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1980 Supreme(All) 472
IN THE HIGH COURT OF ALLAHABAD
A. N. Verma, J.
ARJUN LAL - Appellant
Versus
3rd ADDL.DISTRICT JUDGE - Respondents
Civil Misc. Writ Petn. 5772 Of 1979
Decided On : 11/20/1980
K.G.SRIVASTAV, S.K.GUPTA
An executing court cannot go behind the decree and has to execute it as it stands, without embarking upon an enquiry into the reasons for the default or delay in complying with the terms of the decree.
Headnote:
EXECUTION OF DECREE - COMPROMISE DECREE - DEFAULT IN GIVING NOTICE - RELIEF FROM CONSEQUENCES - POWER OF COURT - SCOPE - EXECUTION COURT - LIMITATION.
Fact of the Case:
The petitioners, tenants of the respondents, entered into a compromise during the pendency of an appeal against a decree for ejectment. The compromise provided that the decree would not be executed for four years, during which the petitioners would pay damages for use and occupation. If the petitioners wished to continue in possession after the expiry of the four years, they were to give a written notice to the respondents within one month prior to the expiry date. The petitioners failed to give the notice within the stipulated period, but gave a notice three to four days later, attributing the delay to the death of the father-in-law of one of the petitioners. The respondents applied for execution of the decree, and the petitioners filed objections under Section 47 of the Code of Civil Procedure, claiming that time was not of the essence of the contract and that the term providing for execution of the decree in the event of their failure to give the notice was penal in character. The executing court and the revisional court dismissed the objections.
Finding of the Court:
The High Court held that the executing court was correct in dismissing the objections of the petitioners. The court held that time was of the essence of the compromise and that the petitioners' failure to give the notice within the stipulated period entitled the respondents to apply for execution of the decree. The court also held that the petitioners' brothers, who were not parties to the suit, were not entitled to file objections under Section 47 of the Code of Civil Procedure.
Issues: 1. Whether time was of the essence of the compromise? 2. Whether the term providing for execution of the decree in the event of the petitioners' failure to give the notice was penal in character? 3. Whether the petitioners' brothers, who were not parties to the suit, were entitled to file objections under Section 47 of the Code of Civil Procedure?
Ratio Decidendi: 1. The court held that time was of the essence of the compromise based on the terms of the compromise, which provided that the petitioners were to give a written notice to the respondents within one month prior to the expiry of the four-year period if they wished to continue in possession after the expiry of the period. The court held that this term was essential to the right of the petitioners to claim a fresh lease after the expiry of the four-year period. 2. The court held that the term providing for execution of the decree in the event of the petitioners' failure to give the notice was not penal in character. The court noted that the term was not disproportionate to the loss that the respondents would suffer as a result of the petitioners' breach of the compromise. 3. The court held that the petitioners' brothers, who were not parties to the suit, were not entitled to file objections under Section 47 of the Code of Civil Procedure. The court noted that Section 47 only allows objections to be filed by parties to the suit.
Final Decision: The High Court dismissed the petition. The court held that the executing court was correct in dismissing the objections of the petitioners and that the petitioners were not entitled to any relief from the consequences of their breach of the compromise.
( 1 ) THIS petition is directed against concurrent orders passed by the courts below dismissing an abjection filed by the petitioners against the execution of a decree obtained by the respondents nos. 3 to 5 against petitioner No. 2.
( 2 ) THESE are the facts :
The respondents Nos. 3 to 5 as the owners and landlords of the accommnoda-tion in dispute--of which the petitioner No. 2 Lakshman Das was the tenant --filed a suit for the ejectment of the latter as well as for recovery of arrears of rent and mesne profits. The said suit was decreed by the court of the learned Civil Judge, Shahjahanpur in September, 1973. Lakshmao Das, petitioner no. 2 preferred an appeal. During the pendency of the appeal, the parties entered into a compromise which was recorded on 9-1-1974. The material terms of the compromise were that the plaintiffs would not execute their decree for ejectment for a period of four years i. e. up to 31-12-1977. During this period, the defendant Lakshman Das was to pay Rs. 13 per month as damages for use and occupation of the premises, besides the Municipal Tax due in respect of the premises in suit If, however, the defendant-appellant Lakshman Das, his two brothers Saheb ram and Arjun Lal wished to continue In possesr-sion of the premises after 31st December, 1977 as tenants thereof on a monthly rental of Rs. 20, they might give a writ-tea notice within one month prior to 31st December, 1977 to the plaintiff-landlords conveying to them their said intention so to continue in occupation of the premises as tenants and in that event the plaintiff-landlords would let out the premises to the three brothers upon their execution of a rent note. If, however, the said three brothers did not give such a notice the plaintiff-landlords would be at liberty to execute their Adecree.
( 3 ) ADMITTEDLY, the defendant Lakshman Das and his brothers did not give the aforesaid notice to the plaintiff-landlords within the stipulated period. They, however, gave a written notice dated 3rd of December, 1977 conveying their intention to take the premises on rent upon the terms mentioned in the compromise.
( 4 ) THE plaintiff-decree-holders relying upon the failure of the defendant Lakshman : Das and his two brothers to give the notice contemplated under the compromise and upon the other terms of the compromise applied for execution of their decree for the ejectment of Lakshman Das in february, 1978, Lakshman Das and his brothers filed an objection purporting to be under Section 47 of the Code of Civil Procedure. In the objection, it was asserted that the delay of three to four days in sending the notice was caused on account of the death of the father-in-law of Arjun Lal, the brother of the defendant Lakshman Das. It was asserted that time was not of the essence of the contract and that, therefore, there was no breach of the terms of the compromise. The decree-holders on the other hand contested this stand of the defendant Lakshman Das and his brothers on the ground that the decree was liable to be executed upon its plain terms and that the brothers of Lakshman Das at any rate were not entitled to file objections under Section 47 of the code of Civil Procedure, they not being parties to the suit.
( 5 ) THE executing court overruled the objections of the petitioners holding that time was of the essence of the compromise and that on the failure of Lakshman Das and his brothers to give the notice stipulated under the compromise, the decree-holders were at liberty to apply for the execution of the decree. The executing court further held that Saheb Ram and Arjun Lal, the brothers of Lakshman Das were at any rate not entitled to file objections under Section 47 of the code of Civil Procedure as they were not parties, to the suit The executing court dismissed the objections of the petitioners and directed that the execution shall proceed without any delay.
( 6 ) THE petitioners challenged the correctness of the order passed by the exe
