Summary
In execution of a 1933 compromise decree providing for rotation of idols and pooja between two sects worshipping the same deity, the Supreme Court held that the decree-holders bore the burden of proving that the judgment-debtors held the idols and had violated the decree. As the Executing Court had ordered delivery on presumption rather than proof, the High Court rightly set that order aside.
Issues
- Whether the compromise decree dated 01.11.1933 was capable of execution on the facts.
- Whether the decree-holders proved that the judgment-debtors were in possession of the idols and had violated the terms of the compromise decree.
Held
- As the judgment-debtors had not appealed against the finding that the execution petition was maintainable, the only question was whether the decree was executable on facts and whether its terms had been violated. (¶ 22)
- In execution, the primary onus lies on the decree-holder to show that the judgment-debtor has disobeyed the decree. An inference of possession and breach drawn merely from the absence of any dispute over several decades is impermissible; findings based on presumption cannot replace proof. (¶¶ 24, 26, 28)
- The decree itself recorded that the appellants were performing pooja in 1933, raising a presumption that they then held the idols. The appellants led no evidence that possession ever passed to the respondents, their witness admitted he was unaware of payment of the Rs. 2,000 on which the respondents' right to pooja depended, and the testimony on both sides consisted of bare assertions by persons who were not parties to the 1933 suit. The respondents' case that the compromise was never acted upon was therefore highly probable. (¶¶ 23, 24, 25, 26)
- There was no evidence that trustees were ever appointed or accounts maintained under Clause (2) of the decree; a fact especially within a person's knowledge must be proved by that person, and the appellants produced no such material. (¶ 27)
- The decree-holders failed to discharge the burden of proving violation of the decree, so the Executing Court erred in allowing execution and the High Court rightly set aside its order. (¶¶ 28, 29)
Result
Appeals dismissed; the High Court's judgments setting aside the execution order were upheld.