Patel Ramanbhai Maganbhai vs Ambalal Jethalal ...
2024 Latest Caselaw 879 Guj

Gujarat High Court

Patel Ramanbhai Maganbhai vs Ambalal Jethalal ... on 1 February, 2024

Author: Vaibhavi D. Nanavati

Bench: Vaibhavi D. Nanavati

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      C/CRA/1408/2001                                ORDER DATED: 01/02/2024

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            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/CIVIL REVISION APPLICATION NO. 1408 of 2001

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                  PATEL RAMANBHAI MAGANBHAI
                            Versus
     AMBALAL JETHALAL SADIWALA,DECDTHR.L.H.(CA.NO.7541/2008.)
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Appearance:
IG JOSHI(8726) for the Applicant(s) No. 1.1,1.2,1.3,1.4.1,1.4.2,1.5
DECEASED LITIGANT for the Opponent(s) No. 1
HCLS COMMITTEE(4998) for the Opponent(s) No. 1.6
MS RAKSHA DIXIT for the Opponent(s) No.1,5 and 1.7
MR MA BUKHARI(211) for the Opponent(s) No. 1.2,1.3,1.4,1.5,1.7
MRS NISHA M PARIKH(2397) for the Opponent(s) No. 1.1
MS. ALKA B VANIYA(6945) for the Opponent(s) No. 1.6
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  CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

                              Date : 01/02/2024

                               ORAL ORDER

1. By way of present civil revision application the applicants

herein are aggrieved by the order dated 1.10.2001 passed in

the Execution Application No.26 of 1993 by the learned Civil

Judge (J.D.) at Khambhat.

2. The applicants herein are the original defendants and the

opponents are the original plaintiffs having instituted the

Regular Civil Suit No.66 of 1979 under the provisions of the

Bombay Rent Act for possession of the suit premises on the

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ground of arrears of rent, inter alia, contending that the rent

at the rate of Rs.150/- p.m. was due and payable w.e.f.

4.11.1972. The suit came to be compromised on the basis of

consent terms and the same was decreed. By the compromise

purshis the original plaintiff agreed to sell the suit premises to

the original defendant for a consideration of Rs.25,000/- which

was required to be paid to the plaintiff in two installments of

Rs.12,500/- each and accordingly the plaintiff agreed to

execute the sale deed in favour of the original defendant.

3. It is the case of the applicants herein that there were

disputes between the brothers of the original plaintiff. It was

submitted that the original plaintiff approached the Executing

Court seeking execution of the compromise decree passed on

30.7.1984. The decree drawn by the concerned Court is duly

produced at page-26 (collectively.).

3.1 The applicant herein raised objections in the execution

proceedings on the ground that the compromise decree dated

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30.7.1984 passed by the competent Court is nullity and that it

is beyond the jurisdiction of the said Court. The said objection

was considered by the Executing Court and considering all the

objections taken by the applicant herein the Executing Court

held that execution of decree is maintainable. Being aggrieved

by the said order dated 1.10.2001 passed by the Executing

Court the applicant herein approached this Court by filing the

present civil revision application.

4. Heard Mr. Ishan Joshi, the learned advocate appearing

for the applicants, Mrs. Nisha M. Parikh, the learned advocate

appearing for the opponent No.1.1, Ms. Raksha Dixit, the

learned advocate appearing for opponents No.1.5, 1.7, Ms.

Alka B. Vaniya, the learned advocate appearing for the

opponent No.1.6.

5. By order dated 7.12.2001 notice came to be issued and

further proceedings in the Execution Application No.26 of 1993

pending before the learned Civil Judge (J. D.) Khambhat was

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directed to remain stayed. The said interim relief stood vacated

by order dated 6.9.2011.

6. Mr. Ishan Joshi, the learned advocate appearing for the

applicants substantiated the contentions raised by the

applicants in the Execution Application while objecting the

Execution Application preferred by the opponent mainly on the

ground that the order passed by the competent Court is in

nature of a composite decree and the same being not

executable is in turn null and void.

6.1 It was also submitted that the Executing Court did not

have jurisdiction to consider the application, the same being

beyond Rs.25,000/-. It was submitted that though it was a

compromise arrived at between the parties and the decree in

form of a compromise decree, once the decree is a nullity the

execution of the decree would not lie.

