- (1.) BY the court - This is an appeal under sec. 18 (1) of the Rajasthan High Court Ordinance, against the judgment of a learned Single Judge of this Court dated 17. 3. 61, in an execution second appeal. It raises a question about the executability of a compromise decree between a landlord and a tenant. The facts necessary for appreciating the controversy are briefly these.
(2.) THE appellants before us were the decree-holders. THEy had filed a suit against the respondent-judgment-debtor for arrears of rent and for eviction of the respondent from a shop at Nagaur which had been taken by the judgment-debtor from the decree-holders on a monthly rent of Rs. 25/ -. It was claimed that 14 months' rent was due and that decree-holders were entitled to evict Hukamchand. THE suit was decreed on the basis of a compromise arrived at between the parties. As the question of executability of the decree falls to be considered on the terms of the compromise, the salient features of the compromise are stated hereunder. The compromise states that the parties have agreed to compromise the suit on the terms mentioned therein. The first clause states that each of the parties shall bear half of the costs. Clause 2 states that the defendant had paid Rs. 280/-on that date and upto 1. 10. 57 Rs. 370/- were due and to this was to be added half of the cost of the suit which the defendant undertook to pay six monthly instalments of Rs. 150/- each and the instalments were to be paid till the arrears were cleared. Clause 3 provided that from 1. 10. 57,, the defendant shall pay Rs. 25/- per month as rent of the shop and this he shall pay on the first of every month. Clause 4 laid down that in case of non-compliance of clauses 2 and 3 by the defendant, the plaintiff was to be entitled to get the defendant evicted from the shop. Clause 5 provided that whatever payments shall be made would be evidenced by receipts and no payment shall be acceptable without a receipt. In the end it was prayed that a decree for compromise be given. This compromise was dated 21. 10. 57. The court decreed the suit in terms of the compromise. As the judgment-debtor did not pay the monthly rent for about two months, the decree-holder filed the execution application on 7. 1. 58. The application was registered on 16. 1. 58. On 25. 1. 58,, the judgment-debtor made an application in court that he was paying Rs. 250/- and cost and the same be deposited. The court asked the decree-holder on 25. 1. 58, if he would accept this amount, but, as the decree-holder was not willing to accept this amount, the judgment-debtor was directed to deposit it later on, as on that day the Treasury was closed by the time the case would be taken up by the court. On 29. 1. 58, the judgment-debtor paid the amount. The judgment-debtor then objected to the execution of the decree on the ground that the same was not executable. He also contended that he was entitled to the protection of the Rajasthan Premises (Control of Rent and Eviction) Act, 1960, hereinafter to be referred as the "act", and urged that agreement which resulted in compromise was not valid being opposed to public policy in that it tended to deprive him of the protection afforded by law. The Execution Court (Civil Judge) over-ruled the objection and held that the decree was executable. The judgment-debtor then went up in appeal to the District Judge, Merta, but was unsuccessful. He then filed a second appeal to this Court which was heard by the learned Single Judge, who came to the conclusion that the decree was not executable and in the result he set aside the judgment of the learned District Judge and ordered the dismissal of the execution application. It was contended before the learned Judge that the compromise between the parties resulted in the creation of a fresh tenancy and, therefore, the only remedy of the landlord was to file a fresh suit. It was urged that the decree; as it stood, was only a declaratory one and was thus not capable of execution. A preliminary objection was raised on behalf of the decree-holder that the contention should not be entertained as it was not raised in the courts below and being one of fact should not be permitted to be raised for the first time in a second appeal. The learned Single Judge found that the preliminary objection was not tenable as it involved a question of a proper construction of the decree only which was a question of law. On consideration of the terms of the compromise the learned Judge came to the conclusion that a fresh lease was created in favour of the judgment-debtor as a result of the compromise. In this regard he took note of the fact that the judgment-debtor was to occupy the premises for an indefinite period provided he paid the rent regularly. The learned counsel for the decree-holder cited Ramjibhai Virpal Shah vs. Gordhan Das Maganlal Bhagat (1), in support of the submission that the decree did not create any fresh lease, and the judgment-debtor was only a licensee. This was countered by the learned Judge on the ground that Ramjibhai's case (1) was distinguishable. The learned Judge