Karnataka High Court
M/S Vasanth Colour Laboratories Pvt ... vs Smt Divya on 22 January, 2016
Author: Aravind Kumar
Bench: Aravind Kumar
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IN THE HIGH COURT OF KARNATAKA, AT BENGALURU
DATED THIS THE 22ND DAY OF JANUARY, 2016
BEFORE
THE HON'BLE MR. JUSTICE ARAVIND KUMAR
WRIT PETITION NO.46319/2015 (GM-CPC)
BETWEEN:
M/S VASANTH COLOUR LABORATORIES
PVT., LTD.,
HAVING ITS REGISTERED OFFICE
AT NO.38-A, KENGAL HANUMANTHAIAH
ROAD, BENGALURU-560 001.
REPRESENTED BY ITS
MANAGING DIRECTOR
SRI RANGA VASANTH.
.. PETITIONER
(BY SRI.S SHAKER SHETTY, ADVOCATE)
AND:
SMT. DIVYA DEVI
W/O SHRI PREM SINGH
AGED ABOUT 62 YEARS
R/AT NO.127, GOLF LINKS
NEW DELHI-110 003.
... RESPONDENT
(BY SRI. H.S. DWARAKANATH, ADVOCATE A/W
SRI SACHIN V.R, ADVOCATE)
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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE
ORDER PASSED BY THE LEARNED 27TH ADDITIONAL CITY CIVIL
JUDGE AT BENGALURU, IN EXECUTION NO.1094/2015 PASSED
ON 15.10.2015 AS PER ANNEXURE-F.
THIS WRIT PETITION BEING HEARD AND RESERVED,
COMING ON FOR PRONOUNCEMENT OF ORDERS THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
Judgment debtor in Execution No.1094/2015 is seeking for quashing of the order dated 15.10.2015 - Annexure-F, whereunder the Executing Court has ordered for issuance of delivery warrant.
2. I have heard the arguments of Sriyuths S Shaker Shetty, learned Advocate appearing for writ petitioner - judgment debtor and H.S.Dwarakanath, learned Advocate appearing for respondent - decree holder.
3. Parties are referred to as per their rank before the Executing Court.
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4. Decree holder filed the execution petition in question i.e., Execution Case No.1094/2015 for the relief of issuance of delivery warrant in respect of the property bearing No.35-A, situated at Kengal Hanumanthaiah Road, Bengaluru, morefully described in the schedule to the Execution Petition contending interalia that as per the compromise decree, judgment debtor had not vacated the property and undertaking given has been violated and hence, in order to enjoy the fruits of the compromise decree, execution case as noticed herein above, came to be laid by the decree holder before the City Civil Court, Bengaluru (CCH-9).
5. The Executing Court by order dated 26.05.2015 issued cause notice to the judgment debtor. Subsequently by order dated 24.08.2015 cause notice was ordered to be issued to the judgment debtor through special Bailiff. On 04.09.2015 Executing Court permitted the decree holder to take notice to judgment debtor through Registered Post :4 : Acknowledgment Due and by Courier service. Thereafter, by order dated 09.10.2015 held notice of service sufficient and after hearing the learned Advocate appearing for decree holder posted the matter for orders to 15.10.2015 and on 15.10.2015 ordered for issuance of delivery warrant. On the same day, learned Advocate appearing for judgment debtor filed an application under Section 47 of CPC for which opportunity was extended to the decree holder to file objections and the Executing Court reiterated the issuance of delivery warrant as per order already passed.
6. Thereafterwards, matter has been preponed by Executing Court and after receiving the application filed by the Objector under Order 21 Rule 27 CPC, adjourned the matter for pronouncing orders, after hearing the arguments of advocates. On the next date i.e., on 31.10.2015, an application under Order 21 Rule 97 CPC was filed by the Objector and matter was adjourned from time to time. In the meanwhile, the judgment debtor has filed the present :5 : petition calling in question the impugned order dated 15.10.2015 - Annexure-F whereunder Executing Court has issued delivery warrant.