6.2 Reliance was placed on the ratio as laid down in the case

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of Marwadi Punamji Motiji vs. Mohamad Siddique Musabhai

Shaikh and Ors., reported in 1993 (2) G. L. H. 743. Mr. Joshi,

the learned advocate appearing for the applicants also candidly

placed on record the order passed in the Special Civil Suit

instituted by the applicants herein seeking specific performance

of the compromise decree dated 30.7.1984 which came to be

dismissed for non-prosecution below Ex.63 by order dated

15.5.2014. It is also submitted that the said suit is also not

revived at the instance of the applicants.

7. Per contra, Mrs. Nisha M. Parikh, the learned advocate

appearing for the opponent No.1.1 - original plaintiff relied on

the order passed by the Executing Court and submitted that

the Executing Court has passed well reasoned order taking into

consideration all the contentions raised by the applicants and

has arrived at conclusion that the execution of decree is

maintainable.

7.1 Ms. Parikh, the learned advocate submitted that the

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opponent - original plaintiff undisputedly instituted the suit

under the provisions of the Rent Act and as prayed for with

respect to the arrears of rent as referred in the said order. It

was further submitted that a compromise decree was arrived at

between the parties and it was at the instance of the

applicants that the second part of the decree was recited by

the competent Court while drawing decree in line with the

compromise arrived at between the parties.

7.2 It was submitted that the ratio as referred to by the

learned advocate for the applicants was also considered by the

Executing Court and arrived at conclusion that once the tenant

- defendant has admitted arrears of rent in the compromise

agreement, the decree cannot be said to be a nullity.

8. Having considered the rival contentions raised by the

learned advocates appearing for the respective parties, it is

apposite to refer to the order passed by the competent Court

which read thus :-

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"7. Thus, if we see the above 2 para cited judgements cumilatively then it is understood, that when the court (drawing the decree lack its inherent jurisdiction in drawing the particular decree than only such decree is nullity. that means the inherent jurisdiction do mean the jurisdiction to try the matter, and not, to draw the decree of such matter but certainly does not mean that any (out of many) clause is out its jurisdiction but some other clauses are still there within its jurisdiction than the whole decree can not be termed as nullity and inexecutable. Moreover, the amount of Rs.25000/- is the sale prise, it is not decree amount.

Then the amount of license to be paid is not the amount of decree but it is the amount to be paid, if the tenant deft fails to hand over the possession of the rented premises within one year, for the period during which he still remained in the house. Meaning thereby the landlord plaintiffs ie. of has given a concession of time to vacate the rental house i.e. of one year and for the one year time the deft.J.D. was liable for license amount. Then further, if the deft. J.D. fails to hand over the possession even after one year then the would be liable for meanse profit. Thus, above amounts other than rent are not the suit amount but the amount for the concessional period of possession, which the deft J.D. agreed to pay. Therefore, the incorporation of such amount in the decree does not amount to money decree and therefore the jurisdiction of Rs. 20000/- does not come in picture.

8. The LA of the JD has further contented that, the decree specified the time limit within which the J.D. was to pay sale prise failing of which his tight of purchase is made forfeited which is

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penal in nature. Therefore the decree can not be executed He has relied upon the judgment in the case of Gandhi Gopal das Gordhandas V Bai Lalitabai Marghbhai cited at 12 GLR 492 (1971GLR 492). New, if we seen this case then Hon. H.C. has held that, in such case the court has to determine whether certain obligation undertaken by a JD is in the nature of penalty or whether it is the result of concession conferred upon by the decree holder. In the decree of the case on hand in the 1st segment the pltf landlord has given a time of one year to JD to vacate the premises and if the JD does not vacate the premises within one year then the DH would be entitled to recover the licence amount @ Rs. 150/- P.M. for one year time. In the 2nd segment the JD was given a period for one year to purchase the house i.e. to pay the sale prise. The JD was to pay the sale prise till 31. 7.85. Till that date, (i. e. 31.7.85) the deft JD was permitted to reside in the house as the JD was not having any other premises. Thus, in both the condition i. e. to vacates or to purchase, the JD was given a concession by the DH. The Hon' ble H.C. has further observed and held that if the JD does not fulfills his obligation within the specified time than he loses the concession and the court has no jurisdiction to grant any relief to him. Here too, the JD has not fulfilled his obligation either by paying the whole amount of rent in arrears and by handing over possession or even by paying the sale prise to the BH or even by deposition it in the court, within specified time. Therefore, I do agree with the principle held by the H.C. but as the present case does not fall within the preview of the cited case. It dose not help to the JD. *****

9. The LA of the JD has also raised the point of hardship and

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satisfaction for which relied upon following judgments.

