1998 shall stand vacated.
11. Revision dismissed.