Karnataka High Court
Smt R Sharmila vs B Devakumar on 18 March, 2025
Author: R Devdas
Bench: R Devdas
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R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF MARCH, 2025
BEFORE
THE HON'BLE MR JUSTICE R DEVDAS
CIVIL REVISION PETITION NO. 177 OF 2022
BETWEEN:
SMT. R. SHARMILA
W/O GIRISH K NASHI
AGE 55 YEARS,
R/AT SHIVALINGA NILAYA,
NO.76, N N FARM ROAD,
SANJAYANAGAR,
BENGALURU-560 094.
...PETITIONER
(BY SRI. V. LAKSHMINARAYANA., SR. COUNSEL FOR
SMT. ANUSHA L., ADVOCATE)
AND
B. DEVAKUMAR
S/O LATE BASAVALINGAPPA,
AGE 54 YEARS,
R/AT NO.43, 1ST MAIN,
SHREYAS COLONY,
J.P.NAGAR, 7TH PHASE,
BENGALURU-560 078.
.....RESPONDENT
(BY SRI.H.N.MANJUNATH PRASAD & SRI. H.R.HAREESH KUMAR., ADVOCATES) THIS CRP IS FILED UNDER SEC.115 OF CPC, AGAINST THE ORDER DATED 12.04.2022 PASSED IN EX NO.208/2016 ON THE FILE OF THE XXV ADDL. CITY CIVIL SESSIONS JUDGE, BENGALURU CITY, HOLDING THAT THE RESPONDENT HEREIN, THE RESPONDENT FOR THE PRAYER OF EVICTION OF THE JUDGMENT PETITIONER FROM THE SUIT SCHEDULE PROPERTY AS THE JUDGMENT DEBTOR HAS VIOLATED THE TERMS AND CONDITIONS OF THE COMPROMISE AGREEMENT AND COMPROMISE DECREE AND ALSO VIOLATED THE TERMS OF THE LEASE DEED.
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THIS PETITION HAVING BEEN HEARD AND RESERVED ON 05.03.2025 AND COMING ON FOR PRONOUNCEMENT OF ORDERS, THIS DAY, THIS COURT MADE THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE R DEVDAS CAV ORDER (PER: HON'BLE MR JUSTICE R DEVDAS) This Civil Revision Petition is filed by the petitioner, tenant, aggrieved of the impugned order passed by the Executing Court, directing eviction of the petitioner from the suit schedule property.
2. Undisputed facts leading to the execution case being filed at the hands of the respondent are that the respondent had filed O.S.No.755/2011 against the petitioner herein, for ejectment, arrears and for future mesne profits. During the course of the suit, a compromise agreement was entered into, during mediation and the suit was decreed in terms of the agreement, that the defendant agrees that the arrears of rent payable to the plaintiff calculated till the month of January 2011 is Rs.9,17,500/- and the defendant paid the said amount under two cheques, which was acknowledged -3- by the plaintiff. The plaintiff agreed to let the defendant continue as lessee in the suit premises for the unexpired period of lease in terms of the registered lease deed dated 01.08.2001, subject to the defendant continuing to pay the monthly rentals; to pay the property tax, each year regularly and promptly till the expiration of the lease period and the defendant undertook to pay the insurance premia till the expiration of the lease period. The defendant agreed that in the event of her committing default of payment of the agreed rent for a continuous period of three months or in the event of her default in paying the yearly property tax to BBMP or in default of paying the insurance premia regularly and in the event of breach of any other terms and conditions of the lease deed, the plaintiff is entitled to enforce the reliefs against the defendant as claimed in the plaint, without any objections from the defendant. The decree was accordingly drawn.
3. However, according to the respondent-plaintiff, the petitioner herein defaulted in payment of the monthly rents for four consecutive months, between July 2015 and -4- October 2015. The petitioner did not pay the property tax for the years 2014-15 and 2015-16. The petitioner failed to furnish a copy of the insurance premia in respect of the suit premises for the years 2013-14, 2014-15 and 2015-
16.
