GANDHI GOPALDAS GORDHANDAS Vs. BAI LALITABAI MARGHABHAI

JUDGEMENT

(1.) ( partly)and actual possession of the shop No. 4 and godown No. 4 which are in my possession by taking execution proceedings. And in that case 1, the defendant, am to hand over the actual vacant possession of the shop No. 4 and godown No. 4which are in my possession.

(2.) The questions which naturally arise from the decree of this type are as follows. (1) Whether the decree contains a penal clause (2) Whether the judgment-debtor is entitled to relief against forfeiture. (3) Whether the decree embodies an independent agreement as to the delivery of possession so as to secure payment of arrears of rent and compensation contemplated by the agreement or whether it is a decree for possession out-right in execution of which possession of the suit premises can be recovered. These questions which arise have not been decided by the learned District Judge on account of the decision in the case of Tribhovandas Lallubhai Shah (supra).

(3.) In support of his submissions Mr. K. C. Shah has invited our attention to B few decisions. The first one of them is in the case of Ahmedabad Municipal Corporation v. Joitaram Ganesh and another reported in X G.L.R. 431. A Division Bench of this High Court consisting of Mr. Justice J. B. Mehta and Mr. Justice B. G. Thakore was considering in that case the question relating to a compromise decree. Mr. Shah has placed particular reliance on the observations made by the learned Judges in paragraph 6 of the report. The Division Bench firstly considered the distinction between nullity and invalidity and recorded the finding that whereas nullity of a decree can be pleaded in execution proceedings, its invalidity cannot be pleaded. While defining the bases of nullity and invalidity, after having reviewed a number of decisions on the subject, it held that whereas inherent lack of jurisdiction would give rise to nullity, irregular or erroneous exercise of jurisdiction which a Court has would give rise to invalidity. In the instant case, this question does not arise. It was then contended before the Division Bench that the question whether a decree creates a fresh lease or not cannot be agitated in execution proceedings. The Division Bench in fact construed the decree (vide paragraph 6, of the report) and recorded the finding that it never created any lease whatsoever and then referred to the decision of - Mr. Justice Datar in the case of Bai Manuben Chimanrao v. Bhimbhai Nagarji reported in 60 Bombay Law Reporter 122 in order to derive support for their decision. Mr. Justice Datar in Bai Manuben's case (supra) has expressed an opinion that the question whether the compromise decree creates a fresh lease cannot be agitated in execution proceedings for the simple reason that once the Trial Court passed a decree under Order 23, Rule 3, if it committed any error in incorporating this direction, in so far as It did not relate to the suit, it only committed a jurisdictional error. The Division Bench has then proceeded to observe as follows:- The Court having complete jurisdiction over the suit and on matter relating to suit, the consent decree could be made. The Court, therefore, did not lack inherent jurisdiction and the decree in such a case would not be a nullity, Mr. Shah has also rightly not pressed this ground before us and even the ultimate conclusion of our learned brother Raju J. is not founded on this ground. The corporation is only affected by the conclusion that the decree created a lease and we hold that this conclusion was wholly unjustified on the plain reading of the present consent decree. We are unable to find in this decision any support for the proposition which Mr. Shah canvasses before us. Firstly, the Division Bench construed the lease and recorded the finding on merits that it did not create any lease whatsoever. Having taken that view on merits, it was unnecessary for them to make any observations on the point whether such a question could be agitated in execution proceedings. Secondly, Mr. Justice Datar in Bai Manuben's case (supra) made certain observations on the question but, as we shall be presently showing, did not lay down any principle. He left the question open for future consideration. No reliance could have, therefore, been placed upon those mere observations which did not lay down any principle. Thirdly, Mr. Justice Datar's observations were contrary to two Full Bench decisions of the Bombay High Court to which we are referring in course of this judgment. Lastly, the excerpt reproduced above from the aforesaid decision of our Division Bench clearly shows that the question was not pressed before the learned Judges for their decision and also did not otherwise arise for their decision because the decision of Mr. Justice Raju against which they were hearing that appeal was not founded upon that proposition. We are, therefore, of the opinion that the observations of the Division Bench, relied upon by Mr. Shah, are mere passing and casual observations and, with great respect to the learned Judges who constituted the Division Bench, they do not, in our opinion, lay down any rule or principle of law so far as the proposition, canvassed by Mr. Shah before us, is concerned. The question which is canvassed before us is well-settled by the two decisions of the Full Bench of the Bombay High Court to which we are presently referring. In the case of Bai Manuben Chimanrao v. Bhimbhai Nagarji reported in 60 Bombay Law Reporter 122 Mr. Justice Datar was dealing with a compromise decree. A similar question was raised before him. Instead of summarizing what Mr. Justice Datar has laid down in that decision it would be more appropriate to