7. It is the contention of Sri Shaker Shetty, learned Advocate appearing for the judgment debtor that order passed by this Court in C.P.No.60/2011 dated 12.11.2011- Annexure-E would create a new tenancy. He would also contend that earlier notice of termination issued by the decree holder terminating the tenancy is wiped out on account of new tenancy created and thereby a fresh lease had been created. Therefore, execution proceedings is bad in law. He would also submit when an application under Section 47 CPC is filed before Executing Court, a duty is cast on the Executing Court to examine the said application and consider all questions raised therein and without adjudicating the said application, delivery warrant could not have been issued and Executing Court would have no jurisdiction to issue delivery warrant in such circumstances. :6 :
7.1) He would also elaborate his submission by contending that a new lease came to be created under the doctrine of Novatio since earlier contract had come to an end i.e., on 30.04.2015 and after expiry of two years from 01.05.2011, petitioner having started to pay enhanced rent of 5% over and above ` 1,50,000/- per month and till the said new lease created after 01.05.2011 and continued till 30.04.2015 is terminated by issuance of fresh notice, the decree for ejectment obtained would not be executable. He would further submit that affidavit of undertaking submitted by the petitioner that he would deliver vacant possession on 30.04.2015 stood waived in C.P.No.60/2011 since the time was extended in C.P.No.60/2011 till 30.06.2015 and thereby there is alteration.
7.2) He would also contend that cause notice issued by the Executing Court and dispatched by Registry through Registered Post Acknowledgment Due was not returned but purported notice dispatched through Courier has been :7 : returned with endorsement 'refused' and such declaration cannot be made by the Court and only if notice is dispatched through post with correct address, proper stamp and if same is not returned within 30 days, then only presumption can be drawn under proviso to Rule 5 of Order 9 CPC, as otherwise, not.
In support of his submissions, he would rely upon the following judgments:
(1) (2014)5 SCC 660 VASU P SHETTY vs HOTEL VANDANA PALACE AND OTHERS. (2) (2014)3 SCC 678 VINOD KUMAR vs STATE OF KERALA (3) AIR 2002 SC 2370 SUSHIL KUMAR SABHARWAL vs GURPREET SINGH AND OTHERS (4) AIR 1959 SC 620
TRIVENIBAI AND ANOTHER vs SMT.LILABAI (5) AIR 1979 SC 1745 V DHANAPAL CHETTIAR vs YESODAI AMMAL (6) AIR 2004 CALCUTTA 267 M/S.SARASWAT TRADING AGENCY vs UNION OF INDIA :8 : (7) AIR 2002 SC 251 N.S.S.NARAYANA SARMA AND OTHERS vs M/S.GOLDSTONE EXPORTS (P) LTD AND OTHERS (8) (2005)7 SCC 653 DEVASAHAYAM (DEAD) BY L.RS. vs P.SAVITHRAMMA AND OTHERS (9) AIR 1967 SC 155 GOPALAKRISHNA PILLAI AND OTHERS vs MEENAKSHI AYAL AND OTHERS (10) AIR 1981 SC 1829 AIR INDIA vs NARGESH MEERZA AND OTHERS (11) AIR 1989 SC 1510 MODERN HOTEL, GUDUR,REP. BY M.N.NARAYANAN vs K.RADHAKRISHNAIAH AND OTHERS (12) (2007)6 SCC 401 M.VENKATARAMANA HEBBAR (DEAD) BY L.RS. vs M.RAJAGOPAL HEBBAR AND OTHERS (13) AIR 1994 ANDHRA PRADESH 197 PARUCHURU NARASIMHA RAO vs NUNE PANDU RANGA RAO AND ANOTHER (14) AIR 1982 BOMBAY 532 KALYANDAS MANILAL SHAH vs S.M.KANKARIA AND ANOTHER (15) AIR 1988 ALLAHABAD 225 UNION OF INDIA vs S.B.SINGH (16) AIR 1978 SC 22 SMT.NAI BAHU vs LALA RAMNARAYAN AND OTHERS :9 : (17) AIR 1977 SC 1201 SUNDER DASS vs RAM PARKASH (18) (1976)1 KAR.L.J. 35 PADMAVATHI BAI vs PARVATHIAMMA (19) (1994)3 SCC 375 THARUMAL AND ANOTHER vs MASJID HAJUM PHAROSAN VA MADRASSA TALIMUL ISLAM, MIRZA IZSMAIL ROAD, JAIPUR (20) JT 1993(2) S.C. 341 CHIRANJILAL SHRILAL GOENKA (DECEASED) THROUGH L.RS. vs JASJIT SINGH & OTHERS
8. Per contra, Sri H.S.Dwarakanath, learned Advocate appearing for respondent - decree holder would support the impugned order and contends that order dated 15.10.2015 has got spent itself and as such, writ petition does not survive for consideration.