4. The respondent proceeded to file an Execution Petition praying for eviction of the judgment debtor from the suit premises in view of non-compliance of the terms and conditions of the compromise decree and further prayed for delivery of the vacant possession of the schedule property. The petitioner herein entered appearance and filed statement of objections contending that the petitioner is ready and willing to comply with the conditions imposed in the compromise decree. However, the respondent has not claimed the rental cheques for the month of June 2016 as he was abroad and not available.
It was contended that despite receiving the monthly rentals the respondent is not issuing receipts. It was admitted that there was some delay in sending rental cheque for the month of June 2016. It was contended that the petitioner has paid the monthly rental for the -5- month of October 2015. It was contended that the property tax paid receipts for the years 2012-13 to 2015-16 were produced before the Executing Court as Annexures 'F', 'G' and 'H'. It was contended that the petitioner has paid the insurance premia and has produced copies of the insurance policy for the period 05.03.2016 to 04.03.2017.
5. Learned Senior Counsel Sri V.Lakshminarayana appearing for the petitioner contended that even for the sake of argument, it is true that the petitioner violated any of the terms and conditions of the compromise decree, that will not enable the respondent to file an execution petition. Reliance was placed on Sudhir Kumar and Others Vs. Baldev Krishna Thapar And Others (1969) 3 SCC 611, to contend that in somewhat similar circumstances, the Apex Court found that the lessor had granted a fresh lease, on monthly rental while giving the lessee an option to renew the lease at the end of the term fixed, though that right is subject to certain conditions. The compromise decree therein referred to the defendants as 'lessees' and the compensation payable by them was -6- termed as 'rent' and at the same time, clause (2) of the decree provided that the defendants shall be liable to ejectment and vacate the premises on a particular day, on the terms and conditions stated in the compromise petition. Therefore, the Apex Court held that the compromise decree spoke in two voices. It was therefore held that if the compromise decree left with specific terms incorporated in the compromise petition, without bringing in by reference the terms of the original lease as to matters not specifically covered in the compromise petition, there would have been some difficulty in spelling out the real intention of the parties. But by incorporating the terms of the old lease, to the extent not covered by the new terms, the parties had agreed to incorporate into the new agreement the term relating to renewal found in the original lease. Under those circumstances, it was held that the direction in the decree to vacate the suit premises at the end of the term fixed in the compromise in accordance with the terms of the compromise would amount to an ineffective direction. Such a direction cannot be considered as an ejectment decree. It is at best -7- a declaration of the right of the lessors to eject the lessees at the end of the lease period, if the lessee failed to get a renewal.
6. The learned Senior Counsel therefore submitted that the terms of the compromise will not amount to a decree for eviction. It would remain an ineffective direction as held by the Apex Court. Consequently, the respondent herein is required to proceed afresh by issuing the statutory notice in terms of the provisions of the Transfer of Property Act. It is further submitted that since the petitioner herein was permitted in terms of the decree to continue as a lessee of the suit premises for the unexpired period of lease, under the registered agreement of lease dated 01.08.2001 and since the said registered agreement provided for renewal of the contract, the petitioner herein has requested the respondent landlord to renew the contract further. On failure of the respondent to renew the contract, the petitioner herein has filed a suit in Com.O.S.No.09/2025 seeking judgment and decree for specific performance directing the defendant to perform Clause No.4 to execute a fresh lease deed for renewal of -8- the lease deed dated 01.08.2001 with the same terms and conditions for the further period of 25 years from 01.08.2026. Therefore, the executing court has erred in entertaining the execution petition.
