CHHOTALALDAYALJI Vs. BAI LABHKUNVER DAHYABHAI

JUDGEMENT

(1.) This is a second appeal by the original judgment-debtor. The respondent had obtained a decree in a suit for possession of the suit promises. The decree was a consent decree and provided that the defendant should hand over the possession of the suit premises to his landlord the plaintiff by 11-7-61 if he failed to pay Rs. 129.00and odd as arrears of rent before 11-7-61. The original plaintiff then filed Darkhast No. 112 of 1961 for recovering possession of the suit premises and in that Darkhast proceeding there was a second compromise between the parties and the learned Judge in appeal refers to that compromise as a compromise adjusting the decree and amending the original decree accordingly. He observes that by the new amended decree the defendant agreed to pay arrears of rent and other dues and further agreed to vacate the suit premises on 11-2-62. A further clause was added whereby the decree-holder agreed that the premises may not be got vacated if the defendant paid mesne profits regularly at the rate of Rs. 18.00. The plaintiff then filed Darkhast on 29-3-62 on the ground that the defendant had failed to hand over possession on 11-2-62 and on the ground that he had not paid rent or mense profits and that fallen due. The learned trail judge ordered the Darkhast to proceed and rejected the objections of the judgment-debtor.

(2.) The appeal to the District Court of Rajkot was dismissed by the Assistant Judge.

(3.) I must allow the appeal for the following reasons. Under the original decree which was based on a compromise the judgment-debtor was to pay the arrears of rent at the rate of Rs. 14.00 per month and was to hand over possession of the suit premises on 11-7-61 if he failed to pay the arrears of rent. But if he paid the arrears of rent on or before 11 the defendant was to continue in possession.