Bombay High Court
Narendra Kumar Jain vs Chanchalben Babubhai Panchal And Anr. on 22 October, 1982
Equivalent citations: AIR1983BOM418
Author: Sharad Manohar
Bench: Sharad Manohar
ORDER
1. This revision application is filed by the person who had himself filed the suit as plaintiff in the City Civil \Court as early as in the year 1966, and compromised the suit, and as a result of the compromise got extensive benefit to himself. As the consideration for the benefit he allowed the decree for possession to be passed against himself. On the strength of this consideration he enjoyed the possession for a period exceeding even of 15 years and now he wants to come to the Court and state that the decree for possession which was passed by the Court at his own instance is not an executable decree and that the same is not worth even the paper it is typed on.
2. Attempts were made in the trial Court as well as in this Court for taking the Court almost astray by reciting a number of facts which really had no bearing upon the question with which the Court is concerned in these proceedings. I may have occasion to refer to some of them even though they are not relevant for the purpose of this petition principally because arguments were advanced on their basis which threatened, on occasions, to be leading into blind alleys and still, and less (sic).
3. The facts are as follows :--
The premises which will be referred to hereinafter as "factory premises" or "suit premises" belong to one S. B. Sharma and respondent No. 1 is the tenant in respect of the suit premises in which she was carrying on some business and a factory. Mr. Suresh, the learned Counsel appearing for the petitioner. was not able to explain me as to how it was. but the fact remains that though respondent No. 1 has been exclusively the tenant in respect of the factory premises in favour of the present petitioner on 15-10-1963 for 11 months till 14-9-1964, not alone but jointly with her daughter respondent No. 2. Having regard to the narrow question involved in the present revision application, it is enough to state that it is an agreement of leave and licence and it is unnecessary to mention the various other terms of the said agreement. By an agreement dated 1-12-1964, the period was extended to 15th Aug. 1965. There were certain other modifications made in the relevant for the purpose of this petition. On 23-9-1965, respondent No. 1, gave a notice to the petitioner calling upon him to vacate the premises in terms of the previous agreement. But instead of complying with the notice. the petitioner filed suit No. 949 of 1966 in the City Civil Court, in substance, for a declaration that the petitioner was entitled to conduct the business uptill 31st Mar. 1970. He also asked for the requisite the injunction against the present respondents on the basis of the said declaration. In the said suit a consent decree dated 19-4-1966 came to be passed and by the consent decree the present petitioner was allowed to conduct the business till 31-3-1970 and he gave an undertaking to the Court to the effect that after the end of that period he would vacate the premises and would hand over possession of the same to the present respondent. ON 26-6-1970, a chamber summons was taken out by the present petitioner himself in the same suit that the defendant in the said suit, that is to say the plaintiff's licensors should be ordered to deposit in the Court a sum of Rs. 20,886/- or in the alternative that the defendant may be ordered to pay to the plaintiff a sum of Rs. 16,150/- and that the plaintiff might be granted liberty to remove the structures admeasuring about 22 ft. by 15 ft. constructed by the plaintiff in the open space of the defendants. The further prayer was that until the above relief was received by the plaintiff. the plaintiff might be relived from the undertaking given by the plaintiff to the Court relating to the handing over of the possession of the suit premises to the defendants. In other words, the chamber summons was taken out for direction from the Court that the defendants were not entitled to enforce the undertaking given by the plaintiff to the Court unless the defendants had themselves returned certain monies owed by the defendants to the plaintiff. A good deal of heated arguments were advanced across the bar on behalf of the petitioner. on the question as to whether this chamber summons forms part of the process of execution of the decree or not. To my mind the entire argument was meaningless one because really speaking nothing turned upon the question as to whether the Chamber summons was taken out in any execution proceedings or not. The question of execution of the consent decree dt. 19-4-1966 did not arise at all because in the consent decree there was no order passed by the Court directing the plaintiff to hand over possession to the defendant on any particular day. All that was done by the consent decree dt. 19-4-1966 was that the undertaking given by the plaintiff to the Court to hand over possession of the suit premises to the defendants on or before 31-3-1970 was recorded in the decree. But no decree was passed against the plaintiff by the Court as such directing the plaintiff to hand over possession of the suit premises to the defendants. There was therefore no question of execution of the said decree. The chamber summons taken out by the plaintiff himself could. therefore. not be a part of the execution proceedings at all. but nothing would turn upon that question.
Whatever that may be, in the chamber summons the parties arrived at further compromise and by virtue of such compromise the plaintiff obtained further time from the defendants to remain on the suit premises and to conduct the business in the suit premises for a further period of 7 years. The consent order in this behalf was passed by the Court on the Chamber summons on 26-6-1970. But what is done by these consent terms is of great significance for ascertaining the exact nature of the order passed by the Court dt 26-6-1970 on the Chamber summons. By the consent terms one of the facilities that was given to the plaintiff was that he was allowed to remain in possession of the suit premises and to carry on his business for a further period of 7 years. This part of the agreement was recorded in the decree passed by the Court. Further the previous undertaking on the part of the plaintiff to hand over possession to the defendants at the end of the period was also recorded in the decree making it relatable to the further period of 7 years. But in addition to these conditions which were mere matters of record, the Court further passed its own order that after the stipulated period of seven years, the plaintiff should hand over peaceful possession of the factory premises, together with the articles and things separately mentioned, to the defendants after the expiry of the said period of seven years. In fact, a decree was passed by the Court on the said Chamber summons on 24th June 1970. That was a consent decree and evidently it was a consent decree passed in modification of the previous consent decree. The said consent decree. thus. did two things. Some of the stipulations between the parties were merely recorded in the decree but there were other stipulations which were not merely recorded by the order in terms of the agreement. but were made enforceable by the orders of the Court. The order for possession was one of such orders. In other words on 24-6-1970, the plaintiff got time for vacating the suit premises extended by a period of 7 years and for the purpose of getting this benefit the plaintiff allowed a decree for possession to be passed against himself by the Court. The previous consent decree dt. 19-4-1966 was thus modified by the consent of the parties and was replaced by a fresh consent decree dt. 26-6-1970. The previous consent decree could not be an executable decree as such. The new consent decree became executable as per the very wording of the decree.
