PHANI BHUSAN GUPTA Vs. MIRA ROY

JUDGEMENT

(1.) This appeal is directed against an order of reversal passed by the learned Additional District Judge, 5th Court, Alipore, in Misc. Appeal No. 662 of 1976 dismissing Misc. Case No.37 of 1975 on the file of the learned Munsif, 4th Court, Alipore, under S. 47, Civil Procedure Code.

(2.) The respondent Mira Roy bought Title Suit No.319 of 1963 subsequently re-numbered as Title Suit No.195 of 1969, for ejectment of the appellant from the suit premises and for recovery of arrear rents and mesne profits. The ground on which the suit was brought was default in payment of rent by the appellant. Ultimately, the parties reached a compromise and the suit was decreed in terms of the compromise petition which was made a part of the decree. It will be sufficient for our purpose to mention that the compromise petition set out the matter in which the arrear rents, together with mesne profits, were to be paid by monthly instalments. It also contained that if payments were made in accordance with the terms of the compromise petition, the decree would not be executed at any point of time but in case of default of payment of any two successive instalments the decree would be executable forthwith.

(3.) The appellant having failed to make payment in terms of the compromise petition, the respondent put the decree into execution in Title Execution Case No.92 of 1970 for recovery of possession of the suit premises and decretal dues. The appellant filed an objection under S.47, Civil Procedure Code alleging that the execution case could not proceed as there was novation of the original contract by a subsequent contract between the parties. The objection under S.47, Civil Procedure Code was registered as Misc. Case No.83, which was allowed by the learned Munsif and the execution case was dismissed. The reason for allowing the objection under S.47, Civil Procedure Code, as stated by the learned Munsif, was that there was novation of the original contract by a subsequent contract between the parties under which the appellant was allowed time till 6.8.71 for payment of the arrear rents. As, however, the execution proceeding was commenced on 24.5. 7, i.e. before the expiry of the period allowed for payment it was prematrure. No appeal was preferred by the respondent against the said decision of the learned Munsif.