BISWAMBAR DAYAL GARG Vs. BADINDRAPAL SINGH DAGAR
LAWS(CAL)-1975-9-51
HIGH COURT OF CALCUTTA
Decided on September 01,1975

BISWAMBAR DAYAL GARG Appellant
VERSUS
BADINDRAPAL SINGH DAGAR Respondents

JUDGEMENT

- (1.)This appeal is directed against the original order as well as the appellate order passed in a proceeding under section 47 of the Code of Civil Procedure. The respondent-decree-holder got a decree on compromise for ejectment against the appellant. According to the term of compromise the tenant got 5 years time to vacate the premises on admission of the reasonable requirement of the landlord. The tenant not having vacated the premises within the time as contained in the compromise decree the landlord-decree holder filed an execution case against the tenant judgment-debtor. The judgment-debtor filed a petition of objections under section 47 of the Code of Civil Procedure contending that the execution was not maintainable on the ground that the decree on compromise was a nullity and is in-executable because the learned Trial Judge who passed the decree did not satisfy himself that one of the grounds on which the ejectment decree was passed under section 13(1) of the West Bengal Premises Tenancy Act existed or not. Both the Courts having held against the appellant, the appellant filed the present appeal.
(2.)Mr. Banerjee on behalf of the appellant contended that the decree is in-executable on the ground that the court must be satisfied that a ground existed for the landlord to get a decree of ejectment under section 13(1) of the West Bengal Premises Tenancy Act. Mr. Banerjee however contended that on the admitted facts as found by both the Courts no such decree could have been passed under section 13(l)(ff) of the West Bengal Premises Tenancy Act, inasmuch as the Court was not satisfied that the landlord was a owner of the premises and that he was entitled to a decree as such for his own use and occupation. It must be stated that this point has never been urged by the appellant either in the Courts below or even in the grounds of appeal before me. It appears to me that the contention put forwarded by Mr. Banerjee is not at all tenable. From the terms of compromise it has been stated that the tenant-appellant agreed that the landlord requires the premises for his own use and occupation. In view of the admission made about the requirement for his own use add occupation by the defendant, it cannot be said that the statutory right for eviction was not satisfied and therefore the decree is a nullity. The plaintiff filed the suit for his own requirement and the defendant admitted the validity and existence of the requirement of the plaintiff and thereby admitted that the ground for eviction under section 13(1 )of the Act is available to the landlord. On the basis of this term and admission it cannot be said that the Court did not apply its mind to see whether a decree is to be passed in accordance with section 13(l)(ff) of the West Bengal Premises Tenancy Act,
(3.)Mr. Banerjee relied upon the C3ses reported in AIR 1970 SC 838 and AIR 1970 SC 794 (Ferozi Lal Vs. Man Mal) in support of his contention. In my opinion, those cases do not support the contention put forward by Mr. Banerjee. In those cases it appears that the Supreme Court held that at no stage the Court was called upon to apply its mind to the question and the Court was not satisfied that one or more ground for eviction was in existence. In the case reported in AIR 1970 SC, 838 (C. Mackerlich Vs. Steuart and Co.) the same question arose whether the Court applied its mind regarding the existence of the statutory ground for a decree. In the said case also a compromise was recorded in the following terms : "In view of the statement of the parties, counsel and the written compromise,a decree is passed in favour of the plaintiff against the defendant, and the decree was drawn up accordingly. The Supreme Court held following the decision reported in 1969 SCR 432 (Bahadur Singh Vs. Muni Subrat Dass) that as the Court was not satisfied itself that the ground of eviction existed the decree was a nullity and not executable. Applying this principle to the facts on the present case in my opinion, the contention of Mr. Banerjee cannot be upheld. In the compromise order itself the Court was satisfied that there was an existence of a ground upon which the Court can give a decree in favour of the landlord decree-bolder.


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