4. However, it may be mentioned here that so far as the undertaking given by the plaintiff to the Court which was incorporated in the first decree dt. 19-4-1966. The defendants, decree-holder, thus got a two-fold remedy against the plaintiff. In the first place, the defendants got a decree in their favour for possession of the suit premises which could be executed against the plaintiff after the end period mentioned in the decree. Secondly there was the undertaking given by the plaintiff to the defendants for giving possession at the end of the period and hence the plaintiff got a second remedy for getting possession. namely, one by way of enforcement of the undertaking.
5. The plaintiff's right to continue to be in possession of the suit premises extended only uptill the year 1977 but even before the expiry of the period on 26-11-1976. the parties entered into an agreement and by that agreement the period of plaintiff's possession of the suit premises was extended by a further period of five years. This agreement was not made subject matter of any decree by the Court as such. By the said agreement not only the period of plaintiff's possession was extended but there were certain alterations made in respect of various payments by plaintiff to defendant. The said agreement was made subject matter of the decree of the Court. But what is extremely important and significant is Clause 6 of the said agreement. In fact the said Clause 6 is of such great importance that it is useful to set out the same verbatim here. It runs as follows :--
"Save as hereinabove provided, all the terms orders undertaking conditions and provisions and articles and things mentioned in the list hereto contained in the hereinabove recited consent order on Chamber summons dt. the 24th day of June 1970, shall remain in full force and effect and be binding upon the parties hereto."
By virtue of this agreement the plaintiff got time of further 4 years uptill 31st May 1981. But this extension of time was given strictly subject to the conditions that all the other terms and stipulations of the previous consent decree and the consequence flowing from the previous consent decree were retained by the defendants and in fact such retention of those conditions and consequences was evidently a consideration for the purpose of giving extension of time to the plaintiff.
6. The time during which the plaintiff could enjoy the benefit of the possession of the suit premises expired on 31-3-1981. A few things happened before that date and those things are sought to be used by the plaintiff as a ruse for wriggling out of
(a) the undertaking given by him to the Court:
(b) the liability incurred by him by virtue of the decree for possession passed by the Court:
I will presently refer to these events and point out that these events have to bearing whatsoever on the question so far as it relates to the rights of the plaintiff and defendants flowing from the consent decree dt. 24-6-1970.
7. On 21-4-1981, the defendants who will be referred to hereinafter as "decree holder" filed an application for execution of the consent decree dt 21-4-1981 passed by the Court on 24-6-1980 in Suit No. 941 of 1966. In the said execution application. notice as required by O. 21 R. 22 of the CPC was applied for by the decree holder to be issued to the judgment debtor and the notice in that behalf issued from the Court on 30-6-1981. Various defences were raised by the judgment debtor but I need not refer all of them here because only some of them were pressed into service before me. The long and short of the defence was that. according to the judgment debtor, the decree was not an executable decree. He also challenged the decree holder's right to execute the decree on the ground that she herself had no subsisting interest in the suit premises.
8. All these contentions have been negatived by the learned Judge who heard the proceedings under O. 21 R. 22. In fact he passed an order rejecting substantial part of the contentions urged on behalf of the judgment debtor. In para 44 of his judgment, he in fact made the notice absolute, stating that the decree was enforceable in Act. However, the learned Judge did not pass in order issuing warrant of possession. This was so because. according to the learned Judge. an ex parte decree had been passed against the decree-holder by the Court of Small Causes in some other proceedings instituted by the decree-holder's own landlord against her. According to the learned Judge, it would be a futility for the Court to issue the warrant of possession in favour of the decree-holder at this stage because even if the decree-holder got possession through the instrument of the City Civil Court. that part of the nothing but illusory because that possession would be taken away from her by her own landlord by executing the decree obtained by him against herself. In the concluding para 48 of the judgment. he therefore observed as follows :--
"In the result. the defendant's application is allowed to the extent that the decree is renewed. Application for execution is kept pending. Liberty to the defendants to apply for revival thereof after she succeeds in application against the landlord in the Court of Small Causes."
As will be presently pointed out. I am in agreement with the ultimate conclusion arrived at by the learned Judge namely that the decree obtained by the respondents against the present petitioner is a perfectly executable decree, as also that part of the learned Judge's order which makes notice under O. 21 R. 22 of the Civil P. C. absolute. However. I have my own doubts as to whether the learned Judge was justified in refraining from issuing an immediate warrant of possession against the present petitioner. the judgment debtor. merely because after getting the possession from the judgment-debtor the respondents were likely to lose the same in favour of their own landlords by virtue of the decree obtained by the latter against the former. If at all. the respondents were the real persons who should be said to be aggrieved by that part of the order passed by the learned Judge because it is that part of the order which is to my mind an erroneous part Mr. Paranjpe the learned Counsel for respondent was however right in making a statement before the Court that in view of the fact that the ex parte decree obtained by the respondents landlords was set aside by the Court of Small Causes. in effect. and in reality, the respondent had no necessity to file any revision application against that part of the order passed by the learned Judge by which they would justifiably aggrieved. My attention was invited to the fact that as a matter of fact the ex parte decree passed by the Court of Small Causes against the present respondents was aside by that Court during the pendency of this revision application. That is one of the events which forms part of certain collateral proceedings. The orders in these collateral proceedings are sought to be used by the present petitioner as a handle for avoiding the execution of the decree for possession that he himself allowed to the passed against himself and for wriggling out of the undertaking given by him solemnly to the Court. Since the contentions in that behalf have been seriously urged before me by Mr. Suresh. the learned counsel for the petitioner. and since according to him they are very relevant for the purpose of deciding the present dispute, it is worthwhile referring to those collateral proceedings and events.