noticed that in Ramjibhai's case (1), there were no words in the compromise indicating the demise of the property as such and moreover the undertaking of the defendant was to vacate the i premises on or before a specified date, and what was to be paid by the defendant was characterised as mesne profits instead of rent. Consequently by distinguishing Ramjibhai's case (1), the learned Judge proceeded to consider the question whether the eviction of the defendant could be ordered on the defendant's failure to pay the rent or the instalments of arrears of rent on the due dates as per stipulation in the compromise. In other words he addressed himself to the question whether the tenant could give up the protection afforded to him under sec. 13 (1) of the Act. The learned Judge, on a consideration of the several cases placed before him, came to the conclusion that a tenant could claim the benefit of sec. 13 (1) of the Act, and the agreement, if any, to the contrary cannot act as an estoppel. The learned counsel for the decree-holder contended before the learned Judge that an execution court has to take the decree as it is, and it could not go beyond the same. The learned Judge did not accept this contention on the ground that since a fresh relationship of landlord and tenant had been created between the parties, the tenant was entitled to the protection under sec. 13 (1) of the Act. We have heard the learned counsel for the appellant (decree-holder ). He has reiterated before us what he argued before the learned Single Judge. In addition, he has invited our attention to a judgment of Modi J. , reported as Roop Ram vs. Mohan Lal (2), wherein it was held that an execution court could not go beyond the decree even regarding the applicability of the protective clauses of sec. 13 of the Act. As a broad proposition it is true that an execution court has to take the decree as it is and cannot travel beyond it, but at the same time in dealing with compromise decrees it has to see, to what extent the decree is really operative. Order 23, Rule 3 of the Code of Civil Procedure which provides for compromise of suits reads as under - "where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise, or where the defendant satisfies the plaintiff in respect of the whole or any part of the subjectmatter of the suit, the Court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith so far as it relates to the suit. " It provides for two things. Firstly, it enjoins the court to be satisfied that a suit has been adjusted wholly or in part for a lawful compromise. Then, after it is so satisfied, it has to order that such agreement, compromise or satisfaction be recorded and then it has to pass a decree in accordance therewith so far as it relates to the suit. The words "so far as it relates to the suit" are not without significance. They clearly contemplate that though a court may record a compromise, but when it comes to the passing of a decree, the decree must be confined only to what relates to the suit. In other words, matters extraneous to the suit are not to be incorporated in the operative part of a decree. It has been held in a number of cases that a compromise is only a contract between the parties and does not lose its incidents by the decree of the court thereon, vide S. Krishna Patter vs. Sinnaponnu (3), and L. Basant Lal vs. Rameshwar Prasad (4 ). Such a compromise is open to challenge on all the grounds on which a contract can be challenged. Their Lordships of the Privy Council had occasion to consider in Hemanta Kumari Debi vs. Midnapur Zamindari Co. (5), the analogous provisions of the old Civil Procedure Code and observed as follows: "the terms of this Section need careful scrutiny. In the first place, it is plain that the agreement or compromise, in whole and not in part, is to be recorded, and the decree is then to confine its operation to so much of the subjectmatter of the suit as is dealt with by the agreement. Their Lordships are not aware of the exact system by which documents are recorded in the Courts in India, but a perfectly proper and effectual method of carrying out the terms of the Section would be for the decree to recite the whole of agreement and then to conclude with an order relative to that part that was the subject of the suit, or it could introduce the agreement in a schedule to the decree; but in either, case, although the operative part of the decree would be properly confined to the actual subjectmatter of the then existing litigation the decree taken as a whole would include the agreement, This in fact is what the decree did in the present case. It may be that as a decree it was incapable of being executed outside the lands of the suit, but that does not prevent it being received in evidence of its contents. " The above passage shows that the operative part of the compromise decree should be confined to the actual subject-matter of the then existing litigation. Anything, which is outside the ambit of the existing litigation will not form part of the decree as such. In Balesar Misir vs. Tekesar Misir (6) placing reliance on this judgment of their Lordships of the Privy Council, it was held that the direction in 6. 