Calcutta High Court
Jaspal Singh Chandhok vs Sri Gobin Chand Seal on 11 September, 2025
Author: Arijit Banerjee
Bench: Arijit Banerjee
IN THE HIGH COURT AT CALCUTTA
ORIDINARY ORIGINAL CIVIL JURISDICTION
ORIGINAL SIDE
Before:
The Hon'ble Justice Arijit Banerjee
And
The Hon'ble Justice Om Narayan Rai
APOT 219 of 2024
With
CS 992 of 1986
IA No: GA 1 of 2024
Jaspal Singh Chandhok
Vs.
Sri Gobin Chand Seal
For the Appellant : Mr. Swatarup Banerjee, Adv.
Ms. Somali Mukhopadhyay, Adv.
For the Respondent : Mr. Anirban Kar, Adv.
Mr. Parimal Bhattacharya, Adv.
Mr. Munshi Ashiq Elahi, Adv.
Mr. Sahidullah Mridha, Adv.
Ms. Vedatri Bhattacharya, Adv.
Ms. Snigdha Das, Adv.
Mr. Rohit Mahato, Adv.
Ms. Khushnuma Akhter Ansari, Adv.
Hearing Concluded on : 30.07.2025
Judgment on : 11.09.2025
Om Narayan Rai, J.:-
1. The instant appeal takes exception to a judgment and order dated May 03,
2024 passed in Execution Case No. 364 of 2021 whereby the aforesaid
Page 1 of 33
Execution Case has been dismissed upon holding the same to be not
maintainable.
FACTS:
2. Bereft of minute details, the essential facts leading to the present appeal
are as follows:-
a) The respondent (i.e. the defendant in the suit) was a tenant under the
appellant (i.e. the plaintiff in the suit) in respect of a shop room bearing
no. 1A admeasuring about 1014 sq.ft. together with a porch at
premises no. 30, Ganesh Chandra Avenue, Police Station- Bowbazar,
Kolkata-700013.
b) The appellant herein instituted a suit being C.S. No. 922 of 1986 for
eviction of the respondent from the said premises i.e. the said shop
room bearing no. 1A.
c) The said suit was ultimately decreed on compromise on June 23, 2014.
In terms of the settlement arrived at between the appellant and the
respondent as aforesaid, the aforesaid shop room was surrendered by
the respondent to the appellant and the respondent took possession of
the shop room no. 1A/1 admeasuring about 507 sq.ft. (being the fifty
percent of the shop room no. 1A) together with a wooden mezzanine
floor at the ground floor at premises no. 30, Ganesh Chandra Avenue,
Police Station - Bowbazar, Kolkata-700013.
d) In terms of the said compromise, the respondent-tenant was entitled to
remain in occupation of the said shop room being shop room no. 1A/1
for a period of ten years and the appellant-landlord was precluded from
terminating the tenancy prior to the expiry of the said period of ten
years unless the terms and conditions stipulated in the settlement as
also the grounds provided in the West Bengal Premises Tenancy Act,
1997 were violated by the respondent-tenant.
e) Alleging that the respondent had defaulted in payment of the rent in
terms of the compromise decree the appellant put the decree dated
June 23, 2014 into execution by filing an execution case being E.C. No.
364 of 2021 before expiry of the said period of ten years.
f) The said execution case was contested by the respondent inter alia on
the ground that since the respondent had been inducted in shop room
no. 1A/1 afresh upon the respondent surrendering his earlier tenancy
in respect of shop room no. 1A, therefore, the same gave rise to a fresh
cause of action and the respondent could not be evicted by the
appellant without instituting a fresh suit for eviction.
g) The respondent's contention weighed with the Hon'ble Single Judge and
the Hon'ble Single Judge was pleased to dismiss the execution case
being E.C. No. 364 of 2021 by a judgment and order dated May 03,
2024.
h) Being aggrieved by the said judgment and order dated May 03, 2024
the appellant has approached this Court by filing the present appeal.
ARGUMENTS ON BEHALF OF THE APPELLANT:-
3. Mr. Banerjee, learned Advocate appearing for the appellant submitted that
the Hon'ble Single Judge has failed to appreciate that the tenancy which
formed the subject matter of the suit was in respect of the shop room no.1A
(measuring 1014 sq.ft.) and that merely because in terms of the
compromise, the respondent vacated a portion thereof (measuring 507 sq.ft.)
and the respondent was permitted to remain in occupation of the other
portion thereof (measuring 507 sq.ft.), which was numbered as shop room
no.1A/1, such permission to occupy shop room no.1A/1 could not be
considered to be a case of fresh induction or a fresh tenancy.
4. It was submitted that as the respondent had defaulted in payment of rent
in terms of the compromise decree therefore the appellant was very well
entitled to put the decree into execution.
5. Mr. Banerjee further submitted that the respondent had used an affidavit-
in-opposition against the appellant's application for execution and in the
said affidavit-in-opposition, no case had been made out that the respondent
had been inducted as a fresh tenant or that a fresh tenancy or a new
tenancy had been created by signing the terms of the settlement on the
basis whereof the suit for eviction had been decreed. It was then submitted
that the decree dated June 23, 2014, had been passed on compromise and
since the same had neither been challenged by the respondent before any
Court of law nor had the same been declared to be a nullity by any Court
prior to execution being levied, the said decree is binding on the parties.
6. Mr. Banerjee relied on a judgment of the Hon'ble Supreme Court in the
case of Nagindas Ramdas vs. Dalpatram Ichharam alias Brijram &
Ors.1 for the proposition that if no objection as to the executability of the
decree has been taken, on the ground of the same being a nullity, the
Executing Court cannot go behind the decree.
1 (1974) 1 SCC 242
7. Another judgment of the Hon'ble Supreme Court in the case of Mumtaz
Yarud Dowla Wakf vs. Badam Balakrishna Hotel Pvt. Ltd. & Ors.2 was
relied on for the proposition that the onus lies heavily on the judgment-
debtor to satisfy the Court that a decree is not executable and that when the
exercise is likely to involve a factual adjudication it should be avoided by the
Executing Court. The said judgment was also relied on for the proposition
that no one should be allowed to approbate and then reprobate and that a
person who had taken the benefit of an instrument could not be allowed to
question the same.
8. Mr. Banerjee also placed reliance on a judgment of the Hon'ble Supreme
Court in the case of Kalloo (Smt) & Ors. vs. Dhakadevi & Ors.3 for the
proposition that the intention of the parties to the compromise must be
looked into by the Executing Court. It was sought to be contended that the
parties did not intend to create a fresh tenancy and that the intention was
actually to postpone the execution of the decree for another period of ten
years.
