DHAN MIA Vs. JAMILA KHATUN AND OTHERS

JUDGEMENT

(1.) THIS is a Second Miscellaneous Appeal from the judgment and decree of the learned Subordinate Judge, Cachar, dated 24 -6 -49, by which he affirmed the order of the learned Munsiff of Karimganj who had ordered execution of the decree in T.S. No. 165 of 1941 to proceed negativing the objection of the J.D., that in view of the terms of the compromise decree passed in that suit, he was not liable to be evicted, and that the D.H. should be relegated to a suit.

(2.) THE D.H. had brought a suit for recovery of arrears of rent and for an order of eviction. During the pendency of the suit, the parties filed an application under the provisions of O. 23, R. 3, C.P. Code, for recording a compromise, which is in these terms:

(3.) IN support of his contention, Mr. chaudhuri has referred us to a decision reported in 'Jasimuddin Biswas v. Bhuban Jelini',, 34 Cal. 456, in which a solenama was filed in the suit by which the plffs. agreed to take a smaller sum than the amount claimed as damages, and the defts. agreed to take a permanent lease of the 'jalkar' from the plffs. at a yearly rental of Rs. 413/ - with a provision that so long as the contract was not completed, the defts. would be at liberty to use the 'jalkar' and pay rent from the year 1300 B.S. A decree was passed in terms of the solenama. The learned Judges of the Calcutta High Court held that the terms of the solenama regarding the taking of the lease could not be enforced in execution of the decree. We think that the principle of this decision is applicable to the facts before us.