8.1) He would further elaborate his submission by contending that when co-ordinate Bench of this Court has passed the order in C.P.No.60/2011 on 15.06.2015 - Annexure-D, correctness or otherwise of the said order cannot be gone into since said order came to be passed at the instance of the judgment debtor, either to challenge the said : 10 : order or to contend that said order is not required to be implemented by either of the parties particularly, when the judgment debtor having had the benefit flowing from such order.
8.2) On the issue of service of cause notice, he would submit judgment debtor was fully aware about the pendency of execution petition since the judgment debtor himself had filed a memo dated 15.06.2015 in C.P.No.60/2011 seeking permission of this Court to withdraw I.A.No.1/2015 (filed by judgment debtor for extension of time) and indicating in the said memo about execution petition No.1094/2015. Said memo dated 15.06.2015 - Annexure-R2 will establish that judgment debtor had knowledge of execution petition No.1094/2015. He would contend that said memo is duly signed by the authorised signatory of judgment debtor - company and it has been never objected to. As such, he would contend that judgment debtor cannot be heard to contend he had no knowledge of execution petition pending : 11 : or on account of non delivery of cause notice, its right has been prejudiced.
8.3) He would also elaborate his submission by contending that question of waiver does not arise since decree holder - landlord has not accepted about creation of new tenancy under the compromise petition. It is also contended that notice of termination issued at the first instance had got converted itself into a decree and as such, waiver on the part of decree holder of his notice of termination of tenancy would not arise at all. He would also submit that this Court exercising jurisdiction under Article 227 of the Constitution of India should not grant any relief in matters where orders came to be passed on the basis of undertaking affidavit furnished agreeing thereunder to vacate the suit schedule premises and when there is no error of jurisdiction committed by Executing Court, present writ petition is liable to be dismissed.
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In support of his submission, he has relied upon the following judgments:
(1) (2008)10 SCC 802 CHAND KHAN vs VAHID KHAN AND OTHERS (2) (2015)5 SCC 423 RADHEY SHYAM AND ANOTHER vs CHHABI NATH AND OTHERS (3) 1982 SCR (3) 201 SMT.KALLOO AND OTHERS vs DHAKADEVI AND OTHERS (4) 1968 SCR (2) 559 KONCHADA RAMAMURTHY SUBUDHI & ANOTHER vs GOPINATH NAIK (5) 1978 SCR (1) 723 NAI BAHU vs RAMNARAYAN & OTHERS (6) LAWS (DLH)-1984-5-34 SARDARI LAL vs RAMRAKHA (7) AIR 1999 SC 2607 DELTA INTERNATIONAL LIMITED vs SHYAM SUNDAR GANERIWALLA & ANOTHER (8) AIR 2015 SC 3558 THE BOARD OF TRUSTEES OF THE PORT OF MUMBAI vs NIKHIL N. GUPTA & OTHERS : 13 :
9. Sri Shaker Shetty, learned Advocate appearing for petitioner - judgment debtor has contended that undertaking given has stood wiped out on account of extension of time granted by this Court in C.P.No.60/2011 and fresh undertaking had to be given by the judgment debtor which was not furnished and as such, all orders passed by Executing Court subsequently is a nullity. He would hasten to add that Executing Court may be directed to hold an enquiry on the application filed by judgment debtor under Section 47 of CPC within a time frame for which the judgment debtor would fully co-operate with the Executing Court. On these grounds, he prays for allowing the writ petition and moulding the relief accordingly.
10. Having heard the learned Advocates appearing for parties and on perusal of original records secured from the Executing Court, this Court is of the considered view that following points would arise for consideration:: 14 :
(1) Whether order dated 15.10.2015 -
Annexure-F suffers from any
jurisdictional error calling for
interference?
(2) What order?