(i) Maneklal Napandas V Gajaraben Chunilal cited at 16 GLR 11 (of 1975)

(ii) Suit Kaushalya Devi & Other V K. L. Bansal cited at 1969 SCJ 145 AIR 1970 SC 838

(iii) Ferozilal Jain V Man Mal & others cited at AIR 1970 SC

In the above cited judgments the eviction decree was passed on the ground of sec 13 of Rent Act but either no ground of S 13 was indicted or no satisfaction of existence of such ground was recorded or no hardship was considered -12-therefore, the decree stood nullity Here in present case, the execution decree is not on the ground of sec 13 of Rent Act but it is on the ground of rent in arrears, The rent in arrears is well admitted by the deft.JD out which some amount (Not the full) was also paid on the day of compromise Therefore, there is no question of recording satisfaction regarding the existence of ground of sec 13 of the Rent Act and thereby upon the point of hardship. Therefore, these above cited judgment too do not help the JD and there is no nullity on this ground too.

10. The LA of the deft has also relied upon following judgments (1) 1999 (1) GLH 330.

This is regarding the factual basis in support of the plea of tenancy which is held to be essential to raise issue regarding tenancy. To my mind here in case on hand no such dispute is shown to have so it is not applicable to the present case.

(ii) AIR 1996 SC 1985.

Here in the cited case, the tenancy was extended for 10 years by

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compromise, due to which the eviction in execution of compromise decree is negatived. In the case on hand no such tenancy right is in existence or even extended. Also the decree in the cited case specified that the property would be evicted "by appropriate action in court of law" , whereas in the case on hand no such condition is incorporated Therefore, this cited judgment too does not help the JD.

(iii) In GLR 839 (of 1993).

In this cited case, the decree was declared as nullity due to the composite suit involving two different jurisdiction of the court which can not be entertained by the court and the decree was said as a decree without jurisdiction and thereby nullity. But in our case on hand, no such composite suit is shown to have filed . The suit was filed invoking the provision of only rent act. Therefore, this cited judgment also does not help the JD.

(ii) The LA of the BH has submitted that the JD wants to ride upon two horses simultaneously On one hand in this execution proceeding, JD says the decree as nullity and on the other hand in the fresh instituted suit bearing S.N. 171/2000 before Civil court (S.D)Nadiad he wants the pltf (of this decree) to perform according to this decree only, by executing a sale deed in his favour. The deft consider this decree to be executable by fill the suit for specific performance (171/2000). Thus, the defts conduct it self shows his malafide intention. Therefore the application should be rejected. I do agree with the submission of the pltf when the deft himself has moved to the court for certain performance of the pltf he can not turn his face from rest of his obligations of the decree.

12. The LA of the pltf has further contented that, once the

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tenant deft has admitted the arrears of rent in the compromise agreement, the decree can not be said as nullity He has relied upon the judgment in the case of Hiralal Moolchand Doshi V Barot Ramanlal Ranchhoddas. It is held that if the tenant (here deft) has admitted in the compromise agreement the arrears in rent i.e. the existence of a statutory ground expressly or impliedly, It is sufficient. Then there is no need of any evidence on the merits of the grounds before the compromise order is passed. The admission made in judicial proceedings are absolutely binding to the parties. The LA of the deft has contented that in this cited case the trial court led the evidence. Therefore, got the satisfaction over the of matter. To my mind the satisfaction while passing the decree of compromise is regarding the correctness of the agreement, the free will of the parties, the lawfullness of the agreement etc. Mere non- appearance of such words in the decree do not constitute the non satisfaction of the court. Therefore I do agree with the submission of the la L.A of the pltf and following the principle held by Hon' ble 8.C. in the above cited judgment, I do believe that, the present decree is not nullity on this count too.

13 Even the L.A. of the pltf has also relied upon the judgment cited at 1989 (i) GLH 561 regarding the non recording of the satisfaction in the decree. The Hon H.C. has held that mere non recording of the satisfaction in the decree does not make the decree nullity. I do follow and believe the principle held in this judgment.

(14) In view of the above discussion, of is clear that the decree is not nullity and thereby I pass following order.

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ORDER

The execution of the decree is maintainable."

9. In line of the aforesaid reasonings as referred above, the

competent Court has considered the dispute in question and

held the execution to be maintainable considering the

following:-

9.1 The amount of Rs.25,000/- is the sale price and not a

decreetal amount. The amount of license to be paid is not the

amount of decree, but it is the amount to be paid, if the

applicant - judgment debtor fails to handover the possession of

the rented premises within one year, for the period during

which the applicant - judgment debtor still remains in the

house, meaning thereby the landlord - plaintiffs i.e. plaintiffs

gave concession of time to vacate the rented house for a

period of one year and for the one year time the applicant -

judgment debtor was liable for license amount and further if

the applicant - judgment debtor fail to hand over the

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possession even after one year then the applicant - judgment

debtor would be liable to mesne profit. Thus, it was held that

the aforesaid amounts other than rent are not the suit amount

but the amount for concessional period of possession, which

the judgment debtor agreed to pay. Therefore, incorporation of

such amount in decree does not amount to money decree and,

therefore the suit would not be barred by pecuniary

jurisdiction of Rs.20,000/-;

(1) The suit cannot be held to be not maintainable for want

of jurisdiction.

