Amitabha Dutta, J. - (1.) This is an appeal from the decision of the learned Subordinate Judge, 5th Court, Alipore reversing the decision of the learned Munsif Second Additional Court, Alipore who has allowed the appellant judgment debtor's objection under Section 47 read with Section 151 of the Code of Civil procedure for dismissing the Title Execution Case No. 56 of 1972 in Misc. Case No. 20 of 1973.
(2.) The respondent brought Title Suit No. 201 of 1966 against the appellant who was a monthly tenant in the western portion of the ground floor of a two storied building at 4B, Sailendra Haldar Street, Kalighat, Calcutta at a monthly rent of Rs. 90 for his eviction on the grounds of subletting, nuisance and reasonable requirement for the owner's own use and occupation as mentioned in Section 13(l)(a), (c) and (ff) of the West Bengal Premises Tenancy Act, 1956. The said suit ended in a compromise on the basis of a joint petition filed by the parties which reads as follows : "The humble petition of the plaintiff and the defendant in the above suit. Most respectfully sheweth : 1. That the above suit was instituted for khas possession of the premises to the plaintiff after evicting the defendant therefrom and the mesne profit. 2. That through the intervention of common friends and well wishers of the parties your petitioners have comprised the above suit on the following terms:- (a) That the suit will be decreed in favour of the plaintiff. (b) That the plaintiff shall not be entitled to execute the decree till 31st March, 1973 provided the defendant pays to the plaintiff a sum of Rs. 140 per month within seven days of every English calendar month by way of mesne profits for use and occupation of the premises commencing from April 1968. (c) That it is specifically agreed by and between the parties that the defendant would be entitled to use and occupy the suit property with the amenities of continuous supply of water for which the plaintiff would take all possible steps, (be it noted that the supply would be available during the normal hours of supply of water given by the Corporation of Calcutta to the premises). (d) That the defendant has deposited rent and damages upto March, 1968 in the court and the plaintiff would be entitled to withdraw the same without security as also any sum lying deposited in favour of the plaintiff in the office of the Rent Controller, Calcutta. (e) That if the defendant fails or neglects to pay the mesne profits for use and occupation of the premises as mentioned in clause (b) above for two months or more the plaintiff shall be entitled to execute the decree immediately and take khas possession of the premises and the plaintiff in that case need not wait till 31st March 1973. The tender of mesne profit by cross cheque or by money order or by deposit in court would be sufficient compliance. (f) That if the defendant chooses to continue in his possession for another years beyond March, 1973 he would intimate in writing to the plaintiff at least before a month from the date of expiry of the stipulated period and this option of the defdt. would be deemed to be irrevocable. In that case the defendant shall be liable for payment of mesne profits at enhanced rate for use and occupation of the premises which would be determined by the lawyers of both the parties in taking into account or any increase of Municipal Tax after execution of this Solenama. (g) That on or before 31st March 1976 the defendant shall quit and vacate the premises in suit and deliver vacant and peaceful possession of the same to the plaintiff. If the defendant fails to vacate the premises within 31st March, 1976 the plaintiff shall he entitled to put the decree in execution and obtain possession of the suit property. (h) That the defendant vacating the premises within that 31st March, 1973 or 31st March, 1976 the decree for eviction and mesne profit shall stand fully satisfied and none of the parties have any claim against the other. (i) That the parties shall mutually accommodate each other in the matter of using common amenities and shall wipe out the arena of conflict as far as practicable, through the mediation of the lawyers and the parties (who in case of divergence of opinion) shall appoint an umpire whose decision would be final and the arbitration clause cannot be avoided by the parties during the period of occupation of the defendant). (j) That the parties shall bear their own cost. (k) That no party has any manner of claims against the other. The defendant will fore go claims for money if still due to the plaintiff as per order No. 22 of the Rent Controller, Calcutta dated 26-3-1964 in case No. 906/B of 1962. (1) That each term of the solenama would be considered as consideration for all other terms. In the circumstances your petitioners pray that your honour would be pleased to decree the suit in terms of the solenama making the solenama a part of the decree. And your petitioners as in duty bound shall ever pray."
(3.) On 8-4-1968 the said suit was decreed on consent in terms of the compromise petition filed by the parties which form a part of the decree.;