BACKGROUND OF THE CASE:
11. Decree holder is the owner of the suit schedule property and same was taken on lease by the judgment debtor. On expiry of lease period, decree holder filed a suit O.S.NO.836/1981 against the judgment debtor for ejectment from suit schedule property. Judgment debtor also filed a suit in O.S.No.3396/1996 seeking specific performance of the contract, contending interalia that under the lease deed there is a specific clause for extension to be given for another 14 years after the expiry of stipulated period and same was not extended. Judgment debtor also filed another suit O.S.No.62/2006 seeking for extension of the period of lease of the suit schedule property.: 15 :
12. Since above referred three suits were pending in different Courts of City Civil Court, Bengaluru, judgment debtor filed a Civil Petition No.60/2011 under Section 24 CPC for clubbing/connecting/consolidating all the suits to be tried in one Court. While examining said prayer for clubbing/consolidating the suits, a compromise came to be entered into between the parties, which was placed on record and all the suits were ordered to be placed before City Civil Court, CCH-9, Bengaluru and directed the said Court to receive the compromise petition and pass the decree accordingly. In that view of the matter, trial Court adjudicating O.S.No.836/1981 heard the Advocates, recorded presence of the parties and accepted compromise petition and pursuant to the same, decree has been drawn in O.S.No.836/1981 in terms of the compromise. On account of judgment debtor not vacating suit schedule property as agreed to in the compromise petition, decree holder filed Execution Petition No.1094/2015 and after issuing cause : 16 : notice to judgment debtor and holding service sufficient, by impugned order dated 15.10.2015 has ordered for issuance of delivery warrant. Same is questioned in the present writ petition.
RE: POINT NO.(1):
13. When said matter i.e., C.P.No.60/2011 was pending before this Court, a compromise petition in Misc.Civil No.8517/2007 under Order 23 Rule 3 read with Section 89 and 151 CPC came to be filed whereunder parties reported of having settled their dispute by compromise and hence, this Court directed that all the three suits to be called on 19.04.2011 in City Civil Court, Bengaluru in Court Hall No.9 for receiving said compromise petition which had been entered into between the parties and directed the trial Court to dispose of all the three suits in terms of said compromise petition and accordingly disposed of C.P.No.60/2011 by order dated 12.04.2011 - Annexure-E. It was also recorded in the said order that judgment debtor should vacate and : 17 : hand over vacant possession of the suit property to the decree holder on or before 30.04.2015. The direction issued by this Court in C.P.No.60/2011 read as under:
"5. The City Civil Court (CCH-9) is directed to dispose of all three suits in terms of the said compromise petition, granting time to the petitioner herein, namely, M/s.Vasantha Color Laboratories Limited to vacate and handover the vacant possession of suit property in all the three suits to the first respondent, Smt.Divya Devi on or before 30.04.2015."
(emphasis supplied) It was also made clear by this Court that further extension of time should not be sought for by the judgment debtor.
14. Pursuant to said order passed in C.P.No.60/2011, compromise petition came to be filed by the parties under Order 23 Rule 3 CPC read with Section 151 CPC was taken on record and directed judgment debtor to pay rent of `1,50,000/- per month with single default clause commencing from 01.05.2011 and subject to 5% : 18 : enhancement once in two years on the last paid rent and also directed the judgment debtor to vacate and deliver vacant possession of the suit schedule property to the decree holder on or before 30.04.2015 without seeking for further extension of time and without forcing the landlord/decree holder to file execution petition to secure vacant possession of the suit schedule property as had been agreed to by judgment debtor under the compromise petition. Accordingly, decree also came to be drawn in O.S.No.836/1981 in terms of compromise. Undisputedly, all the parties to the compromise petition have acted upon the compromise petition.
15. However, before expiry of the period agreed by the judgment debtor to vacate the premises i.e., 30.04.2015, an interlocutory application - I.A.1/2015 came to be filed in C.P.No.60/2011 seeking for extension of time by three years beyond 30.04.2015. Said application was supported by the affidavit of the Managing Director of the judgment debtor. : 19 : However, a memo came to be filed by the learned Advocate appearing for the petitioner i.e., judgment debtor in C.P.No.60/2011 seeking permission to withdraw I.A.1/2015, since decree holder had already filed an execution petition to execute the decree passed in O.S.No.836/1981 in terms of compromise. Said memo was accepted partially by dismissing the application - I.A.1/2015 as withdrawn and expressly rejecting the prayer sought for by the judgment debtor to agitate all the grounds before the Executing Court by reiterating its order dated 12.04.2011, by order dated 15.06.2015 - Annexure-D. It has been specifically observed in said order as under:
"5. Therefore, this Court while accepting the memo and dismissing the application in I.A.1/2015 refuse to reserve any kind of liberty to either petitioner or to respondents and would say that the order dated 12.04.2011 in every sense is final order. The order passed by the trial Court pursuant to order dated 12.04.2011 is the final order which cannot be subjected to disturbance or variance by this Court. As stated supra, the extension till 30.06.2015 is only with an intention to provide one more opportunity to the parties at the request of : 20 : counsel for petitioner and merely because such extension is allowed for one month, will not give any edge to petitioner to make use of the same to demonstrate that there is dilution to the earlier order.
