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1975 Supreme(MP) 62
High Court Of Madhya Pradesh
U. N. Bhachawat, J.
BABULAL GULABCHAND - Appellant
Versus
NATHULAL BADRILAL - Respondents
Misc. Appeal 174 Of 1971
Decided On : 07/18/1975
R.K.Vijayawargi
A compromise decree that creates a fresh tenancy between the parties cannot be executed to evict the tenant. The landlord's remedy for non-compliance with the terms of the tenancy is by way of a fresh suit.
Headnote:
COMPROMISE DECREE - CONSTRUCTION - FRESH TENANCY - EXECUTABILITY - MADHYA PRADESH ACCOMMODATION CONTROL ACT, 1961, SECTION 12 (1) (A).
Fact of the Case:
The plaintiff brought a suit for eviction against the defendant on the ground of default in payment of arrears of rent. The suit was compromised on the condition that the defendant would pay the arrears and mesne profits in installments and continue to pay rent regularly. The compromise decree was passed incorporating all the terms of the compromise except one which stated that the defendant would continue in possession as a tenant.
Finding of the Court:
The court held that the compromise decree created a fresh tenancy between the parties and that the appellant could not be ejected in execution of the decree. The court found that the intention of the parties was to create a fresh tenancy, as evidenced by the terms of the compromise decree, which provided for the appellant's exclusive possession of the house for an indefinite period, subject to the payment of rent and the fulfillment of certain conditions.
Issues: 1. Whether the compromise decree created a fresh tenancy between the parties? 2. Whether the appellant could be ejected in execution of the compromise decree?
Ratio Decidendi: 1. The court held that the compromise decree created a fresh tenancy between the parties based on the following factors: - The appellant was entitled to continue in possession exclusively for an indefinite period. - The appellant was required to pay rent and the installment of arrears regularly on the stipulated date. - The compromise decree contained terms for the determination of the tenancy, which presupposed the existence of a right to enjoy the property. - The use of the word 'rent' in the compromise decree indicated that the appellant was paying rent as a tenant to the respondent. 2. The court held that the appellant could not be ejected in execution of the compromise decree because the decree created a fresh tenancy between the parties. The court reasoned that the respondent's remedy for non-compliance with the terms of the tenancy was by way of a fresh suit, not by execution of the decree.
Final Decision: The appeal was allowed, and the order under appeal was set aside. The court held that the appellant could not be ejected in execution of the compromise decree.
( 1 ) THIS is an appeal directed against the judgment, dated 25-11-1971, in Civil regular Appeal No. 24 of 1971 arising out of the proceeding in execution passed in a suit for eviction under the Madhya Pradesh Accommodation Control act, 1961, passed on the ground of Section 12 (1) (a ).
( 2 ) THE plaintiff, who is the decree-holder respondent herein, brought a suit for eviction against the present appellant, who is the judgment-debtor defendant, on the ground that there was a default by the defendant in payment of arrears of rent, within two months from the date of service of notice of demand on him. The suit was for Rs. 630 as rent+rupees 247. 50 as mesne profits + Rs. 15. 50 as notice charges, totalling to Rs. 892. 00. This was compromised on 6-11-1970 for a sum of Rs. 1901, inclusive of costs, out of which Rs. 400 were paid in cash by the defendant judgment-debtor. This fact was recorded in the compromise. The other terms of the compromise are reproduced verbatim hereunder: -. . (VERNACULAR MATTER OMMITED ). .
( 3 ) ON the basis of the eforesaid compromise, the decree incorporating all the terms of this compromise except one which shall be referred to hereinafter at the appropriate stage was passed.
( 4 ) THE respondent put this decree under execution vide his undated application which according to the proceedings sheet of the executing Court appears to have been filed on 29-6-1971 for the recovery of arrears and possession of the house. The appellant put in his objection petition, dated 6-7-1971, inter alia, objecting to the executability of the decree which was rejected by the executing court vide order dated 19-7-1971, in the proceedings sheet.
( 5 ) THE appellant filed an appeal, against the order of the executing Court, but he was unsuccessful and hence this second appeal before this- Court.
( 6 ) IT is unnecessary for me to mention all the various objections that were taken by the appellant in the executing Court, in the lower appellate Court and in the memorandum of appeal to this Court. The following points only were urged before this Court during the course of argument by the learned counsel for the appellant:
(i) The decree is only declaratory and hence cannot be executed; and (ii) The compromise has created a fresh tenancy. The remedy of the respondent was by way of a fresh suit and not by way of execution of the decree. The decree is unexecutable. Both the points are interlinked. I, therefore, deal both of them together.
( 7 ) THE argument of the learned counsel for the appellant was that-
(a) the following clause which is in the compromise has been specifically omitted from the decree:. . (VERNACULAR MATTER OMMITED ). . (b) the only inference from the above omission is that the Court, which made the compromise, the rule of the Court did not find that term lawful and, therefore, did not order its incorporation in the decree. According to Order XXIII, Rule 3, Civil Procedure Code, the court can order the recording only of that agreement which is found by it to be lawful. As a consequence of this omission, the decree is nothing but a declaratory decree; and (c) even on postulating the existence of the. aforesaid term, the decree would still remain unexecutable. The decree passed on the basis of a, compromise is nothing but a contract with the command of the Judge superadded to it and all the incidents of contract are applicable to it. Applying this principle, the compromise decree is a contract which has resulted in creating a fresh tenancy between the appellant and the respondent. As a consequence of this new tenancy, for the non-compliance of its terms contained in the decree, the appellant cannot be ejected till the tenancy is terminated by a fresh valid notice under Section 106 of the Transfer of Property Act and a suit on any one or more of the grounds provided under Section 12 of the Madhya Pradesh Accommodation Control Act, 1961, is filed. En short, his argument was that the appellant is o
