Kasliwal, J. - (1.) A plot of land measuring 2000 sq. yards situated at Syani Road Bombay is the subject matter of this litigation. One part of the case is that the above property belonged to Chimanlal D. Parikh. He executed a will on 20-10-1952 in favour of his minor sons Prakash Chimanlal Parikh and Pankaj Chimanlal Parikh (hereinafter referred to as respondents Nos. 1 and 2). Chimanlal D. Parikh died on 5-12-1952. Devidayal Rolling and Refineries Pvt. Ltd. (hereinafter referred to as respondent No. 3) was in occupation of the said property as a tenant. Smt. Mayadevi widow of Chimanlal D. Parikh and executors named in the will It dated 20th October, 1952 acting on behalf of respondents Nos. 1 and 2 filed a suit No. 344 of 1958 for eviction against respondent No. 3 in the Bombay High Court. On 31-10-1961 a consent decree for eviction was passed in the above suit with the condition that the decree shall not be executed for a period of 12 years i.e. up to 31-10-1973. The respondents Nos. 1 and 2 in order to execute the said decree submitted an application under Order 21, Rule 16 and Order 21, Rule 22, C.P.C. in the Bombay -High Court. The said applications were allowed and respondents Nos. 1 and 2 were substituted as decree-holders by an order of the High Court dated 10-12-1973. M/s. Devidayal Rolling Mills (hereinafter referred to as "the petitioners") appeared in the execution proceedings and contended that they had purchased the business along with interest in the disputed property from Devidayal Rolling and Refineries Private Limited, the respondent No. 3. The petitioners also filed a declaratory suit in January, 1974 in the Small Cause Court at Bombay for being declared as tenants in the above property. The petitioners also filed an interlocutory application for restraining the respondents Nos. 1 and 2 from executing the decree for eviction. The respondents Nos. 1and 2 denied any tenancy having been created in favour of the petitioners. The Small Cause Court rejected the grant of any injunction in favour of the petitioners and a revision filed against the said order was also dismissed by the High Court. The petitioners then filed a Special Leave Petition No. 4925 of 1977 in this Court, after the disposal of which, the present interim application No. I has been filed.
(2.) A Bench of three Judges of this Court on 13-12-1977 dismissed the Special Leave Petition but respondents Nos. 1 and 2 agreed not to execute the decree before 1 st January, 1980 on an usual undertaking to be given by the petitioners as well as respondent No. 3. The order dated 13-12-1977 having an important bearing in the case is reproduced as under: Upon hearing counsel, the Court passed the following - "Special Leave Petition is dismissed. However, respondents 1 and 2 agree not to execute the decree before the 1 st of January, 1980, on the undertaking given by Mr. Nariman on behalf of the petitioners and respondent No. 3 that the petitioners and respondent No. 3 shall hand over vacant and peaceful possession of the premises to respondents 1 and 2 on or before the said date. The petitioners and respondent 3 further undertake that they will not raise any contention hereafter that they were or are in possession of the premises either as licensee or tenants of respondents 1 and 2 under the unamended or the amended Rent Act. Arrears of compensation according to the consent decree shall be paid within four weeks from today and further compensation shall be paid before the 10th of every month at the rate of Rs.,4000/- per month. All other terms of the consent decree will remain. The petitioner and respondent No. 3 shall file through their Managing Director an affidavit in terms of this order, within two weeks".
(3.) In pursuance to the above order, undertakings were filed on 15-12-1977. Subsequently an application C. M.P. No. 18403 of 1978 was submitted on 8-8-1978 to the effect that after the filing of the undertakings the petitioners and respondent No. 3 had handed over peaceful and vacant possession of the premises to respondents Nos. 1 and 2 on 25th June, 1978. It was further submitted that on 25th June, 1978 itself a fresh tenancy had been granted by respondents Nos. 1 and 2 in favour of the petitioners. A copy of the agreement granting fresh tenancy was also filed along with the application. The above application was filed in view of the fresh agreement of tenancy warranting the obtaining of discharge of the undertakings filed before this Court. The following prayer was made in the said application: (a) That it may be declared and recorded that the petitioners and respondent No. 3 have duly complied with the order of this Hon'ble Court dated 13th December, 1977 Exh. 'A' hereto and the undertakings recorded in the said order as well as the undertakings given by Kewal Kishan Agarwal and Bankey Kishan Agarwal in their affidavits dated 15th December, 1977; (b) That the petitioners, respondent No. 3, the said Kewal Kishan Agarwal and the said Bankey Kishan Agarwal be relieved on their respective undertaking given by them to this Hon'ble Court and recorded in the said order dated 13th December, 1977 Ex 'A' hereto and the said affidavits of Kewal Kishan Agarwal and Bankey Kishan Agarwal dated 15th December, 1977 and (c) for such further and other reliefs as the nature and circumstances of the case may require for which act of kindness as the petitioners have in duty bound shall ever pray. The above application came up for consideration on 11- 12-1978 and was disposed of by the following order: UPON hearing counsel, the Court passed the following order: "The other side has no objection. Order made as prayed for". This concludes one part of the case.;