DEVASSY Vs. KUNHAVARIED JOHNY

JUDGEMENT

(1.) The simple question that arises for determination in this Civil Revision petition is whether a compromise entered in execution proceeding by which the execution is postponed either in part or in whole on an undertaking given by the judgment debtor for removing any obstruction in order to give delivery of property in accordance with the decree is enforceable in the execution proceeding itself or not. This question came up for consideration before the District Judge, Trichur in Rent Control Revision Petition No. 12/69. The executing court held that the compromise is liable to be considered in execution; but the District Judge held a contrary view. Hence the revision petition.

(2.) The revision petitioner was a tenant of Room No. 1101 on the ground floor of a double-storeyed building in Trichur under the respondent. The respondent got him evicted out of the room for the purpose of reconstruction in August, 1965. Under the Kerala Buildings (Lease and Rent Control) Act 1965, the respondent was obliged to restore possession of the room after its reconstruction. The respondent however did not give back possession of the room to the petitioner. Therefore, the petitioner made an application to the Rent Controller to get back possession of the room. The Rent Controller passed the order to the following effect: "The landlord would put the petitioner in possession of an extent in the reconstructed building equal to that he was in occupation before he was evicted by order of this Court". The respondent pursued all the remedies available to him ' under the Act going up to the High Court to get this order vacated. But, he failed in his attempt. Finally, the petitioner moved the Rent Controller in execution on 16/2/68 for redelivery of the room. The rent Controller allowed that petition. But, when the Amin went to the spot on 20/2/68, he found that the entrance to the room was blocked on account of a common steel shutter fitted up in frontage of the adjacent room and major portion of the room which was to be delivered over to the petitioner. The respondent was also found to be in possession of the adjacent room. However, between the petitioner and the respondent there was compromise as per a joint statement to the effect that the respondent shall remove the shutter obstructing entry into the petitioner's room within a month from that date. The Amin, therefore, effected delivery of the room, but he produced the joint statement in court with the report that the room could be delivered only on condition that the respondent shall remove the shutter which obstructed the passage into the petitioner's room. The court, therefore, ordered that the delivery had been given and the execution petition was, therefore, dismissed. But, the respondent did not remove the shutter on the basis of the undertaking made by him in the joint statement. So, on 5/4/69 the petitioner filed an application again to the Rent Controller directing the respondent to remove the shutter and in the alternative permitting the petitioner himself to remove the same. The revision petitioner's application was allowed by the Rent Controller, but that order was set aside by the revisional authority.

(3.) It is admitted that on 20/2/68 the respondent entered into a compromise with the petitioner to the effect that he shall remove the shutter which caused obstruction to the petitioner's entry into the room which was to be delivered to him. Though the delivery of the room was effected on that date, the petitioner was not in a position to conduct trade in that room as there was a common shutter fitted up p both to the petitioner's room as well as the respondent's room. The respondent agreed to remove that obstacle within a month from that date. The question that arises is whether the removal of the shutter causing an obstruction to the petitioner's room could be agitated under S.47 C.P. C in execution or whether it is necessary for the petitioner to institute a separate suit to establish his rights on the basis of the compromise entered into between him and the respondent.