RADHEY SHYAM NARSINGHDAS RENWAL Vs. BAJRANGDAS PRAHLADDAS PATANKAR

JUDGEMENT

(1.) THIS miscellaneous appeal is directed against the order made by the lower appellate Court rejecting the various objections raised by the appellant-judgment-debtor under section 47 of the Code of Civil Procedure to the execution of the decree for eviction already passed against him. The lower appellate Court however affirmed the order made by the executing court with the modification that before causing the actual eviction of the appellant, the amount of compensation as required by section 6 of the M. P. Accommodation Control Act, 2955 (here-in-after referred to as the Act), be determined and tendered for payment to the judgment-debtor. However, since the appellant-judgment-debtor was not aggrieved by this part of the order of the lower appellate Court, the same does not form the subject-matter of this appeal. It has been separately challenged by the decree-holder in the connected Miscellaneous Appeal No. 41/1977 and will be dealt with and decided therein.

(2.) FOR the purposes of the present appeal a brief calendar of the relevant facts is as below. Undisputedly, the decree-holder-respondent-landlord obtained a consent decree for eviction of the judgment-debtor tenant on the basis of a compromise arrived between the parties in a suit brought by the plaintiff-landlord claiming eviction, arrears of rent and mesne profits. The plaintiff claimed eviction on the ground of section 4 (1) (h) of the Act of 1955 which was in force on the date of the institution of the suit. The ground contemplated was of genuine need of the suit accommodation by the landlord for the nonresidential purposes. As per the terms of the compromise, the plaintiff-landlord was to get the possession of the suit-premises after a period of 11 years. It was also agreed that the defendant-tenant shall pay a sum of Rs. 75 P. M. as mesne profits for the use and occupation of the suit shop during the aforesaid period of 11 years and, in case of default made by him in the matter of payment of the amount of mesne profits as required by the terms of the decree, the plaintiff would become entitled to evict the defendant by executing the decree even before the expiry of the agreed term of 11 years. The decree was passed in the year 11 years has already expired. When the decree was put in execution before the expiry of the term of 11 years on the ground that the judgment-debtor had committed default in payment of the amount of mesne profits, the judgment-debtor raised various objections to the execution of the decree. One of the objection was that the judgment-debtor has not committed any default and has paid the amount of mesne profits and, as such, the decree could not be put into execution. However, this aspect being on a pure question of fact has already been dealt with by the Courts below and in the absence of any receipt or cogent piece of evidence showing payment of the amount of mesne profits, the plea of the judgment-debtor was found to be false and frivolous. The only evidence relied on by him in support of his contention was in the shape of self-serving entries made by him in his own account books. The same was disbelieved and it was held that the judgment-debtor did commit the default and that the decree-holder was entitled to put the decree into execution even before the expiry of the term of 11 years. This finding is not open for interference at this stage before this Court, and the Courts below have rightly found that the plea of payment based only on the oral testimony and the self-serving entries made by the judgment-debtor in this account books was false.

(3.) THE other objections which were mainly urged before this Court were on the following counts :-