9. It is mentioned above that the respondents are not the owners of the suit premises. The factual position about which there is, no dispute is that the land upon which the factory premises stand belongs to Voltas Company. One Sharma took it on rent from the Company as a monthly tenant. He constructed some structure upon the same and the structure was let out by said Sharma to the husband of respondent No. 1. There is some dispute as to whether the husband of respondent No. 1 was carrying on any business of factory in the structure or not, The fact however remains that there was some machinery lying in the premises but the business might or might not be running. The husband of respondent No. 1 died and after his death respondent No. 1 became the tenant in respect of the structure and this structure she gave on leave and licence to the present petitioner for conducting the business of the factory. It is therefore, evident that there exists no privity of either of contract or agreement between the present-petitioner and said Shri Sharma Said Sharma, it is alleged, gave an ejectment notice to the plaintiff on 2-10-1978. The service of the said notice is stoutly denied by the present respondent No. 1. It is thus a disputed fact. Said Shri Sharma filed two ejectment suits No. RAE 276/998 of 1979 and 274/1014/1979 against the present respondent No. 1. The reason for filing the two suits is that the suit premises consists of two different sets to premises and were let out to respondent No. 1 by two different leases. There is no dispute however that so far as the present petitioner is concerned. he is the licensee of both the suit premises and that is the reason why both of the said premises are referred in this judgment as the suit premises or factory premises. The two suits filed by Sharma against hereinafter referred to as "ejectment suit". In these ejectment suits ex parte decrees came to be passed against respondent No. 1 on 2-1-1980. Those two ex parte decrees were sought to be executed by said Sharma and during the execution, obstruction was offered by the present petitioner. The present petitioner thereafter also gave notice to the present respondent No. 1 about the ex parte decree obtained by Mr. Sharma against her. In order to remove the obstructions offered by the present petitioner Shri Sharma took out two obstruction notices against the present petitioners. The proceedings pursuant to the said obstruction notices were settled between the parties on 17-3-1981 and by virtue of that settlement an order in terms of the settlement between the decree-holder Shri Sharma and the obstructionist (present petitioner) were passed by the Court of Small Causes on 15-4-1982 The order is produced before me. The relevant portion of the same runs as follows :--
"1. Plaintiff in person.
2. Obstructionist in person.
3. Both plaintiff and obstructionist admit execution and compromise. I am satisfied that notice-claim to settled by this lawful compromise I direct it to be recorded.
ORDER
1. Final order in terms of compromise so far it relates to parties vide O. 23 R. 3 C. P. C.
2. No order as to costs."
10. In the meantime, however, respondent No. 1 herself had made an application to the trial Court for setting aside the ex parte decree. This application was filed on 20-4-1980. that is to say. before the settlement between decree-holder Sharma and the present petitioner was arrived at. On the said application for setting aside the ex parte decree. a conditional order setting aside the ex parte decree was passed by the Court on 13-12-1981, the condition being that respondent No. 1 deposited in the Court all the arrears of rent at the rate of Rs. 221.25 per month from 1-7-1976 till 28-2-1981 on or before 12-3-1981. It is not seriously disputed that respondent No. 1 did not make the deposit on or before that date but an application was made on her behalf on 20-3-1981 for extension of time for depositing the said amount till 15-4-81. On that application order was passed by the Court that respondent No. 1 shall be entitled to deposit the amount but without prejudice to the rights and contentions of the parties. The amount in question was deposited by the respondent No. 1 in the Court on 30-3-81 and the Court was required to consider the effect of this deposit made by respondent No. 1 as also of the delay that was caused by respondent No. 1 in that behalf should be condoned. While the Court of Small Causes was seized with this question and while this question was under its active consideration in the proceedings for setting aside the ex parte decree. the abovementioned execution application came to be filed by the respondent for possession of the suit premises and it was on this notice that order was passed by the learned Judge on 10-11-1981 making the notice under O. 21, R. 22 of the Civil Procedure Code absolute.
It is this order which is impugned in this revision application by the petitioner judgment-debtor and it is the correctness and legality of this order which is required to be examined by me in this petition.
11. After the rule was issued in this revision application, it reached for hearing from time to time and was urged in some leisurely manner on behalf of the petitioner. When it was heard on 17th Sept. 1982, Mr. Suresh the learned Counsel for the petitioner urged two contention before me in support of his arguments that the respondents were not entitled to execute the decree.
12. So far as the first contention of the executability of the decree is concerned, what was argued by Mr. Suresh was that it was the decree dated 24-6-1970 only which recorded the compromise between the parties. He particularly invited my attention to the undertaking given by the plaintiff to the defendants and stated that there was no decree as such passed by the Court directing or commanding the plaintiff to give possession to the defendants. The burden of his song was that the instant suit No. 949 of 1966 was a suit filed by the petitioner-plaintiff against the respondents defendants and it would be really inconceivable that in the suit filed by the plaintiff against the defendants for a mere declaration of his rights for injunction against the respondents, a decree for possession would have been passed against the plaintiff. As will be presently pointed out, Mr. Suresh was factually wrong on this point. His contention at that stage was not that the Court could not have passed an executable decree against the petitioner. His contention was that in fact the Court had not passed any such that factually he was wrong. So far as his plea of estoppel was concerned, it was nothing but any airy plea. I really do not understand how estoppel could be commissioned into service by or on the purpose of establishing the plea of estoppel he relied upon those proceedings between respondent No. 1 and her landlord in which an ex parte decree was passed at one stage against present respondent No. 1 in favour of her own landlord. But whatever might be the proceedings between respondent No. 1 and her own landlord and whatever may be their consequence, it is difficult to spell out any estoppel against the present respondent No. 1. On the other hand I was of the opinion, on that day. that the real estoppel, if at all there operated any, operated with full vigour against the present petitioner himself. By making a positive representation to the respondent he went on taking time from them to carry on business on the premises to which he was not otherwise entitled and to which respondent No. 1 alone was entitled. In this representation he had made positive stipulation that he would hand over possession of the suit premises to the respondent within the stipulated time and every time and on each occasion when the time for giving possession arose. the petitioner has tried to go back upon his promise and assurance and has tried to get wrongful gain to himself at the cots of the respondents. If at all estoppel ever operated, it operated. therefore, against the present petitioner. That was the view which I tried to put across to Mr. Suresh on that day. My attention was not invited to anything at all on record or to any authority of law by virtue of which I could be persuaded to change my and view.
