M. N. Shukla, A.C.J. - (1.) THIS writ petition was initially heard by a learned single Judge who referred the following two questions for decision by a larger Bench i (a) Whether a compromise decree which contained a default clause would be invalid to the extent of that clause and the default clause would be unenforceable ? and (b) Whether the executing court could go behind a decree and refuse to execute the decree containing the default clause ? That is how the case has come before us.
(2.) AS the learned single Judge who made the reference has since reverted to the Bar we are of the opinion that in order to avoid further delay in the final hearing of the case it would be expedient that this Bench should dispose of the entire case instead of answering only the question referred to above. The salient facts of the case may first be adverted to. The petitioner was a tenant of the disputed accommodation at a rent of Rs. 12.50 per month. The respondent No. 3 landlord, filed a suit for his ejectment on the basis of default in payment of rent and termination of tenancy. Before the suit could be heard and decided a compromise was entered into between the parties on 22nd January, 1976. It is Annexure 1 to the writ petition. It mentions that the parties had come to terms and the defendant had paid to the plaintiff the costs of the suit and rent due upto 31st July, 1975 The rent from August, 1975 to 31st January, 1976 amounting to Rs. 90/- was to be paid by the defendant to the plaintiff by 31st March, lv76. From 1st August, 1975, the rate of rent was to be enhanced to Rs. 15/- per month. It was further stipulated that in case the defendant did not pay the balance of rent by 31st March, 1976 as agreed, the suit of the plaintiff shall stand decreed. Costs were to be borne by the parties. The compromise was made part of the decree. On the basis of the aforesaid compromise a decree was passed. The defendant did not pay the rent by 31st March, 1976 as agreed. Consequently, the plaintiff filed an application for execution of the compromise decree. The defendant-judgment debtor resisted the execution on the ground that a new tenancy had come into being and on the basis of the same he had a right to remain in possession. His contention was that he could not be evicted under the decree, as the plaintiff had given his consent to the defendant to remain in possession as a tenant at a rent of Rs. 15/- per month under a new tenancy.
(3.) BOTH the courts below rejected the objection. The present writ petition was filed challenging those two orders passed in execution. Heard the learned counsel for the parties. On behalf of the petitioner reliance was placed on the case Shivaji Maharaj Gauri Shanker Mahadeoji v. Durga Prasad, AIR 1964 All. 37 and it was argued that the clause of ejectment for non-payment of rent in the compromise was merely as a penalty and the penalty clause could not be enforced. In our opinion the facts of Shivaji Maharaj Gauri Shanker Mahadeoji's case (Supra) were entirely different. In that case the plaintiff landlord had filed a suit for ejectment of the defendant and for recovery of a sum of Rs. 987/8/- as arrears of rent and damages. The suit was decided in terms of a compromise which provided that the suit be decreed for recovery of Rs. 987/8/- but he dismissed so far as it related to the relief of ejectment. It further said that should the defendant fail to pay the amount under decree by 27th July, 1950 the suit would be deemed to have been decreed for ejectment as well. The defendant defaulted in payment of the decretal amount and thereafter an execution application was filed against the defendant by the plaintiff who had obtained a decree for ejectment. The judgment-debtor resisted the execution application on the ground that the decree was not executable as regards ejectment inasmuch as the condition relating to ejectment on default of payment of decretal amount as mentioned in the compromise was in the nature of a penal clause. The objection was upheld and the decree for ejectment was held to be not executable. The same view was affirmed in second appeal decided by this Court.;