(2) The concerned Court considered the decision relied upon

by the applicant - judgment debtor.

In the facts of the present case, in the decree passed by

the competent Court, in the first segment the plaintiff -

landlord gave time of one year to the judgment debtor to

vacate the premises and if the judgment debtor fail to vacate

the premises within one year, the decree holder would be

entitle to recover license amount at the rate of Rs.150/- p.m.

for one year period. In the second segment, the judgment

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debtor was given a period of one year to purchase the house

i.e. to pay the sale price. The judgment debtor was to pay

the sale price till 31.7.1985, till then the judgment debtor was

permitted to reside in the house as the judgment debtor was

not having any other premises. Thus, both the conditions i.e.

to vacate or to purchase, the judgment debtor was given a

concession by decree holder.

Dealing with the ratio as laid down in 1971 GLR 492 the

Executing Court held that the judgment debtor having not

fulfilled his obligation either by paying the whole amount of

rent in arrears and by handing over possession or even by

paying the sale price to the decree holder or depositing the

amount in the court, within specified time.

In the decision reported in 1971 GLR 492 it was held

that if the judgment debtor does not fulfill his obligation

within specified time, he looses concession and the Court has

no jurisdiction to grant any relief.

The Executing Court further considered that once the

tenant defendant has admitted the arrears of rent in the

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compromise agreement, decree cannot be said to be nullity.

Dealing with the ratio as laid down in the case of Hiralal

Moolchand Doshi Vs Barot Ramanlal Ranchhoddas, (1993) 2

SCC 458 the Executing Court held that, recording of

satisfaction while passing decree of compromise is regarding

the correctness of the agreement, the free will of the parties,

the lawfulness of the agreement etc. Mere non-appearance of

such words in the decree does not constitute the non-

satisfaction of the court. IN view thereof, proceeded to hold

that the decree cannot be said to be nullity on non-recording

of satisfaction.

Reliance was placed on 1989 (i) GLH 561 wherein it was

held that merely non recording of the satisfaction in the decree

does not make the decree a nullity.

10. The suit came to be instituted by the opponent -

original plaintiff under the provisions of the Rent Act seeking a

decree of eviction for arrears of rent in question to the tune of

Rs.150/- p.m. which was due and payable w.e.f. 4.11.1972.

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The said suit was compromised on the basis of consent terms.

The said suit came to be decreed by the competent Court.

Accordingly the opponent - original plaintiff approached the

competent Executing Court seeking execution of the said

compromise decree which came to be objected by the

applicants herein on the ground that the decree in question is

nullity considering the fact that the second part of the decree

was with respect to sale and purchase clause, the same not

being executable.

10.1 Considering the fact that the suit in question was filed

for arrears of rent and was a rent suit, the parties arrived at

compromise and it was at the instance of the applicants that

second clause with respect to the sale and purchase of the suit

property in question came to be entered in the said

compromise decree.

10.2 Reliance which is placed on by the learned advocate

appearing for the applicants and the ratio as laid down in the

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case of Marwadi Punamji Motiji vs. Mohamad Siddique

Musabhai Shaikh and Ors., reported in 1993 (2) G. L. H. 743

does not avail the applicants considering the fact that the said

suit was filed seeking two prayers; one under the Rent Act and

the second on the ground of lease and both the prayers came

to be granted by the concerned Court. In view thereof, it was

held that the said decree was a nullity.

10.3 In the facts of the present case, the suit is filed for

arrears of rent and the said clause is incorporated by the

applicant himself. The applicant also instituted a suit seeking

specific performance of the said agreement compromise entered

into between the parties, however the said suit came to be

dismissed for want of prosecution.

11. Considering the aforesaid findings arrived at by the

competent Court, which require no interference. The order

dated 1.10.2001 passed in the Execution Application No.26 of

1993 by the learned Civil Judge (J.D.) at Khambhat.

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12. For the foregoing reasons, the civil revision application

stands dismissed.

(VAIBHAVI D. NANAVATI,J) K.K. SAIYED