13. But so far as the first plea relating to the factual aspect of the decree's executability is concerned, Mr. Pranjpe, the learned Counsel for the respondents, invited my attention to the decree itself which was passed by the Court on 24-6-1970. He invited my attention to that part of the decree passed by the City Civil Court which was a consent decree by virtue of which there was not only the recording of the terms of compromise between the parties but in fact there was a command or order given by the Court directing the plaintiff to hand over possession of the suit premises immediately after the expiry of 31st Mar. 1977. Nothing was brought to my notice by the petitioner so as to nullity or counteract this position. So far as the plea of estoppel was concerned I had already rejected the same and had put across to Mr. Suresh that this was one of the cases where the Pot was describing the kettle to be black. Mr. Suresh ahd no ready answer to this position of law and of record and hence he took time to examine the legal position resulting from the fact that there did exist and order passed by the Court in the decree which at least prima facie made it an executable decree. When time was asked in this behalf I specifically pointed out to Mr. Suresh that other aspect viz. that there did exist clause No. 6 in the agreement between the parties dated 26th Nov. 1976 by virtue of which the undertaking given by the petitioner to the Court was retained with all its application was thereafter adjourned in order to enable the petitioner to see ways and means either to settle the dispute amicably with the respondent or else to satisfy the Court that there existed some inherent defect in the decree making it non-executable or to be ready to meet the plea of breach of the undertaking. in case. he satisfied the Court that the decree for possession was not an executable decree in the context of some provision of law.
14. The petition was thereafter adjourned form time to time to suit the parties as well as their Counsel. Ultimately when it reached for hearing Mr. Suresh was fair and candid enough to make it clear to the Court that he was unable to persuade his client to settle the matter amicably with the respondent. Mr. Paranjpe the learned Counsel appearing for the respondent, on the other hand, stated that in case it was necessary he had kept and application for proceedings against the petitioner under the Contempt of Court ready and that he would file the same in this Court at the appropriate time if the filing of the same was necessary. It was after the clarifications of these matters that the hearing of the revision application started once again. Mr. Suresh had to proceed upon and did proceed upon the basis that there did in fact exist a decree in favour of the present respondent and against the present petitioners as performance which the Court had directed the petitioner to hand over possession of the suit premises to the respondents at the expiration of the time mentioned in the decree. namely 31st Mar. 1977. Taking this as the admitted fact. Mr. Suresh contended that even assuming that the decree did issue such command to the plaintiff, that part of the decree which involved such command was not an executable part of the decree at all and in this connection he relied first of all upon the nature of the suit and secondly upon the provisions of O. 23. R. 3 of the Civil Procedure Code read in the light of certain Authorities relied upon by him. I will first summarise his contention in this behalf. The suit. contended Mr. Suresh was filed not by the respondent for possession. It was a suit filed by the present petitioner for declaration and injunction against the respondent. In that suit no decree could be passed against the plaintiff. contends. Mr. Suresh, When it was pointed out to him that a decree was passed having regard to the previous order under O. 23. R. 3 of the Civil Procedure Code and that the said O. 23, R. 3 did not incorporate in itself any such prohibition that a compromise decree could not be passed by the Court in favour of the defendant against the plaintiff, Mr. Suresh contended that what we have to look at for the purpose of ascertaining the legal position is the unamended Code as it existed on 24-6-1970. On that date O. 23. R. 3 of the Code read as follows :--
"Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise, or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject-matter of the suit. the Court shall order such agreement. compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith so far as it relates to the suit."
Relying upon the words "the Court shall order, such agreement, compromise, or satisfaction to be recorded, and shall pass a decree in accordance therewith so far as it relates to the suit" Mr. Suresh contended that the compromise could not be said to be relating to the suit at all. The suit was for declaration that the plaintiff was entitled to continue on the suit premises for a particular period and for injunction restraining the defendants form interfering with the plaintiff's possession of the suit premises during that period. The decree was one directing the plaintiff to hand over possession of the suit premises to the defendant. The decree, therefore, did not relate to the suit and hence the Court had no jurisdiction to pass any such decree.
In order to ascertain the correctness of the submission, I first of all analysed the said provision and upon its plain analysis I am of the opinion that the contention of Mr. Suresh cannot be upheld. The relevant portion of O. 23. R. 3. as it then existed, which is culled out above, had imposed two obligations upon the Court :--
(a) The Court had to record an agreement or compromise in the first instance.
(b) The Court had to pass a decree in accordance with the agreement so far as the agreement related to the suit.
I asked Mr. Suresh as to what was the exact meaning and signification of the word "it" finding place in the concluding portion of the said sub-rule (3) of O. 23. of the Code. It was not possible for the learned Counsel to deny the legal position that the word "it" did refer to agreement, compromise or satisfaction. Paraphrasing in simple and unequivocal language the relevant portion meant that the Court shall order such agreement ............................................... to be recorded and shall pass a decree in accordance with the agreement so far as the agreement related to the suit. Once this paraphrasing is accepted, just a small step is necessary for the further realisation of the correct meaning of the provision. The provision required that the Court had to pass decree in accordance with the agreement provided that the agreement related to the suit. In other words the Court has to satisfy itself that the agreement or compromise as the case may be related to the suit and if it did relate to the suit, no option was left with the Court but to pass a decree in terms thereof. unless. of course. the Court felt that the agreement was not a lawful agreement or unless there were some other impediments in the matter of passing a decree in terms of the agreement. The crucial question that the Court had to consider was as to whether the agreement related to the suit. Now the suit was in relation to the suit premises. The agreement was for taking back possession of the said premises by the defendants from the plaintiff. If this is so, it is difficult to say why the agreement could not be said to be relating to the suit. I put this question across to Mr.Suresh and in answer to that question he came up with certain authorities to which I will presently refer. After examining the Authorities cited by him and after examining the Authorities cited by Mr. Raranjpe in reply to the same, I am satisfied that the Authorities relied (on) by Mr. Suresh, far from helping him in the matter of establishing his plea, go a long way to support the respondent's case that the decree is perfectly an executable decree and the present petitioner is fully amenable to the same.
