BADRIPRASAD Vs. MALLUBHAI

JUDGEMENT

(1.) This is a petition under Art. 227 of the Constitution of India arising out of execution proceedings. Since a show cause notice was issued against admission of the petition and the respondent No. 1 had filed a caveat, the petition was finally heard with the consent of the parties.

(2.) The petitioner was a tenant in the house of the respondent No. 1. A suit for ejectment was filed by the respondent No. 1 against the petitioner. When that litigation reached the High Court, a compromise was arrived at between the parties and a consent decree of ejectment was passed by the High Court. The time granted by the High Court to the petitioner for vacating the premises was up to 28-2-1993.

(3.) However, on 26-2-1993 the petitioner herein filed an application under O. 21, R. 2 read with S. 151 of the Code of Civil Procedure alleging that the respondent No. 1-decree-holder and the petitioner-judgment-debtor had entered into an oral settlement on 1-2-1993 whereby the respondent No. 1 told the petitioner that he did not need the premises any more because one of his tenants Hafiz Bismilla had vacated a shop. It was alleged by the petitioner that respondent No. 1 agreed to let out the premises to the petitioner if, the petitioner agreed to pay Rs. 140/- per month as a rent instead of Rs. 35/- per month which was being paid by him. The petitioner further alleges that he agreed to enhancement of rent and on 1-2-1993 paid Rs. 140/- in cash to the respondent No. 1 who gave him a slip acknowledging receipt of the amount and promised to give a formal receipt the next day and had ,also agreed to get the suit dismissed. It was also alleged that two witnesses Gopal and Mohanlal were present at the time of this settlement and had witnessed the payment of Rs. 140/- as also the passing of a slip acknowledging payment of Rs. 140/-. The slip was alleged to bear the thumb impression of the respondent No. 1.