NONJIBHAI Vs. RAMKISHAN

JUDGEMENT

(1.) THIS is an appeal arising out of an execution case.

(2.) THE respondents had filed a suit against the appellant for ejectment and arrears of rent. In the said suit a com-promise decree was passed on 1-9-1971under the said decree, the appellant was to pay Rs. 10,596/- to the respondents in instalments as under: <FRM>JUDGEMENT_45_TLMPH0_1975Html1.htm</FRM> It was further agreed that from 1-5-1972 the appellant shall pay a sum of rupees 127/- per month to the respondents on account of damages for use and occupation of the accommodation in his occupation and in case he paid the instalments and monthly amount of damages as specified in the decree, he shall be entitled to continue as tenant of the accommodation on the old rate of rent; but if he committed any default in the payment of any of the instalment or the monthly amount of damages, he shall deliver possession of the accommodation to the respondents who shall also be entitled to obtain possession thereof and to recover the balance of the amount due by executing the decree.

(3.) IT was not disputed before me that there was no default in the payment of the first three instalments. In respect of the last instalment payable on 30-11974, the appellant deposited in Court a cheque for a sum of Rs. 2,110/inclusive of damages. The cheque was, however, dishonoured by the Bank as there was some alteration which had not been initialled. The appellant filed an application under Section 148 of the Code of Civil Procedure for extension of time for depositing the amount of the fourth instalment; but it was rejected. Thereafter, the decree-holders (respondents) applied for execution of the decree for possession. It was opposed by the appellant mainly on the ground that the clause relating to possession in the compromise decree was in the nature of a penal clause which could not be enforced and it was open to the executing Court to award some compensation to the decree-holders on account of the default in payment of the last instalment. The contention of the appellant was rejected by the executing Court which proceeded to execute the decree. Being aggrieved thereby, the appellant preferred an appeal which was dismissed by the District Judge, Khand-wa. He has, therefore, preferred this second appeal.