R.R.K.TRIVEDI, J. - (1.) HEARD learned Counsel for petitioner and respondents. In this petition counter and rejoinder affidavits have been filed. Both the learned Counsel are agreed that the petition may be disposed of finally at this stage.
(2.) THE facts giving rise to this petition are that Suit No. 256 of 1977 was filed by respondent No. 4 in the Court of Judge, Small Causes for ejectment of respondent No. 3, Har Kishan Thukral. Allegation against him was that he had sub-let the shop in dispute in favour of petitioner Sunder Das who was also impleaded as defendant No. 2. On 16.8.1977 a compromise was filed in the suit. Copy of the compromise is Annexure 1 to the writ petition. On the basis of this compromise the suit was decreed on the same day. The terms and conditions of this compromise were mentioned in para 2 of the compromise which is being reproduced below :- "2. That the defendants have agreed to put the plaintiff in possession of half of the northern side of the disputed shop immediately and the rest of the portion towards south of the disputed shop will be given possession to the plaintiff on the expiry of 8 years from the date to today and for that duration the plaintiff shall be entitled to recover compensation for use and occupation at Rs. 30 per month which will be payable by the defendant No. 2 to the plaintiff each month and if the defendant No. 2 does not give possession to the plaintiff then the plaintiff will be entitled to recover possession thereof by putting the decree in execution or if the amount of compensation is not paid then the plaintiff will also recover it in the execution of this compensation decree." In accordance with the terms and conditions of the compromise when the shop was not vacated Execution Case No. 92 of 1985 was filed which was objected to by the petitioner. The objection of the petitioner was rejected by the Execution Court on 28.11.1988 and revision filed by him was dismissed on 23.8.1990 by the Xth Additional District Judge, Bareilly. I have heard Shri Rajesh Tandon, learned Counsel for petitioner. The submission of the Counsel is that the petitioner was not a party to the compromise, hence he cannot be ejected in execution of the decree. The submission is that the decree passed in the suit is a nullity so far as the petitioner is concerned. Learned Counsel has placed reliance on case reported in 1990(2) A.R.C. 453.
(3.) I have given my full consideration to the submission made by the learned Counsel for the petitioner and I have perused the judgments cited in support of the submission. In my opinion, the contention of the learned Counsel is not correct. Petitioner as well as the respondent No. 3 both were represented by the same Counsel. As is clear from the Condition No. 2 of the compromise, the rent of the shop was enhanced and half portion of the same was vacated and possession was handed over to landlord immediately. Thus the compromise was acted upon and the petitioner was party to this action. He never raised any objection against the decree passed in the suit though he was fully aware of the same as he continued to pay rent at the rate of Rs. 30/- per month, for remaining shop. He raised objection only after eight years when the execution was filed for possession of the remaining portion of the same shop, half portion of which was already given to the landlord. In my opinion, the Courts below have rightly repelled the objections raised by the petitioner. The case relied on is distinguishable as petitioner was sub-tenant and not co-tenant.;