KEDARNATH GANGAGOPAL MISRA Vs. SITARAM NARAYAN MOHARIL

JUDGEMENT

(1.) THE respondent in this appeal is the landlord plaintiff and the appellant is the defendant tenant. A decree for eviction, rent and mesne profits was obtained by the respondent in the trial Court on April 30 1965. The tenant appellant filed an appeal against the decree in the District Court which came to be dismissed on August 22, 1966. came to be dismissed on August 22, 1966. As soon as decree in the trial Court was obtained the respondent filed petition for execution. Execution was stayed because of the stay order obtained form the appellate Court. Immediately the appeal was dismissed, a decree was produced and execution was revived.

(2.) ON August 31, 1966, plaintiff decree-holder accompanied by the bailiff of the Court and the warrant for execution went to the doors of the present appellant. The plaintiff decree -holder had all the means at that time to throw out the appellant and obtain physical possession of the premises. After some negotiation, it appears that appellant assured the respondent plaintiff that he would not pursue any further remedy by way of Second Appeal provided one month's time is given to vacate. It is alleged that respondent accepted this representation and agreement was reached between the parties. It was reduced rant for execution at the instance of the bailiff. With this arrangement being done, decree-holder plaintiff returned and the warrant was lodged back in the court.

(3.) DURING that month which was obtained by the appellant as breathing time, he filed Second Appeal No. 309 of 1966. He also applied for stay. As soon as notice of the interim stay of execution was received by the respondent plaintiff he rushed to this Court and made civil application No. 194/1967. By that application it is urged that the appellant defendant having agreed not to file the appeal and having obtained the advantage of sending back the warrant and the bailiff and having further obtained the time of one month, he cannot file the appeal. The appeal is incompetent and should be dismissed as such.