Patherya, J. - (1.) E.C. 81 of 2007 has been filed by the decree-holder for execution of a decree dated 31st March, 1987 by seeking to take vacant possession of 10,835.31 sq.ft. on the second floor of premises No. 41, Chowringhee Road, Calcutta, 2,400 sq.ft. on the third floor in the annexe building and 120 sq.ft. on the ground floor of the said premises. The said decree has been challenged by the judgmentdebtor by an application filed under Section 47 of the Code of Civil Procedure being G.A. 3618 of 2007.
(2.) COUNSEL for the judgment-debtor submits that C.S. No. 440 of 1985 was filed by the decree-holder and on compromise a decree was passed. The Terms of Settlement so also the Lease Deed dated 9th September, 1986 was made a part of the decree. It has been alleged by the decree-holder that the said Lease Deed of 1986 is a part of the decree and there has been breach thereof, therefore the decree-holder is entitled to execute the decree dated 31st March, 1987. The Lease Deed is neither stamped nor registered and therefore is inadmissible in evidence. The judgment-debtor is a monthly tenant under the West Bengal Premises Tenancy Act, 1956 and the provisions thereof will apply to the judgment-debtor. The petitioner?s tenancy has also not been determined in accordance with law. The decree passed is not under the 1956 Act, therefore is inexecutable. For breach of the Lease Agreement under Sections 13(1)(b), (d), (e) and (i) a separate and independent suit would have to be filed and execution would not be permitted. Similarly for the breach alleged a suit be filed and this execution application is not maintainable. One of the grounds on which C.S. 440 of 1985 was filed is Section 13(1)(b). By executing a fresh Lease Deed on compromise, the said suit was decreed. As the Deed of 1986 is a new lease and is not in continuation of the existing lease a new cause of action has arisen and therefore, the decree-holder is not entitled to seek eviction of the judgment-debtor by the execution application but ought to file a fresh suit. Reliance has been placed on AIR 1996 SC 1985 for the proposition that no ejectment decree is to be passed in execution unless the decree so provides. As held in AIR (1975) SC 2130 the defendant must submit to a decree and the grounds on which such decree is being passed must be set-out. This is lacking in the instant case and therefore the decree is no decree in the eye of law. As held in 1994 (1) SCC 531 as the consent decree is a creature of the agreement on which it is founded, the consent decree can be set-aside on the grounds which will invalidate it. Therefore the consent decree be set-aside. 1970 (3) SCR 114 is relied on for the proposition that where a fresh lease is executed, the terms to vacate at the end of the term would not amount to an ejectment decree. Therefore, the decree dated 31st March, 1987 be declared null and void and Section 47 application be allowed and execution application dismissed. In opposing the said application counsel for the decree-holder submits that the consent decree and the lease of 1986 is one document as the Lease Deed by incorporation in the Terms of Settlement has become a part of the decree. A consent decree of eviction can therefore be executed. AIR 1996 SC 1985 is distinguishable on facts as it dealt with two properties one part which could be executed and the other part in respect of which a suit was to be filed, therefore, a suit was filed and a fresh decree was passed. 1994 (1) SCC 531 was a case where on the basis of a consent decree it was agreed that the conveyance would be a part of the decree and therefore, the same was stamped. 1970 (3) SCR 114 is distinguishable as it was dealing with a case where renewal though by consent could not be withheld unreasonably. In view of 2006 (5) SCC 566 and 1978 (1) SCC 58 the decree dated 31st March, 1987 be executed and the application filed under Section 47 be rejected. Counsel for the judgment-debtor in reply submits that 2006 (5) SCC 566 is distinguishable as therein the judgment-debtor undertook to vacate the said premises. Similarly, 1978 (1) SCC 58 is also distinguishable. Therefore, E.C. 81 of 2007 be dismissed and G.A. 3618 of 2007 be allowed.
(3.) HAVING considered the submissions of the parties although the judgmentdebtor seeks setting aside of the consent decree dated 31st March, 1989 on a reading of the Terms of Settlement on the basis of which the consent decree was passed it is evident that the suit was compromised on execution of the Lease Deed dated 09.09.1986. C.S. 440 of 1985 was filed for breach committed under Clauses (o) and (p) of Section 108 of the Transfer of Property Act. The Lease Deed has been signed by the respective parties so also the Terms of Settlement. The advocates of the parties have also signed the Terms of Settlement, therefore the execution of the Terms of Settlement and the consent decree cannot be questioned and AIR (1975) SC 2130 and 1994 (1) SCC 531 will not apply. As the parties agreed to execute a fresh Lease Deed and in fact did execute the same, the question of challenging the existence of the Lease Deed of 1986 cannot arise. Therefore, the only question that needs to be considered is whether the Lease Deed was a part of the decree and therefore can be executed or is a fresh lease between the parties. C.S. 440 of 1985 was filed by the decree-holder for eviction of the judgment-debtor and the judgement-debtor agreed to dispose of the suit on terms recorded in the Lease Deed of 1986 which was made a part of the Settlement. The Lease Deed of 1986 postulated handing over of vacant possession upon expiry of the lease period but nowhere was it mentioned that in default or breach of the same the decree-holder would be entitled to execute the decree. The Lease Deed was not an extension of the terms of tenancy that existed between the parties prior to 1986 but was a fresh Deed executed between the parties and in view of 1970 (3) SCR 114 the intention of the parties to create a fresh lease was clear. AIR (1996) SC 1985 was a case where execution was permitted in case of default of Clause A of the decree of 1965 but breach of any condition of the compromise decree would warrant ejectment by appropriate action in law. The compromise decree in the instant case does not contemplate execution, therefore the decree-holder cannot in execution of decree dated 31st March, 1987 seek eviction of the judgment-debtors. 2006 (5) SCC 566 does not come to the aid of the decree-holder as in the case cited the tenant undertook to vacate the premises and therefore it came under the 1st part of Rule 3 of Order 23 of the Code of Civil Procedure and therefore the decree was executable. It has also been accepted that satisfaction can be reduced in writing and signed. In the instant case no such term was a part of the compromise. There is also no promise agreed to be performed or executed.;