Judgment:
ORDER
Kumar Rajarathnam, J.
1. The Decree holder who is the respondent before this Court sought delivery of possession of the suit schedule property in Execution Case No. 59 of 1991 on the file of the IVth Additional City Civil Judge, Bangalore. The learned Judge by his order dated 16th of December 1991, held that the decree passed in O.S.No. 1174/1983 dated 21.4.1984 sought to be executed in the Execution Petition is executable. Aggrieved by this order in Ex.No. 59/91 the tenant has preferred this Revision Petition.
2. The facts of the case very briefly are:
The respondent-landlord preferred Original Suit No. 1174/1983 on the file of the XI Additional City Civil Judge, Bangalore for delivery of vacant possession of schedule premises and also for arrears of rent. The parties entered into a compromise and according to the said compromise, the suit was decreed. Under the terms of the compromise entered into between the parties, the landlord acknowledged taking possession of a portion of the suit premises from the defendant-tenant. The remaining portion of the property which continued to be in possession of the tenant was to be vacated and handed over to the landlord on or before 7.1.1989. The tenant was required to pay damages by way of rent for the use and occupation of the schedule property from 8.1.1984 to 7.1.1986 @ 800A p.m. and thereafter till 7.1.1989 @ Rs. 1000/- p.m. regularly. It was further agreed in the compromise decree that the defendant shall pay damages by way of rent regularly and in case of default to pay the same continuously for a period of two months from the respective due dates, the plaintiff was at liberty to execute the decree and take delivery of the remaining portion of possession of the property. It was further agreed that the defendant shall deliver vacant possession of the remaining portion of the property on or before 7th day of January 1989 without raising any objections whatsoever. In case defendant failed to hand over vacant possession, the defendant was required to pay damages of Rs. 2000/- from 8.1.1989 up to date of delivery of the possession of the remaining portion of the property. It was only on these conditions, that the defendant was permitted to stay in the remaining portion of the property. The Trial Court accepted the compromise and decreed the suit in terms of the compromise.
3. Under the terms and conditions of the compromise decree, the petitioner-tenant was to deliver vacant possession on or before 7.1.89 with respect to the remaining portion of the property. Since the petitioner-tenant did not vacate the remaining portion of the property on or before 7.1.1989, the landlord-respondent filed the Execution Petition No. 135/89. In the Execution Petition No. 135/1989 the tenant expressed his difficulty to vacate the remaining portion of the said property and sought time till 7.1.1991. On such an undertaking the landlord did not press with the Execution Petition. The Executing Court in Ex.No. 135/89 held, hence for the time being the Execution Petition is not pressed in view of the above undertaking, and as such the present Execution Petition was closed.'
4. The petitioner-tenant inspite of the undertaking given did not give vacant possession of the premises on or before 7.1.1991 and continued to occupy the same. Under these circumstances the respondent-landlord was forced to file the second Execution Petition No. 59/91. As stated earlier the Executing Court passed an order dated 16th of December 1991 holding that the 'Execution Petition is executable'. Aggrieved by this order, the petitioner-tenant has preferred this Civil Revision Petition.
5. The contention of the Judgment Debtor was that the decree under Execution is not executable. The decree in O.S.No. 1174/1983 was passed in a suit when Section 31 of the Karnataka Rent Control Act was in existence. Section 31 was struck down by this Court in a decision reported in PADMANABHA RAO v. STATE OF KARNATAKA, : ILR1986KAR2480 Learned Counsel for the petitioner Mr. Narayan submitted that the decree was passed only because Section 31 was inforce.
Section 31 of the Karnataka Rent Control Act reads as follows:
'31. Exemption in respect of certain buildings:-
Nothing contained in this Part shall apply to a non-residential building the monthly rent of which exceeds five hundred rupees or the annual rental value of which exceeds six thousand rupees. Provided that the exemption under this Section shall not apply:-
(i) to any building taken on lease by a public authority or by an educational institution; or
(ii) to any building occupied by more than one tenant each paying monthly rent exceeding five hundred rupees or an annual rent not exceeding six thousand rupees.'
6. In this case Section 31 of the Karnataka Rent Control Act, 1961 (Karnataka Act No. 22 of 1961), (hereinafter referred to as the Act) was struck down by this Court on 1.7.1986. O.S.No. 1174/1983 preferred by the landlord was decreed on 21.4.1984. As per the compromise decree a portion of the suit schedule premises was handed over to the landlord. The remaining portion which was in possession of the tenant was to be handed over on or before 7.1.1989. In case the tenant failed to hand over vacant possession, the tenant was required to pay damages till the date of delivery of possession of the remaining portion of the suit property. An earlier Execution Petition No. 135/1989 was closed on an undertaking given by the tenant that he will deliver vacant possession on 7.1.1991. Inspite of the undertaking given by the tenant to deliver vacant possession on or before 7.1.1991, the tenant did not deliver vacant possession of the remaining portion of the suit premises. It is only in these circumstances the landlord filed the second Execution Petition No. 51/1991 which is under Revision before this Court. It is also common ground that the tenant has not filed any appeal against the decree in O.S.No. 1174/1983. The said decree passed against him has become conclusive. It is common ground that the tenant did not raise any objection on the question of jurisdiction when the first execution petition was closed. On the contrary, he gave an undertaking before the executing Court that he will give vacant possession of the remaining portion of the property on 7.1.1991.