ARGUMENTS ON BEHALF OF THE RESPONDENT:-
9. Mr. Kar, learned Advocate appearing for the respondent submitted that
the Hon'ble Single Judge has rightly passed the order impugned. He took us
through the judgment and order impugned and submitted that when it had
been expressly recorded in the decree that in terms of the settlement arrived
at between the parties, the respondent was surrendering the earlier tenancy
in respect of shop room no. 1A and was being freshly inducted as a tenant
2 2023 SCC OnLine SC 1378
3 (1982) 1 SCC 633
in respect of shop room no. 1A/1, the respondent's induction in the said
shop room no. 1A/1 must be deemed to be a case of fresh tenancy.
10. It was then submitted that the decree passed by the Hon'ble First Court
stood satisfied upon the induction of the respondent in shop room no.1A/1
as per the terms of settlement and that the said tenancy so created was to
be governed by the provisions of the West Bengal Premises Tenancy Act,
1997. He invited our attention to paragraph 11 of the Affidavit affirmed and
used by the appellant in support of the Tabular Statement filed by him
seeking execution of the compromise decree and submitted that the
statement made by the appellant in the said affidavit to the effect that the
respondent had "not complied strictly with the provisions of West Bengal
Premises Tenancy Act, 1997" made it clear that the appellant too believed
that a new/fresh tenancy had ensued under the West Bengal Premises
Tenancy Act, 1997.
11. It was further submitted that if it can be established before the Executing
Court that the decree, execution whereof has been sought for, contains
terms which are contrary to law the same would not be executed.
12. It was also submitted that as the rent payable by the respondent is Rs.
2000/-(Rupees Two Thousand) per month therefore even in that view of the
matter, the tenancy squarely fell within the purview of the West Bengal
Premises Tenancy Act, 1997.
13. Referring to clause 9 of the terms of the compromise agreement (which
records that in default of handing over peaceful and vacant possession of
the premises the plaintiff and/or his successor-in-interest would be entitled
to seek recovery of vacant possession of the shop room by merely executing
the decree without filing a fresh suit for eviction), it was submitted that such
term was clearly unlawful inasmuch the same fell foul of the provisions of
Section 12A of the West Bengal Premises Tenancy Act, 1997.
14. Mr. Kar contended that the settlement term which provided for eviction of
the respondent by dint of mere execution of a decree without filing a fresh
suit was in contravention of the law of the land inasmuch as in terms of
Section 12A of the West Bengal premises Tenancy Act, 1997 only the Court
as defined in Schedule IV of the said Act of 1997 has the jurisdiction to
entertain a suit or proceeding for recovery of possession.
15. It was next submitted that the terms of settlement evinced that the parties
intended to create a fresh tenancy and that being so the respondent could
not be evicted without instituting a fresh suit. Mr. Kar submitted that since
the said term of the decree was one in contravention of the statutory
provision as aforesaid and the same was hit by the provisions of section 28
of the Indian Contract Act, 1872 therefore, the same was a nullity and the
Executing Court rightly dismissed the execution case.
16. As regards the appellant's contention in respect of non-payment of rent
and subletting, it was submitted that actually there was no default
whatsoever in payment of rent and that there was no subletting of the
tenancy by the respondent. It was submitted that the respondent had been
depositing rent before the rent controller upon the appellant's refusal to
accept rent. It was pointed out that under section 2(g) of the West Bengal
Premises Tenancy Act, 1997, an agent of a tenant was permitted to deposit
rent on behalf of the tenant before the rent controller.
17. Mr. Kar relied on a judgment of the Hon'ble Supreme Court in the case of
Biswabani Pvt. Ltd. vs. Santosh Kumar Dutta & Ors.4 for the proposition
that if a tenant of a premise covered by the Local Rent Restriction Act
remained in possession and continued to be a tenant on the date of creation
of fresh tenancy such tenant could not be evicted by execution of the decree
on the basis whereof the fresh tenancy was created. It was submitted that in
order to get the tenant evicted, a suit for eviction would be required to be
filed.
18. Mr. Kar further relied on a Single Bench decision of the Bombay High
Court in the case of Krishna Kashinath Patil vs. S. Mohandas Kamath5
for the proposition that when a compromise takes place in the course of
execution of a decree for eviction the compromise may extinguish the decree
and create a fresh lease or the compromise may provide a new mode for
discharge of the decree. The said judgment has in fact relied on the case of
Kalloo (Smt) & Ors. (supra).
19. The following judgments of the Hon'ble Supreme Court were relied on for
the propositions that conferment of jurisdiction is a legislative function and
that parties cannot confer jurisdiction on a Court by consent; that
jurisdiction of a Court can be challenged at any stage; that if a Court lacked
jurisdiction over the subject matter of the suit it could not take up the cause
or the matter and that any order passed by a Court having no jurisdiction
would be a nullity.
4 (1980) 1 SCC 185
5 2001 SCC OnLine Bom 930
i. Zuari Cement Limited vs. Regional Director, Employees' State
Insurance Corporation, Hyderabad & Ors.6
ii. Kanwar Singh Saini vs. High Court of Delhi7
iii. Harshad Chiman Lal Modi vs. DLF Universal Ltd. & Anr.8
ANALYSIS & DECISION:-
20. The principal question that has fallen for our consideration in the case at
hand is whether the compromise or consent decree dated June 23, 2014 is
executable or not insofar as the same provides that "at the expiry of ten
years from the date of these terms of settlement, the defendant shall hand
over peaceful vacant possession of the demise premises to the plaintiff and/or
his successors in interest and or default thereof or in case of any other default
by the defendant, the Plaintiff and/his successor in interest will be entitled to
execute the decree to be drawn up herein and seek recovery of vacant
possession without filing any fresh proceeding".
21. The authorities that have been carried to Court by the parties clearly
instruct us to be guided solely by the intention of the parties evinced by the
settlement reached by them. Therefore, our endeavour should and would be
to gather what the parties intended. Indeed if the parties intended that a
fresh tenancy would be created which would be governed by the provisions
of the West Bengal Premises Tenancy Act, 1997, then in such a case the
respondent would not be liable to get evicted without following the course
known to law. In such regard the question as to whether execution of a
6 (2015) 7 SCC 690
7 (2012) 4 SCC 307
8 (2005) 7 SCC 791
consent decree or of a decree passed on compromise would qualify for such
a course or not would then also be required to be examined.
22. The relevant terms of the settlement arrived at between the parties that
ultimately got incorporated in the compromise decree are as under:-
"1. The tenancy of the defendant as per the agreement dated 7 th May, 1971 in
respect of one shop room being No. 1A, on the ground floor at premises no. 30, Ganesh
Chandra Avenue, Kolkata measuring about 1014 sq.ft. built up area is hereby
surrendered by the defendant to the plaintiff/landlord.
