The defendant- petitioner had filed a suit for rendition of accounts pertaining to the assets of firm Ms Hind Furniture, Anant Market, Civil Lines, Jagadhri and for permanent injunction restraining the defendant- respondents from alienating the property of the firm besides seeking appointment of receiver. During the pendency of the suit, the defendant/ petitioner Ranbir Singh made the following statement before the trial Judge on September 12, 2008:-
C.R. No. 6790 of 2011 [2]
Stated that I shall pay Rs.6000/- per month toward partnership of M/s Hind Furniture and will be bound by my statement.
On the basis of said statement, the trial Court recorded the statement of Inderjit Kaur, plaintiff- respondent No.1:-
"Stated that keeping in view the statement made above, I withdraw my case and I alongwith my children Rajish and Lalit will not interfere in the work"
The trial Court on September 12, 2008 passed the following order:-
"Shri Anil Aggarwal, Advocate for plaintiff. Shri D.S. Khurana, Advocate for defendant.
"Defendant Ranbir Singh has made the statement that he shall given an amount of Rs.6000/- to the plaintiff as partners of M/s Hind Furniture and he shall be bound by his statement. The plaintiff has also made the statement that in view of the statement made by defendant, she does not want to proceed further with the present suit and her sons would not interfere in the suit property. In view of the statement made by the plaintiff, present suit is hereby dismissed and defendant is bound by the statement made in the Court. File be consigned to record room.
On the basis of the order passed on September 12, 2008, the plaintiff- respondents filed an application for execution under Order 21 Rule 11 CPC claiming that the defendant- petitioner judgment debtor had intentionally and willfully not paid a sum of Rs.1.32 lacs alongwith interest at the rate of 6% from September 12, 2010 till realization, as per order dated September 12, 2008.
Vide impugned order dated September 2, 2011, the Executing Court had issued warrants of recovery by attachment of property of defendant judgment debtor/ petitioner by dismissing his objections that no decree had been passed in the civil suit and that there had not been any adjudication regarding the recovery of the amount.
Counsel for the respondents has contended that the provisions of CPC regarding execution of decrees are applicable to the execution of orders pertaining to the payments against an order as per Section 36 of the Code. The only remedy available to the defendant- petitioner is either to file an appeal against the order or to seek review of the order dated September 12, 2008 as the suit under Order 23 Rule 2 A CPC prima facie appears to be barred. It has also been argued by counsel for the respondents that in view of provisions of Order 43 Rule 1 (A) (2) CPC, an appeal is maintainable against an order recording compromise or refusing to record a compromise on the ground that compromise should or should not have been C.R. No. 6790 of 2011 [4] recorded. It is further submitted that in view of none of the alternative remedies having been availed, the order dated September 12, 2008 could have been executed in the light of provisions of section 36 of cpc.
I have heard counsel for the petitioner as well as counsel for the respondents and carefully appreciated the circumstances in which the order dated September 12, 2008 was passed. A perusal of the statement made by defendant in a suit for rendition of accounts after the death of his partner Jaipal Dhiman indicates that he had offered to pay a sum of ` 6000/- per months in lieu of the terms and conditions of the partnership deed of M/s Hind Furniture. The statement which was made by decree holder clearly indicates that the plaintiff- respondent Inderjit Kaur had undertaken that she or her children Rajesh and Lalit will not interfere in the work of the partnership concern.
Counsel for the petitioner has vehemently urged that the decree which was passed on September 12, 2008 is a command issued to both the parties to the effect that plaintiffs and defendant will be bound by their statements made in the Court.
Since the order dated September 12, 2008 was passed on the basis of the statements made by both the parties, the spirit of the order dated September 12, 2008 is that the defendant would pay a sum of ` 6000/- per month out of the earnings of the partnership concern whereas plaintiff- respondents will not, in any manner, interfere in the working of the running of the partnership concern. If the defendant had a right to implement the C.R. No. 6790 of 2011 [5] command of the Court by executing the decree at the same time the defendant had a right to seek an execution of the undertaking made by the plaintiffs that they will not interfere in the working of the partnership concern. There is a simultaneous obligation of both the parties to stick to their statements. It is made clear that in case the plaintiff- respondents interfere in the running of the partnership concern, in any manner, he has also got a right to execute the order dated September 12, 2008 restraining the plaintiffs by adverting to the provisions of Order 21 Rule 32 CPC read with Section 36 CPC. The said estopple of the force of the order dated September 12, 2008 seems to have not been appreciated by the executing Court while dismissing the objections of the defendant- petitioner who had specifically pleaded in his objection, annexure P-3 that the defendant- judgment debtor had been obstructing in the work of the factory in violation of the terms of the compromise.
Taking into consideration the totality of the abovesaid circumstances, it is observed that the petitioner is bound by the statement made by him to pay a sum of Rs.6000/- per month to the plaintiff- respondents as per the order dated September 12, 2008. His objections have rightly been dismissed. No ground is made out for interfering in the order enforcing the order dated September 12, 2008 for payment of Rs.6000/- per month w.e.f. September 12, 2008 but it is further clarified and ordered that the plaintiff- respondents will also not interfere, in any manner, in the running of the business of M/s Hind Furniture as undertaken by Inderjit C.R. No. 6790 of 2011 [6] Kaur. In case of any such eventuality, it will be open to the petitioner to execute the order dated September 12, 2008 by adverting to the provisions of Orde+r 21 Rule 32 CPC read with Section 36 CPC.
With the above clarification, this petition is dismissed. Anything said in the order will not prejudice the rights of the parties to avail the other legal remedies available to them to challenge the consent order dated September 12, 2008, in accordance with law. Besides this, it will also be open to the parties to seek any remedy available under the Partnership Act, if so advised.
Dismissed.