SUDHIR KUMAR Vs. BALDEV KRISHNA THAPAR

JUDGEMENT

(1.) These connected appeals arise from an execution proceeding. The question for determination in these appeals is whether the decree under execution is executable The learned single judge of the High court of Jammu and Kashmir before whom the execution was levied came to the conclusion that the decree is executable but the execution petitioners, who are entitled to a fraction of the interest in the suit properties can only have joint possession of the same along with the judgment debtors who had acquired by purchase a ten annas share in those properties. Both the appellants as well as Respondents 1 and 2 appealed against the order of the learned single judge. The appellate bench of that High court reversed the decreeof the learned single judge. It came to the conclusion that the decree is not executable and that it is merely declaratory in character. It accordingly dismissed the execution petition. Hence these appeals by certificate.

(2.) The facts giving rise to the controversy are as follows : One Sardar Uttam Singh Khorana leased in favour of the 1st respondent and the father of the second respondent the Uttam Talkies in Jammu including a cinema machinery and furniture for a term of three years on a monthly rental of Rs. 3,000. 00. One of the terms of the said lease was that after expiry of the lease, the tenant shall have the option to renew the lease with the consent of the landlord. At the end of the lease period Sardar Uttam Singh brought a suit for ejectment against the lessees but he died during the pendency of the suit leaving behind him a will by which his son Joginder Singh got a six annas share in the Uttam Talkies and his another son Devinder Singh got a four annas share therein. The remaining six annas share was bequeathed to a trust. On 23/12/1958, a compromise was entered into between the legal representatives of the original plaintiff and the defendants by which the tenancy was continued till 31/12/1962. We shall refer to the other terms of the compromise at the appropriate stage. Before the term stipulated in the compromise came to an end, Joginder Singh sold his six annas share in the Uttam Talkies to the appellants in this appeal. The other ten annas shares were conveyed to the lessees by the owners of those shares. Before conveying their shares, on 14/10/1961, Devinder Singh and the trustees of the trust executed in favour of the lessees an agreement to renew the lease for a period of three years from 1/1/1963 more or less on the same conditions on which it was enjoyed by them previously. On 3/01/1963, Devinder Singh on his own behalf and on behalf of the trust filed an application before the executing court praying that satisfaction of the decree may be entered into. Accordingly the court recorded satisfaction of the decree by its order of the same date. Thereupon the appellants moved the court for delivering Khas possession of the Uttam Talkies. Yet another application was filed by them on 5/01/1963, requesting the court to review its order entering satisfaction of the decree. That application was accepted by the court and on 17/01/1963, the learned single judge recorded satisfaction of the decree only to the extent of the share purchased by the lessees. Thereafter the appellants pressed their execution petition. The lessees objected to the same. As mentioned earlier their objection was overruled by the learned single judge who directed delivery of the joint possession in favour of the appellant as well as the lessees. As seen earlier that decision was overruled by the division bench.

(3.) The contention on behalf of the appellant is that the compromise decree referred to earlier is a executable decree whereas the lessees take the stand that it is merely a declaratory decree. According to them, the compromise entered into between the parties amounts to a creation of a new lease and the decree superimposed on it merely endorses the agreement entered into between the parties.