2. Simultaneously with such surrender of the said tenancy to the plaintiff as stated
above, the plaintiff/landlord shall and induct the defendant as the monthly tenant in
respect of all that shop room being no. 1A/1, measuring about 507 Sq.ft. (being the
fifty percent of the room no. 1A) and the wooden mezzianine floor in the said shop room
on the ground floor of premises no. 30, Ganesh Chandra Avenue, Police Station
Bowbazar, Kolkata-700013, morefully and particularly shown and delineated in red
colour in the plan and/or sketch annexed hereto. The said shop room being no. 1A/1
shall also contain a toilet and two western side doors having inside opening of the said
shop room being no. 1A/1. The western side gate of the said shop room being no. 1A/1
shall be use by the defendant, his men, agent and employees for ingress and egress
only but not for any customers or for bringing in or taking out any heavy materials
through the said doors and passage. It is further clarified that the western side
passage of the building shall not be encroached upon by keeping any materials or
otherwise.
********************* ************************* ***********************
4. It is agreed by the parties that the monthly rent for the said premises shall be Rs.
2000/- (Rupees Two Thousand) payable according to English Calendar month by the
Defendant to the Plaintiff/landlord.
********************* ************************* ***********************
7. The area being room no. 1A/2, admeasuring about 507 Sq.ft. together with porch
of the building shall remain in exclusive possession, use and enjoyment of the
plaintiff/landlord. The defendant/tenant at no point of time shall raise any claim
and/or demand in any manner whatsoever over in respect of the said room no. 1A/2,
as shown in the sketch and delineated by green border and also in respect of porch
shown in the sketch and delineated by yellow border.
********************* ************************* ***********************
9. The name, style and status of the tenancy shall remain as G.C. Seal and
Company, as proprietorship firm of the Defendant Gobin Chand Seal as usual and the
same will be continued for a period of 10 years (Ten Years) without any alteration
and/or amendment. It is agreed and made clear that the said tenancy will not be
terminated prior to the stipulated period of ten years provided the terms and conditions
as stipulated herein and also the grounds as provided in W.B. Premises Tenancy Act,
1997 are complied with strictly by Tenant/Defendant. It is agreed that at the expiry of
ten years from the date of these terms of settlement, the defendant shall hand over
peaceful vacant possession of the demise premises to the plaintiff and/or his
successors in interest and or default thereof or in case of any other default by the
defendant, the Plaintiff and/his successor in interest will be entitled to execute the
decree to be drawn up herein and seek recovery of vacant possession without filing
any fresh proceeding.
10. The allegations and counter allegations made between the parties, if any be and
are hereby withdrawn."
23. The Hon'ble Single Judge has arrived at a conclusion that the earlier
tenancy stood extinguished upon the same being surrendered and that a
fresh tenancy came into existence in terms of the compromise decree. The
Hon'ble Single Judge has found that the term of settlement to the effect that
the appellant and/or his successor in interest would be entitled to execute
the decree and seek recovery of vacant possession of the subject premises
without filing any fresh proceeding was a condition in the teeth of Section 28
of the Indian Contract Act, 1872 and was therefore a nullity. The execution
case has been held to be not maintainable by the Hon'ble Single Judge in
the following words:-
"20. It is true that in Para 9 of the said consent decree it has been mentioned that
the name, style and status of the tenancy shall remain as G.C. Seal and Company as
proprietorship firm of the defendant Gobin Chand Seal and the same will be continued
for a period of 10 years without any alteration and/or amendment. But in my view the
same is referred to only in respect of the tenanted premises measuring about 507 sq.ft.
and nothing more than that. Para 9 of the said consent decree has referred only to the
tenancy which came into being after surrender of the old tenancy as mentioned in
Paras 1 and 2 of the consent decree. It is agreed between the parties by virtue of
clause 9 that the name and style and status of tenancy in respect of the tenanted
portion measuring 507 sq.ft. shall remain as G.C. Seal and the same will be continued
for a period of 10 years without any change. This does not clearly show that it refers to
the old tenancy or the original tenanted portion.
21. In fact there is no clear cut decree of eviction passed by the learned Trial Court.
The decree stipulates that in case of default made by the defendant the plaintiff shall
be entitled to execute the decree to 17 be drawn up and to seek recovery of vacant
possession of the premises without filing any fresh proceeding. Needleless to mention
that a contract or terms of settlement which restrain(s) the parties from bringing legal
proceedings is void. The principle of law has been clearly laid down in Section 28 of
Indian Contract Act, 1872. For the sake of convenience Section 28 of the Act, 1872 is
reproduced herein below:-
"28. Agreements in restraint of legal proceedings, void.-- Every agreement,-- (a)
by which any party thereto is restricted absolutely from enforcing his rights under
or in respect of any contract, by the usual legal proceedings in the ordinary
tribunals, or which limits the time within which he may thus enforce his rights; or
(b) which extinguishes the rights of any party thereto, or discharges any party
thereto, from any liability, under or in respect of any contract on the expiry of a
specified period so as to restrict any party from enforcing his rights, is void to the
extent."
22. From the provisions of above section it has been laid down that any agreement
by which any party is restricted from enforcing his right by legal proceedings in
ordinary tribunal or which extinguishes the right of any party to enforce the same
through legal process etc. is void to that extent.
23. In the instant proceeding it appears that the plaintiff has kept the right reserved
for himself for eviction of the defendant without taking any eviction proceeding under
the relevant laws in case there is any default on the part of the defendant in carrying
out the conditions as mentioned in consent decree. This is clear violation of the
provision of section 28 of the Indian Contract Act, 1872 or in other words the said
terms of the agreement have come into a direct conflict with the settled principle of law.
If the defendant is debarred from contesting in ordinary tribunal by stipulating that his
eviction process shall be carried out without following the provisions of West Bengal
Premises Tenancy Act, 1997, or any other appropriate tenancy law, such an agreement
is violative of Section 28 of the Act, 1872. Therefore, as the said agreement is violative
of the provisions of the enactment of 1872, I find that the prayer for eviction through
this execution process without availing the procedure laid down for eviction of tenant
under tenancy laws cannot be implemented, particularly when there are sufficient
materials to show that the old tenancy of the year 1971 came to end and the
judgment-debtor was inducted in another monthly tenancy simultaneously with such
surrender. The condition for proceeding with the execution process without availing the
prescribed provisions for eviction of tenants under the tenancy laws is nothing but a
nullity, and therefore the proposed execution of the eviction decree against the
judgment-debtor cannot be proceeded with as the said relevant term is nothing but a
void one."