7. Mr. Narayan, learned Counsel for the petitioner-tenant submitted that the Execution Case No. 59/1991 filed by the landlord is inexcusable and such a decree is nullity with effect from 1.7.1986 (the date on which Section 31 of the Act was struck down).
8. Mr. Narayan, further submitted that notwithstanding the decree the tenant continued to be in possession as a tenant and was protected under the provisions of the Act. He also submitted that the landlord will have to move a fresh petition all over again before the Rent Control Tribunal if in accordance with law.
9. Learned Counsel placed reliance on a Division Bench Judgment of this Court reported in West Coast Paper Mills Ltd. v. Indira Rao, : ILR1991KAR2516 . This Court held that consequent to the striking down of Section 31 of the Act on 1.7.1986 the jurisdiction of the Civil Court to pass a decree for ejectment against the tenant of the premises is ousted and under the Act the jurisdiction is conferred only on the ground as defined in the Act. The Division Bench further held that the decree for ejectment passed by the Civil Court in view of the change in law is not sustainable and a decree by a Civil Court is not executable after 1.7.1986. The Court however gave a rider to the effect that the decrees which have become final, which have been executed were not to be reopened.
10. We have given our anxious consideration to the facts and circumstances of this case. Undoubtedly the petitioner was not a tenant within the meaning of the Act till 1.7.1986 when Section 31 of the Act was struck down and the Civil Court was competent to pass a decree in O.S.No. 1174 of 1983. From the terms of the decree we will have to determine whether the petitioner continued to be a tenant or a mere licensee after the decree.
11. The decree was passed on 21.4.1984 much prior to 1.7.1986. (the date on which Section 31 was struck down). If under the terms of the decree the party has agreed to abide by certain conditions and if by those conditions the petitioner has handed over a portion of the suit premises and retains some other portion of the premises, agreeing to pay damages till vacant possession is delivered, it would be difficult to go behind the decree and hold that the petitioner is still a tenant. If the petitioner is not a tenant pursuant to the compromise decree and pursuant to him handing over the possession of a portion of the suit premises, then, it would not be possible to hold that the petitioner retains the remaining portion of the property only as a tenant. Petitioner will undoubtedly be, under the terms of the compromise only a licensee and not a tenant.
12. The Supreme Court in K.R. SUBUDHI v. GOPINATH, (1968) 2 SCR 559 had an occasion to consider a similar position. The Supreme Court held that pursuant to a compromise decree it is the intention of the parties which is the decisive test, notwithstanding the fact that the word 'rent' being used in the compromise decree. If it can be culled out from the decree passed by a Court of competent jurisdiction that the intention of the parties was that the tenant willingly acquiesced to be a licensee rather than a tenant then he will undoubtedly be a licensee and nothing more. In these circumstances the landlord was certainly entitled to execute the decree of a Civil Court.
13. In the light of the Judgment of the Supreme Court in (1968) 2 S.C.R. 559 we will have to consider the present compromise decree which was decree prior to the striking down of Section 31 of the Karnataka Rent Control Act.
14. The suit filed by the landlord in O.S. No. 1174 of 1983 was decreed on 21.4.1984. Section 31 of the Act was struck down on 1.7.1986.
The compromise decree reads as follows:
'It is ordered and decreed that the plaintiff acknowledges for having taken delivery of possession of portion of premises marked by letters AGHJA from the defendant as shown in the annexed plan.
It is further ordered and decreed that the defendant shall vacate and hand over the vacant possession of the remaining portion of the property mentioned in the schedule to this compromise petition. And also shown in the sketch annexed on or before 7.1.1989.
It is further ordered and decreed that the defendant shall pay damages by way of rent for the use and occupation of the schedule property from 8.1.1984 to 7.1.1984 @ Rs. 800/- p.m. from 8.1.1984 to 7.1.1986 and thereafter up to the expiry of 7.1.89 @ Rs. 1000/- p.m. regularly.
It is further ordered and decreed that the defendant shall pay the damages by way of rent regularly and in case of default to pay the same continuously for a period of two months from the respective due dates. The plaintiff is at liberty to execute the decree and take delivery of possession of the property mentioned in the sketch enclosed to the decree.
