- (1.) THIS is a revisional application under Sec. 115, C. P. C. by the decree-holders against the order of the learned District Judge, Bikaner dated March 6, 1974 by which he set aside the order dated October 4, 1973 passed by Munsif. Bikaner in Execution Case No. 105 of 1972 by which the objection of the judgment-debtor with regard to the excitability of the decree was dismissed.
(2.) THE decree-holders-petitioners obtained a decree against the non-petitioner-judgment-debtor for arrears of rent and ejectment. THE non-petitioner preferred an appeal in which a compromise was arrived at between the parties. As a result of the compromise, the decree passed by the learned Munsif was modified and the compromise was made part of the decree. It may be stated here that the landlords-petitioners sought ejectment on the ground of default in payment of rent. THE terms of the decree, which are relevant for the disposal of this revision, are these, "the appeal of the appellant is partially accepted. THE impugned judgment and decree are modified to the extent that the plaintiff respondents shall not be entitled to get the suit house vacated from the defendant appellant so long as he continues to pay the monthly rent of the suit house to the plaintiff. It is further directed that if the defendant makes any default in making payment of the rent of the suit house the plaintiff shall be entitled to get possession of the suit house from the defendant-appellant through court through execution proceedings. THE compromise filed by the parties shall be part of the decree. " THE relevant part of the compromise is also reproduced below, *** According to the decree-holders, the judgment-debtor paid the entire amount of costs and rent upto March 31, 1972. An application for execution of the ejectment part of the decree was filed on May 17, 1972 stating that the judgment-debtor has failed to make payment of rent for the month of April, 1972. THE case of the decree-holders was that the amount of rent of the aforesaid month was neither tendered nor paid and thus the judgment-debtor committed a default and failed to comply with the terms of the decree passed on compromise and, therefore, they are entitled to get possession of the suit premises from the judgment-debtor. On July 8, 1972, the judgment-debtor submitted an objection petition stating that he has been paying rent according to the decree of the appellate court and on refusal by the landlords to accept the rent and to issue receipt, rent has been regularly tendered through money-order. He, therefore, prayed that the proceedings for eviction be stayed and it be declared that the decree is inexecutable. THE decree-holders submitted the reply on August 12, 1972, inter alia contending therein that the decree for arrears of rent and ejectment was maintained in appeal and the parties had only entered into compromise with regard to the mode of satisfaction of the decree. According to the decree-holders, as the judgment-debtor has failed to comply with the mode of satisfaction mentioned in the decree and has failed to make payment of rent to them, they were within their rights to get the decree executed. On October 7, 1972, an application was moved on behalf of the decree-holders stating the details of the defaults committed by the judgment-debtor. In this connection, it may be stated here that according to the decree-holders, six months' rent amounting to Rs. 120. 10 had become due upto September 30, 1972 whereas the judgment-debtor had paid only in respect of two months namely, April and May, 1972. THE learned Munsif, after recording the evidence of the parties and hearing arguments by his order dated October 4, 1973, dismissed the objection of the judgment-debtor and hold that the decree-holders are entitled to execute the decree. THE learned Munsif was of the opinion that the terms of the decree passed by the appellate court on the basis of the compromise merely suggests that the judgment-debtor was allowed concession and there is no penal clause in the compromise decree in respect of which any relief against forfeiture may be allowed to him. Feeling aggrieved by the aforesaid order of the learned Munsif, the judgment-debtor filed appeal. THE learned District Judge accepted the appeal and set aside the order of the learned Munsif and ordered that the decree-holders are not entitled to proceed with the execution of the decree for ejectment unless the judgment-debtor fails to deposit the arrears of rent upto March 15, 1974. Against the appellate judgment dated March 6, 1974, the decree-holders have preferred this revision. I have heard Mr. R. P. Dave for the petitioners and Mr. R. R. Nagori for the non-petitioner and have also perused the record of the case. This revision was presented on July 1, 1974. The Code of Civil Procedure, 1908 was amended by the Code of Civil Procedure (Amendment) Act, 1976, and came into force from February 1, 1977. Reference hereinafter to the various provisions of the Code of Civil Procedure 1908 will be to the provisions as they stood prior to its amendment by the Code of Civil Procedure (Amendment) Act, 1976. Sec. 2 (2) defines "decree". The determination of any question within Sec. 47 is expressly included in the definition of the "decree". Though such determination is neither made in a suit nor is drawn up in the form of a decree, Sec. 47, C. P. C. , provides for questions to be determined by the court executing the decree. Sub-sec. (1) of Sec. 47, C. P. C. says that all questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit. The question whether a decree is capable or incapable of