Judgment:
M.Y. Eqbal, J.
1. This Revision application at the instance of the Judgment Debtor-petitioner has been filed against the order dated 16.5.1998 passed by the Munsif, Danapur, in Execution Case No. 8 of 1997, whereby he has held that the said execution case is maintainable and the compromise decree is executable.
2. The facts of the case lie in a very narrow compass. The decree-holder-Opp. party filed Title suit No. 166 of 1981 in the Court of Munsif, Danapur, for a decree of eviction against the petitioner from the house property on the ground of default in payment of rent and bona fide personal necessity. The said suit was ended in compromise and a compromise decree was passed on 28.8.1985. In terms of the compromise decree the petitioner was allowed to continue possession of the suit premises for a period of ten years on execution of registered deed of lease. In terms of the compromise the registered deed of lease was executed by and between the parties. After expiry of the period of lease when the petitioner failed to vacate the suit premises, the Decree holder-Opp. party levied the aforementioned execution case in the Court of the Munsif and prayed for recovery of possession of the suit property in execution of that decree. The petitioner Judgment-debtor appeared in the execution case and filed show cause/objection questioning the maintainability of the execution case as the decree itself is unexecutable. The executing Court after hearing the parties by the impugned order over-ruled the objection raised by the petitioner and held that the execution case is maintainable.
3. Mr. B Choudhury, learned Counsel appearing on behalf of the petitioner assailed the impugned order as being illegal and wholly without jurisdiction. Learned Counsel for the petitioner has brought to my notice the terms incorporated in the compromise petition and the compromise decree and submitted that in fact the lease was created by virtue of which the petitioner was allowed to continue in occupation of the suit premises on payment of rent. According to the learned Counsel, judgment-debtor petitioner never agreed or undertook to vacate the premises on the expiry of the period of lease. On the other hand, Mr. M.P. Bharti, learned Counsel appearing for the Decree-holder Opp. party submitted that the eviction suit was decreed on the basis of the compromise and the judgment-debtor petitioner was allowed to continue in possession only for a limited period. Since the judgment-debtor failed to vacate the premises on the expiry of the period so fixed under the compromise, the judgment-debtor petitioner is liable to be evicted in execution of the compromise decree. Learned Counsel placed heavy reliance on a decision of the Supreme Court in the case of Smt. Nai Bahu v. Lala Ranmarayan : [1978]1SCR723 .
4. It is well settled that when a compromise takes place in a suit and a compromise decree is passed or a compromise takes place in course of execution of the decree for eviction then the question arises whether a fresh lease is created or a decree has been distinguished or it provided a mode for discharge of the decree depends on the intention of the parties to the compromise. And the intention has to be gathered from the terms of the compromise and the surrounding circumstances including the order recorded by the Court below on the basis of the compromise. It is, therefore, necessary +o look into the terms and conditions of the compromise set forth in the compromise petition. A copy of the decree together with the compromise petition has been annexed as Annexure 1 to this revision petition. The terms of the compromise reads as under:
(1) That with the intervention of well wishers and common friends, both the parties have compromised the case irrespective of their pleadings outside the Court and now a weet relation has been restored in between the parties.
(2) That there are so many cases in between the parties pending for disposal in different Courts in respect of a part of disputed holding No. 14, Mahal No. 3, Ward No. 5 situated a Mohalla Grand Square, Emerson Road, Danapur Cantonment Police Station Danapur, District Patna and holding No. 44, Mahal 1 Ward No. 4, situated at Mohalla Mahabir Asthan Main Road, Danapur Cantonment Police Station Danapur Distt. Patna.
(3) That the parties have compromised this case on the following terms and conditions:
(a) That the defendant will continue in peaceful possession as a tenant up to 6.8.1995 and thereafter i.e. on 7.8.95 he will vacate the premises in question and give the vacant possession to the plaintiff and accordingly a registered lease deed will be executed by the parties. That if the defendant does not vacate the suit premises by 7.8.1995 in that case plaintiff will get the suit premises vacated through the process of the Court at the cost of the defendant which is bounded as follows:
North : Out-house of plaintiff in which monthly tenants are residing.
South : Road.
East : House of plaintiff.
West : House of plaintiff.
(b) That the defendant shall pay monthly instalment of rent by the 15th day of next following English Calendar month at the rate of Rs. 150/- (One hundred fifty) per month (excluding electric charges).
(c) That all the deposited money made by the defendant in this case towards rent will be withdrawn by the plaintiff.
(d) That defendant will pay the rent from August 1985 to the plaintiff under receipt.
(e) That both the parties will bear the cost of litigation.
(f) The plaintiff shall have no further claim against the defendant.
(g) That the defendant shall maintain the premises during the period of the lease at his own cost.
(h) That the defendant will be at liberty to take separate water pipe connection for which he will be liable to pay taxes.
(i) That this compromise petition be treated as a part of the decree.
