Decided on February 09,1982

KALLOO Appellant
UHAKADEVI Respondents


Baharul Islam, J. - (1.) This appeal by special leave is by the judgment-debtors. The material facts which are not in dispute may be stated thus:
(2.) The predecessor of the respondents (hereinafter referred to as 'the decreeholder') filed a suit for eviction of the predecessor of the appellants (hereinafter referred to as 'the judgment-debtor') and obtained a decree on 21-3-1960, inter alia, for eviction from a shop. The decree-holder filed a petition for execution of the decree for eviction in the executing Court on 3-1-1961. The petition was dismissed on 20-1-1961. A fresh petition for execution was filed on 19-1-1965. It was also dismissed on 20-3-1965. The decree-holder again filed an application for execution of the decree on 22-6-1966. During the pendency of this execution proceeding, the parties filed a compromise petition on 31-3-1968. The terms of the compromise on the interpretation of which the result of this appeal depends were as follows: (material portions only): "In the above case, a compromise has taken place between the parties as follows: (1) That for the present the judgment-debtor is not getting a shop. His established business will be ruined by vacating the shop in hurry. Therefore, the judgment-debtor wants time till 31-12-1972 from the decree-holder for vacating half the shop in his possession. So the judgment-debtor will vacate the shop and give possession thereof to the decree-holder by 31-12-1972. He has vacated half the shop and given its possession. (2) That during this period the judgment-debtor shall pay damages to the decree-holder for use of the shop @ 110/per month. (3) That the damages shall be paid up to the 5th of every month. In the event of non-payment of damages for any six months, the decree-holder shall be entitled to get the shop immediately vacated, by filing execution, from the possession of the judgment-debtor, without any objection as regards limitation. (4) The decree-holder wants to have new shutters put up after removing the present shutters in the front portion of the shop. The judgment-debtor will, not be entitled to object to this. He will help in the putting of girders and he will vacate the portion. If he will demur to it, the decree-holder can have the shop vacated, without any objection as regards the above limitation. So, the aforesaid compromise be accepted and kept on record."
(3.) It is also not in dispute that at the time of the compromise, half of the shop had been vacated and its possession delivered to the decree-holder as stated in the compromise petition. In order to appreciate the intention of the parties to the compromise, it is also necessary to refer to the order dated 21-3-1968 recorded by the execution court on the basis of the compromise. The material para of the order is para 3 and it is in the following terms: "The judgment-debtor to give vacant possession of the shop to the decree-holder by 31-12-1972 according to the compromise and he will pay damages for use and occupation by the 5th of every month, to the decree-holder according to the compromise. @ 110/- per month. On six months' damages being due, the decree-holder will be entitled to have the shop vacated. The decree-holder will provide shutters in the front portion. The judgment-debtor will not object to them. The case is decided in terms of the compromise. The compromise be recorded.";

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