15. The first Authorities relied upon by Mr. Suresh was in the case of Bimal Kumar Gayen v. Amiya Gopal Mandal . The head-note of the said report correctly summarises the view taken by the Court as reflected in paras 5, 7, to 9 of the judgment. The said note reads as follows:--
"In view of O. 23, R. 3. a suit can be adjusted by lawful agreement of compromise only in respect of matters connected with or embraced within such proceedings and not of matters extraneous to it. The decree to be passed is to be in accordance with such compromise or agreement is entered into on matters relating to the suit as also on matters beyond the scope and ambit of the suit forming the consideration of the compromise, the Court may pass a decree recording such compromise or agreement but the decree will in effect be in so far as it relates to the suit and will be operative and executable to that extent. In respect of matters extraneous to the suit, the provisions of the decree will be and amount to an agreement between the parties binding and conclusive on them, to be enforced in a separate suit or proceeding, if considered necessary by any of the parties. (1907) ILR 34. Cal 456: AIR 1919 PC 79 and AIR 1932 Bom 466, Foll.
(Para 5) Where therefore, a suit by a lessee against this lessor for permanent injunction restraining the lessor from interfering in any way with the lessee's possession of the disputed tank was decreed on compromise between the parties and the terms of compromise contained an admission of lessee of the lessor's title to the tank and a further grant of lease to the lessee by the lessor with provision for recovery of possession in certain eventualities, these provisions regarding the creation of lease as also of recovery of possession of the suit property in certain contingency were clearly extraneous to the suit and could not be enforced in execution of the decree though they could form the basis of a separate suit on a concluded and binding agreement. The mere fact that the terms of the compromise provided for execution of the decree would not performance se enable the lessor to execute the decree if it was otherwise inexecutable in law. Hence, the decree was clearly inexecutable in so far as it sought to recover possession of the disputed tank".
Relying upon the Authority Mr. Suresh contended that subject matter of the suit was a declaration in respect of the plaintiff's right to remain in possession of the suit premises. the decree directing the plaintiff to give possession to defendant was something which did not relate to the suit and hence that portion of the decree is inexecutable.
It needs be noticed that the said Calcutta Judgment in fact relied upon one of the judgments of this Court, reported in AIR 1982 Bom 466, Vishne Sitaram Auchat v. Ramachandra Govind Joshi, as also the judgment of the Privy Council in the case of Hemanta Kumari Debi v. Midnapur Zamindari Code. reported in AIR 1919 PC 79. After examining the said Authorities, I found that the principle enunciated by the Calcutta Judgment was not only not warranted by the phraseology employed by O. 23, R. 3. of the Code. but was not warranted even by the Privy Council or by this Court. All the same I did find some difficulty about the judgment of this Court reported in AIR 1932 Bom 466 (supra). The principle enunciated in the said Bombay Authority might appear to go some way to help the present petitioner's contentions. I was of the opinion that the reasoning of the judgment is, with great respect, something which is really unwarranted by the dictum of law laid down by the Privy Council. Moreover, I found some difficulty in reconciling the major part of its reasoning with a smaller part of it and with the final conclusion arrived at therein. In this view of the matter, I was tentatively of the opinion that this would be a fit case to be referred to the Division Bench firstly because to my mind, the law sought to be laid down by the Division Bench in the said case was not warranted by the judgment of the Privy Council reported in AIR 1919 PC 79 and secondly because it was necessary to consider the effect of the recent amendment to the Code upon the principle of the procedural law laid down by the Bombay Judgment. It is common ground before me that in the provision of O. 23, R. 3. as it stands today, by virtue of the amendment of the year 1976, there is no impediment in the power of the Court to pass a decree in terms of such compromise and the general rule of interpretation is that though an amendment relating to substantive law is presumed not to be retroactive, the one relating purely to procedural law is quite often held to be operating even retrospectively. This entire aspect would, therefore, call for examination and since on the first question about the correctness of certain observations in the Bombay case. I was inclined to refer this petition to a Division Bench, I would have referred even this later question about the retrospective effect of the 976 amendment of the Code to the Bench. I am however happy to state that Mr. Paranjpe when called upon to address the Court on this position was able to invite my attention to the direct authority of another Division Bench of this Court, reported in the same volume AIR 1932 Bom 47. Which lays down the correct position of law as is warranted by Code of the year 1908. That is the judgment of this Court where the facts were practically the same as in the present case. In that case also the Court could not have passed the decree in invitum, in favour of the party who claimed execution of the decree. But the decree came to be passed by consent under O. 23, R. 2. and still the Court negatived the contention that it was not an executable decree and held that it was a perfectly executable decree. Since the facts of that case are identical with the facts of the present case in material particulars, it is worthwhile to set out those facts. The facts have been stated in the first para of the judgment: but I will not refer to the names of the parties:--
A mortgaged his property to firm B and A mortgage decree pursuant to an award dt. 25-8-1926 was obtained by firm B against A for about RS. 13,000/- on the basis of that mortgage. After the award. A executed a second mortgage in respect of the same property to C on 21-1-1926. On 13-6-1928 A sold his equity of redemption (vis-a-vis both B & C) to one M. B. the first mortgagee and decree holder also sold his right, title and interest under the mortgage decree to M. The result was that the first mortgage stood completely extinguished and M became the absolute owner of the property subject only to the mortgage of C for the amount of Rs. 6000/- C filed a suit for enforcement of that mortgage. In that suit the original mortgagor A was defendant No. 1 and M was defendant No. 2. In that suit there was a Code[ and by virtue of the compromise M agreed to pay the mortgage amount to the extent of Rs. 5,500/- to C by three instalments and so far as the balance was concerned, A, the original mortgagor-defendant No. 1 made himself personally liable. But this was not all. In the suit filed by C against A and M. the rights and equities between A and M were also provided for by the consent decree and a decree was passed in favour of M against A for the amount of the mortgage money paid by M to C. The Code[ also provided that once M had paid the amount of Rs. 5,500/- to C. the amount should be recovered by M from A. A decree in terms of this compromise was passed on 27-6-1976. The dispute, however. started subsequently amongst the parties once again. The dispute was not only between C and A or between C and M. The dispute was also between A and M. By that time M had already paid two out of three instalments to C and he filed a Darkhast in the execution proceedings for recovery of that amount from A. A's defence to the Darkast by M was identically the same as the defence now raised by the present petitioner to the instant application for execution filed by the respondent. His contention was that in the suit filed by C against A and M the Court had no jurisdiction to pass a decree an executable decree. even by compromise. in favour of M against A. The contention was that the rights between M and A did not relate to the suit within the meaning of O. 23, R. 3. of the Civil P. C. and that , hence, that part of the decree by which M could recover from A the instalments paid by him to C was inexecutable.