24. As already stated hereinabove, the principal question is as to whether the
parties intended to create a new tenancy? A meaningful reading of the terms
of the compromise, in the light of the attending facts however does not
evince such intention. In fact, if the parties to the suit for eviction had
intended to create a fresh tenancy in favour of the respondent, then they
would not have left any scope for the decree of eviction to be executed any
further.
25. It cannot be lost sight of that the appellant had sought for eviction of the
respondent from shop room no.1A measuring 1014 sq.ft. by instituting a
suit for eviction being C.S. 922 of 1986. In accordance with the terms of the
compromise the respondent-tenant was to surrender the tenancy and was to
be inducted in respect of shop room no.1A/1 measuring 507 sq.ft. (i.e. half-
portion of shop room no.1A). The same happened. The fact that the space,
which is now under the occupation of the respondent, is half-portion of the
same shop room measuring 1014 sq.ft. which was being enjoyed by the
respondent earlier (i.e. prior to the compromise) and which was partitioned
into two would be clearly evident from the sketch map referred to and
appended to the compromise. The said sketch map contains area statements
regarding the total covered area of the then existing shop room and store
room and the proposed area to be in occupation of the tenant in terms of the
compromise.
26. It is therefore certain that the tenant was allowed to remain in possession
of half-portion of the said shop room no.1A that had been numbered as
shop room no.1A/1. Although the expressions used in the compromise
terms to the effect that "shop rum no.1A........ is hereby surrendered by the
defendant to the plaintiff/landlord" and that the "plaintiff/landlord shall and
induct the defendant as monthly tenant in respect of .........shop
room ....1A/1, measuring about 507 sq.ft. (being fifty percent of the shop room
no.1A)" at the first blush give the impression that a fresh tenancy was
created in respect of the said shop room no.1A/1, yet all doubts are
dispelled when the said terms are read collectively with clause 9 of the terms
which provide that "the defendant shall hand over peaceful vacant
possession of the demise premises to the plaintiff and/or his successors in
interest and or default thereof........ the Plaintiff and/his successor in interest
will be entitled to execute the decree to be drawn up herein and seek recovery
of vacant possession without filing any fresh proceeding". If indeed the
parties intended that by employing words like "surrender" in respect of shop
room no.1A measuring 1014 sq.ft. and "induct" in respect of shop room
no.1A/1 measuring 507 sq.ft. there would be an end or extinguishment of
the earlier tenancy and creation of a fresh tenancy, then the clause
containing the promises of the respondent to pay rent regularly, to abide by
the terms of the compromise and to vacate the said premises upon expiry of
ten years from the date of the compromise would not have been there.
Similarly, the provision permitting the appellant to execute the decree within
the period of ten years in case of default on the part of the respondent to
abide by the terms of the compromise pertaining to payment and
maintenance of the premises etc. in terms of the West Bengal Premises
Tenancy Act, 1997 or in case of failure to vacate the said partitioned
premises even after expiry of the said period of ten years would also not
have been there in the compromise if the parties intended to treat the
otherwise partial eviction of the respondent-tenant as complete satisfaction
of the decree and the tenant's occupation of the partitioned tenanted
premises as a fresh tenancy.
27. We may explain this situation further in the light of the provisions of
Order XXIII Rule 3 of the Code of Civil Procedure, 1908 (hereafter the
"Code"). The said provision reads thus:-
"3. Compromise of suit.--Where it is proved to the satisfaction of the Court that a
suit has been adjusted wholly or in part by any lawful agreement or compromise in
writing and signed by the parties or where the defendant satisfied the plaintiff in
respect of the whole or any part of the subject-matter of the suit, the Court shall order
such agreement, compromise or satisfaction to be recorded, and shall pass a decree in
accordance therewith so far as it relates to the parties to the suit, whether or not the
subject-matter of the agreement, compromise or satisfaction is the same as the subject-
matter of the suit:
Provided that where it is alleged by one party and denied by the other that an
adjustment or satisfaction has been arrived at, the Court shall decide the question; but
not adjournment shall be granted for the purpose of deciding the question, unless the
Court, for reasons to be recorded, thinks fit to grant such adjournment.
Explanation.-- An agreement or compromise which is void or voidable under
the Indian Contract Act, 1872 (9 of 1872), shall not be deemed to be lawful within the
meaning of this rule."
28. The said provision lists two ways for recording an agreement, compromise
or satisfaction and for passing a decree in accordance therewith:-
i. The first way is if it is be proved to the satisfaction of the Court that a
suit has been adjusted wholly or in part by a lawful agreement or
compromise in writing and signed by the parties;
OR
ii. The next is if the defendant has satisfied the plaintiff in respect of the
whole or any part of the subject-matter of the suit.
29. Insofar as the first way mentioned in the said provision is concerned, a
written lawful agreement or compromise signed by the parties is mandatory
while the same is not so for the second method.
30. Coming back to the case at hand, it is the first way that has been adopted.
It is in this respect that the respondent has asserted that the compromise is
not lawful inasmuch as the condition mentioned therein that the appellant
would be entitled to execute the decree without filing a fresh proceeding, is
abrogative of the protection granted to tenants under the West Bengal
Premises Tenancy Act, 1997 and is hit by the provisions of Section 28 of the
Indian Contract Act, 1872. Such assertion has been accepted by the Hon'ble
Single Judge. However, such contention of the respondent would hold
ground only if the intention of the parties is found to be one to create a fresh
tenancy.
31. If the parties intended to put an end to the litigation, the condition as
regards executability of the decree upon default being committed by the
respondent as indicated in the compromise or upon failure to vacate the
subject premises after expiry of ten years would not have been made part of
the compromise. Instead, the satisfaction of the plaintiff-appellant would
have been recorded in terms of the second method provided in Order XXIII
Rule 3 of the Code in the compromise thereby evincing that the hatchet had
been buried completely and nothing further was required to be done.
32. Such is not the case here. In the case at hand, the appellant evidently
remained 'unsatisfied' on the date of compromise since the eviction of the
respondent till that point of time was only partial, as instead of vacating the
entire tenanted shop room measuring 1014 sq.ft., the respondent had
vacated only 507 sq.ft. but with a promise to vacate the balance portion of
the suit premises after ten years. A right was also reserved to the appellant
to execute the decree even within the said period of ten years if the
respondent committed default in abiding by the terms which included the
payment of rent. To be precise, the action of vacating the tenanted premises
as prayed for in the plaint was far from being complete and there was still a
promise left to be performed by the defendant-respondent. We are therefore
unable to appreciate the argument made on behalf of the respondent that
with the induction of the respondent in shop room no.1A/1 simultaneous
with the surrender of the tenanted premises the compromise decree stood
satisfied and as such there was no further scope of execution thereof.
