VEERSINGH Vs. GURDANAMAL

JUDGEMENT

(1.) THIS revision by the decree -holders is directed against the order of the Additional Civil Judge, Jodhpur dated November 17, 1978 by which he dismissed their application dated August 1, 1978.

(2.) THE decree -holders obtained a decree for ejectment against the judgment -debtor (non petitioner) on October 30, 1972. Appeal against that decree was dismissed by the learned Additional District Judge No. 2, Jodhpur on May 20, 1974. Thereafter, the judgment -debtor preferred a second appeal in this Court. The appeal was dismissed on the basis of the compromise entered into between the decree -holders and judgment -debtor by which the latter was allowed time upto December 31, 1977 to vacate the shop in suit. The judgment debtor failed to vacate the shop as agreed to by him and, therefore, the decree holder submitted on execution application. The judgment debtor submitted an application on January 28, 1978 under Order XXI, 2 and Section 151 CPC stating therein that on December 30, 1977, a written compromise was entered into between the parties and the principal condition in that compromise was that from January 1,1978 the judgment -debtor would pay tent of the shop in dispute @ Rs. 225/ - per month and the decree -holders would not execute the decree and dispossess the judgment -debtor. It was stated that it was agreed that the decree -holders would accept the decree as having been satisfied. According to the judgment -debtor, the compromise so reduced in writing was retained by the decree -holders and he was told that this would be filed in the court and would be got verified. The decree -holders did not do this and levied execution against the judgment -debtor. During the pendency of the application preferred by the judgment -debtor, the decree holders submitted an application under Section 151, CPC on August 1, 1978 con -tending that the compromise in writing dated December 30, 1977 about which the judgment -debtor has made a mention was, in fact, about the creation of a fresh tenancy between the parties which amounts to a lease deed and as the alleged agreement, even according to the judgment -debtor is unregistered and, therefore, it cannot be admitted in evidence and as such, secondary evidence in respect of it is not admissible which the judgment -debtor is attempting to lead. After hearing arguments, the learned Additional Civil Judge, Jodhpur, expressed his doubt whether the compromise in writing; relied on by the judgment -debtor can be called a lease -deed. He was, however, of the opinion that on the basis of the application which was submitted by the judgment -debtor under Order XXI, Rule 2, and Section 151, CPC it is only to be determined whether on the basis of the compromise, the decree was satisfied or not. In these circumstances, he repelled the contentions raised on behalf of the decree holders and dismissed the application of the decree -holders dated August 1, 1978. Against this order, the decree -holders have filed this revision.

(3.) IT was stated in that application that because of the compromise, there has been a satisfaction/adjustment of the decree and as such, decree -holders are not entitled to execute the decree. It was also mentioned that the original document pertaining to compromise would be got summoned from the decree holders In these circumstances, the judgment debtor prayed in the application that the compromise may be certified. The contention of the learned Counsel appearing for the decree -holders -petitioners is that the alleged compromise amounts to a lease -deed and as admittedly this was neither duly stamped nor registered, it will not be admissible in evidence and no secondary evidence can be led to prove the alleged lease In support of his argument, learned Counsel placed reliance on Ram Kunar Das v. Jagdish Chandra Leo etc. : [1952]1SCR269 , Jupudi Kesava Rao v. Pulauarathi Venkata Subbarao and other : [1971]3SCR590 and Banwarilal Sharma v. Ram Swaroop 1974 RLW 125. The executing court has specifically stated in the order under revision dated November 17, 1978 that what it has to determine is merely to record a finding whether any compromise was arrived at between the parties on December 30, 1977 by which the decree was taken to have been satisfied and that such a compromise does not require to be registered according to law. It is necessary to quote the following portion from the cider under revision: .........[vernacular ommited text]...........