MUSTT. RAFIA SHAH AND ORS. Vs. HEMRAJ NAHATA

JUDGEMENT

(1.) This is a revision application against the order passed on 15.7.91 by the Assistant District Judge No. 2 Guwahati in Misc (J) case No. 77/1990 arising out of title execution case No. 8/1990 holding that the decree to be a nullity and dismissing the execution petition.

(2.) In the instant case a suit was filed by the Plaintiff for ejectment of the Defendant on the grounds of defaulter and bona fide requirement. Both the aforesaid grounds were denied by the Defendant. Subsequently however, a compromise was entered into by the Plaintiff and the Defendant and the same was filed before the trial court which passed a decree in terms of the compromise staling that the Plaintiffs and the Defendant have filed a joint petition slating that they have compromised the suit outside the court and have prayed for compromise decree accordingly. The Assn. District Judge No. 2 Guwahati after hearing Advocates of both the sides and after perusing the petition allowed the same on 6.1.88. The suit was decreed on compromise in terms of the petition. Under the said compromise decree the Defendant was given a period of 34 months to vacate the said premises. After 34 months when the Defendant did not vacate the said premises, the Plaintiff approached the executing court, to get the premises vacated. The Defendant at that stage took the defence that the said compromise decree was a nullity as such no execution can be effected of such a decree. The executing court on agreeing with the submission made by the Defendant held that there is nothing on record to show that the compromise decree was passed after satisfying the statutory grounds of ejectment. It further held that only because Order 23 Rule 3 applied to this suit docs not remove the bat of prohibition of the Rent Control Act nor do they empower the court to pass the decree for eviction 'dehoarsing.' The court held that the decree was a nullity and stated that the same could not be executed and as such execution petition was dismissed on contest.

(3.) As against that the Petitioners had come before this Court under Sec. 115 road with Sec. 151 of the Code of Civil Procedure. It is admitted on behalf of the Petitioners that the compromise decree was not a nullity and the court after perusing the compromise petition and on consideration of averments made in the plaint and the written statement passed the said compromise decree. The decree-was not a nullity as the same was passed by a court of competent jurisdiction and not by a court which had no inherent power or jurisdiction to try, entertain or decree the suit. In support of this contention Mr. Bhattacharyya learned Advocate for the Petitioner relied upon several judgments of the Supreme Court. The argument of Mr. Bhattacharyya is that compromise decree shows that the Defendant knew that he had no defence or that the defence was not tenable in a court of law, So with his eyes open, he entered into compromise weighing all the pros and cons of his case. But the said compromise the Defendant had bargained for himself a further period of 34 months stay at the said premises. Counsel for the Petitioner in support of his above contention relied on the decision of the Supreme Court reported in AIR 1973 SC 1311 at page 1323 Supreme Court has laid down as follows: