GOYAL, J. - (1.) THIS revision petition under Section 115 CPC has been filed by the judgment-debtor against the order dated 27. 10. 2004 whereby application under Section 47 CPC filed by the judgment-debtor was dismissed.
(2.) THE non-petitioner filed a civil suit No. 342/1989 for eviction against the petitioner on the grounds of default in payment of rent, reasonable and bonafide requirement and subletting. THE defendant-petitioner contested the suit by filing written statement. During the pendency of the suit, the parties arrived at compromise which was submitted before permanent Lok Adalat. Vide this compromise, the defendant admitted plaintiff's requirement to be reasonable and bonafide and also admitted that comparative hardship would be caused to the plaintiff landlord. It was also agreed upon that the defendant shall hand-over the vacant possession of the suit house on 31. 10. 2008. The defendant agreed to pay monthly rent @ Rs. 500/- per month from May, 2002, till vacant possession is handed over. It was also agreed upon that in case of default in payment of rent for three continuous months, the plaintiff would have a right to take possession of the suit house prior to 31. 10. 2008. Accordingly, a decree was passed on 4. 5. 2002. Thereafter, the plaintiff-non-petitioner filed an execution application, which was registered at S. No. 1/2003 for possession of the suit property. The petitioner-defendant filed an application under Section 47 read with Section 151 CPC with the averments that earlier to the judgment of the Trial Court, the agreed monthly rent was Rs. 150/-; that the plaintiff-non- petitioner has not disclosed that for which months, the petitioner has not paid the rent; that the petitioner-defendant had already deposited a sum of Rs. 1,100/- in advance as this fact was informed to the petitioner by the non-petitioner himself and thus no default was committed by the defendant-petitioner. It was also averred that the compromise decree dated 4. 5. 2002, being contrary to law, is not binding. The non-petitioner-plaintiff contested this application by filing reply and the learned executing court, vide impugned order dated 27. 10. 2004, dismissed this application. I have heard learned counsel for the parties. As per Section 47 CPC, all questions arising between the parties to the suit, in which decree was passed and relating to the execution, discharge or satisfaction of decree, shall be determined by the executing court. Section 115 CPC provides that in a revision, the High Court may interfere when it appears that the Trial Court has exercised a jurisdiction not vested in it by law or has failed to exercise a jurisdiction so vested or has acted illegally or with material irregularity. In this instant revision, the point is, as to whether the impugned order is illegal?
(3.) LEARNED counsel for the petitioner referred Annex. 3, a chart showing the payment of rent and contended that a sum of Rs. 900/- was deposited in advance on 12. 12. 2001 and another sum of Rs. 1,000/- was deposited on 16. 9. 2002. Hence, there was no default in payment of rent for three months, i. e. , May, 2002 to July, 2002 as pleaded by the non-petitioner. According to the learned counsel for the petitioner, in all, a sum of Rs. 1,900/- was deposited while the total amount of rent for three months comes to Rs. 1,500/- and in case advance deposited of Rs. 900/- is adjusted, no case of three continuous default is made out. Per contra, learned counsel for the non-petitioner contended that the Trial Court provisionally determined the rent under Section 13 (3) of the Rajasthan Premises (Control of Rent and Eviction) Act (for short `the Act') and this rent was deposited on 3. 12. 1993. Thereafter, the petitioner-defendant did not pay rent for a few months and an application under Section 13 (5) of the Act for striking out the defence was filed and thereupon the petitioner-defendant deposited this amount of Rs. 900/- on 12. 12. 2001 against the arrears of rent of six months and thus there was no advance deposit of rent. It was also contended that deposit of Rs. 1,000/- on 16. 9. 2002 is of no consequence as default for continuous three months from May, 2002 to July, 2002 was already committed. It was also argued that the petitioner filed a civil suit for declaration of compromise decree to be null and void and also filed an application for temporary injunction but the same were dismissed by the Civil Judge (Junior Division), Ajmer City (East Ajmer) vide order dated 22. 1. 2004. Thereafter, an application was also filed by the petitioner before the executing court to stay the execution proceedings. That application was also dismissed by the executing court on 20. 4. 2004 and the writ petition No. 6102/2004 filed against this order by the petitioner was also dismissed by this court and this court directed the executing court to decide the application under Section 47 CPC within one month. I have considered the rival submissions and I am of considered view that the petitioner-defendant did not pay the rent continuously for three months and the petitioner-defendant failed to prove any advance deposit. On a careful consideration of the chart, Annex. 3, submitted by the petitioner and the submissions made by the learned counsel for the non-petitioner, it is evident that this finding of fact appears to be justified that the amount of Rs. 900/- deposited on 12. 12. 2001 was not an advance deposit and further deposit of Rs. 1,000/- on 16. 9. 2002 was of no consequence as petitioner-defendant already committed default in paying rent for continuous three months. Thus, there is no merit in this revision. ;