reproduce his views in his own language. Before I deal with this contention of Mr. Shah on merits, it seems to me there is an initial difficulty in the way of the judgment-debtors' raising such contention in. execution proceedings. I have already stated that the suit out of which the present darkhast proceedings have arisen had been instituted by plaintiffs Nos. 1 and 2 as owners and by plaintiff No. 3 as their tenant for possession of the suit premises on the ground that the defendants were trespassers and had wrongfully occupied the suit premises. It is to be noted that it was never the case of the plaintiffs that defendants were their tenants at any time before the institution of the suit and that the suit' had been instituted after the termination of their tenancy. When there was a compromise in such a suit, that compromise was recorded by the Court, which under the provisions of O. XXIII, r. 3, of the Civil Procedure Code passed a decree in accordance therewith so far as it related to the suit. The subject matter of the suit in the present case was, as I have already stated, a claim for possession of the suit property from the defendants on the ground that they were trespassers. The Court could, therefore, pass an operative decree, though in accordance with the compromise that was subsequently arrived at, but only in so far as that compromise related to the subject-matter or the claim in the suit. If the executing Court finds that there is a valid operative decree regard being had to the subject matter or claim in the suit, it must execute that decree and is not concerned to find whether the terms of the compromise are capable of being construed as giving rise to a new relationship of landlord and tenant between the parties. Even assuming that the terms of the compromise are capable of such a construction, no operative decree in that event could have been passed in accordance with such a compromises as the creation of a new lease was a matter entirely extraneous to the suit. It is undisputed that the creation of a new lease such as is now contended for by the judgment-debtors was not a matter which related to the suit. In fact, it is urged by them that the terms of the compromise for the first time gave rise to a new tenancy in their favour. If, therefore, there has been an operative decree passed as in the present case, it must necessarily and exclusively relate to the subject-matter or claim in the suit. When the Court is called upon to record a compromise and pass a decree in terms thereof, the Court can pass a decree in terms of the compromise only in so far as those terms relate to the suit and not in relation to those terms which are extraneous to the suit. The function of the executing Court would then be to execute such a decree, and I do not think that it would be open to the judgment-debtors to contend in the execution proceedings that the terms of the compromise upon which the decree was based created a new lease in their favour. If the terms of the compromise evidenced only a transaction of lease in favour of the defendants, no decree could have been passed in accordance with such terms as such terms obviously did not relate to the suit. Besides it may be noted, when the Court applied its mind and passed a decree in terms of the compromise, it must also mean that the Court impliedly negatived the plea that is now raised in the execution proceedings, namely, that the terms of the compromise created a new lease; for, otherwise if the Court had come to the conclusion or if the defendants had raised the contention that the terms of the compromise created a new lease, it would never have proceeded to pass a decree as it did in the present case. The Court would have stated in that event that the compromise terms had given rise to a case of new lease, and as the case of a new lease was not a matter relating to the suit, no opera decree embodying such terms could be passed under the provisions of O. XXIII, Rule 3 of the Civil Procedure Code. I should, therefore, think that it is not open to the judgment-debtors now to agitate the point which must be deemed to have been considered and overruled by the Court when it passed the decree in accordance with the compromise. Mr. Shah has however, relied upon the decisions reported in Sumatibai Kirtikar v. Anant Balkrishna, Gurupadappa Shivlingappa v. Akbar and Narayan Ramchandra V. Gangadhar, in which some consent decrees were construed in execution proceedings to operate as leases in favour of the judgment-debtors. He has also drawn my attention to the case of Ramjibhai Virpal v. Gordhandas, in which again some consent decrees were construed in execution proceedings and were held not to create leases. However, the point which I am now considering does not seem to have been raised in any of those cases. Even so, I must respectfully state that I am bound by those decisions. If, however, I had rested my judgement on the view which I have ventured to express on the point I have dealt with so far, I would have referred this appeal to a Division Bench, but as I agree with the view which has been taken by the lower appellate Court on the construction of the consent decree. I do not think it necessary to do so in the present case. (emphasis ours). It is clear from these observations made by Mr. Justice Datar that he did not decide the case on that point but decided it on merits. By not referring the matter to a larger Bench, he in terms left the question open. In that context we feel that the reference made by the Division Bench of this High Court in X G. L. R. 481 to that decision is only a passing reference because there is no ratio decidendi which can be discovered from 60 Bombay Law Reporter 122.