With this clarification, memo is accepted and application in I.A.1/2015 is dismissed."
16. Perusal of the orders passed in C.P.No.60/2011 on 12.04.2011 and 15.06.2015 would clearly indicate that in paragraph 6 of the order dated 12.04.2011 passed in C.P.No.60/2011 it was clearly indicated by this Court that there would be no scope for any opposition by the judgment debtor for decree holder taking possession of the suit schedule property. Order dated 15.06.2015 would indicate while accepting the memo and rejecting the application - I.A.1/2015, extension was granted to judgment debtor till 30.06.2015 so as to facilitate the parties come to a common platform to seek extension and it was explicitly made clear thereunder that such extension shall not be construed as diluting its earlier order dated 12.04.2011. : 21 :
17. At this juncture itself, it would be appropriate to note the contention raised by Mr.Shaker Shetty, learned Advocate appearing for petitioner regarding non-issuance of cause notice in Execution Case No.1094/2015 has resulted in proceedings being vitiated. Said contention requires to be examined with utmost circumspection for reasons more than one. Firstly, when I.A.1/2015 was filed in C.P.NO.60/2011 seeking for extension of time, said application came to be withdrawn by filing a memo indicating thereunder that landlord - decree holder - respondent had filed an execution petition and as such, to urge all contentions in pending execution petition, judgment debtor wanted to withdraw I.A.1/2015. Hence, said memo was filed. Perusal of said memo dated 15.06.2015 - Annexure-R2 would clearly establish that judgment debtor had full knowledge of pendency of Execution Petition No.1094/2015. It is apt to note at this juncture itself that memo dated 15.06.2015 - Annexure-R2 was duly signed by the authorised signatory of : 22 : the judgment debtor and at no point of time, till date, contents of it has been disputed. Judgment debtor has stated in the said memo to the following effect:
"Hon'ble Court was first pleased to issue notice on the application for extension of time given to surrender vacant possession of premises. First respondent has already filed Execution Petition No.1094/2015 in which cause notice is not yet served (since the decree is more than 2 years old). First respondent xxx 29.04.2015."
(emphasis supplied) In view of the above fact, the irresistible conclusion which has to be drawn is, that judgment debtor was fully conscious of the execution petition having been filed by the decree holder and this was well within the knowledge of judgment debtor when memo for withdrawal of I.A.1/2015 came to be filed on 15.06.2015. Hence, judgment debtor cannot be heard to contend that he was unaware of execution petition 1094/2015 pending. Secondly, when cause notice of execution was sent by Courier , judgment debtor has refused to receive the same. Sub-rule (3) of Rule 9 of Order 5 CPC provides for delivering or transmitting summons by : 23 : Registered Post Acknowledgment Due or by Speed Post or by such Courier services and Rule 9A of Order 5 CPC enables the Court to permit the plaintiff to effect service of summons on such defendant by Courier in addition to service of summons provided under Rule 9 of Order 5 CPC. In this background, when the order sheet of Executing Court is perused, it would indicate that Executing Court on 04.09.2015 while ordering issuance of cause notice to judgment debtor by Registered Post Acknowledgment Due has also permitted notice to be taken through 'Blue Dart Courier' and only on 09.10.2015 when advocate for decree holder produced a copy of the track details of notice sent through Blue Dart Couriers obtained from the website of "Blue Dart" which indicated that judgment debtor has refused to receive cause notice, has held service of notice as sufficient on being satisfied that judgment debtor had been evading and avoiding service of cause notice. In that view of the matter, contention raised in this regard stands rejected for the reasons stated supra.