33. Our conclusion derives support from a celebrated judgment of the Hon'ble
Supreme Court in the case of Pushpa Devi Bhagat vs. Rajinder Singh &
Ors.9 where the provision of Order XXIII Rule 3 of the Code was elegantly
clarified thus:-
"18. Order 23 deals with withdrawal and adjustment of suits. Rule 3 relates to
compromise of suits, relevant portion of which is extracted below:
"3. Compromise of suit.--Where it is proved to the satisfaction of the court that a
suit has been adjusted wholly or in part by any lawful agreement or
compromise, in writing and signed by the parties or where the defendant
satisfies the plaintiff in respect of the whole or any part of the subject-matter of
the suit, the court shall order such agreement, compromise or satisfaction to be
recorded, and shall pass a decree in accordance therewith so far as it relates to
the parties to the suit, whether or not the subject-matter of the agreement,
compromise or satisfaction is the same as the subject-matter of the suit:"
The said Rule consists of two parts. The first part provides that where it is proved to
the satisfaction of the court that a suit has been adjusted wholly or in part by any
lawful agreement or compromise in writing and signed by the parties, the court shall
order such agreement or compromise to be recorded and shall pass a decree in
accordance therewith. The second part provides that where a defendant satisfies the
plaintiff in respect of the whole or any part of the subject-matter of the suit, the court
shall order such satisfaction to be recorded and shall pass a decree in accordance
therewith. The Rule also makes it clear that the compromise or agreement may relate to
issues or disputes which are not the subject-matter of the suit and that such
compromise or agreement may be entered not only among the parties to the suit, but
others also, but the decree to be passed shall be confined to the parties to the suit
whether or not the subject-matter of the agreement, compromise or satisfaction is the
same as the subject-matter of the suit. We are not, however, concerned with this aspect
of the Rule in this appeal.
19. What is the difference between the first part and the second part of Rule 3? The
first part refers to situations where an agreement or compromise is entered into in
writing and signed by the parties. The said agreement or compromise is placed before
the court. When the court is satisfied that the suit has been adjusted either wholly or in
part by such agreement or compromise in writing and signed by the parties and that it
is lawful, a decree follows in terms of what is agreed between the parties. The
agreement/compromise spells out the agreed terms by which the claim is admitted or
adjusted by mutual concessions or promises, so that the parties thereto can be held to
9 (2006) 5 SCC 566
their promise(s) in future and performance can be enforced by the execution of the
decree to be passed in terms of it. On the other hand, the second part refers to cases
where the defendant has satisfied the plaintiff about the claim. This may be by
satisfying the plaintiff that his claim cannot be or need not be met or performed. It can
also be by discharging or performing the required obligation. Where the defendant so
"satisfies" the plaintiff in respect of the subject-matter of the suit, nothing further
remains to be done or enforced and there is no question of any "enforcement" or
"execution" of the decree to be passed in terms of it. Let us illustrate with reference to a
money suit filed for recovery of say a sum of rupees one lakh. Parties may enter into a
lawful agreement or compromise in writing and signed by them, agreeing that the
defendant will pay the sum of rupees one lakh within a specified period or specified
manner or may agree that only a sum of Rs 75,000 shall be paid by the defendant in
full and final settlement of the claim. Such agreement or compromise will fall under the
first part and if the defendant does not fulfil the promise, the plaintiff can enforce it by
levying execution. On the other hand, the parties may submit to the court that the
defendant has already paid a sum of rupees one lakh or Rs 75,000 in full and final
satisfaction or that the suit claim has been fully settled by the defendant out of court
(either by mentioning the amount paid or not mentioning it) or that the plaintiff will not
press the claim. Here the obligation is already performed by the defendant or the
plaintiff agrees that he will not enforce performance and nothing remains to be
performed by the defendant. As the order that follows merely records the
extinguishment or satisfaction of the claim or non-existence of the claim, it is not
capable of being "enforced" by levy of execution, as there is no obligation to be
performed by the defendant in pursuance of the decree. Such "satisfaction" need not
be expressed by an agreement or compromise in writing and signed by the parties. It
can be by a unilateral submission by the plaintiff or his counsel. Such satisfaction will
fall under the second part. Of course even when there is such satisfaction of the claim
or subject-matter of the suit by the defendant and the matter falls under the second
part, nothing prevents the parties from reducing such satisfaction of the claim/subject-
matter, into writing and signing the same. The difference between the two parts is this:
where the matter falls under the second part, what is reported is a completed action or
settlement out of court putting an end to the dispute, and the resultant decree recording
the satisfaction, is not capable of being enforced by levying execution. Where the
matter falls under the first part, there is a promise or promises agreed to be performed
or executed, and that can be enforced by levying execution. While agreements or
compromises falling under the first part can only be by an instrument or other form of
writing signed by the parties, there is no such requirement in regard to settlements or
satisfaction falling under the second part. Where the matter falls under the second
part, it is sufficient if the plaintiff or the plaintiff's counsel appears before the court and
informs the court that the subject-matter of the suit has already been settled or
satisfied.
20. In a suit against the tenant for possession, if the settlement is that the tenant
will vacate the premises within a specified time, it means that the possession could be
recovered in execution of such decree in the event of the defendant failing to vacate the
premises within the time agreed. Therefore, such settlement would fall under the first
part. On the other hand, if both parties or the plaintiff submit to the court that the
tenant has already vacated the premises and thus the claim for possession has been
satisfied or if the plaintiff submits that he will not press the prayer for delivery of
possession, the suit will be disposed of recording the same, under the second part. In
such an event, there will be disposal of the suit, but no "executable" decree."
[Underscored by us for emphasis]
34. If the respondent had really believed that a new tenancy had been created
upon extinguishment of the earlier tenancy by way of the compromise
agreement and that the respondent could not be compelled to hand over
possession of the subject property by way of execution of the decree (since
according to the respondent the term in the compromise agreement
providing for execution of the decree to compel the respondent to hand over
possession of the said property was not lawful being in defiance of the
provisions of the West Bengal Premises Tenancy Act, 1997 and barred under
Section 28 of the Indian Contract Act, 1872) as now contended, then it was
open for the respondent to raise an objection to the same in terms of the
proviso to Order XXIII Rule 3 of the Code itself. The respondent, however,
has not done so and this creates a strong impression that the respondent
also believed that the compromise in question did not result into a fresh
tenancy or a new tenancy.
