SHARAD MANOHAR, J. - (1.)An extremely interesting and somewhat ticklish question has arisen in this petition which is filed by the original decree-holder who has obtained a decree against one of his tenants by compromise and the said decree has been at nought by the Court during the execution proceedings on the ground that the decree was inexecutable on account of various reasons. I will presently allude to those various reasons.
(2.)The facts of the case are as follows :--- The petitioner in these proceedings is the owner of the suit premises. At this stage atleast, there is no dispute that the suit premises were let out by him jointly to two persons one Vastimal and other Kapoorchand. It needs be emphasised that it was a joint lease. Before the suit in question was filed Kapoorchand had died and hence in the relevant suit to which a reference will be presently made his heirs and legal representatives were impleaded as defendants Nos. 2 to 9. It may be mentioned here further that even Vastimal had died during the pendency of this litigation. However, for the sake of convenience Vastimal and his heirs will be referred to compendiously, as defendant No. 1 and all the heirs of Kapoorchand as defendant No. 2, in this judgment hereafter. The landlord who had filed the suit in question and who is present before me will be referred to hereinafter as the plaintiff.
(3.)The plaintiff filed a Regular Civil Suit No. 94 of 1971 against the defendants for the possession of the suit premises on various grounds including the grounds of default in the payment of rent, unlawful sub-letting and bona fide requirement of the land. It is unnecessary in this judgment to refer to the written statement of the defendants. The next relevant fact is that on 24-1-1973 a compromise was arrived at between the plaintiff and defendant No. 1 only. By the said compromise defendant No. 1 admitted the plaintiff claim. He admitted the various arrears. However, in Clause 4 of the compromise agreement it was provided that in case defendant No. 1 paid the various arrears to the plaintiff within the stipulated period the decree should be marked as satisfied and that the plaintiff should not recover possession of the suit premises. However, it was further provided that in the case of default on the part of defendant No. 1 in that behalf the decree should be executed by the plaintiff and that he should recover possession of the suit premises. Clause 7 of the said compromise is of somewhat intriguing character. What is mentioned in the said clause has got some relevance to the question to be decided in this petition. Hence the translation of the said Clause 7 may be set out fully. The said Clause 7 runs as follows :---
"The other defendants do not reside in the suit premises; but for technical reasons they are made parties to the suit. The plaintiff does give his consent for an order to be passed against those defendants also as against this defendant."
Clause 9 provided that plaintiff was at liberty to get refund of the Court fees paid by him for the purpose of filing of the suit. This compromise was signed by defendant No. 1 only. In no sense of the terms defendant No. 2 had any truck with this compromise. What is more bewildering is that the Court purported to pass a decree in terms of this compromise but the Court did not even purported to pass a decree against defendant No. 2 and as such the suit filed against defendant No. 1 was neither dismissed nor decreed. It appears that the Court was practically oblivious of the fact that in the suit relief was claimed not only against defendant No. 1 but also defendant No. 2 who was after all a joint lessee with defendant No. 1 It is the grievance of the plaintiff that original defendant No. 1 committed default in the matter of compliance with the stipulations in the compromise decree and hence he filed the Darkhast for recovery of the possession of the suit premises by execution of the decree. In this Darkhast defendant No. 1 as well as defendant No. 2 were impleaded as judgment debtor.