This contention was negatived by this Court. It was held that the agreement by M who was a party to the suit to pay mortgage amount of c which was the subject matter of C's suit was the matter which clearly fell within the scope of C's suit. It was further held that the terms enabling M to recover from A the mortgage amount paid by him to C was a consideration of the compromise and was therefore intimately connected with the compromise. This Court held that the terms of O. 23, R. 3. were wide enough to cover the term of such nature.
What is significant is that this view was taken by this Court by following the self-same ruling of the Privy Council, reported in AIR 1919 PC 79.
I find no difference in principle between the defence raised by the present petitioner to the execution application in the instant case and the defence raised by A to the execution application filed by M in the abovementioned Bombay case.
The position obtaining in the present case is much better for the Respondents than even the one contemplated by this Court in the above observation. The property which is the subject matter of the suit and of the compromise is the same. The suit relates to the same property to which the compromise relates. Even the rights of the parties as claimed in the suit and as recognised by the decree are not alien to each other. They are closely interconnected with each other. As a matter of fact, by agreeing to grant time to the plaintiff the defendants had fully conceded his contentions to the suit and in consideration for the concession the plaintiff in the suit suffered a decree to be passed at the hands of the Court for possession against him. This is, therefore, a clear case where the consent decree for possession was allowed to be passed by the plaintiff for very good consideration. It is further clear that the plaintiff has even enjoyed the consideration fully by taking full advantage of the compromise.
16. In view of this judgment of the Division Bench of our own Court with which. with great respect. I am in full agreement, I do not find it necessary to refer this writ petition to the Division Bench in order to set at rest certain legal difficulties that have been given rise by virtue of other Division Bench of this Court reported in AIR 1932 Bom 466. But since the authority has been strongly relied upon by Mr. Suresh for the petitioner and since that Authority has been the basis on which the Calcutta High Court proceeds to which I will presently refer. it is worthwhile referring to and discussing the principle laid down in the said Bombay judgment. The facts of the latter Bombay judgment Vishnu Sitaram Auchat v. Ramchandra Govind Joshi (AIR 1932 Bom 466) do not appear to have been set out very succinctly in the judgment. But after reading the entire judgment, the facts that can be collated are that the plaintiff in that suit had filed a suit for declaration that the suit property belonged to one Vinayak (against whom the plaintiff had obtained a decree) and that the defendant was only a benamidar of Vinayak. The suit was compromised. At the time of the compromise, the defendant was in active consultation with Vinayak and it was found that, as a matter of fact the defendant, was only a nominee or benamidar of Vinayajk even while signing the compromise. The compromise thus arrived at between the parties was reduced into writing and an application was made for a decree in terms of the compromise. The court found that some portion of the compromise related to the suit but the remaining portion did not relate to it and hence the Court held that decree could be passed in terms of the compromise so far as the compromise related to the suit property and the Court ordered accordingly. It is against this order to draw up the decree in terms of the past of the compromise that the appeal was filed to this Court. In this connection, it is extremely significant to note that an order to draw up any such decree in terms of the compromise both were appealable orders under the provisions of O. 43. R. 1 9m) of the Civil P. C. and the appeal preferred to this Court was against such order under the said provision. It is in the context of these facts that the Court made the following observation:--
"We are of the opinion that there was a final agreement of compromise between the parties, and that the decree in terms of the compromise. so far as it related to the suit, was rightly passed." But after making the observation, the Court proceeded to make also the following observation:---
"According to the decision in Hemanta Kumari Debi v. Midnapur Zamindari Company (AIR 1919 PC 79) a perfectly proper and effectual method of carrying out the terms of R. 3 O. 23. would be for the decree to recite the whole of the agreement and then to conclude with an order relative to that part that was the subject of the suit or to introduce the agreement in a schedule to the decree, but the operative part of the decree should be confined to the subject-matter of the suit. The operative part of the decree so confined to the subject-matter of the suit can be enforced as between the parties to the suit under Section 47, Civil P. C. Any agreement as to matters extraneous to the suit can be enforced in a separate suit. With respect. I had some difficulty in appreciating as to what was the occasion for making the above observation. The Trial Court had recognised the fact in that case that certain portion of the compromise did not relate to the suit and the other portion of the compromise did relate to the suit and the decree was passed in terms of that portion of the compromise which related to the suit. The appeal was filed by the defendant against the part of the order which directed the decree to be passed in terms of the compromise which related to the suit. It does not appear that the appeal was filed against that part of the order by which the Court refused to pass a decree in terms of that portion of the compromise which did not relate to the suit. In all probability, the observations are made only with a view to express the legal position although the question in that behalf did not arise for consideration before the Court.
But in the ultimate analysis, the Court a required to consider the question as to what is meant by the words "relates to the suit". In this connection. the Court observed. with very great respect, quite rightly as follows:---
"According to the decision in Bajirao v. Sakharam (AIR 1931 Bom 295) the law not merely entitles the parties but compels the Court to record a compromise in accordance with the terms "so far as it relates to the suit" under O. 23, R. 3: but where the compromise is plainly outside the suit. the Court may refuse to incorporate it in the decree; but where it is a consideration of the compromise and therefore intimately connected with it. the words "relates to the suit". are wide enough to embrace such a term of the compromise, as for instance, the consideration for the compromise, even though this consideration may be entirely outside the scope of the suit and relate to property which was never in question in the suit itself. Under O. 23, R. 3. the Court has a duty and not a discretion to record a lawful compromise subject possibly to an inherent power of refusal where a substantial injustice would be worked: see Surendra Nath Mitra v. Tarubala Dasi ()."
But in spite of this effort on the part of this Court to consider the scope of the words "relates to the suit." the final order passed by the Court does not appear to throw any light on the question as to what portion of the compromise was considered by the Court to be something which related to the suit and which related to the suit and which portion, according to the Court, did not relate to the suit.
