GURUPADAPPA SHIVLINGAPPA Vs. AKBAR SAYAD BUDAN KADRI

JUDGEMENT

(1.) THE plaintiff filed a salt, being suit No.272 of 1946, in the Court of the Joint Civil Judge, Junior Division, Belgaum, seeking to obtain possession of certain premises from the defendant on the allegation that the defendant was a tenant and that the tenancy was duly terminated by notice.

(2.) THE defendant resisted the claim on the ground that he was an annual tenant and the tenancy was not duly terminated. Daring the pendency of the suit, the parties arrived at a compromise, the terms of which are as follows: " (1) THE defendant admits that he is the monthly tenant of the plaintiff, THE defendant do deliver up possession of the suit property to the plaintiff before 31st January 1948. (2) THE defendant has paid the rent up to the end of March 1947 to the plaintiff. THE defendant do forthwith pay the amount of rent remaining due up to this day and he do pay to the plaintiff rent of each month up to 31st January 1918, in advance on the first day of each of the several months. " This decree was passed on 11th June 1947, and the relations between the parties at that time were governed by Bombay Act VII [7] of 1944. THE period provided by the decree having expired on 31st January 1948, and the defendant having failed to vacate, the plaintiff filed darkhast No.25 of 1948 in the Court of the Civil Judge, Senior Division, at Balgaum, seeking to obtain possession of the premises by execution of the decree in suit No.272 of 1946. THE defendant contended that he was entitled to the protection given by Bombay Act LVII [57] of 1947, which had been passed in the meanwhile and which was made applicable as from 13th February 1948. THE learned trial Judge rejected the contention of the defendant and directed warrant under Order 21, Rule 35, to issue. 2a. An appeal was preferred to the District Court at Belgaum, and the learned District Judge, who heard the appeal, reversed the order of the learned trial Judge and passed an order that the darkhast should stand dismissed. THE plaintiff-decree-holder comes to this Court in second appeal.

(3.) MR. Lokur has, however, contended that once a decree has been passed whether by consent or otherwise the defendant is not entitled to claim the benefit of the provisions of Bombay Act LVIi [57] of 1947. According to MR. Lokur, the decree must be executed as it stands. In my view, an executing Court is not always bound to execute a consent decree according to its terms. In the case of consent decrees, it has been recognised that there is jurisdiction in the execution Court to refuse in certain oases to execute the decree as it stands. Consent decrees which involve penal clauses are a well-recognised class of cases in which the executing Court has jurisdiction to refuse to direct execution according to the terms of the decree. A statutory provision may, either expressly or by implication, prevent execution of a decree according to its terms; and the executing Court would have no jurisdiction to execute such a decree according to its directions. This is a decree passed with the consent of the parties which created a contractual relation between the plaintiff and the defendant, and I see nothing in the terms of Section 12 of Bombay Act LVII [57] of 1947 which prohibits a tenant whose rights arise under a consent decree from obtaining the benefit of that Act.