AZRA ABDULLA Vs. SILTON HOTEL BANGALORE

JUDGEMENT

(1.) The appellant is the decree-holder and the respondent is the judgment-debtor. The decree-holder obtained an order in H. R. C. 30/68 for possession of the premises in the occupation of the judgment-debtor and filed execution 448/73 in the Court of the Principal Munsiff, Civil Station, Bangalore, for delivery of possession. The judgment-debtor contended that the order is inexecutable. The Execution Court Over-ruled the objections of the judgment-debtor and allowed the application of the decree-holder praying for permission to break open the lock with police help. Thereupon, the judgment-debtor filed Execution Appeal No. 11/73 in the Court of the Civil Judge, Civil Station, Bangalore. The lower appellate court upheld the objections of the judgment-debtor and held that the order of eviction is inexecutable. It also held that there is a waiver on the part of the decree-holder and that therefore she could not execute the order of eviction. It accordingly allowed the appeal and dismissed the execution application. This second appeal is filed by the decree-holder.

(2.) The decree-holder is the owner of the premises in St. Marks Road, Civil Station, Bangalore and the judgment-debtor is carrying on the business under the name "Shilton Hotel'' as the tenant in occupation of the same. The decree-holder was the petitioner in H. R. C. 30/68 and her application was under Section 21 (1) (h) of the Mysore Rent Control Act. She alleged that she requires the premises bona fide and reasonably for her own use and occupation. She also alleged that no hardship would be caused to the judgment-debtor by an order of eviction and that the decree-holder would be put to greater hardship if an order of eviction is refused. The judgment-debtor resisted the said application contending that the premises were not required reasonably and bona fide for the use of the decree-holder. The judgment-debtor also contended that greater hardship would be caused to him in case an order of eviction is passed. The case reached the stage of evidence and the decree-holder had to be examined on commission, but no evidence had been recorded. At that stage on 14-10-1968, the parties filed a compromise petition under Order 23, Rule 3, Civil P. C. and they prayed that the application filed by the decree-holder may be allowed in terms of the compromise. Under the terms of the compromise, the judgment-debtor had to deliver possession of the premises by 30-6-1973. Sometime later, the decree-holder filed Mis. 41/71 for review of the order passed on 14-10-1968 for suitable modification or alteration of the order dated 14-10-1968 in view of the decision in AIR1970 SC 794 , (1970 )3 SCC181 . The judgment-debtor contested the same. Subsequently, the review petition was withdrawn. The decree-holder again filed another eviction petition H. R. C. 60/72 under Section 21 (1) (h) of the Mysore Rent Control Act. The judgment-debtor is contesting the same and the said proceeding is still pending in the lower Court. In the meanwhile, the period agreed to between the parties for the judgment-debtor giving vacant possession, according to the compromise entered into in H. R. C. 30/68, expired. Since the judgment-debtor failed to vacate by 30-6-73 according to his undertaking the Decree-holder filed Execution 448/73.

(3.) The two questions to be decided in this appeal are : firstly, whether the order dated 14-10-1968 is a nullity and inexecutable; and secondly, whether there is waiver on the part of the decree-holder by her conduct of her right to ask for vacant possession of the premises.