17. However before concluding the discussion on this judgment, it is worthwhile pointing out that the learned Judges have tried to rely upon the judgment of the Privy Council in Hemanta Kumari Debi v. Midnapur Zamindari Code. AIR 1919 PC 79. That case has been the source for several subsequent judgments of several Courts and some of the judgments have given rise to quite some equivocality about the real ratio of the Privy Council's judgment. It is. therefore. worthwhile referring to the facts of the Privy Council's judgment. those facts also constitute a classic illustration of cases where the Court could say with confidence as to which portion of the compromise which was made the subject matter of the decree fell distinctly outside the scope of the suit.
In 1895 (the year is important) the plaintiff filed two suits. I will call them Suits 'A' & 'B'. Suit 'A' was filed against one Company and the other suit 'B' was filed against the Government. Both the suits related to different lands and were filed for possession of the suit lands from the defendants in each suit. In suit 'A' the parties arrived at a compromise. As a result of the compromise between the plaintiff and the defendant company, the Company recognised the plaintiff's right in respect of the land which was the subject matter of Suit 'A' but was allowed to remain in possession of the land as the plaintiff's lessees on certain terms. But this part of the agreement could clearly be said to be the subject matter of Suit 'A' and if decree was passed in terms of that compromise, the question which arose before the Privy Council perhaps would never have arisen. But the compromise between the plaintiff and the Company went a step further and by the compromise the plaintiff agreed with Company that if the plaintiff succeeded in Suit 'B' against the Government and got a decree for possession against the Government and secured possession of land from the Government. then those lands which were the subject matter of suit 'B' would be given on lease by the plaintiff to Company-the defendant in suit 'A'. This agreement was reduced into writing and in suit 'A' a judgment was given in terms of the compromise and even a decree was drawn up in pursuance of the judgment on the same date.
The plaintiff did succeed in his Suit 'B' against the Government and the possession of the lands which were the subject matter of Suit 'B' was recovered by the plaintiff from the Government. The Company therefore. tried to enforce its agreement with the plaintiff by relying upon the compromise decree passed by the Court. But this was sought to be done not by way of execution. The Company. for that purpose, filed a separate suit against the plaintiff in Suit 'A' for enforcement of that part of the decree by which the plaintiff in the earlier suit had agreed to lease the other land to the Company. the defence to the suit was that the purported lease was in respect of the lands which were extraneous to the suit a and hence the compromise decree called for registration and in the absence of registration of the decree. the decree in said suit 'A' was not admissible in evidence. It was this question which had fallen for the consideration of the Privy Council was required to examine the provisions of S. 375 of the Civil P. C. 1882.
The importance of the fact that the year of the compromise decree was 1895 is that, subsequently, in the year 1903, the relevant provision of the Civil P. C. was amended. In the year 1895, S.. 375 of the Civil P. C. 1882 prevailed and under said Section 375 what was made incumbent upon the Court was to pass a decree in terms of the compromise in so far as the compromise related to the subject matter of the suit In the year 1908. when the Civil P. C. was amended and Section 375 was replaced by O. 23, R. 3. of the Code, the words "so far as it related to the subject matter of the suit" were replaced by the words " so far as it related to the suit." This evidently means that the scope of the Court's power to pass a decree was widened and enlarged by virtue of the amended law. The Privy Council was thus dealing with a narrower provision of law. whereas we are dealing here with a wider provision of law which gives wider jurisdiction to the Court to pass a decree which is more comprehensive. But that apart. the question which ultimately did fall for consideration was whether the subject matter of the compromise or a part of it was not totally extraneous to the suit. The Privy Council found that so far as the lands which were the subject matter of suit 'B' were concerned, the compromise in that behalf was extraneous to suit 'A'. But all that the Court was required to consider was as to whether the agreement of lease brought about by virtue of the compromise required registration and, if so, whether the decree incorporating such agreement also required registration or not. The Privy Council held that the agreement of lease did not require registration hence it further held that the decree itself also did not require registration in order to be admissible in evidence in the Company's sub-sequent suit.
It will be thus seen that the question as to which part of the compromise decree is executable and which part is not executable was not the question that had fallen for the consideration of the Privy Council at all. But even while considering the question that arose before itself, the Privy Council has expounded an extremely important proposition of law. The Privy Council observed that "it is impossible for the appellant, having accepted and received the advantage of the compromise so far as it related to the lands in the suit, now to resist its effect upon the other portion of the lands to which it related." The head-note of the report sets out this statement of law by the Privy Council in the following words:---
"A party to a compromise cannot take advantage of a part of it and resist its effect as to rest."
I will presently refer to the real effect of the above observation of the Privy Council while discussing the petitioner's contention as regards the inexecutable part of the decree dt 24-6-1970. I will not turn to the Calcutta Authority so heavily relied upon by Mr. Suresh on behalf of the appellant. I have already placed heavy reliance upon the judgment of this Court reported in AIR 1932 Bom 466. But I will point out that the Bombay judgment arose out of the appeal against the order to draw up the decree in terms of the portion of the compromise.
The question of executability of the decree did not form part of the question before the Bombay high Court, in the said case. The Calcutta high Court, however, was posed with the said question of the executability of decree which is the main question wit which I am concerned in this revision application. The facts of that case were that the plaintiff had filed a suit against the defendants for a permanent injunction restraining them from dispossessing him from certain property. namely a tank. There was a compromise arrived at between the parties by virtue of which the plaintiff admitted the defendants' rights over the tank. The entire compromise was included in the decree. By the compromise decree, one of the defendants granted lease of the tank to the plaintiff for a period of 7 years on payment of rent, a decree for possession operative after the said period of seven years was passed against the plaintiff and it was provided that at the end of the period the defendants would be entitled to execute the decree for possession in respect of the tank against the plaintiff. At the end of the period, the defendants tried to execute the decree and the contention was set up that the portion of the compromise by which Defendant No. 1 became entitled to possession of the tank from the plaintiff did not relate to the suit and hence the decree in terms of that portion of the compromise was inexecutable. this contention was accepted by the Calcutta High Court in the case of Bimal Kumar Gayen v. Amiya Gopal Mondal. . The Court examined the provisions of O. 23, R. 3. and held as follows:--
"It appears from the above provision that the Court is entitled to record a compromise when a suit is adjusted wholly or in part by any lawful agreement or compromise. This obviously indicates that the suit can be adjusted by lawful agreement, or compromise only in respect of matters connected with or embraced within such proceeding and not of matter extraneous to it. the decree to be passed is to be in accordance with such compromise or agreement in so far as it relates to the suit. If however a compromise or agreement is entered into on matters relating to the suit as also on matters beyond the scope and ambit of the suit forming the consideration of the compromise. the Court may pass a decree recording such compromise or agreement but the decree will in effect be in so far as it relates to the suit and will be operative and executable to that extent., In respect of matters extraneous to the suit, the provisions of the decree will be and amount to an agreement between the parties binding and conclusive on them. to be enforced in a separate suit or proceeding. if considered necessary by any of the parties".
