TATIA, J. - (1.) HEARD learned counsel for the parties on application submitted by the appellant-applicant for seeking clarification of the other dated 9th Nov. , 2001.
(2.) THE brief facts of the case are that a suit for eviction was filed by the plaintiff-respondent-non-applicant against the appellant-applicant-defendant with the allegation that the suit property was let out to the defendant on a rent of Rs. 2,701/- per month. THE plaintiff claimed the arrears of rent of 18 months amounting to Rs. 48,618/-, but since the defendant-tenant already gave a deposit of Rs. 20,000/- to the plaintiff, therefore, the suit for recovery of arrears of rent was for Rs. 28,658/ -. According to plaintiff, the tenancy was terminated by the plaintiff from 19. 03. 1996. THErefore, the plaintiff claimed damages for use and occupation @ Rs. 5,000/- per month. The Trial Court framed the separate issues for the rent of 18 months and for damages for use and occupation @ Rs. 5,000/- per month as claimed by the plaintiff. The Trial Court decided both the issues together and decreed the suit of the plaintiff for rent of Rs. 28,618/- as arrears of rent and further decreed the suit of the plaintiff at the same rate of rent on which the premises was let out to the defendant, i. e. , @ Rs. 2,701/- per month from 19. 03. 1996 till the possession is delivered to the plaintiff by the defendant. This amount from 19. 03. 1996 has been described as damages for use and occupation in stead of rent. Since the Trial Court also passed the decree for eviction alongwith the above money decree, therefore, plaintiff preferred the regular first appeal before this Court. In the appeal, on the first date of hearing, i. e. , on 9th Nov. , 2001 both the parties gave their consent for deciding the appeal. This court passed the following order:- " With the consent of both the parties, this appeal is decided as under: In this appeal the plaintiff waived his right to recover the arrears of rent on the condition that defendant will handover the vacant possession of the premises in dispute to the plaintiff within three weeks and in case the plaintiff refuses to take possession of the property or is not available to take possession of the property in dispute then the defendant will be free to handover the possession by applying before the Trial Court by moving the application before the Trial Court to deliver the possession to the plaintiff. The learned counsel for the appellant submit that the appellant under take to handover the possession of the property to the respondent-plaintiff within aforesaid period. In view of the above submission of both the counsel nothing survives in this appeal. Hence, the this appeal is disposed of and the decree for recovery of the appears of rent against the defendant-appellant is set aside as the plaintiff relinquished his right to recover arrears of rent subject to the condition mentioned above. The parties will bar their own costs. " It is said by the defendant that he offered the key of the suit shop to the plaintiff but he did not accept the key, therefore, the defendant-appellant submitted the key before the Trial Court so that same may be handed over to the plaintiff. However, there is no dispute with respect to the fact that possession of the suit premises has already been delivered to the plaintiff by the defendant in pursuance of the decision given in the first appeal dated 9th Nov. , 2001. The decree-holder not satisfied with the delivery of the possession of the suit premises submitted execution petition before the Trial Court and prayed that the plaintiff is entitled for the amount of damages for use and occupation as decreed by the Trial Court in its decree dated 9. 08. 2001. The executing Court issued a attachment warrant for recovery of the amount claimed by the plaintiff-respondent. The appellant- judgment-debtor submitted an application before the executing court on 8. 08. 2002 raising objection against the execution. According to appellant-defendant-tenant the plaintiff waived his right to recover any amount under the decree and, therefore, the defendant agreed only to surrender the possession of the suit premises to the plaintiff instead of contesting the appeal and in view of the above, nothing is due in the appellant- defendant-tenant. So far as arrears of rent or mesne profit are concerned, the executing court vide order dated 16th Dec. , 2003 interpreted the order of this court by saying that in the High Court plaintiff agreed to waive only arrears of rent and not the mesne profit. Therefore, the possession warrant cannot be withdrawn. The Trial Court also dismissed the application of the appellant-plaintiff filed in the execution petition.
(3.) IN the backdrop of these facts, the appellant-tenant submitted a revision petition being S. B. Civil Revision Petition No. 128/2004 and challenged the order of the executing court dated 16th Dec. , 2003 by which the petitioner-appellant's objection petition was dismissed by the executing court and appellant-defendant-tenant submitted an application for clarification in the order dated 9th Nov. , 2001 passed in S. B. Civil First Appeal No. 297/2001, which has been registered as S. B. Civil Misc. Application No. 15/2004. According to learned counsel for the appellant-defendant- tenant, the appellant challenged the judgment and decree of the first appellate court and in the first appeal, the plaintiff agreed to waive his monetary benefits under the decree on the condition that appellant will hand over possession of the property to the plaintiff within three weeks only. It is submitted that the intention of the parties can be gathered from the facts and surrounding circumstances if it was not so clear from the mere reading of the words of the order dated 9th Nov. , 2001. According to learned counsel for the appellant, the period for vacating the premises is three weeks. The court has already observed that in view of the plaintiff's acceptance to forego the decretal amount, nothing survives in this appeal inspite of the fact that there is no mention in the order that appellant either withdrawing his appeal or is not pressing his challenge to decree for mesne profit. The order was dictated in the presence of counsel for both the parties, who not only understood but made clear to the court, after it there will be no claim of anybody against other. It is submitted that the rent and the damages for use and occupation are one and the same thing in a matter where there is a question of monetary claim in the forum of rent or mesne profit, in a suit for eviction against the tenant. The Trial Court decreed the suit of the plaintiff describing the rent for one period, i. e. , upto the period of termination of tenancy and, thereafter mesne profit because of the reason that according to the Trial Court after termination of the tenancy, the decree for mesne profit can be passed and not for the rent. Learned counsel for the respondent submitted that the application for correction of the order is not maintainable because of the reason that the order has already been interpreted by the executing court by judicial order and there is no jurisdictional error in the order passed by the executing court interpreting the order of this court wherein the executing court held that the rent and the mesne profit are separate and distinct components and in view of the above finding, it is clear that the plaintiff waived his only rent amount and not the mesne profit. It is also submitted that it was the duty of the appellant to point out before this Court on 9th Nov. , 2001 distinctly whether he is surrendering the possession of the property on plaintiff's foregoing his right to recover rent as well as mesne profit. It is also submitted that in the judgment of the Trial Court it is clearly mentioned with two distinct components then what has been foregone by the plaintiff can be read only which has been specifically recorded by the court. ;