23, r. 3 of the Code of Civil Procedure is that the Court shall pass a decree in accordance with the compromise so far as it relates to the suit and where the compromise does not relate to the suit the presumption is that the rule implies that the court should not pass a decree in regard to it. The learned Judges of the Assam High Court had taken the same view following the Allahabad case and the Privy Council case in Dhan Mia vs. Jamila Khatun (7 ). Thus, to our mind, to the extent the terms of any compromise fall outside the limits of the suit they are not to be incorporated in the decree and even if they are so incorporated on account of the compromise as a whole having been made a part of the decree, the decree will remain executable only to the extent it is within the limits of the suit and no more. Whatever fell outside the limits of the suit may be good as an agreement between the parties, but the same will not be capable of execution in the execution proceeding relating to that decree. Of course, it will depend upon the facts and circumstances of each case as to whether a particular clause in the compromise is within the scope of the particular suit or was outside the limits thereof and for it the proceedings will have to be looked as a whole ; in particular the frame of the suit, the pleadings may all enter into the consideration of the question' The learned counsel for the appellant placed strong reliance on Ramjibhai's case (1), as he did so before the learned Single Judge, to convince us that the judgment debtor was only a licensee, but on a proper consideration of the terms of compromise between the parties we are unable to persuade ourselves to hold that the judgment-debtor was only a licensee and not a tenant. We need not repeat all what the learned Single Judge has observed in trying to distinguish this case. For the obvious reason that a specific date was provided for the eviction of the defendant, it can very well be predicated in Ramjibhai's case that that was a decree really for eviction, though only the date at eviction was postponed. This is not so in the present case. The defendant was to remain in possession for an indefinite period, though he was to pay rent regularly each month. To hold that eviction could be ordered in execution even in such a case after an indefinite period may lead to odd results. For example, if after 15 years the defendant were to commit default in the payment of rent, then according to learned counsel the decree-holder will be relieved from filing a separate suit, but would be able to ask for eviction in execution of a decree. Then supposing rent of some years is in arrears and then the question will be, how that rent is to be realised and if there is any dispute about the genuineness of any receipt for rent, then the question would be, who is to determine whether any rent was really due and whether any particular receipt was genuine. These questions obviously, in the very nature of things, could not be dealt within execution. A decree must determine the rights and liabilities of the parties finally and it cannot obviously be the province of an execution court to determine the rights and liabilities that would be accruing in future on account of future defaults. On a consideration of the clauses of the compromise in the present case we are inclined to agree with the learned Single Judge that clause 3 of the compromise resulted in creating a fresh tenancy. Creation of a fresh tenancy could not certainly be within the scope of the suit and, therefore, clause 3 of the compromise cannot, in our view, be enforced in the execution proceedings. For this, a separate suit is the only remedy. Learned counsel for the appellant submitted that sec. 47 of the Code of Civil Procedure will bar the filing of the separate suit, but as we have held that clause 3 cannot be enforced in execution of the decree, sec. 47 of the Code of Civil Procedure cannot stand in the way of filing a separate suit. On the other question whether in default of the payment of the instalment of the arrears of rent, as per compromise decree, the decree-holder will be entitled to get possession of the shop as per cl. 4 of the compromise in execution proceedings, we express no opinion. The execution application was not obviously founded on the basis of the default in payment of instalment of arrears of rent, because as we have noticed above, the first six monthly instalment was to be paid after a period of six months from the date of the decree, that is 21. 10. 57, and the execution application was filed on 7. 1. 58, that is, within a period of three months only and the amount of Rs. 250/- had been deposited by the judgment-debtor in court on 29. 1. 58. In the circumstances we are of the opinion that the learned Single Judge was right in reversing the judgments of the courts below and ordering the dismissal of the execution application. The result is that the appeal before us has no force and is hereby dismissed with costs. . ;