K. Sukumaran, J.
1. Pedro Santan Braganza was a baker. He had his humble abode confined to 125 square metres on the ground floor of a building situate at Nagvaddo. The lease arrangement was subsisting even from the time of his ancestors. A formal lease deed had been executed on 15-10-1948. The short space was used both for his bakery and as his family residence.
2. The landlord instituted a suit, being Suit No. 192 of 1969, for eviction. Violation of the lease conditions and the intention of the landlord to reconstruct the building were some among the contentions urged. A suit of that nature was governed by the provisions of the Portuguese Law Regulation Rent & Leases of Buildings Decree No. 43.525 dated 2-6-1961. The right of tenant to be intimated about the completion of the reconstruction by the landlord, following a decree for eviction, was one such important right guaranteed under the law which governed the parties at that time. The suit was decreed on 12-1-1972. It taken up in appeal before the Judicial Commissioner. A Compromise was reached between the parties during the pendency of the appeal and this led to the passing of a compromise decree dated 23-8-1974. The landlord was obliged thereunder to give on lease a portion of the ground floor of the newly constructed building of an equal area as lease premises. The building was vacated on 25-8-1976. The landlord did not commence or complete the construction of the building. The term in the compromises decree to give to the tenant an equivalent space of the vacated premises was honoured by the landlord only in its breach. The request of the tenant to the landlord for compliance with the consent decree, as could be easily understood in similar circumstances, was turned down by the landlord. The tenant, driven to the wall, filed a suit, being Special Civil Suit No. 38 of 1982 before the Civil Judge, Senior Division, Panaji. The compromise decree was the foundation for the cause of action. The landlord resisted the suit with manifold contentions. The ineffectiveness of a compromise decree when tenant did not voluntarily vacate, necessitating thereby the regular execution proceedings by the landlord , was one such. A technical contention about the non-maintainability of the suit on the ground that the remedy of the tenant was only to execute the consent decree and not to institute a separate suit for its enforcement, in the light of provisions of section 47 of the Code of Civil Procedure, was also forcefully projected. There were subsidiary contentions on the quantum of damages and compensation claimed by the tenant. The trial Court decreed the suit. The tenant was declared entitled to have a lease from the landlord in relation to a carpet area of 109 square metres with the difference of 5 square metres more or less. Consequential directions were also given therein. A sum of Rs. 21,600/- was made payable on account of loss of income from the bakery from 1-9-1978 to 31-7-1984 with provision for interest as detailed therein. The judgment did not give satisfaction either to the plaintiff or to the defendants. The landlord filed First Civil Appeal No. 68 of 1984. He protested against the substantial part of the decree. The tenant's grievance related to the quantum of compensation. The parties agitated all contentions before the Appellate Court. By Judgment dated 19-11-1985, this Court rejected all the contentions of the landlord except in relation to the maintainability of the suit. It took the view that the compensation payable should be enhanced. As against Rs. 5/- awarded by the trial Court, the Appellate Court granted compensation at the rate of Rs. 50/-. The ultimate result was, however, favourable to the landlord, as the suit was found to be not maintainable at all. This decision is complained of by the tenant in Letters Patent Appeal No. 9 of 1986. The landlord has ventilated his grievance in relation to the enhancement of the compensation in his Letters Patent Appeal No. 16 of 1986.
3. We may at the outset note that none of the ten issues raised before the trial Court related to the maintainability of the suit. Issue No. 2 read as follows:---
'Whether the defendants can be directed to construct the ground floor to the extent of entitlement of plaintiff?
The finding of the trial Court on that issue was in favour of the plaintiff. The contention about bar under section 47 of the Code of Civil Procedure would appear to have been raised in the course of arguments on behalf of the defendants. The trial Court considered the issue elaborately in paragraph 18 of its judgment. It was stressed that in an execution application, the plaintiff could not ask for a mandatory injunction for the reconstruction of the building by the landlord and that in such an execution petition he could not have asked for damages. Reliance was placed by that Court on a decision of the Calcutta High Court in Charu Chandra Poali v. Birendra Nath Dutta & others A.I.R. 1987 Cal 34. That Court also took note of the fact that the provisions of the Civil Procedure Code had been amended in 1976. It was observed that specific performance could be ordered in relation to the direction for the reconstruction of the building and that such a decree was eminently justified. In the light of the evidence and materials before it, a landlord, who has benefited under the consent decree, could not be permitted to disown his own obligations thereunder - the Court observed.
4. In the judgement under appeal, the learned Judge held that if the decree is executable, no suit would lie for such a relief in view of the bar under section 47. The decision of the Calcutta High Court was distinguished by the learned trial Judge. The learned Judge further held that on a plain reading of the consent decree, the decree was in fact executable.
