J.M.SHETH - (1.)This appeal is directed against the order passed by the Executing Court in Dhrkhast Na. 367 of 1970 over-ruling the objections raised by the present appellants regarding the executability of the decree against them and issue of a warrant for possession under Order 21 rule 35 of the Civil Procedure Code against them which order has been confirmed by the learned District Judge Surat in Civil Appeal No.84 of 1971.
(2.)Short facts leading rise to this appeal are as under: Respondent decree-holder filed Civil Suit No. 1499 of 1966 against one Chotubhai Kunverbhai Rathod (since deceased) on 24-11-1966 for recovery of possession of the leased premises and for the arrears of rent etc. on the ground that Chhotubhai (tenant) whose contractual tenancy was determined was a tenant-in-arrears for a period over six months and the landlord required the suit premises reasonably and bona fide for his personal use and occupation. In that suit decree on the basis of consent terms came to be passed on 26th September 1966 One of the consent terms was that the tenant withdraws all his contentions raised in his written statement. One of the terms was that the tenancy had come to an end and there was no relationship of landlord and tenant between the parties. The arrears of rent as well as the mesne profits that become payable by the defendant to the plaintiff upto 30th September 1967 come to Rs.755.00. Taking into account the sum of Rs. 300.00 deposited by the defendant in the Court the balance that remains to be paid comes to Rs. 455.00. Defendant has to pay the said sum and other costs. He has also to pay mesne profits at the rate of Rs. 30.00 till handing over possession from 1st October 1967 The aforesaid sum of Rs. 455.00 is to be paid by monthly installment of Rs. 20.00. The date is also fixed for payment of installment every month. The possession of the suit property was to be handed-over by the defendant to the plaintiff on or before 30th September 1970 In case the defendant hands-over possession of the suit property to the plaintiff without the plaintiffs filing an application to execute the decree for obtaining possession on or before 30th September 1970 the defendant is to give a concession as regards the costs of the suit. On the basis of these consent terms the decree came to be passed. As the possession was not handed-over on the specified date the respondent judgment-creditor filed Darkhast No. 267 of 1970 to execute the decree. As original judgment- debtor Chhotubhai had died on 17th October 1968 this Darkhast was sought to be executed against the present appellants stating that they were the legal heirs and representatives of the deceased judgment-debtor Notice was issued to the appellants and it is after hearing their objections the impugned order came to be passed. One of the main contentions raised s on behalf of the appellants before the Executing Court was that this decree was a nullity as the Court could not pass such a decree on the basis of the consent terms in view provisions contained in sec. 13(1) of the Bombay Rents Hotel and Lodging House Rates Control Act 1947 (which will be hereinafter referred to as the Act).
(3.)It was contended that the Court has to satisfy itself about the existence of one of the grounds mentioned in clauses (a) to (i) in sub-sec. (i) of sec. 13 of the Act. In the instant case the Court had merely passed the decree on the basis of the consent terms. Consequently the decree was a nullity. Both the Courts negatived this contention on the ground that some of the terms of the decree clearly indicated that there was sufficient material for the satisfaction of the Court that the landlord was entitled to the decree on the grounds which are covered by some of the grounds mentioned in sec. 13(1) of the Act.
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