7. Per contra, learned Counsel for the respondent- landlord submits that since admittedly the terms of the compromise agreement clearly provided that violation of any of the terms and conditions stipulated therein would entitle the plaintiff to enforce the relief as against the defendant as claimed in the plaint, without any objections from the defendant, the plaintiff is entitled to seek execution of the decree. It is further submitted that the petitioner herein cannot unilaterally invoke the renewal clause. However, by issuing a legal notice on 12.04.2024, the petitioner has declared that he is invoking the renewal clause to continue for further period of 25 years, without the consent of the landlord. Suitable reply was also given by the respondent to the petitioner on 06.05.2024 clearly declining to comply with the petitioner's demand for renewal of the lease. It is further pointed out that the -9- execution petition was filed on 14.01.2016 and after receipt of the notice, the petitioner herein has entered appearance in the execution case and after hearing both the sides, the impugned order has been passed by the executing court on 12.04.2022. After the petitioner filed the present civil revision petition, out of sheer desperation, the petitioner issued the said legal notice seeking to invoke the renewal clause.
8. Learned Counsel seeks to place reliance on Pradeep Mehra Vs. Harijivan J Jethwa, 2023 SCC OnLine SC 1395, where the Hon'ble Apex Court expressed its anguish regarding the inordinate delay and the process being abused in the execution proceedings, to the peril of the helpless decree holder. It was held that a bare perusal of Section 47 of the CPC, shows that all questions between the parties can be decided by the executing court. But, the important aspect to remember is that these question is limited to the execution of the decree. The executing court can never go behind the decree. Under Section 47, the executing court cannot examine the validity of the order of the court which had allowed the execution of the decree.
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More importantly, it was noticed that the order/decree was never challenged by the tenant/judgment debtor before any forum.
9. Heard learned Senior Counsel Sri.V.Lakshminarayana, for the petitioner, learned Counsel Sri.H.N.Manjunath Prasad, for the respondent and perused the petition papers.
10. The question to be decided is whether the plaintiff in the original suit was entitled to seek execution of the final order/decree in terms of the compromise agreement, which formed the basis of the final order/decree? In this regard, this Court finds that in the case of Pushpa Devi Bhagat Vs. Rajinder Singh and Others, (2006) 5 SCC 566, the Hon'ble Apex Court dealt with a similar situation where the suit was decreed in terms of a compromise agreement where the defendants undertook to vacate the suit premises on a particular date and that they will keep paying the rent/damages of the suit premises till the time of vacating the suit premises. In the final order, the trial court ordered that in view of
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the statement made by the counsel for the parties in the presence of both the parties, the suit stands disposed of as settled. Parties were bound by their statements made before the court. I was ordered - "Decree sheet in terms of the said compromise be prepared". That was a case where an appeal was filed by one of the defendants and therefore, the issue framed by the Apex Court was whether an appeal under Section 96 of the CPC against a consent decree was maintainable. The Apex Court held having regard to Order 43 of CPC that Order 43 Rule 1(m) had earlier provided for an appeal against the order under Rule 3 Order 23 recording or refusing to record an agreement, compromise or satisfaction. But, clause (m) of Rule 1 of Order 43 was omitted by Act No.104 of 1976, w.e.f., 01.02.1977. Simultaneously, a proviso was added to Rule 3 Order 23 which provides that where it is alleged by one party and denied by the other that an adjustment of satisfaction has been arrived at, the court shall decide the question. It was further noticed that Rule 3A was also added in Order 23 w.e.f., 01.02.1977 barring any suit to set aside a decree on the ground that the compromise on
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which the decree is based was not lawful. Having noticed all these provisions, the Apex Court has held as follows;
"17. The position that emerges from the amended provisions of Order 23, can be summed up thus :
(i) No appeal is maintainable against a consent decree having regard to the specific bar contained in section 96(3) CPC.
(ii) No appeal is maintainable against the order of the court recording the compromise (or refusing to record a compromise) in view of the deletion of clause (m) Rule 1 Order 43.
(iii) No independent suit can be filed for setting aside a compromise decree on the ground that the compromise was not lawful in view of the bar contained in Rule 3A.