execution is prominently one coming under this Section and a decision on such a question is a decree. The judgment-debtor preferred objections praying therein that it be declared that the decree is inexecutable. The objection was dismissed and, therefore, the decision on the question that the decree is executable was a decree as that order decided the rights of the parties with regard to the matter in controversy in the proceedings under Sec. 47, C. P. C. As the objection covered by Sec. 47 was dismissed, the judgment-debtor rightly preferred an appeal before the learned District Judge on October 23, 1973 under Sec. 47/96, C. P. C. That appeal was allowed by the learned District Judge by the order under revision. In these circumstances, the decree-holders should have preferred second appeal against the appellate judgment under Sec. 100, C. P. C. as the order passed by the executing court holding that the decree was not inexecutable amounted to a decree under Sec. 2 (2) read with Sec. 47, C. P. C. and that order was set aside by the appellate court holding that the decree-holders are not entitled to proceed with the execution of the decree for ejectment unless the judgment-debtor fails to deposit the arrears of rent upto March 15, 1974. The decree-holders, instead of preferring an Execution Second Appeal, filed a revision. No revision lies under Sec. 115, C. P. C. against the order against which an appeal lies as Sec. 115 C. P. C. provides that the High Court may call for the record of any case which has been decided by any court subordinate to such High Court and in which no appeal lies thereto. In these circumstances, the revision referred by the decree-holders under Sec. 115, C. P. C. is not maintainable. In the memo of revision, it has been stated that both the lower courts have not drawn any decree and as such, the decree-holders are preferring this revision petition and if this court comes to the conclusion that only second appeal lies, this revision may be ordered to be converted into second appeal. It is well settled that where an appeal lies but only a revision is filed, the High Court can treat such revision as an appeal under Sec. 47, C. P. C. and dispose it of accordingly. Learned counsel for the decree-holders contended that the learned District Judge has completely failed to consider the most important fact that it was not necessary for them to enter into a compromise simply to secure regular payment of the rent because of the provisions of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter referred to as 'the Act') which are very clear that if any tenant fails to make payment of rent for six months, he will render himself liable to be evicted under Section 13 (i) (a) and that the decree holders had obtained decree in their favour and they would not enter into a compromise which would, in future, render the decree inexecutable and futile. He further contended that the learned District Judge committed a serious error of law in holding that the decree-holders, by compromise, had not given any concession to the judgment-debtor but it is in the nature of penalty and forfeiture clause. According to the learned counsel, the decree passed by consent permitted the judgment-debtor to live in the suit premises so long as he did not make any default in payment of the rent for any month and further provided that on failure in payment, the decree for ejectment would become executable at once and, therefore, in the event of such failure, the court is bound to execute the decree in accordance with its terms and could not relieve against the consequences of failure on equitable considerations. According to the learned counsel, no fresh tenancy came into existence and the terms provided in the decree on the basis of the compromise were not penal. In support of his arguments, learned counsel placed reliance on Konchada Ramamurty Subudhi vs. Gopinath Naik (1), Doshi Kantilal Kanaiyalal vs. Modiya Chandulal Chhotalal (2) and Nonjibhai vs. Ramkishan (3 ). Mr. R. R. Nagori learned counsel for the judgment-debtor on the other hand vehemently argued that the condition in the decree that the decree-holders would be entitled to get the possession of the premises in suit through court by levying execution if the judgment-debtor makes any default in making payment of the rent was with an object to secure regular payment of rent and the appellate decree passed on compromise cannot be said to be decree for ejectment as such. According to the learned counsel, the tenancy which was terminated, was revived and a fresh tenancy came into existence on entering into the compromise and if the condition is allowed to operate, it would create hardship to the judgment-debtor. The stand taken by the judgment-debtor comes to this that the term contained in the decree is penal and related to forfeiture clause and the judgment-debtor should be relieved of the same and that the appellate decree dated March 6, 1974 passed on the compromise was in violation of Section 13 (1) of the Act as from it, it is not clear that the court was satisfied with regard to one or more of the grounds entitling the decree-holders to evict the judgment-debtor. Learned counsel invited my attention to Krishnabai vs. Hari Govind (4), In re Vishwanath M. Hegde (5) and Gandhi Gopaldas Gordhandas (6 ). He submitted that even if there was any default in payment of rent by the judgment-debtor as contemplated by the appellate decree dated March 6, 1974, the decree-holders accepted the rent and, therefore, there was waiver of the default. In this connection, he placed reliance on Bundu vs. Smt. Hashmat (7 ).
