PADMA BEN BANUSHALI Vs. YOGENDRA RATHORE

JUDGEMENT

(1.) Challenge in this appeal is to the order passed by a learned single Judge of the Madhya Pradesh High Court at Jabalpur in a Civil Revision filed under Section 115 of the Code of Civil Procedure, 1908 (in short CPC). By the impugned order the High Court held that the petitioner who was the plaintiff in the suit and the decree-holder in an earlier suit was not entitled to execute the same.

(2.) Background facts in a nutshell are as follows : The plaintiffs had filed a civil suit for eviction of the father of respondents (Sri Narayanbhai) who was the tenant in the disputed premises. In the suit, pleadings were to the effect that suit property originally belonged to one Dhanji Bhai. Narayan had taken suit premises on rent from Dhanji Bhai. Appellant No. 2 Kanji Bhai purchased the suit property in the name of his wife Padma Ben (Appellant No.1), by registered sale deed on 25-8-1980. Decree was granted in favour of the landlords. Tenant filed an appeal before the District Judge. Before the matter could be decided on merits an application purported to be under Order XXIII, Rule 1, CPC was filed before the Appellate Court. The application was signed by the plaintiff-landlord and the defendant. The appeal was dismissed in terms of the application. Later on, the present appellants tried to execute the decree which was resisted by the defendants on the ground that (1) the decree has become in-executable; (2) the landlords were not ready and willing to perform their part of the contract; and (3) a suit for specific performance had already been instituted. The execution application filed was pressed by the present appellants on the grounds that adjustments in terms of Order XXI, Rule 2, CPC was not recorded. In any event the Court cannot take cognizance of the adjustment under sub-rule (3) of Rule 2, Order XXI, CPC and there was never any readiness or willingness to perform their part of the defendants and as such the decree was executable. The respondents raised another plea that since the landlords have given up their rights to execute the decree, the same amounted to conscious waiver on their part and, therefore, the decree had become inexecutable. The Executing Court came to hold that the application filed under Order XXIII, Rule 1, CPC was an application for withdrawal of the appeal, it led to adjustment and as said adjustment was not certified by the Executing Court, no claim of adjustment can be taken note of. No question regarding executability of the decree would arise for consideration under Section 47, CPC. Said order was challenged in Civil Revision by the present respondents. In the Civil Revision, the stand taken before the Executing Court were reiterated by the parties.

(3.) The High Court came to hold that there was no adjustment between the parties. In fact it was a case where in view of the agreement between the parties, the decree became inexecutable as there was a conscious waiver.