35. There is another way to look at the matter. It is now very well settled that
a contract must be read as a whole and not piece-meal to gather the
intention of the parties thereto. It is needless to mention that the
compromise in question is nothing but a contract to which the Court has
put its imprimatur. If we read the clauses wherein the words like
"surrender" and "induct" have been used upon divorcing the same from the
rest of the document and in the vacuum of the attending fact that the
subject premises, in respect whereof the respondent now claims a new
tenancy to have been created, is in fact half-portion of the premises that was
in his occupation when the suit had been instituted, then, we are afraid, we
would be doing violence to the compromise. It would have the undesirable
effect of rendering one of the clauses consensually incorporated by the
parties to the agreement wholly unlawful and lending credence to an
obnoxious intent to evade a decree of Court passed on compromise without
objection. The simple meaning that the terms of the compromise convey is
that the respondent was allowed to remain in occupation of half-portion of
shop room no. 1A upon vacating the other half, for another ten years on
certain terms as mentioned in the compromise agreement, that decree would
become executable as regards the said other half after ten years provided
the tenant complied with the terms and conditions mentioned in the
compromise agreement and that if the respondent violated the terms of the
compromise, the decree could be executed within the said span of ten years
as well.
36. This takes us to the next question raised by the respondent i.e. whether
the term of the compromise decree which provides for eviction of the
respondent by execution of the compromise decree is unlawful being
violative of the provisions of Section 12A of the West Bengal Premises
Tenancy Act, 1997?
37. In terms of the provisions of Order XXIII Rule 3 of the Code before putting
its stamp of approval on a compromise agreement, the Court must be
satisfied that the same is lawful. It is now well settled that a compromise
decree for eviction would be considered lawful if it is found that the Court
which recorded the compromise had material before it to be satisfied that on
the basis of such material it could have passed a decree of eviction.
38. As to what would constitute the "material" that could form the foundation
of the Court's satisfaction was felicitously explained by the Hon'ble Supreme
Court in the case of Nagindas Ramdas (supra) cited by the appellant. The
relevant portions thereof are extracted herein below:-
"27. From a conspectus of the cases cited at the bar, the principle that emerges is,
that if at the time of the passing of the decree, there was some material before the
Court, on the basis of which, the Court could be prima facie satisfied, about the
existence of a statutory ground for eviction, it will be presumed that the Court was so
satisfied and the decree for eviction though apparently passed on the basis of a
compromise, would be valid. Such material may take the shape either of evidence
recorded or produced in the case, or, it may partly or wholly be in the shape of an
express or implied admission made in the compromise agreement, itself. Admissions, if
true and clear, are by far the best proof of the facts admitted. Admissions in pleadings
or judicial admissions, admissible under Section 58 of the Evidence Act, made by the
parties or their agents at or before the hearing of the case, stand on a higher footing
than evidentiary admissions. The former class of admissions are fully binding on the
party that makes them and constitute a waiver of proof. They by themselves can be
made the foundation of the rights of the parties. On the other hand, evidentiary
admissions which are receivable at the trial as evidence, are by themselves, not
conclusive. They can be shown to be wrong.
****************** ************************ *****************
30. Be that as it may, in cases where an objection as to the non-executability of the
decree on the ground of its being a nullity, is taken, the executing court is not
competent to go behind the decree, if the decree on the face of it, discloses some
material on the basis of which, the Rent Court could be satisfied with regard to the
existence of a statutory ground for eviction. In such a case it must accept and execute
the decree as it stands. If, on the face of it, the decree does not show the existence of
such material or jurisdictional fact, the executing court may look to the original record
of the trial court to ascertain whether there was any material furnishing a foundation
for the trial court's jurisdiction to pass the decree it did. The moment it finds that prima
facie such material existed, its task is complete. It is not necessary for it to go further
and question the presumed or expressed finding of the trial court on the basis of that
material. All that it has to see is whether there was some material on the basis of
which the Rent Court could have -- as distinguished from must have -- been satisfied
as to the statutory ground for eviction. To allow the executing court to go beyond that
limit, would be to exalt it to the status of a super court sitting in appeal over the
decision of the Rent Court. Since in the instant case, there was a clear admission in the
compromise, incorporated in the decree, of the fundamental facts that could constitute
a ground for eviction under Section 12(3)(a), the executing court was not competent to
go behind the decree and question its validity."
[Emphasis supplied by us]
39. We may now assess as to whether there was any material of the nature
indicated by the Hon'ble Supreme Court in Nagindas Ramdas (supra) on
the basis whereof the Court could have reached a satisfaction that it could
pass a decree of eviction.
40. The additional written statement filed by the defendant-respondent in the
suit forms part of the pleadings before us. The same evinces that pleadings
for eviction on the ground of reasonable requirement were incorporated in
the plaint by way of an amendment. The pleadings for eviction on the
ground of reasonable requirement have been denied in the written statement
filed by the respondent. Despite such denial, the respondent agreed to
vacate the tenanted premises and in fact vacated half-portion thereof on the
date of the compromise itself. The parties (i.e. the appellant and the
respondent) agreed to postpone the respondent's vacation of the balance half
of the said shop room for ten years on certain terms. Thus the while on the
one hand the appellant promised not to oust the respondent immediately
from the said balance half of the shop room provided certain conditions
mentioned in the compromise agreement were complied with, the
respondent on the other hand promised to remain in occupation of the said
premises only for ten years on the terms mentioned in the compromise and
to vacate the same after expiry of ten years. The respondent has thus by
vacating the suit premises partially and by promising to vacate the balance
half thereof, after expiry of ten years from the date of the compromise,
impliedly admitted such ground of reasonable requirement of the appellant-
landlord notwithstanding the denial thereof in the pleadings.
41. We are satisfied that this constituted enough material on the basis
whereof the Court could have (as distinguished from must have) passed a
decree of eviction.
42. We are conscious that the Hon'ble First Court, while recording the
compromise and decreeing the suit on the basis thereof has not expressly
recorded its satisfaction as regards the lawfulness of the compromise. That,
however, cannot by itself, invalidate the compromise decree, inasmuch as
there is presumption that the Court was so satisfied unless the contrary is
proved. Law in this regard is well settled. Paragraph 25 of the judgment in
the case of Amteshwar Anand vs. Virender Mohan Singh & Ors.10 may
be noticed in such regard. It reads thus:-
(2006) 1 SCC 148
"25. The next question raised by the appellants relates to Order 23 Rule 3 of the
Code. According to them the procedure envisaged under that provision had not been
complied with either in passing the orders on 18-3-1993 and 27-5-1993 when the
agreements were taken on record or when the final decree was passed on 25-8-1993.
