Ajay Pal Singh vs Omkar Singh Pal
2021 Latest Caselaw 7239 MP

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        THE HIGH COURT OF MADHYA PRADESH
                      MP No.3909/2021
     Ajay Pal Singh Kushwah vs. Omkar Singh Pal & Ors.

Gwalior, Dated :10.11.2021

      Shri Vijay Rathore, Counsel for the petitioner.

      This petition under Article 227 of the Constitution of India has

been filed against the order dated 25.10.2021 passed by 11 th Civil

Judge (Junior Division), Gwalior in Execution Case No.49/2020 by

which the petitioner has been directed to hand over the vacant

possession of the shop in question and to pay arrears of rent w.e.f.

1.6.2015 at the rate of Rs.800/- per month as well as mesne profit at

the rate of Rs.800/- per month.

      It is submitted by the counsel for the petitioner that the

respondents had filed a suit for eviction and, accordingly suit was

decreed and the appeal filed by the defendant before the High Court

was also dismissed. By decree, it was directed that the petitioner shall

pay the rent at the rate of Rs.800/- per month and mesne profits at the

rate of Rs.800/- per month w.e.f. 1.6.2015 till the vacant possession is

delivered. Since the petitioner did not vacate and pay the monthly rent

as well as the mesne profit, therefore, the respondents preferred

execution proceedings. On 24.3.2021, an application was filed by the

decree-holder for urgent hearing. The parties expressed that they have

arrived at a compromise and the judgment debtor is ready to hand

over the vacant possession as well as to pay the arrears till 30 th

THE HIGH COURT OF MADHYA PRADESH MP No.3909/2021 Ajay Pal Singh Kushwah vs. Omkar Singh Pal & Ors.

November, therefore, the matter may be placed before Lok Adalat

and, accordingly, the matter was directed to be placed before Lok

Adalat. It appears that the matter could not be taken up in Lok Adalat

and, accordingly, on 8.9.2021, a statement was made by the counsel

for the decree holder that since the judgment debtor has not deposited

the arrears of rent, therefore, the possession warrant may be issued.

However, it was observed that by the Executing Court that it appears

that the parties have entered into a compromise and it was agreed that

the vacant possession shall be handed by 30th November, therefore, at

present it does not appear proper to issue warrant of possession and,

accordingly, the petitioner was directed to produce the receipt of

deposit of arrears of rent. On 24.9.2021, a receipt of deposit of arrears

of rent was produced by the judgment debtor and decree holder

requested that the mesne profit should also be paid. However, it was

objected by the counsel for the judgment debtor on the ground that on

24.3.2021 the parties have already arrived at compromise.

Accordingly, on 24.9.2021, the Executing Court directed the parties

to remain present so that the question of compromise can be verified.

Accordingly, on 24.10.2021 the parties appeared and the decree

holder resiled from his stand. Since no compromise application was

filed and no order on the question of compromise was ever passed by

THE HIGH COURT OF MADHYA PRADESH MP No.3909/2021 Ajay Pal Singh Kushwah vs. Omkar Singh Pal & Ors.

the Executing Court, therefore, by the impugned order the Executing

Court has directed the petitioner to pay the entire arrears of rent as

well as mesne profit and to hand over the vacant possession of the

shop.

Challenging the order passed by the Court below, it is

submitted by the counsel for the petitioner that once the matter was

compromised between the parties, then the decree holder cannot take

a somersault and cannot go back from his stand.

Heard the learned counsel for the petitioner.

From the order dated 24.3.2021, it appears that the counsel for

the parties had made a statement that the parties have entered into a

compromise and the judgment debtor/petitioner had agreed to pay

arrears of rent as well as to hand over the possession of the shop till

30th November, however no application under Order 23 of CPC was

filed. The fact of compromise was mentioned only in the application

filed for urgent hearing. Since no application under Order 23 of CPC

was filed, therefore, there is no order by the Executing Court thereby

accepting the compromise. In the present case, a decree has been

passed which has been affirmed by the High Court, according to

which, the judgment debtor/petitioner was liable to pay the rent at the

rate of Rs.800/- per month as well as mesne profit at the rate of

THE HIGH COURT OF MADHYA PRADESH MP No.3909/2021 Ajay Pal Singh Kushwah vs. Omkar Singh Pal & Ors.

Rs.800/- per month from 1.6.2015 till the actual possession was

delivered, apart from delivering the possession of the suit shop. Not

only no application was filed for compromise or satisfaction of the

decree but there is no such order also. Furthermore, under Order 23

Rule 3 of CPC mere filing of an application for compromise is not

sufficient and it is for the Court to come to a satisfaction that the

compromise has been legally entered into. In absence of any

application for compromise as well as in absence of any order on the

said application, the Trial Court did not commit any jurisdictional

error by directing the judgment debtor to deliver the possession of the

suit shop as well as to pay arrears of rent and mesne profit.

Accordingly, the order dated 25.10.2021 passed by 11 th Civil

Judge (Junior Division), Gwalior in Execution Case No.49/2020 is

hereby affirmed. The petition fails and is hereby dismissed.

                                                          (G.S. Ahluwalia)
Arun*                                                           Judge
                         ARUN KUMAR MISHRA
                         2021.11.11 15:10:53 +05'30'