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CALCUTTA HIGH COURT
Soumen Sen, J.
Shivani Properties Pvt. Ltd. —Plaintiff
versus
United Bank of India —Defendant
C.S. 31 of 1998
Decided on 14-05-2013
(B) Civil Procedure Code, 1908—Section 47—Execution of decree—Eviction suit—Compromise decree—When a decree imposes obligations on both sides which are so conditioned that performance by one is conditional on performance by other execution will not be ordered unless party seeking execution not only offers to perform his side but, when objection is raised, satisfies executing Court that he is in a position to do so—Any other rule would have effect of varying conditions of decree; a thing that Executing Court cannot do— Tenor of award shows that Arbitrator did not intend merely to declare rights of parties—It is a clear intendment of award that if appellants defaulted in discharging their obligations under award respondents would be entitled to apply for and obtain possession of property. (Paras 31 and 36)
(C) Civil Procedure Code, 1908—Section 47—Execution of decree—Eviction suit—Compromise decree—A decree in which no definite order is made which Court contemplates enforcing by execution, is merely a declaratory decree which is incapable of being executed and only a separate suit and not an application under Section 47 would lie to enforce rights so declared by decree—Similarly, a decree which does not provide for a certain relief though it declares a right to such relief is one not capable of being executed—A decree based on compromise decree is executable—Where machinery provided for working out a consent decree fails it is duty of Court to fill up gap caused by such failure by making necessary orders in order that consent decree may be worked out as agreed between parties. (Paras 41 and 42)
(D) Civil Procedure Code, 1908—Section 47—Execution of decree—Eviction suit—Compromise decree—If decree is merely declaratory and no remedy is provided in case of non-compliance, proper remedy is to file a suit—Defendant considered prayer for revision but refused to enhance rent to extent as requested by plaintiff on the basis of its own understanding of compromise decree—Decree does not provide formula for determination or a solution in case of disagreement—This aspect of matter cannot be decided in application for execution—Court in deciding application under Section 47 of Code of Civil Procedure is required to keep in mind that executing Court cannot adjudicate upon legality or correctness of decree unless decree is a nullity—Under compromise decree plaintiff was allowed to continue possession exclusively on certain terms and conditions—Failure to review rent after five years or refuse to enhance rent thereby giving a right to plaintiff to question such action of defendant and seek adjudication and determination of rent cannot form subject-matter of execution application—Such questions can only be decided in a suit—Suit decreed. (Paras 44, 46, 47 and 48)
(E) Words and Phrases—Review—Review is a proceeding which exists by virtue of statute—It is in its nature a new trial of issue previously tried between parties, cause of action being brought into Court again for trial by a new petition—Proceeding in some respects resembles a writ of error and also a new trial. (Para 59)
Result:Suit decreed with costs.
Soumen Sen, J.—The principal issue for consideration in the suit filed by the plaintiff is whether the plaintiff is entitled to maintain a suit for adjudication, determination and settlement of the monthly rent for the suit premises from 1st July, 1995 together with interest on the face of a demurrer as to its maintainability founded on Section 47 of the Code of Civil Procedure.
2. The said objection as to the maintainability is on the basis that the suit involves questions relating to execution, discharge or satisfaction of a compromise decree passed in Ejectment Suit No.197 of 1990 in which in Clause (iii) the defendant has agreed to review the rent after 5 years.
3. All questions including the reluctance of the defendant to review the rent or a decision in purported exercise of such Clause (iii) according to the defendant could only be decided in an application for execution of the said compromise decree and not in a suit.
4. In or about 1947 Commilla Banking Corporation was inducted as a tenant at the Ground floor of Premises No.5, Kiran Shankar Roy Road, Kolkata – 700 001 (hereinafter referred to as the said office space) as a Lessee thereof. Commilla Banking Corporation was merged with the United Bank of India and subsequently United Bank of India became a tenant in respect of the said Office Space.
5. The defendant is a tenant under the plaintiff in respect of about 4000 Sq. ft. in the ground floor of premises No.5, Kiran Shankar Roy Road, situated at the crossing of Kiran Shankar Roy Road and Old Post Office Street, presently paying rent of Rs.4146.73 per month.
6. In the year 1990 Dipali Mallik, the erstwhile owner of the said premises filed an eviction suit being Ejectment Suit No.197 of 1990 against the Bank before the Learned City Civil Court at Calcutta claiming recovery of possession of the said Office Space.
7. The predecessor-in-interest of the plaintiff filed an ejectment suit No.197 of 1990 against the defendant. The said suit was compromised and a decree was passed in terms of settlement filed in the Court. The compromise decree was marked as Exhibit 1 collectively. Some of the relevant terms and conditions of the said compromise decree as reproduced herein below:-
“Clause (i). The defendant has agreed to enhance the rent to Rs.4,146.73 p. inclusive of all taxes per month from the month of July, 1990 in respect of the suit premises.
Clause (ii). The Plaintiff has agreed to accept the proposed rate of rent and the total rent in respect of suit premises amounting to Rs.4146.73 p. inclusive of all taxes. In the event of increase in Municipal Taxes, the Defendant will bear the proportionate increase in taxes.
Clause (iii). The defendant has agreed to review the rates of rent in the year 1995 and thereafter at the instance of the Plaintiff he reviewed after every 5 years which will be not exceeding 15% of the existing rent.
Clause (v). The Defendant will have right to fix up at its own cost counter, furniture’s etc. bring in heavy steel safes and safe-deposit locker, locker, cabinet of any number and sizes to defendants’ requirements and erect partition walls wooden or brick-built in part or whole to construct strong-room, safe-deposit vault with steel doors at any place considered suitable by the Defendant, to fix up additional light and fan points, wherever necessary and later, and remove at any time any and/or all of them belonging to the defendant. The defendant will have the right to remove articles including the strong room door, vault door, collapsible gate/s, grill gate/s brought in the premises and belong to the defendant whether fixed up or embedded.
Clause (viii). The fixation of rent at the rate of Rs.4146.73 p. inclusive of all taxes shall be deemed to be effective from the month of 1st July, 1990 and the rent for the month of July, 1990, is being paid by the defendant here and now by a bank draft drawn on United Bank of India, High Court Branch in favour of the plaintiff v.
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