L CHHAJU RAM Vs. L SURAJ PRAKASH

JUDGEMENT

(1.) THIS is a civil second miscellaneous appeal arising out of an execution matter. The respondent had instituted a suit for the recovery of Rs.2527 -on account of arrears of rent for three years and for ejectment of the appellant from the house specified in the plaint on 14th Poh 2011. On 28th Poh 2011 when the suit came up for hearing the parties filed a compromise deed and a decree in terms thereof was passed by the trial Court of Munsiff, Jammu, in favour of the plaintiff against the defendant. The decree ran as follows: A money decree is passed in favour of the plaintiff against the defendant in accordance with the terms of the compromise. The defendant shall remain in possession of the house in suit as a tenant and will pay Rs.252/ - as rent sued for and Rs.42/ - as costs, in all Rs.294/ - in the following installments: Magh 2011 - - Rs. 15/~ Phagan 2011 - Rs. 15/ - and he will continue to pay Rs.15/ - every month till the whole amount is paid. In all there will be 20 installments and the last installment will be Rs.9/ -. In case of default of two installments the plaintiff can recover the whole sum in lump in execution proceedings from the person and property of the defendant and he will also be entitled to eject the defendant from the house in suit. In order that the defendant may reside in the house as a tenant a fresh lease has been executed in favour of L. Suraj Prakash plaintiff and in future rent will be paid with effect from 1st Poh 2011 according to the fresh lease. The file may be consigned to the record. Announced. Dated 28th Poh, 2011." The default having occurred, the respondent initiated execution proceedings and applied for ejectment of the appellant in those proceedings in terms of the compromise decree. The appellant took the objection that the decree passed in the case was not a decree for ejectment and the respondent should bring a fresh suit for ejectment of the appellant from the house for which he had executed a fresh rent deed on 28th Poh, 2011 with effect from 21st Poh, 2011 and that before such suit is instituted by the respondent the appellant is entitled to a fresh notice under the provisions of the Transfer of Property Act. Both the Courts below have overruled this objection.

(2.) WE have heard arguments in this case. We find great force in the contention urged by the learned counsel for the appellant that in the decree sheet of the Munsiff Jammu dated 28th, Poh, 2011 the decree has been specifically designated as a money decree and .a repetition of the recital of the fact that the appellant had executed a fresh lease deed in favour of the respondent which was to run from 1st Poh, 2011, i.e., 28 days before the date of the decree, and that the respondent was entitled to eject the appellant from the house in case of default of two installments in the decree sheet does not convert it into a decree for ejectment. The learned counsel for the respondent has vehemently argued that the executing Court could not go beyond the terms of the decree and that it could not question its legality. This is so. But after a careful consideration of the terms of the decree we are unable to agree with Courts below that it is an ejectment decree. If it were an ejectment decree it would not have been designated as a money decree. This is also understandable why an ejectment decree was not passed by the trial Court of the Munsiff, Jammu. It was because a fresh lease had been executed by the appellant in favour of the respondent & the appellant was to remain in possession of the suit property on the basis of this fresh lease and if forfeiture for a breach of an express condition provided in the lease occurs, no suit for ejectment lies unless and until the lessor has served on the lessee .a notice in writing in terms of S. 114 -A of the Transfer of Property Act. We agree with the contention of the learned counsel for the appellant that the recital of the terms of fresh lease in the decree sheet cannot exclude the operation of the provisions of the Transfer of Property Act to such a contract even though it may not be regularly drawn up. In this case, however, as already indicated, a regular lease had been drawn up, but in Ladhuram Manormal v. Chimniram Dongardas, AIR 1947 Bom 86 A, to which our attention has been drawn by the learned counsel for the appellant it was held that where on the forfeiture of a lease for non -payment of rent the lessor brings a suit for arrears of rent and possession and the suit is compromised on the lessee undertaking to pay up all the rent in arrear by a certain date failing which the lease is to be forfeited and the lessor given a right of reentry, the lessee can make an application for relief against forfeiture even in proceedings for execution of the compromise decree, which in so far as it contains a clause for forfeiture takes the place of a lease. In this connection reference may also be invited to Note 9 under S. 114 of Chitaleys Transfer of Property Act, 3rd Edition at page 1898 which reads as follows: "In Wentworth v. Bullen, Baron Parke observed: "The contract of the parties is not the less a contract and subject to the incidents of a contract because there is superadded the command of the Judge. Where, therefore, a consent decree creates the relation of landlord and tenant and provides for forfeiture on non -payment of rent, the Court can give relief against the forfeiture in the same way as it can do in a lease created by act of parties." After careful consideration of the facts of this case we hold that the appellant cannot be ejected from the house in dispute in these execution proceedings. We, therefore, accept this appeal and vacate the May 1957 J. & K. D.P./2/l orders of the Courts below. We, however, leave the parties to bear their own costs.

(3.) WAZIR C. J.: I agree.