RAJENDRA PRASAD Vs. GIRDHARI LAL

JUDGEMENT

(1.) THIS is a revisional application under Sec. 115, C. P. C. by the decree-holders against the order of the learned District Judge, Bikaner dated March 6, 1974 by which he set aside the order dated October 4, 1973 passed by Munsif. Bikaner in Execution Case No. 105 of 1972 by which the objection of the judgment-debtor with regard to the excitability of the decree was dismissed.

(2.) THE decree-holders-petitioners obtained a decree against the non-petitioner-judgment-debtor for arrears of rent and ejectment. THE non-petitioner preferred an appeal in which a compromise was arrived at between the parties. As a result of the compromise, the decree passed by the learned Munsif was modified and the compromise was made part of the decree. It may be stated here that the landlords-petitioners sought ejectment on the ground of default in payment of rent. THE terms of the decree, which are relevant for the disposal of this revision, are these, "the appeal of the appellant is partially accepted. THE impugned judgment and decree are modified to the extent that the plaintiff respondents shall not be entitled to get the suit house vacated from the defendant appellant so long as he continues to pay the monthly rent of the suit house to the plaintiff. It is further directed that if the defendant makes any default in making payment of the rent of the suit house the plaintiff shall be entitled to get possession of the suit house from the defendant-appellant through court through execution proceedings. THE compromise filed by the parties shall be part of the decree. " THE relevant part of the compromise is also reproduced below, *** According to the decree-holders, the judgment-debtor paid the entire amount of costs and rent upto March 31, 1972. An application for execution of the ejectment part of the decree was filed on May 17, 1972 stating that the judgment-debtor has failed to make payment of rent for the month of April, 1972. THE case of the decree-holders was that the amount of rent of the aforesaid month was neither tendered nor paid and thus the judgment-debtor committed a default and failed to comply with the terms of the decree passed on compromise and, therefore, they are entitled to get possession of the suit premises from the judgment-debtor. On July 8, 1972, the judgment-debtor submitted an objection petition stating that he has been paying rent according to the decree of the appellate court and on refusal by the landlords to accept the rent and to issue receipt, rent has been regularly tendered through money-order. He, therefore, prayed that the proceedings for eviction be stayed and it be declared that the decree is inexecutable. THE decree-holders submitted the reply on August 12, 1972, inter alia contending therein that the decree for arrears of rent and ejectment was maintained in appeal and the parties had only entered into compromise with regard to the mode of satisfaction of the decree. According to the decree-holders, as the judgment-debtor has failed to comply with the mode of satisfaction mentioned in the decree and has failed to make payment of rent to them, they were within their rights to get the decree executed. On October 7, 1972, an application was moved on behalf of the decree-holders stating the details of the defaults committed by the judgment-debtor. In this connection, it may be stated here that according to the decree-holders, six months' rent amounting to Rs. 120. 10 had become due upto September 30, 1972 whereas the judgment-debtor had paid only in respect of two months namely, April and May, 1972. THE learned Munsif, after recording the evidence of the parties and hearing arguments by his order dated October 4, 1973, dismissed the objection of the judgment-debtor and hold that the decree-holders are entitled to execute the decree. THE learned Munsif was of the opinion that the terms of the decree passed by the appellate court on the basis of the compromise merely suggests that the judgment-debtor was allowed concession and there is no penal clause in the compromise decree in respect of which any relief against forfeiture may be allowed to him. Feeling aggrieved by the aforesaid order of the learned Munsif, the judgment-debtor filed appeal. THE learned District Judge accepted the appeal and set aside the order of the learned Munsif and ordered that the decree-holders are not entitled to proceed with the execution of the decree for ejectment unless the judgment-debtor fails to deposit the arrears of rent upto March 15, 1974. Against the appellate judgment dated March 6, 1974, the decree-holders have preferred this revision.

(3.) BEFORE examining the rival contentions raised by the learned counsel for the parties, it would be convenient to refer to the findings arrived at by the learned District Judge, (1) that in the instant case, upto May 15, 1972, no payment was made or tendered by the judgment-debtor. So in any case, default was committed by him; and (2) that it would appear from the terms of the appellate decree dated March 6, 1974 that what was intended was to secure regular payment of rent and that by entering into such a compromise, a fresh contract or tenancy had arisen or the existing tenancy was allowed to continue and as such, the judgment-debtor is entitled to relief against forfeiture resulting from his failure to pay rent at the stipulated time.