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18. Yet another contention which has been raised by Mr.Shaker Shetty, learned Advocate appearing for petitioner is that tenancy created earlier had resulted in termination by the decree holder by issuance of notice and thereafter compromise had been entered into and same resulted in fresh tenancy being created or doctrine of Novatio would be applicable. Said contention requires to be rejected out rightly. The contention regarding determination of lease not being in accordance with the provisions of Transfer of Property Act, 1882 on the premise that under the compromise entered into between the parties, fresh lease is created and as such, yet again, there should be a determination of lease on account of fresh tenancy having been created is also liable to be rejected, inasmuch as, there was no creation of fresh tenancy and as could be seen from the orders passed in C.P.No.60/2011 on 12.04.2011 and 15.06.2015 - Annexures-E and D respectively, it can be safely concluded that by virtue of a compromise petition filed : 25 : under Order 23 Rule 3 CPC read with Section 89 and Section 151 CPC which was received on the file of this Court and was ordered to be placed in the pending suit O.S.NO.836/1981 for drawing up of the decree in terms of said compromise petition did not amount to creation of fresh lease. It is not in dispute that pursuant to such direction issued, decree came to be drawn in O.S.No.836/1981 and as such, to enjoy its fruits, decree holder has filed the execution petition in question.
19. Under identical circumstances, Hon'ble Apex Court in the case of KONCHADA RAMAMURTHY SUBUDHI AND ANOTHER vs GOPINATH NAIK reported in AIR 1968 SC 919, has held the intention of the parties in a compromise petition is a decisive test which will have to be adopted to ascertain as to whether parties intended to revive the tenancy or create new tenancy under compromise petition. It has been further held that in spite of the fact that word 'rent' being used in the compromise petition would not : 26 : be a ground to contend that it amounts to a fresh lease having been created. Hon'ble Apex Court therein was examining as to whether the compromise deed constitute creation of a lease or licence and held that when the decree holder has brought a suit for ejectment of the judgment debtor and a compromise being entered into in that suit, is important and it would be difficult to impute to such decree holder that he had intention to create a fresh tenancy while the fact that he brought the suit for ejectment itself shows that his intention was to eject the judgment debtor after having terminated the tenancy. Hence, contention raised by learned Advocate appearing for petitioner - judgment debtor in this regard stands rejected.
20. In the light of aforestated discussion, this Court is of the considered view that contention raised by Mr.Shaker Shetty, learned Advocate appearing for petitioner relating to Executing Court ought to have examined the application filed by the judgment debtor under Section 47 CPC by recording : 27 : evidence and giving a finding on such evidence is without merit and deserves to be rejected. The issue regarding 'creation of fresh tenancy' by virtue of compromise petition having been entered into between the parties not amounting to said creation, directing the parties to lead evidence or examining such a frivolous application, would only be an exercise in futility and particularly in the facts obtained in the present case.
21. As could be seen from the records on hand, the judgment debtor pursuant to the decree passed in O.S.No.836/1981 and the order passed in C.P.No.60/2011 has filed an affidavit of undertaking whereunder he has undertaken at paragraph 5 to the following effect:
"5. I further undertake to voluntarily vacating the schedule property on or before 30.04.2015 without forcing the plaintiff to initiate any Execution against the first defendant
- lessee."
Thus, judgment debtor having entered into a compromise under Order 23 Rule 3 CPC agreeing thereunder to quit, : 28 : vacate and hand over vacant possession to the decree holder and pursuant to same, having filed an undertaking in the form of affidavit and sought extension in C.P.No.60/2011 and obtained the benefit of such extension granted by this Court, cannot be now heard to contend that these factual aspects are required to be ignored or it would become inconsequential on the premise that fresh tenancy has been created. Said contention is purely an after-thought and has been raised with sole intention of dragging on the proceedings.