It is a matter of record that when the appellants filed applications (IAs Nos. 1860 and
4252 of 1993) for accepting the first two agreements under Order 23 Rule 3, the
applications set out the clauses of the agreements verbatim. The applicants had
affirmed separate affidavits in support of their respective applications, affirming on
oath that they were fully conversant with the facts and circumstances of the case and
that the applications had been drafted and filed under their instructions and that the
statements of facts contained in the applications were true and correct to their
knowledge. Order 23 Rule 3 casts an obligation on the court to be satisfied that a suit
has been adjusted wholly or in part by a lawful agreement or compromise in writing
and signed by the parties. On the material before it, the High Court would have had no
reason to hold that the suits had not been adjusted as affirmed by the parties to the
application. It was not necessary for the Court to say in express terms that it was
satisfied that the compromise was a lawful one. There is a presumption that the Court
was so satisfied unless the contrary is proved [See Suleman
Noormohamed v. Umarbhai Janubhai, (1978) 2 SCC 179 : AIR 1978 SC 952] . No doubt
in Ajad Singh v. Chatra [(2005) 2 SCC 567] this Court has said that the suit could not
have been disposed of except by recording its satisfaction as contemplated by Rule 3
Order 23 of the Code. However, in that case there was in fact no proceeding under
Order 23 Rule 3 at all. There the suit was decreed by the trial court on the basis of a
compromise which had been entered into during the pendency of the suit which was
not only on plain paper but was executed in a police station. This Court held that the
suit could not have been disposed of except by recording the compromise and by
following the procedure contemplated by Rule 3 of Order 23. The decision is therefore
distinguishable on facts."
[Emphasis supplied by us]
43. There is yet another way to look at the matter. The suit in question was
instituted in the year 1986. At the relevant point of time, when the suit had
been instituted, the West Bengal Premises Tenancy Act, 1956 was in force
and therefore the provisions of the said Act of 1956 applied to the suit.
Section 13 of the said Act of 1956 provides for protection of tenant against
eviction. Some of its provisions which are relevant for our purpose may now
be noticed:-
"13. Protection of tenant against eviction:
(1) Notwithstanding anything to the contrary in any other law, no order or decree for
the recovery of possession of any premises shall be made by any Court in favour of
the landlord against a tenant except on one or more of the following grounds,
namely :-
********************* ************************* ***********************
f) [subject to the provisions of sub-section (3A) and section 18A, where the premises
are reasonably required by the landlord for purposes of building or re-building or for
making thereto substantial additions or alterations, and such building or re-
building, or additions or alterations, cannot be carried out without the premises
being vacated;
********************* ************************* ***********************
ff) subject to the provisions of sub-section (3A), where the premises are reasonably
required by the landlord for his own occupation if he is the owner or for the
occupation of any person for whose benefit the premises are held and the landlord
or such person is not in possession of any reasonably suitable accommodation;
********************* ************************* ***********************
(4) Where the landlord requires the premises on any of the grounds mentioned in
clause (f) or clause (ff) of sub-section (1), and the Court is of opinion that such
requirement may be substantially satisfied by ejecting the tenant or a sub-tenant
from a part only of the premises and allowing the tenant or the sub-tenant to
continue in occupation of the rest, then, if the tenant or a sub-tenant agrees to such
occupation, the Court shall pass a decree accordingly and fix the proportionate rent
for the portion remaining in the occupation of the tenant or the sub-tenant. The rent
so fixed shall be deemed to be the fair rent for purposes of this Act. If the tenant
does not agree but a sub-tenant agrees to such occupation, no decree or order for
ejectment shall be passed against such sub-tenant and such sub-tenant shall
become, with effect from the date of the decree or order, a tenant directly holding
under the landlord."
44. A perusal of the above would show that if the Court is satisfied that the
landlord's purpose would be served by partial eviction and if the tenant so
agrees then the tenant can be evicted from the tenanted premises partially
while allowing the tenant to continue in occupation of the rest upon fixing of
proportionate rent for the portion under the tenant's occupation. In the case
at hand if the Court was so satisfied as provided in Section 13(4) of the said
Act of 1956, then upon the tenant agreeing to be partially evicted, the Court
would have decreed the suit only to that extent and would have fixed the
proportionate rent for the portion remaining in occupation of the tenant in
terms of the said provision. In fact the tenant also had an option not to
agree to his eviction from the entirety of the property even after ten years
inasmuch as the tenant could continue in the balance portion of the original
tenancy after being partially evicted therefrom. However, the case here is
absolutely different. It is clear that the tenant believed that there was good
ground for him to be evicted from the premises wherefor he agreed to a
bargain of being allowed to remain in the balance portion of the premises for
another ten years and equally so, the Court was satisfied that the landlord
was entitled to a decree of full eviction on the facts of the case and as such
allowed the parties to enter into a compromise whereby there would be total
eviction of the tenant in phases i.e. eviction from half of the tenanted
premises immediately and eviction from the balance half - ten years later, as
agreed.
45. While on this we also take the opportunity to assert that the respondent's
conduct of entering into a compromise without raising any objection as
regards the presently perceived illegality in one of its provisions that
provides for execution of the decree for eviction of the respondent from the
subject premises is utterly abhorable. It is one thing to say that a Court has
passed a decree that is illegal but it is absolutely different thing to say that
although the parties knowingly entered into a contract and allowed the same
to mature into a decree of Court yet any of the parties will have freedom to
resile from the same and challenge the same subsequently by taking a
contrary stand. The Respondent having accepted the compromise decree for
all these years without raising any objection cannot now be permitted to find
fault with it. (See Byram Pestonji Gariwala vs. Union Bank of India &
Ors.11)
46. Now we come to the other ground urged by the respondent as regards
jurisdiction of the Court to evict the tenant by executing the compromise
decree. The jurisdiction of the Executing Court has been questioned by
asserting that since the compromise agreement led to creation of a fresh
tenancy under the said Act of 1997 therefore the respondent could be
evicted only upon a suit being instituted in a Court having jurisdiction in
terms of Section 12A of the said Act read with Schedule IV thereof. The
argument was thus premised on the coming into existence of or creation of a
fresh tenancy. We have already found hereinabove that the parties did not
intend to create a fresh tenancy at all; rather the intent was to postpone the
respondent's eviction for ten years. Mere use of the words "tenant", "rent",
"surrender" and "induction" in the compromise agreement would not lead to
creation of tenancy, if the actual intent of the parties was not so. It is not
disputed before us that the Hon'ble First Court which passed the
compromise decree had jurisdiction to try and decide the suit for eviction of
the respondent as instituted by the appellant. The suit was therefore
decreed by a Court having jurisdiction. The compromise decree is lawful.
11 (1992) 1 SCC 31
The Executing Court before which the case for execution of the compromise
decree was launched had/has the jurisdiction to execute the decree. In view
thereof we find no reason to countenance the argument as regards lack of
jurisdiction, advanced on behalf of the respondent.
