RAJESH BALIA, J. - (1.) THIS appeal is against the order dated December 16, 1993 by which the appellants -plaintiffs application under Order 39 Rule 1 and 2 CPC for restraining the defendant -respondent No. 1 Smt. Kamla Devi from executing the decree passed in favour of the defendant No. 1 Smt. Kamla Devi and against defendant No. 2 Sukh Lal Kothari on November 26, 1987 for eviction from the suit shop.
(2.) BRIEF facts necessary for the present purpose may be noticed: The suit shop is situated at Udaipur which belongs to defendant No. 1 Smt. Kamla Devi. The shop was taken on rent by Sukh Lal defendant No. 2 on May 1, 1969. Thereafter on May 15, 1978, the landlord filed a suit for eviction against Sukh Lal inter alia on the ground that the suit shop is required reasonably and bonafide for occupation by the landlord's son. After filing the written statements in the former suit, the parties arrived at the settlement and in terms of settlement, decree was passed on November 26, 1987 and six years time Was granted to the judgment -debtor Sukh Lal for vacating the suit premises which period expired on November 26, 1993. On December 9, 1993, the present plaintiffs -appellants M/s Moti Chand Sukh lal Kothari, a registered partnership firm, Moti Lal Kothari son of Sukh Lal Kothari and Smt. Priya Kothari W/o Shri Ashok Kumar Kothari, filed a suit for declaration that it was not Sukh Lal Kothari but the partnership Firm M/s Moti Chand Sukh Lal Kothari was the tenant of Smt. Kamla Devi. A compromise decree passed by the Court in the previous suit is not binding on them and they cannot be evicted in execution of the said decree. An application under Order 39 Rule 1 and 2 CPC was also moved but the said application has been rejected by the trial Court.
(3.) THE further facts which have been noticed by the trial Court from the pleadings of the parties are that Firm M/s. Moti Chand Sukh Lal Kothari came into existence for the first time on July 8, 1973, which was registered on April 10, 1974. The partnership constituted of Sukh Lal Kothari the judgment -debtor, Madan Lal Kothari and Smt. Priya Kothari son and daughter in law respectively the judgment -debtor Sukh Lal Kothari. Thus the suit shop was never let out to the Firm by Smt. Kamla Devi, but it was in the tenancy of judgment -debtor who has started using the suit shop for the business of Firm of which he was also a partner.;