5. As noticed above, the eviction suit was filed by the plaintiff-Opp. party on the ground of default in payment of rent and bonafide personal necessity and the suit was compromised before the hearing of the suit. From perusal of the terms and conditions of the compromise decree, it is evident that the parties have compromised the case irrespective of their pleadings. In other words, without going into the question whether the defendant, in fact, defaulted in payment rent or the plaintiff required the suit premises reasonably and in good faith the compromise decree was passed. It further appears from Clause 3(a) of the compromise petition that the defendant was allowed to continue in peaceful possession as a tenant for a period of ten tears on execution of registered deed of lease. It has been very specifically and very categorically stated that 'if the defendant does not vacate the suit premises by 7.8.1995, in that case the plaintiff will get the suit premises vacated through the processes of the Court at the costs of the defendant.' Nowhere in the compromise decree, it was provided that in the event of failure of the defendant to vacate the premises on the expiry of period of lease, the plaintiff shall recover possession of the property in execution of the decree. Learned Counsel appearing for the D. Hr.-Opposite party put heavy, reliance on the decision of the Supreme Court in the case of Smt. Nai Bahu v. Lala Ramnarayan and Ors. (supra). In the case, the eviction suit was filed on various grounds provided under Madhya Pradesh Accommodation Control Act, 1955 and the plaintiff claimed besides a decree for eviction, the arrears of rent and mesne profits. The parties entered into compromise which inter alia contained the following terms and conditions:
1. That the defendants admit the full claim of the plaintiff for ejectment, arrears of rent and mesne profits as claimed in the suit on the following conditions:
(a) That the defendants shall put the plaintiff in a vacant and peaceful possession of the entire tenancy premises except portion of the ground floor only shown by letters A, B, C, D, E. in the map attached with this application today. If the defendants fail to do so the plaintiff shall be entitled to execute her decree against the defendants for the same at their costs. The portion shown by letters A, B, C, D, E. is of the ground floor only.
(b) That the defendants shall vacate the portion marked by letters A, B, C, D, E. of the ground floor in the map attached with the application and put the plaintiff in its vacant possession by 15.7.1965 (Fifteen July Nineteen hundred and Sixty-Five). If the defendants do not vacate the same by this date, the plaintiff shall be entitled to execute her decree against the defendants for possession of this portion at their costs.
6. It is, therefore, evident that on the basis of admission of the defendant about non-payment of rent and mesne profits and claim of eviction, the suit was decreed incorporating specifically that in the event of failure of the defendant to vacate the premises the plaintiff shall be entitled to execute the decree against the defendant. In that context, the Apex Court held that the compromise decree does not create a lease.
7. As noticed above, in the instant case the parties entered into the compromise irrespective of their pleadings regarding proof of default and personal necessity. It is, therefore, clear that the compromise decree was passed by the Court without recording any satisfaction with regard to the existence of statutory grounds for eviction. It is well settled a decree for eviction of a tenant cannot be passed solely on the basis of a compromise between the parties. The Court is to be satisfied whether the statutory ground for eviction has been pleaded which the tenant has admitted by the compromise. Admittedly, the Court below while recording compromise has not probed into the matter or recorded any satisfaction about the compliance of the statutory requirement. In the case of Bibekananda Bhowal v. Satindera Mohan Deb A.I.R 1996 Supreme Court 1985, exectly a similar question arose before the Supreme Court. In that case a suit for recovery of possession was decreed. In appeal, however, parties entered into a compromise and a compromise decree was passed by the appellate Court. The compromise decree provided that the defendant would be liable to be evicted from the suit land after expiry of ten years by appropriate action in a Court of law. The execution of the decree was challenged and matter went up to the Apex Court where Their Lordships allowing appeal held as under:
The consent decree of 10.5.1965 had created and/or continued the relationship of landlord and tenant as between the Deb and the Bhowals for a further period often years. If the Bhowals are entitled to the protection of Section 5 of the Assam Non-agricultural Urban Areas Tenancy Act, 1955, they are entitled to avail of this protection in a Court of law. Such a question cannot be decided in execution proceedings. The compromise decree did not contemplate ejectment of the Bhowals from the suit building in execution of the compromise decree. It provided that they would be ejected by taking an appropriate proceeding in accordance with law.
8. As noticed above, in the instant case, the parties entered into' compromise ignoring the existence of statutory grounds for eviction and the compromise decree was passed and on the basis of which registered deed of lease was executed by and between the parties allowing the defendant to continue possession of the suit premises for a period of ten years. The compromise decree further provided that, if the defendant failed to vacate the suit premises after period of. ten years, the plaintiff will get the suit premises vacated through the processes of the Court. It is, therefore, clear that the plaintiff has to follow the due process of the Court for getting possession of the suit premises. In other words, the plaintiff has to file eviction suit for the eviction of the defendant from the suit premises and the defendant-petitioner cannot be evicted in execution of the compromise decree which, in fact, is unexecutable. From perusal of the impugned order it appears that the executing Court has completely misconstrued the law and has not decided the objection in accordance with law. The impugned order, therefore, cannot be sustained in law.
9. Having regard to the facts and circumstances of the case and the discussions made above, this Civil revision application is allowed, and the impugned order passed by the Court below is set aside ; consequently the execution case filed by the Decree-holder-Opposite party is dismissed as not maintainable.