22. In fact, the Hon'ble Apex Court in SOM DUTT (DEAD) BY L.RS vs GOVIND RAM reported in (2000)9 SCC 345 somewhat under similar circumstances, held that even if a new tenancy is created under the compromise, still parties are bound by such compromise and further held though a person is not a party to the compromise, even in such circumstances, where his name is found in the compromise petition and such person has taken benefit flowing from the : 29 : terms of the compromise, cannot be heard to contend there is creation of new tenancy. It has been held by the Hon'ble Apex Court to the following effect:
"4. We do not agree with the reason given by the High Court in reversing the decision of the executing court. It is not in dispute that the premises in question were in the occupation of Bishandas, the father of Govind Ram (respondent). By virtue of the compromise which was entered into in 1981 before the appellate court, the son of the tenant who was already in possession was allowed to continue for a period of 10 years. Even if there be a creation of tenancy, the compromise between the parties including Govind Ram was that Govind Ram would vacate the premises on 31-12-1990. It is on that basis that the compromise was arrived at and the order passed by the appellate court. Apart from anything else, Govind Ram is clearly estopped from filing any application objecting to the execution of the decree. On this ground alone, Govind Ram has to be non- suited."
23. A person who has obtained benefit of a compromise petition and has enjoyed the benefit flowing from such compromise, cannot be heard to contend that the intention of the parties to such compromise was something else or it was intended to create a new contract, particularly based on such compromise when undertaking has been : 30 : given. The Hon'ble Apex Court in the case of THE BOARD OF TRUSTEES OF THE PORT OF MUMBAI vs NIKHIL N GUPTA (AIR 2015 SC 3558) has held that a party may be permitted to withdraw the undertaking provided it is within reasonable time and before availing any benefit pursuant to the said undertaking. It is held as under:
"In the given facts and circumstances of the case, Court may permit a party to withdraw an undertaking provided it is within reasonable time and before the party has availed the benefit of the order pursuant to said undertaking. Based on the undertaking, the respondent obtained the benefit of extension of time for vacating and handing over vacant possession; the respondents are duty bound to vacate the premises voluntarily. In this case, application to withdraw the undertaking was filed only in May, 2014 after the respondents have availed the benefit of extension of time."
24. Keeping the principles laid down by the Hon'ble Apex Court noticed herein above in mind, when the facts on hand are examined, the contents of the compromise petition
- Annexure-R3 would clearly indicate that judgment debtor has agreed to quit, vacate and deliver actual vacant physical possession of the schedule property to the decree holder free : 31 : from all encumbrances and the tenancy claims on or before 30.04.2015 without claiming any further extension of time. Thus, judgment debtor has clearly undertaken that he would not claim any fresh tenancy and pursuant to said compromise entered into, he has filed the affidavit of undertaking to vacate and has now attempted to wriggle out of such undertaking, that too, without withdrawing the undertaking. Hence, these facts would clearly indicate the intention of the judgment debtor is to drag on the proceedings and hang on to the suit schedule property, with an attitude 'come what may'.
25. For these myriad reasons indicated herein above, this Court is of the considered view that impugned order does not suffer from any infirmity whatsoever either in law or on facts calling for interference. Hence, point No.(1) is answered in the negative i.e., against the petitioner and in favour of respondent.
: 32 :RE: POINT NO.(2)
25. As noticed herein above, petitioner has adopted dilatory tactics to postpone the handing over vacant possession of the suit schedule property to decree holder despite giving an undertaking. The normal rule is costs should follow the cause. Petitioner is a private Limited Company carrying on business in the suit schedule property from long number of years and respondent - decree holder having filed a suit for ejectment way back in the year 1981 and hoping to secure possession of suit schedule property at the earliest, has entered into compromise with the writ petitioner - judgment debtor on 23.04.2011, whereunder the respondent-decree holder has agreed to grant time to the petitioner - judgment debtor till 30.04.2015. Despite such undertaking being given, judgment debtor has not vacated the suit schedule property and has ventured to drag on the proceedings by filing frivolous applications and postponing delivery of possession of suit schedule property to respondent
- decree holder. As such, this Court is of the considered view : 33 : that writ petitioner would be liable to pay exemplary costs to the respondent - decree holder.
Hence, I proceed to pass the following:
ORDER (1) Writ Petition is hereby dismissed with costs.
(2) Order dated 15.10.2015 passed in Execution Case No.1094/2015 by 27th Addl.City Civil Judge, Bengaluru - Annexure-F stands affirmed.
(3) Writ petitioner to pay respondent cost of ` 10,000/- within two weeks from today, failing which, the respondent - decree holder would be at liberty to recover said amount from judgment debtor in the pending execution proceedings i.e., Execution Case No.1094/2015.
Ordered accordingly.
Sd/-
JUDGE *sp