It is further ordered and decreed that the defendant shall vacate and deliver vacant possession of the property mentioned in the schedule to the plaintiff on or before 7th day of January 1989 without raising any objections of whatsoever nature. In case the defendant fails to handover the vacant possession of the suit property as stated above, the defendant shall pay damages by way of rent @ Rs. 2,000/- (Rs. Two thousand only) P.M. from 8.1.1989 up to the date of delivery of the possession of the suit schedule property.
It is further ordered and decreed that the defendant will continue to be in possession of the property which forms a portion of the plaint schedule properly viz., the portion marked as ABCDEFGA in the sketch, more fully described in the schedule measuring East to West 55' and North to South 45' and 10' by 30' in total 2725 Sq.ft. up to 7.1.1989 subject to the terms and conditions mentioned above.
It is further ordered and decreed that the claims for damages as claimed in the suit is fully settled.
It is further ordered and decreed that the parties are directed to bear their own costs. Refund of half the Court fee is allowed.'
15. In the first Execution Case No. 135/1989 the tenant did not question the jurisdiction of the Court but sought time to deliver vacant possession till 7.1.1991. It is only when the tenant did not deliver vacant possession on 7.1.1991 as agreed by him, the landlord was compelled to file the second Execution Petition which is the subject matter of this Revision Petition.
16. The Supreme Court had an occasion to deal with similar compromise decree wherein the Supreme Court has held that it is difficult to impute an intention to create a fresh lease and that pursuant to the compromise decree there was no intention for the parties to enter into a relationship of landlord and tenant. In the facts and circumstances of the case, we have to necessarily hold that the petitioner was only a licencee pursuant to the compromise decree and that such decree is executable.
17. A Division Bench of this Court in the case of VENKATARAMANA BHATTA v. P.N. BALASUBRAMANYA SHETTY CRP No. 5606/89 DD. 11.3.97 has held that the judgment rendered by this Court in West Coast Paper Mills Ltd. v. Indira Rao : ILR1991KAR2516 is prospective and not retrospective. Therefore the Court held that any decrees passed prior to 1.7.1986 (i.e. the date on which Section 31 of the Act was struck down) are enforceable. Following the judgment of the Supreme Court in the case of Rangarao vas Kamalakant (1995 Supp(1) S.C.C. 271) the Division Bench in the abovesaid C.R.P. No. 5606/89 at paragraph-16 & 17 has held as follows:
'16. In RANGA RAO's case the landlord/appellant had filed a suit for possession which ended in a compromise decree. Subsequently, the notification exempting certain categories of buildings from the purview of C.P. & Berar Letting of Houses and Rent Control Order, 1949 issued under Clause 30 of the said order came to be struck down on the ground that it was violative of Article 14 of the Constitution. When the decree was sought to be executed, the tenant albeit the compromise raised an objection that the decree became unexecutable since the civil court had lost jurisdiction to pass an order of eviction in view of the decision. That objection, although overruled by the lower Courts, was upheld by the High Court. Allowing the landlord's appeal, the Supreme Court held - When the compromise memo fractioned into a decree on 3.1.1985, the Civil Court had every jurisdiction to pass such a decree. It is true the notification issued under Clause 30 of C.P. and Berar Letting of Houses and Rent Control Order, 1949 came to be struck down as violative of Article 14 of the Constitution. This was on 19.6.1985. The decision rendered thereunder cannot have any effect of rendering the decree passed on 3.1.1985 a nullity which decree has become final. No judgment of any court can have any retrospective operation because that is the plenary power of Parliament (Legislature as well). The Courts do not have such power. If that be so, the High Court had clearly gone wrong in holding that the decree on the date of execution is a nullity. This view though in conflict with the view expressed in SHIVA RAO's case having been expressed in a last decision prevails on the same and hold the view.
17. Following the principles laid down in the decision in RANGARAO's case and applying the same to the facts in the present case on hand, it must be held that the order of eviction passed had become final and subsequently declaration of Section 31 of the Act as void is effective only from the date of the order passed, the right which had already accrued to the landlords would not be divested though they had not taken possession in execution proceedings for the reason that even the second appeal preferred by the tenants/L.Rs. was dismissed and the decree had become final for eviction and also it is to be noted that the landlord need not seek for eviction under Section 21 of the Act as he had already obtained the right to evict the tenants which had become final.'
Following the judgment of the Division Bench in C.R.P. No. 5606/89 (D.D. 11.3.97) and for the reasons stated therein this revision is also, on this ground as well, liable to be dismissed.
18. Accordingly, the executing Court was justified in holding that the decree is executable. We do not find any ground to interfere with the order passed by the executing Court.
In that view of the matter, no interference is called for while exercising powers under Section 115 C.P.C. The revision Petition is accordingly dismissed. No order as to costs.
The parties are directed to appear either in person or by a counsel before the executing Court on 10.4.97. The executing Court shall dispose of the matter in accordance with law as expeditiously as possible.