RAJU Vs. MUKUND

JUDGEMENT

(1.) Heard learned counsel for the parties at length.

(2.) The challenge raised in the present writ petition is to the order passed below Exhibit 56 by the Executing Court thereby rejecting the objection filed by the petitioner under Section 47 of the Code of Civil Procedure, 1908 (for short, 'the Code') to continuation of the execution proceedings initiated by the respondent no.1 herein. The subsequent order passed below Exhibit 72 rejecting the review application is also under challenge.

(3.) The facts in brief are that the respondent no.1-original plaintiff is the owner of a shop admeasuring about 120 square feet. The same was let out to the predecessor of the respondent nos. 2(a) and 2(b). The plaintiff filed Small Cause Suit No.38/2009 seeking eviction of the said tenant on the ground that he had bonafide need of the suit premises and that the suit premises had been illegally let out to the defendant no.2- petitioner herein unlawfully. The defendant no.1 who was the tenant filed his written statement and denied the case as pleaded. He denied that he had inducted the defendant no.2 as a subtenant and pleaded that the defendant no.2 was working in the shop of the defendant no.1. The defendant no. 2 did not file any written statement. During the pendency of the suit, the plaintiff and the defendant no.1 entered into a compromise on 12.07.2010. Under the terms of the compromise, the defendant no.1 admitted that he was liable to pay arrears of rent for a period of 121 months which came to Rs.38,720/-. Besides the arrears of rent, the defendant no.1 also agreed to pay taxes that were levied on the said suit shop. He also agreed to pay 10% annual increase on the amount of monthly rent. The defendant no.1 agreed to clear all the arrears of rent as well as taxes and in view of that undertaking the plaintiff withdrew the said suit. One condition agreed by the parties was that if there was any default in payment of monthly rent in future or if there was a single default in paying the instalment of arrears, the decree for eviction was liable to be passed. The trial Court disposed of the suit in terms of the compromise. Since the defendant no.1 did not comply with the terms of compromise, the plaintiff filed execution proceedings seeking eviction of the defendant no.1. In those proceedings, the defendant no.2 filed an application raising objection under Section 47 of the Code. It was stated in the said application that the execution proceedings were not maintainable as the defendant no.2 was not a party to the suit compromise. The decree in question was not binding on the said defendant no.2. The Executing Court by the impugned order held that the defendant no.2 had no legal right to remain in possession after the defendant no.1 remained in arrears of rent as per the compromise. The terms of compromise were binding on him since he had been illegally inducted as a sub-tenant. The objection was accordingly rejected on 07.06.2019 and the application for review filed by the defendant no.2 was also dismissed on 03.09.2019. These orders are challenged in the present writ petition.