LAXMAN PRASAD Vs. SHYAM SWARUP CHANDAK

JUDGEMENT

(1.) In this execution second appeal the question that arises for decision is whether the compromise decree under execution was a nullity and also otherwise inexecutable ?

(2.) The respondent is the owner of a shop in suit which was let out to the appellant on a monthly rent of Rs. 26. The landlord after determining the tenancy by giving a formal notice under Section 106 of the Transfer of Property Act filed a suit for ejectment with the allegation that the shop was constructed after 1951 and therefore the U. P. (Temporary) Control of Rent & Eviction Act, 1947 (U. P. Act No. III of 1947) did not apply to it. The landlord prayed for ejectment of the appellant and claimed arrears of rent and past mesne profits up to the date of the filing of the suit. The appellant denied the allegation that the accommodation in suit was constructed after 1951 and took a definite plea that the shop was quite old and had been constructed long before 1951 and hence U. P. Act No. III of 1947 was applicable to the case and the landlord had no right to file a suit for ejectment unless one of the grounds mentioned in Section 3 of the aforesaid Act existed. The suit was instituted on 6-2-1963 However, the parties came to terms and a compromise was filed in court on 11-12-1964. The suit was decided in terms of the compromise. The compromise arrived at between the parties formed part of the decree which was passed by the trial court in the aforesaid suit. The main terms of the compromise were that the defendant would continue as tenant of the shop at Rs. 30/- per month from 1-1-1965 up to 31-12-1974 i. e. for a period of ten years and after expiry of this term would vacate the shop and in the event of his failing to vacate the same the decree-holder would have a right to take possession by executing the decree. In paragraph 2 of the compromise it was clearly mentioned that except on the ground of non-payment of rent the plaintiff would have no right to take possession before the expiry of the said period. It is a matter of admission that after the passing of the compromise decree the appellant regularly paid rent at Rs. 30/- per month and, in fact, receipts were filed by the appellant before the executing court to prove his assertion.

(3.) After the expiry of the stipulated period, the landlord commenced execution of the compromise decree. On 1-1-1975 he made an application for execution which was registered as Execution Case No. 3 of 1975. The appellant filed objections under Section 47 C.P.C. and maintained that the compromise decree passed in utter disregard of the mandatory provisions contained in the U. P. Act No. III of 1947 was a nullity, that a new tenancy had been created by the compromise filed in the suit and consequently the decree-holder was not entitled to get possession in execution of the decree. It was also maintained that in view of the U. P. Urban Buildings (Regulation of Letting, Rent & Eviction) Act, 1972 (U. P. Act No. 13 of 1972) having been passed, the decree-holder was not entitled to execute the decree unless one of the grounds specified in Section 20 of the new Act was proved to exist. It was further pleaded that in view of the compromise the status of the judgment-debtor was that of a tenant and hence the decree-holder had no right to execute the decree.