Ahmadi, J. - (1.) Special leave granted.
(2.) The appellant, landlord, filed an eviction suit No. 419 of 1968 for possession of the demised premises mainly on the ground of arrears of rent under Section 12(3) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter called 'the Act'). That suit was settled between the parties, the relevant terms whereof read as under: (1) The possession of the suit premises is to be given by the defendant to the plaintiff by 10th October, 1970. If the defendant does not give possession, then the plaintiff is to take possession by execution on the basis of this decree. (2) ********** (3) The defendant is given a concession that if the defendant paid the entire amount mentioned in clause(2) above, i.e., the amount involved in the suit, future mesne profits, electricity charges, water charges, the rent of the godown, expenses of the suit by 10th October, 1970, the plaintiff will not execute the decree for possession." Under clauses (2) and (4) of the compromise terms the rent in respect of the suit premises was to be calculated on the basis of standard rent of Rs. 30/- per month, the rent of the store room (godown) was to be calculated at the standard rent of Rs. 9/- per month and electricity and water charges at Rs. 3/- per month and so calculated, the entire arrears had to be paid on or before 10th October, 1970 to avail of the concession given in clause (3) of the compromise terms. The Trial Court passed a decree in terms of the compromise.
(3.) The arrears so calculated worked out to Rs. 3353.58p. as on 10th October, 1970. The tenant, however, paid a sum. of Rs. 2040/- only on 9th February, 1970 and, therefore, did not comply with the terms regarding payment of entire arrears on or before 10th October, 1970. Thereupon, the decree-holder filed execution proceedings on 2nd November, 1970. The tenant raised objections in regard to the executability of the decree. The Executing Court rejected the objections raised by the tenant and issued a warrant for possession of the demised premises under Order 21 Rule 35 of the Code of Civil Procedure, 1908 (hereinafter called 'the Code). The tenant preferred an appeal against the order of the Executing Court which came to be allowed. The order of the Executing Court was set aside and the prayer for eviction was dismissed. The decree-holder moved the High Court under Article 227 of the Constitution. The High Court set aside the order of the Appellate Court and remitted the matter to the Appellate Court with a direction to decide the character of the compromise terms on the basis of which eviction was sought. After the matter went back to the Appellate Court that court re-considered the matter and once again allowed the appeal setting aside the order of the Executing Court directing issuance of warrant under Order 21, Rule 35 of the Code. The Appellate Court dismissed the execution proceedings altogether. Against that order passed by the Appellate Court the decree-holder once again moved the High Court under Article 227 of the Constitution. The High Court considered the various submissions made before it by the rival parties and summarised the propositions emerging from the relevant provisions and the case law in paragraph 32 of the judgment as under: "(1) If by a consent decree the status of a landlord and tenant is established between the plaintiff and the defendant, the Court in exercise of its equitable jurisdiction is not precluded from granting relief against forfeiture of a term contained in the consent decree. (2) Where the question is not one of the creation of a tenancy or the continuation of a tenancy and where a decree passed either by consent or in invitum permits payment of the decretal amount in instalments and provides that the decretal amount becomes payable at once in the event of failure in the payment of one or more instalments, there is no question of granting relief. The Courts are bound to execute the decree in accordance with its terms. (3) Where, however, the relationship of landlord and tenant is continued between the parties by a compromise decree, the judgment-debtor, who is a tenant, would be entitled to relief against forfeiture resulting from his failure to pay the rent on the stipulated date. (4) Where the consent decree provides for the continuance of the possession of the tenant up to a particular date beyond which he has no right to remain in possession at all and on which date the landlord is entitled to execute the decree for possession, the time given from the date of the decree till the other date is by way of concession and in such a case, there is no creation of new tenancy or continuation of the existing tenancy. (5) If the consent decree provides for the continuation of the possession of the tenant on certain terms up to a particular date and also provides for the continuation of the tenant's possession after the date if he complies with certain conditions, then such a decree provides for the continuance of the possession of the tenant from the date of the consent decree itself. In such a case, it cannot be said that the plaintiff's allowing the defendant to continue up to and beyond that specified date is by way of concession." The High Court, therefore, concluded that the refusal by the Appellate Court to evict the tenant on the basis of the consent decree was correct in law and hence it was not required to interfere with the order of the Appellate Court. It came to the conclusion, on a true interpretation of the relevant clauses of the consent decreed, that the clause by which eviction was permitted was penal in nature and, therefore, not enforceable. Clause (3) of the compromise term was treated as granting relief against forfeiture. In this view of the matter the judgment-creditor, landlord, having failed to secure possession of the demised premises by putting the consent, decree to execution, has approached this Court under Article 136 of the Constitution.;