5. While considering the contention, we have to bear in mind the background facts leading to the passing of the consent decree. The suit for eviction was filed at a time when the Portuguese law was enforce. That law among others cast an obligation on the part of the landlord to give intimation of reconstruction of the building to the tenant as and when a decree for eviction is passed. The Goa, Daman and Diu Buildings (Lease, Rent and Eviction) Control Act, 1968, came into force only subsequently. Even though it repealed the previous law, under section 51(2), it did not affect the operation of the pre-existing law in relation to pending actions.
6. The concept of a consent decree has received judicial interpretation from very early times. It can deal with matters fully within the scope of the suit. It can take in matters even outside the suit. In relation to matters arising in the suit itself, the consent decree will have all the vigour and vitality of a decree by the Court. In relation to matters outside the purview of the Court, a consent decree is essentially a repository agreement between the parties. In that respect, it stands on a different footing from that part of the decree which concerns the subject matter of the suit itself. This position is clearly settled by decisions in Vishnu v. Ramchandra A.I.R. 1932 Bom 466. The Court held:---
'The operative part of the decree so confined to the subject-matter of the suit can be enforced as between the parties to the suit under section 47, Civil P.C. Any agreement as to matters extraneous to the suit can be enforced in a separate suit'.
This was the view which had been taken by the Calcutta High Court as well, in Charu Chandra Poali v. Birendra Natha Dutta and others : AIR1970Cal34 The Madhya Pradesh High Court in Ram Juwan v. Devendra Nath, : AIR1960MP280 , recorded respectful agreement with the views of the Bombay and Calcutta High Courts.
7. It would, therefore, follow that in relation to the provisions casting an obligation on the landlord to reconstruct the building and providing for consequences for default in that behalf, no executable decree could be posited.
8. The position has no doubt undergone a change after the amendment of the Civil Procedure Code by Act. No. 104 of 1976. Thereunder, a consent decree would come within the ambit of that term even in relation to matters outside the scope of the suit itself. The decree in the present case is, however, one passed before the amendment of that section. Consequently, a pre-amendment consent decree will not have the attributes of a similar decree passed subsequent to the enactment. The Amendment Act of 1976 is not retrospective in character. The rights of parties in relation to a nature, content and character of a decree, are vested rights. In the absence of a clear indication or necessary implication, the amendment of 1976, will not operate retrospectively. The consent decree passed in the present case in 1974, would, therefore, be an executable decree as such only in relation to matters directly arising in the suit; it is operative only as an agreement in relation to the remaining part.
9. We are aware of the observations of the Supreme Court made in a different context, made in relation to a consent decree. That does not deal directly with the ratio of the decision of this Court referred to above. We would therefore follow the Division Bench decision of our High Court and apply them to the facts of the present case.
10. As noted earlier, the Calcutta High Court in its decision : AIR1970Cal34 , laid down principles relating to the interpretation in relation to a consent decree in matters coming within a suit and those outside, incorporated in the compromise decree. It was held that a right to specific performance is not allowed to be put in execution. The trial Court applied the above principle. The learned Judge, in our opinion, distinguished the aforesaid decision without any substantial ground whatsoever. We are clearly of the view that the decree as given by the trial Court awarding damages as provided in the consent decree in question, could not have been sought and got in the execution application as indicated by the trial Judge. In that view of the matter also, the bar of execution under section 47, will not be attracted to the facts of the case. This conclusion would entail a reversal of the view taken by the learned Judge on that aspect of the matter.
11. The Letters Patent Appeal No. 16 of 1986, is filed by the landlord. He challenges the fixation of the quantum of damages, by enhancing it from the rate provided by the trial Court. The enhancement is founded on evidence and materials which had been duly considered by the learned Judge. We fully agree with the above view. There is no error which could be corrected in the Letters Patent Appeal.
12. We have come to the above conclusion on the basis of the strict principles of law as found applicable. It is comfortable to any Court to note that its conclusion is in consonance with substantial justice as against possible technical one. A landlord had been benefited of a consent decree, under which he got permission of tenanted premises. It is agreed at the Bar that the landlord has subsequently constructed a substantial building therein. He has derived substantial benefit on the basis of the decree and the subsequent utilisation of the tenanted premises. Even then, to deny a poor tenant a space of about 100 sq. mts. would be abhorrent to notions of justice. A Court of law has necessarily to be concerned about a poor man's fate, and the necessity to satisfy with his demand for elementary justice.
13. In the result, Letters Appeal No. 9 of 1986, filed by the tenant is allowed with costs throughout. The Letters Patent Appeal No. 16 of 1986, filed by the landlord is dismissed with costs throughout.