(3.) BEFORE examining the rival contentions raised by the learned counsel for the parties, it would be convenient to refer to the findings arrived at by the learned District Judge, (1) that in the instant case, upto May 15, 1972, no payment was made or tendered by the judgment-debtor. So in any case, default was committed by him; and (2) that it would appear from the terms of the appellate decree dated March 6, 1974 that what was intended was to secure regular payment of rent and that by entering into such a compromise, a fresh contract or tenancy had arisen or the existing tenancy was allowed to continue and as such, the judgment-debtor is entitled to relief against forfeiture resulting from his failure to pay rent at the stipulated time. I will first examine whether the decree passed by the learned District Judge, Bikaner on April 1, 1972 was a nullity and could not be executed as from its perusal, it is not clear that one or more conditions for eviction under Section 13 (1) of the Act were satisfied. The suit for eviction and arrears of rent was decreed against the judgment-debtor by the Munsif, Bikaner on January 4, 1972. The material portion of the decree passed by the Munsif is, *** On appeal by the judgment-debtor, a compromise was entered into. The relevant portion of that compromise has already been reproduced above. On the basis of that, compromise decree was passed. The relevant terms of the decree passed on the basis of the compromise have also been referred to above. It is true that the existence of one of the statutory grounds mentioned in Section 13 (1) of the Act is a sine qua non to the exercise of jurisdiction under the Act in order to enable the court to pass a decree for eviction. It was held in Nagindas Ramdas vs. Dalpatram Iccharam alias Brijram (8) that if at the time of passing a decree, there was some material before the court on the basis of which the court could be prima facie satisfied about the existence of statutory ground for eviction, it would be presumed that the court was so satisfied and the decree for eviction, though apparently passed on the basis of the compromise, would be valid, and that such material may take the shape either of evidence recorded or produced in the case, or, it may, partly or wholly be in the shape of express or implied admission made in the compromise agreement itself. This decision was followed in Roshanlal vs. Madanlal (9) in which it was observed that the compromise must indicate either on its face or in the background of other material in the case that the tenant expressly or impliedly is agreeing to suffer a decree for eviction because the landlord, in the circumstances, is entitled to have such a decree under the law. The matter was again examined in Suleman Noormohamed vs. Umarbhai Janubhai (lo ). His Lordship Untwalia, J. speaking for the Court, observed as under, "while recording the compromise under Order XXIII, Rule 3 of the Code, it is not necessary for the Court to say in express terms in the order that it was satisfied that the compromise was a lawful one. It will be presumed to have done so, unless the contrary is shows. The facts clearly show that he had incurred the liability to be evicted under the said provisions of law and the compromise decree was passed on the tenant's impliedly admitting such liability. . . . . . " The decree for arrears of rent and ejectment was passed by the trial court on January 4, 1972 and by consent, the judgment-debtor got it modified that the decree-holders shall not be entitled to get the suit house vacated from the judgment-debtor so long as he continues to pay the monthly rent of the suit house to the decree-holders and that if the judgment-debtor commits any default in making payment of the suit house, the decree-holders shall be entitled to get its possession from the judgment-debtor through court through execution proceedings. It is, therefore, clear that there existed statutory ground for eviction when the decree for ejectment was passed by the Munsif on January 4, 1972. Keeping in view the law laid down by their Lordships of the Supreme Court in the aforesaid decisions and the circumstances leading to the compromise between the parties in the appellate court and the terms of the decree passed by the appellate court on April 1, 1972, it is futile for the learned counsel for the judgment-debtor to contend that the decree dated April 1, 1972 does not show that there existed any statutory ground under S. 13 (1) of the Act for evicting the judgment-debtor. The argument of the learned counsel that the decree dated April 1, 1972 passed on the basis of the compromise is a nullity and therefore it could not be executed, is not tenable. The learned District Judge was, therefore, right in my opinion when he came to the conclusion that the argument raised on behalf of the judgment-debtor that the decree dated April 1,1974 was in violation of Section 13 (1) of the Act is devoid of any force. Before I advert to the authorities cited at the Bar, I fiirst propose to examine the terms of the consent decree passed by the Appellate Court on April 1, 1972. The Munsif had decreed the suit for arrears of rent and ejectment on January 4, 1972. The appeal of the judgment-debtor was partially allowed and the judgment and decree passed by the Munsif were modified. The modification was to the extent that the plaintiff-respondent (decree-holders) shall not be entitled to get the suit house vacated from the defendant-appellant (judgment-debtor) so long as he continues to pay the monthly rent of the suit house to the plaintiff and a further direction was made that if the defendant (judgment-debtor) makes any default in making payment of the rent of the suit house, the plaintiffs (decree-holders) shall be entitled to get possession of the suit house from the defendant (judgment-debtor) "through court through execution proceeding" (not happily worded ). It is, therefore, clear that the decree for ejectment which was passed in favour of the plaintiffs (decree-holders) was maintained. This was, of course, sudject to the terms mentioned above. In case the judgment-debtor regularly paid the monthly rent, the decree-holders were not entitled to take possession of the suit property. This is further borne out from the subsequent direction made in the consent decree dated April 1, 1972 that in case of default in payment of monthly rent, the plaintiffs-decree-holders shall be entitled to get possession "through court through execution proceedings. " ;