JAMI BHIMARAJU Vs. KONCHADA KEDARNADHA SUBUDHI

JUDGEMENT

(1.) THE decree-holders who had levied execution of an order of the House Rent controller for eviction of the judgment debtor in E. P. No. 1 of 1970 are the appellants against the reversing appellate decision of the learned Subordinate judge, Berhampur.

(2.) IT is contended by Mr. Murty for the appellants and not disputed by Mr Palit for the respondent that House Rent Control Case No. 42 of 1964 in the court of the house Rent Controller at Berhampur was one for eviction of the respondent who was the tenant under the appellants on the ground that the tenant was a defaulter in payment of rent and the premises was necessary for the bona fide occupation of the landlords. A compromise was entered into between the parties and an application was filed on 23rd June. 1966. The entire petition of compromise is extracted below:-" compromise petition filed by both parties most respectfully showeth: at the intervention of respectable persons, both parties have settled their dispute and compromised the above proceedings thus: both parties agree that an order of eviction be passed against the opposite party, who shall vacate the suit premises and give delivery of possession of the same to the applicants on the expiry of three and half years from this date i. e. 22-12-1969. Both parties further agree that the opposite party do pay rent from today till he vacates the suit premises at the rate of Rs. 25/- (rupees twenty-five) only per month, they having adjusted regarding the past rent from 10th April 1964 till 22nd June 1966 outside the court. Each party do bear his own costs. Both parties pray that the Hon'ble Court may be pleased to record the above terms and pass an order of eviction accordingly under Section 7 (2) of the Orissa House Rent Control Act. " on the basis of the aforesaid petition at compromise on 23rd June 1966, the following order was passed by the Controller:-"the petitioner Jami Bhimaraju and others and Konchada Kedrinadham subudhi are present. The parties have filed a petition of compromise. They pray that an order of eviction be passed against the opposite party who shall vacate the suit house after expiry of 3 1/2 years from today. The date of expiry has been scheduled to be 22-12-1969. The parties further agreed that a monthly rent of Rs. 25/- will be paid by the opposite party and all previous dues will be adjusted. They further agreed to bear the costs of their own. As the opposite party has entered into compromise and eviction is sought for in the said petition of compromise, it is hereby ordered that the opposite party shall vacate the house. The date of eviction is however recognised by the Court as prayed for by the parties. The petition of compromise shall form a part of the record. "

(3.) IN the execution case, an objection under Section 47. Civil P. C. was raised on the ground that there was nothing in the order of the Controller directing execution to be taken in the event of the judgment-debtor not vacating the suit-house after the expiry of 3 1/2 years. The executing court overruled the objection and held that the order was executable as a decree. The learned appellate Judge relying upon a decision of this Court in (1952) 18 Cut LT 52 = (AIR 1953 Orissa 74 ). (Khalli Rath v. Eppili Ramchandra) where their Lordships held:-" where in a suit for eviction of the defendant and possession by the plaintiff the parties compromised and a decree was passed as per its terms wherein the defendant agreed to deliver possession at the end of the stipulated period but what would happen in the event of violation of this provision was not stipulated, the parties must be taken not to have intended that the plaintiff should recover possession by way of execution as the suit itself was one for possession. " held that the order of the House Rent Controller in the present case is not executable. He accordingly sustained the objection under Section 47. Civil P. C. and vacated the orders of the executing court. The present appeal has been carried to this Court by the decree-holders against this reversing decision of the learned Subordinate Judge.