PULAKURTHI HUSSAIN SAHIB Vs. S GURURAJA RAO

JUDGEMENT

(1.) The appellant before this Court is the tenant in HRC 54 of 1965. A petition was filed for his eviction under S.21(1) (a) of the Mysore Rent Control Act of 1961, on the ground that he had committed default in payment of rent. While the case was pending a joint memo of compromise was filed by the parties. According to the memo the petition was to be allowed and tenant to be given 3 months time to vacate the premises. As the tenant consented to a decree for vacating the premises, the landlord agreed to waive arrears of rent. The Court passed a decree in terms of the joint memo. As the appellant tenant did not vacate the premises after three months, execution proceedings were taken against him. In the said proceedings the appellant contended that the decree passed against him was a nullity and it cannot be executed. The executing Court overruled his objection. The tenant filed an appeal before the learned District Judge of Bellary and the same was dismissed. This appeal is directed against the said decision of the learned District Judge.

(2.) Sri B.Ramachandra Rao, learned Counsel appearing on behalf of the appellant has contended, that the decree passed in the case is opposed to the provisions of S.21 of the Mysore House Rent Control Act 1961 (which will be hereinafter called the Act) and is a nullity. He also argues that the said compromise decree being unlawful and meant to defeat provisions of law is hit by S.23 of the Indian Contract Act, and no such decree can be passed even under Or.23, R.3 CPC. He has also contended that the learned District Judge has no jurisdiction to hear the appeal as it is an order passed under S. 47 of the CPC. on the execution side, and under S.20 of the Civil Courts Act, the appeal lies to the Civil Judge and not to the District Judge. He has strongly relied on a decision of the Supreme Court in Kaushalya Devi v. K.L.Bansal, (1969)2 SCJ 145 in support of his contention that the decree passed in the case is a nullity and cannot be executed. Sri S.Shivaswamy, learned Counsel appearing on behalf of the respondent has contended that the decree passed is a consent decree on a joint memo filed by the parties and their Counsel. The appellant has enjoyed the benefits under the said decree. The appellant who got the benefit of waiver of arrears of rent and three months time to vacate the premises, cannot now turn round and say the decree is unenforceable. He is estopped from doing so. Any objection must have been taken at the time of the compromise and not at the time of the execution. He has relied on a decision of this Court reported in Harischandra v. Govind, (1969)1 Mys.L.J. 458. He argues that the learned District Judge had jurisdiction to hear the appeal. Under sub-clause (2) of S.2 CPC., an order passed under S.47 is a decree. Under S.96 CPC. an appeal lies from every decree passed by the Court to the Court authorised to hear appeals from the decision of such Court. Under S.48 of the Act, the District Judge is the authority to hear appeals. He has relied on a decision in Winnifred Mathias v. Louisa, (1968)1 Mys.L.J. 573 in support of his contention. He has also strenuously contended that the appellant having entered into compromise and got benefit out of it, is estopped from contending that the decree is invalid. By his conduct he is precluded from questioning the decree. It is not open to the appellant to approbate and reprobate. He has cited before me in 1964 Mysore Law Journal (Supp.) page 821(4), 1960 Mysore Law Journal, page 544(5), 6 Indian Cases 813(6), All India Report 1936 Madras page 856(7), 1936(1) King's Bench 203(8), and A11 India Reporter 1935 Calcutta page 816(9), in support of his said contention.

(3.) The joint memo filed by the parties reads as follows: