JAGDISH LAL Vs. MADAN GOPAL

JUDGEMENT

(1.) This revision petition has been filed against the order of the learned Civil Judge, Jodhpur dated 20.03.1993 by which she has rejected the objections of the judgment-debtor-petitioner filed under Sec. 47, C.P.C. and held that the decree-holder is entitled to get the possession of the disputed-property in execution of the decree. The facts of the case giving rise to this revision petition may be summarised thus.

(2.) The plaintiff-non-petitioner filed suit No. 11/74 (350/74) (in short the ejectment-suit) against the defendant-petitioner Jagdhish Lal for the recovery of arrears of rent of the demised premises and ejectment and suit No. 66/74 (in short the possession suit) for the recovery of mesne profits and possession of adjoining property. In the possession suit, the defendant averred in his written-statement that he did not trespass upon the suit property but it was also included in his tenancy (in the demised premises of suit No. 11/74(350/74). On 17.11.1977, compromise was filed by the parties in the suit No. 11/74 (350/74) and an application was moved in suit No. 66/74 that compromise has been effected and the suit may be decided accordingly. The compromise comprised of the properties of both the suit and they were accordingly decided as per the terms of the compromise. Execution application No. 28/80 (115/83) was filed by the decree-holder. On 17.05.1985, die judgment-debtor filed his objections under Sec. 47, C.P.C. The execution application was subsequently withdrawn by the decree-holder vide order dated 31.05.1985. Thereafter, the present execution application (No. 14/85) was filed by the decree-holder. On 08.11.1985, the judgment-debtor filed his objections under Sec. 47, read with Order 21 Rule 23 (2), C.P.C.. The decree-holder filed his reply. On 19.04.1986, the judgment-debtor filed additional objections. On 15.05.1987, five points for determination were framed. By order dated 23.11.1987, the judgment-debtor's application dated 21.11.1987 for the amendment of the objection-petition was dismissed. By order dated 16.12.1987, the executing Court held that the decree under execution is not a declaratory decree and it is an executable decree. Thereafter, evidence of the decree-holder was recorded. The judgment-debtor did not produce any evidence despite granting several adjournments to him for this purpose. After hearing the arguments of learned counsel for the parties, the impugned order was passed.

(3.) It has been contended by the learned counsel for the judgment-debtor-petitioner that the compromise decree is not executable as it is not in accordance with the provisions of Sec. 13, Rajasthan Premises (Control of Rent & Eviction) Act, 1950. He further contended that it is clearly recited in the compromise dated 17.11.1977 culminating in the decree under execution that the tenancy in respect of the property marked by letters O.P.ERF.G.H.O. in the annexed site plan would commence with effect from Jan., 1978, accordingly the new tenancy came into existence w.e.f. Jan. 01,1973 and as such the decree is not executable. He also contended that the same day in the suit No. 66/74 a joint application was filed by the parties stating that the suit property was not earlier in the tenancy of the defendant (petitioner), it has now been given in his tenancy, compromise has been filed in suit No. 11/74 and the suit be decided accordingly and suits were accordingly decided the same day. He relied upon Sudhir Kumar Vs. Baldeo Krishan Thapar, 1969 (3) S.C.C. 611 and Waryam Singh Vs. Sham Dass, 1985 (1) R.C.J. 131