47. The aforesaid reasons also annul the finding of the Executing Court that
the compromise agreement is in the teeth of the provisions of Section 28 of
the Indian Contract Act, 1872. To wit, the term in the compromise
agreement, which provides that the appellant would be entitled to take
possession of the subject property upon evicting the respondent by
executing the compromise decree, would have been hit by the provisions of
Section 28 of the Indian Contract Act, 1872 if a fresh tenancy that could be
governed by the West Bengal Premises Tenancy Act of 1997 had been
created but since we have found that there was no intention of the parties to
create any such tenancy and therefore no such tenancy was created by the
compromise agreement, as such the question of the said term being barred
under or hit by the provisions of Section 28 of the Indian Contract Act, 1872
as aforesaid does not and cannot arise at all.
48. In view of the abovementioned reasons, it cannot be said that the
execution case was not maintainable as held by the order impugned.
49. Before proceeding further, the judgments cited by the parties, which have
not been considered hereinabove, may be dealt with. Mumtaz Yarud Dowla
Wakf (supra) is an authority for the proposition that no person can be
allowed to approbate and reprobate i.e. accept and reject the same thing.
Indeed once the respondent has taken advantage of the same decree that he
now seeks to avoid, he cannot turn around and question its validity.
50. Kalloo (Smt) & Ors. (supra) relied on by the appellant instructs that to
ascertain as to whether a new tenancy has been created or not the intention
of the parties should be gathered from the terms of the compromise. We
have undertaken such exercise and found that the parties did not intend to
create a new tenancy as alleged by the respondent.
51. Biswabani Pvt. Ltd. (supra) relied on by the respondent has turned on its
own peculiar facts where there was no indication in the compromise decree
that the tenant would be evicted by executing the compromise decree. On
the contrary, in the said case the parties had entered into a fresh tenancy
agreement for fifteen years that remained unregistered. It was in such a fact
situation that the Hon'ble Supreme Court held that the parties intended to
create a fresh tenancy. The said judgment does not aid the respondent at
all.
52. Krishna Kashinath Patil (supra) has again been decided in favour of the
tenant on the basis of the peculiar fact situation obtaining in the said case
where the parties were found to have intentionally created a fresh tenancy.
Interestingly, in the said case the decree was not found to be a nullity and
the said findings clearly support the appellant's case. The same are
extracted herein below:-
"37. In order to infer such satisfaction one has to turn to the compromise decree in
question. In this case, the order does not record satisfaction of the Court but on the
facts of this case it is clear that the burden was upon the tenant to prove that he did
not admit the statutory grounds for eviction sought to be made in the suit. The
admission on the part of the tenant can be safely inferred and conclusion can be
drawn that there was no serious dispute to be tried and if a decree for possession
would not have been passed in invitum the tenant would not have got 15 years' time to
occupy the suit premises; that he, therefore, agreed to suffer a decree by consent and
gained 15 years' time under it with right to reconstruct and occupy newly constructed
premises. The very fact that the tenant agreed to reconstruct the premises at his own
cost is sufficient to infer damage caused to the suit premises by the tenant. This
circumstances itself can be treated as admission on the part of the tenant about
existence of statutory ground warranting decree for eviction mentioned in section
13(1)(o) of the Bombay Rent Act.
38. The tenant, based on a compromise decree, not registered lease deed executed
in his favour and erected new structure in place of old one and occupied the same for
15 years, thus it is clear that the compromise decree did not remain a paper decree but
the same was acted upon by the parties to the decree. The learned counsel for the
petitioner also relied on the presumption that every compromise under Order 23, Rule 3
of CPC shall be presumed to be lawful unless it is proved to the contrary. Thus in the
peculiar facts and circumstances of this case, it is clear that there was an implied
admission by the tenant of the ground at least contained in section 13(1)(a) of the
Bombay Rent Act. The existence of this one ground is sufficient to sustain decree for
eviction. Apart from this the respondent is claiming right to remain in possession on the
basis of registered lease deed which itself was the out-come of compromise decree. He
acted upon the said decree by paying Rs. 1,000/- to the plaintiff. In this view of the
matter, it is not open for the respondent to blow hot and cold and contend that the
decree in question is a nullity. He is bound by the terms of compromise and
consequently decree in question. It is, therefore, not possible to hold that decree in
execution is a nullity. Accordingly, the issue No. (i) is answered in negative i.e. in
favour of the petitioner and against the respondent."
53. Krishna Kashinath Patil (supra) has repelled the argument as regards
the decree being a nullity by relying on an implied admission in the
compromise agreement. In fact the principle that implied admission made in
the compromise agreement would form sufficient basis for a Court to be
satisfied as regards the grounds for eviction was explicitly set forth by the
Hon'ble Supreme Court in Nagindas Ramdas (supra). We have also applied
the same principle in the case at hand to reach the conclusion that the
decree in question is executable.
54. Zuari Cement Limited (supra), Kanwar Singh Saini (supra), Harshad
Chiman Lal Modi (supra) are authorities for the proposition that a decree
passed by a Court lacking jurisdiction is a nullity. The said proposition is
well settled however, the same is not applicable to the present case since the
decree has been passed by the Hon'ble First Court rightly as well as
rightfully. There is no defect of jurisdiction at all.
55. We have noticed that the Executing Court has in a sense by-passed the
determination of the question as to whether default had been committed by
the respondent or not since the Court was of the view that the execution
case itself was not maintainable.
56. The observations of the Executing Court clearly reveal that the Executing
Court has glossed over the issue as regards the allegation of commission of
default by the respondent which led to the initiation of the execution
proceeding. The Executing Court should have considered the issue as
regards default properly on merits and not "on the basis of prima facie
material brought of record" as observed by it in paragraph 24.1 of the
judgment and order impugned. The provisions of Section 47 of the Code are
very clear in such regard. If any objection as regards the executability of the
decree is raised by the judgment debtor, it is the duty of the Executing
Court itself to determine the same, not on a prima facie basis but finally.
57. However, that question need not detain us further, inasmuch as we find
that during pendency of the present appeal, the period of ten years as
mentioned in the compromise decree, after which the respondent had agreed
to vacate the subject premises and upon expiry whereof, the compromise
decree became executable has also expired. Since the decree is clearly
executable on that ground, therefore we find no reason to go into the details
of the deposits made before the rent controller and assess the validity
thereof.
58. We therefore allow the appeal, set aside the judgment and order dated
May 03, 2024 passed in Execution Case No. 364 of 2021 and direct the
respondent to hand over vacant physical possession of the property in
question to the appellant within a period of four weeks from date failing
which the Sheriff shall take appropriate steps to recover possession of the
said property from the respondent and hand-over to the appellant in
accordance with law. APOT 219 of 2024 stands thus disposed of along with
the connected application. No costs.
59. Urgent photostat certified copy of this judgment, if applied for, be supplied
to the parties upon compliance of all formalities.
I agree.
(Arijit Banerjee, J.) (Om Narayan Rai, J.)
]