The High Court was however alive to the fact that the view taken by that Court was not the only possible view and the learned Judge has noticed that the other courts had taken different view which was inconsistent with the view taken by the Calcutta High Court. the learned Judge also referred to the Law discussed by Sir Dinshoaw Mulla in this behalf. this is what the learned Judge has observed in this behalf:-
"As has been noticed by Mulla, according to Allahabad and Madras decision such terms can be enforced in execution of a decree and it is not open to the party against whom the decree is sought to be executed to object to the decree on the ground that it contains matters foreign to the suit."
But after taking note of this view. the learned Judge has observed that the view not the one which was taken by the Madras or the Allahabad High Court as mentioned above. Evidently. the learned Judge felt himself bound by the Calcutta view. The learned Judge has also referred to the judgment of this Court reported in AIR 1932 Bom 466 Vishnu Sitaram Auchat v. Ramchandra Govind Joshi. But unfortunately the attention of the Court was not invited to the judgment of the Court in the self-same volume AIR 1932 Bom 47. No doubt the learned Judge has also made a reference to the Privy Council in AIR 1919 PC 79. But unfortunately. the attention of the Court was not invited to the above mentioned observation of Their Lordships of the Privy Council wherein . Their Lordships have clearly stated. as a proposition of law that. "A party to a compromise cannot take advantage of a part of it and resist its effects as to the rest."
However, the main question to be considered is as to whether the Calcutta High Court could be said to right in holding that the compromise in that suit did not relate to the suit. The view taken by the Calcutta High Court no doubt perfectly supports the contention of Mr. Suresh. Just as the present suit with which I am dealing, the suit with which the Calcutta High Court was dealing was one in which a decree for possession in favour of the defendant came to be passed in a suit filed by the plaintiff for injunction. But, with very great respect. I do not agree with the view that merely because in the suit filed by the plaintiff a decree came to be passed against the plaintiff. by consent in respect of the property which was admittedly the subject matter of the suit, the compromise could not be said to be relating to the suit. In this connection, what the learned Judge has, with respect,. lost sight of is that the words "subject matter of the suit" finding place in 1882. Civil P. C. have been replaced by the words "so far as it relates to the suit". The duty of the Court is. therefore, enlarged by the 1908 Code. With some justification it could be perhaps said that the subject matter of the suit filed by the plaintiff was injunction in respect of the property in the suit. A contention would perhaps he legitimately made that the two subject matters were not the same. But it cannot be said that the compromise in respect of the possession of the property mentioned in the suit did not relate to the suit as such. The suit related to certain property and the compromise related to the self-same property. It cannot, therefore, be said legitimately that the compromise did not relate to the suit. Reliance upon the Privy Council's judgment in this connection was unjustified because. in the first place. the Privy Council was not concerned with the question as to what was the scope even of the words "subject matter of the suit" In the second place. the Privy Council was dealing with Law which was subsequently modified.
But even more important than that is that the Calcutta High Court has completely overlooked the above mentioned dictum of Law laid down by the Privy Council namely. that no party can take advantage of the portion of the compromise and let the remaining portion of the compromise to the winds. A neat principle of estoppel must be held to operate against any such party and there is nothing in the provisions of any of the Statutes by virtue of which the principle that there is no estoppel against statute could be said to be attracted. There is no statutory provision that the Court is precluded from making the entire compromise between the parties a part of its decree. The mandate which finds place in O. 23, R. 3. is that so far as the compromise relates to the suit, the Court shall pass a decree in terms thereof. But there is no mandate that if it does not relate to the suit. it shall not pass a decree in terms thereof. It will not be legitimate on the part of the judgment-debtor to invoke, in such a case, the principle that there is not estoppel against statute. If estoppel is pleaded against the judgment-debtor trying to wriggle out of his objection under the compromise decree, he cannot get away with the plea of estoppel just by answering that there can be no estoppel against statute. That principle just has no application in this case because there exists no statute taking away the power of the Court to pass such a decree.
In this view of the matter. to my mind. the Calcutta High Court's judgment is not of any help to the petitioner.
18. In this view of the matter, the revision application fails. the Rule earlier issued stands discharged.
However, it is necessary to give certain directions to the Trial Court. The Executing Court has really no jurisdiction to give a mere liberty to the decree-holders to apply for revival of the application for execution pending their the application filed by Respondent No. 1 against her landlord. Since, however. admittedly, that application has been allowed by the Court of Small Causes and Respondent No. 1 has admittedly succeeded before the Trial Court in the Court of Small Causes, both the present respondents become ipso facto entitled to revival of the application for execution in pursuance of the directions given by the learned Judge himself. In this view of the matter, the Trial Court need not wait for application from the respondent for revival of the application. The Executing Court is directed to proceed with the application for execution after the expiry of 4 weeks from today.
In view of the elaborate hearing of the Revision Application that was necessitated and in view of the indulgence required to be shown to the petitioner for adjournment of the hearing of the revision application at his instance, the petitioner is directed to pay the respondents, costs which are taxed at Rs. 1000/-.
Upon the application made my Mr. Suresh, the execution of the decree is stayed for a period of 4 weeks. The execution shall proceed after 4 weeks from today as mentioned above.
19. Revision dismissed.