RATILAL NARBHERAM Vs. WELJI NAGJI

JUDGEMENT

(1.) The appellant decree holder filed a Civil Suit No. 183-A of 1953 in the Civil Court, Akola, Against the respondents to recover possession of certain shop premises situated in mangaldas Market, Akola, alleging that he had leased out the said shop to respondent No. 1 on a monthly tenancy and that the respondent No. 1 had defaulted in payment of rent. It is also contended therein that he had also sub-let a part of the premises to respondetn No.2 without his permission. Before institution of this suit the landholder had obtained necessary permission from the House Rent Controller, Akola, to issue notice of ejectment against the opponents and had actually served a notice on them. The suit was resisted by the judgment -debtor respondetn only and the other opponent remained absent. Ultimately that suit ended in compromise between the appellant and the respondent on 18-8-1954. As the controversy involved in this appeal is based on the recitals of this compromise decree, it will be useful to reproduce the relevant portion of the same at this stage which is as under:-

(2.) Shri Kherkekar, the learned counsel for the appellant, contended before me that the judgment of the lower appellate Court is without jurisdiction because it is not open for the executing Court to go behind the decree. If the executing Court cannot go behind the decree then it is not open for the appellate Court also to go behind the decree in an appeal filed against the order passed by the trial Court in the execution proceeding.. He further contended taht merely concession was shown to the judgment-debtor and the said compromise between the parties did not create any new tenancy or the old tenancy between the parties was continued to subsist. It was also contended by him that there was no question of granting relief against forfeiture and, therefore, the learned Judge of the first appellate Court committed an error in allowing the appeal and in holding that a fresh tenancy was created, between the parties. In support of his contentions Shri Kherdekar has relied upon various decisions of this Court, viz., Ramjibhai v. Goverdhandas, 56 Bom LR 365 = (AIR 1954 Bom 370): Gajanan Govind v. pandurang Keshao, 53 Bom LR 100 (AIR 1951 Bom 290): Dattatraya v. padmakar, (1961) 63 Bom LR 148 ) and Waman v. yeshwant, 50 Bom LR 688 = (AIR 1949 Bom 97) (FB).

(3.) On the other hand it is contended by Shri Chandurkar, the learned counsel for the respondent, that by the said compromise between the parties the landlord admitted that the defendant judgment-debtor was a monthly tenant of the plaintiff and he was to continue in possession of the house as a monthly tenant. he further contended that the terms of compromise further indicated that the landlord accepted the judgment-debtor to be his tenant and permitted him to continue in that capacity even after the passing of the decree. The judgment debtor was held liable to pay past rent as well as future rent. Therefore, according to Shri Chandurkar the old tenancy between the parties was continued on new terms and the previous notice of termination given by the landlord was specifically waived. In substance a fresh contract of tenancy was created. In this view of the matter, according to Shri Chandurkar, unless the landlord took recourse to the provisions of the Rent Control Order over again it was not open for him to terminate the tenancy of the judgment -debtor, the tenant, Shri Chandurkar further contended that in view of the provisions of C. P. & Berar Rent Control Order and the specific recitals in the compromise deed as well as consent decree it is not open for the decree-holder to execute the decree. In support of his contention Shri Chandurkar has relied upon another decision of this Court in Gurupadappa v. Sayad Akbar 52 Bom LR 143 = (AIR 1950 Bom 252).