MADHUKAR TIMBAK GORE Vs. VASANT RAMKRISHNA KOLHATKAR

JUDGEMENT

(1.) This revision application raised an important yet interesting question with regard to the power and jurisdiction of the executing Court to pronounce on the validity of the decree sought to be executed by it. The facts giving rise to the present revision application briefly stated are as follows: A house bearing Municipal House No. 13/12 consisting of four rooms and situated at Amravati originally belonged to one Maheboobkan. The applicant has taken one of these four rooms on lease form Maheboobihan for his dispensary in or about the year 1960. After the death of Maheboobkhan the ownership of the house changed hands and one Dhirajlal became owner on or about 15-6-1971. Dhirajlal obtained permission form the Rent Controller for terminating the tenancy of the applicant. The latter preferred an appeal against this order of the Rent Controller and that was said to be pending at the time when the present litigation started. During the pendency of that appeal Dhirajlal terminated the lease of the applicant and filed suit for ejectment being Regular Civil Suit No. 358. of 1973. That suit was also pending at the time when the present litigation started. The non- applicant acquired title to the suit house on or about 8-4-1974. It seems that he obtained vacant possession of three of the four rooms, the fourth being still occupied by the applicant as a tenant. It appear that after purchasing the house the nonapplicant stared, reconstructing it and in the process he removed a few tiles from the roof over the applicants room and also made a hole in the front wall. Felling aggrieved by this action on the part of the non-applicant and interference with his occupation as a lessee, the applicant instituted a suit being Regular Civil Suit No. 597 of 1974 in the Court of Third Joint Civil Judge, Junior Division at Amravati for injunction restraining the non-applicant from "making such construction to, or on the plaintiffs room, as to make eaves and rain and roof-water flow into the room" and also to restrain the non-applicant from disturbing the wall on the back of the room and making any further construction over the applicant's room. He also sought a mandatory injunction directing the non-applicant to replace the titles and so forth. This suit was instituted on 27-8-1974. Simultaneously with the presentation of the plaint, the applicant has also made an application for temporary injunction which was granted exparte on 28-8-1974. The non- applicant appeared in the suit and moved the Court for vacating the exempted parte interim injunction on 2-9-1974. However, before the non-applicant filed his written statement or the trial Court passed final order on the exempted parte interim injunction, the parties to the suit, namely the applicant and the non-applicant, on 29-10-1974 jointly filed an application under their signatures informing the Court that they had settled their dispute and set out the terms of compromise in the said application. By this application they prayed that decree should be drawn in terms of the compromise. Besides the applicant was also signed by their counsel. On the same day i. e. on 29-10-1974 the trial Court passed the following order on this application. "Parties are present with their counsel. They admit the contents of this application as true. Hence a decree in terms of the compromise be passed against the defendants".

(2.) A more or less similar order came to be passed on the same day on the plaint and thus the suit was disposed of. Decree was drawn in terms of the compromise. Since they are relevant for the purpose of this revision application. I may quote the operative order of the decree in extenso:

(3.) It appears that the applicant shifted to the room on the back side and the non-applicant carried out the repairs. However, the non-applicant did not put the applicant in possession of "the new renovated room" as required by Clauses 4 of the decree. The application, therefore, on 24-6-1975 filed an application from executing the decree by delivering possession of the said room to him. To this application he annexed a document which purported to describe by maters and bounds and dimensions the room of which he was seeking possession in execution. The executing Court directed a warrant of possession to be issued under Court. 21, R. 35 the Code of Civil Procedure (hereinafter referred to as 'the Code) on 27-8-1975. Accordingly warrant was issued but in was returned unexecuted with the endorsement of the bailiff that it could, not be executed because the description of the room which was shown by the application to the bailiff did not tally with the description which was given in the warrant, since in the description of the room in the warrant it was shown that there were titles over it while on the room shown by the applicant there was slab. In short, therefore, the bailiff did not executed the warrant because the room which the applicant showed to him was not the same as described in the warrant. This warrant was placed before the Court on 27-10-1975 and on the same date the non-applicant appearing in the execution proceeding and raised objections to the decree being executed on several grounds. Inter alia he contended that the applicant had deliver possession of the old room to him out of Court under the compromise and since the suit itself was for mandatory injunction, no decree regarding delivery of possession back to the application could be passed in that suit and that that compromised was nothing but an agreement between the parties and it cannot merge into an executable decree of the Court. Thus, according to the non-applicant, the executed Court had no jurisdiction to issue warrant for possession. He also contended that the old room which was in possession of the applicant had been completely demolished and a new room with larger dimensions had been constructed in its place and hence the applicant could not seek possession of any area larger than what he was in occupation prior to the reconstruction. He also contended that after reconstruction he had offered possession of the room with the earlier dimensions to the applicant but the latter refused to keep it and hence he had let it out to someone else. He lastly contended that the executing Court had no jurisdiction to put the applicant in possession of the old room since it did not exist at all. Needless to say that the applicant sought to meet these objections by giving his own reply. He also filed another document in which he gave description of the renovated room.