(iv) A consent decree operates as an estoppel and is valid and binding unless it is set aside by the court which passed the consent decree, by an order on an application under the proviso to Rule 3 of Order 23.
Therefore, the only remedy available to a party to a consent decree to avoid such consent decree, is to approach the court which recorded the compromise and made a decree in terms of it, and establish that there was no compromise. In that event, the court which recorded the compromise will itself consider and decide the question as to whether there was a valid compromise or not. This is so because a consent decree, is
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nothing but contract between parties superimposed with the seal of approval of the court. The validity of a consent decree depends wholly on the validity of the agreement or compromise on which it is made. The second defendant, who challenged the consent compromise decree was fully aware of this position as she filed an application for setting aside the consent decree on 21.8.2001 by alleging that there was no valid compromise in accordance with law. Significantly, none of the other defendants challenged the consent decree. For reasons best known to herself, the second defendant within a few days thereafter (that is on 27.8.2001), filed an appeal and chose not to pursue the application filed before the court which passed the consent decree. Such an appeal by second defendant was not maintainable, having regard to the express bar contained in section 96 (3) of the Code."
11. It was also held in paragraphs No.18 and 19 as follows:
"18. . . . . . . . .
The said Rule consists of two parts. The first part provides that 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 in writing and signed by the parties, the court shall order such agreement or compromise to be recorded and shall pass a decree in accordance therewith. The second part provides that where a defendant satisfies the plaintiff in respect of the whole or any part of the subject matter of the suit, the court
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shall order such satisfaction to be recorded and shall pass a decree in accordance therewith. The Rule also makes it clear that the compromise or agreement may relate to issues or disputes which are not the subject- matter of the suit and that such compromise or agreement may be entered not only among the parties to the suit, but others also, but the decree to be passed shall be confined to the parties to the suit whether or not the subject matter of the agreement, compromise or satisfaction is the same as the subject matter of the suit. We are not, however, concerned with this aspect of the Rule in this appeal.
19. What is the difference between the first part and the second part of Rule 3 ? The first part refers to situations where an agreement or compromise is entered into in writing and signed by the parties. The said agreement or compromise is placed before the court. When the court is satisfied that the suit has been adjusted either wholly or in part by such agreement or compromise in writing and signed by the parties and that it is lawful, a decree follows in terms of what is agreed between the parties. The agreement/ compromise spells out the agreed terms by which the claim is admitted or adjusted by mutual concessions or promises, so that the parties thereto can be held to their promise/s in future and performance can be enforced by the execution of the decree to be passed in terms of it. On the other hand, the second part refers to cases where the defendant has satisfied the plaintiff about the claim. This may be by satisfying the plaintiff that his claim cannot be or need not be met or performed. It can also be by discharging or performing the required
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obligation. Where the defendant so 'satisfies' the plaintiff in respect of the subject-matter of the suit, nothing further remains to be done or enforced and there is no question of any 'enforcement' or 'execution' of the decree to be passed in terms of it.
. . . . . . . . ."
12. Finally, the Apex Court concluded in paragraphs No.20 and 21 that in a suit against the tenant for possession, if the settlement is that the tenant will vacate the premises within a specified time, it means that the possession could be recovered in execution of such decree in the event of the defendant failing to vacate the premises within the time agreed. Therefore, such settlement would fall under the first part.
13. Having regard to the undisputed facts obtained in this case, since it is clear that the trial court had recorded the terms of the compromise entered into between the plaintiff and the defendant in the memorandum of agreement signed by the parties, this Court has not hesitation in holding that the case falls under the first part of Order 23 Rule 3 of CPC and therefore, such a decree is executable. In fact, having
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regard to Rule 3A of Order 23 of CPC, the respondent- plaintiff or the petitioner-defendant cannot file a suit to set aside the decree passed in O.S.No.755/2011. The respondent-plaintiff need not file a fresh suit to seek eviction of the petitioner-defendant.
14. This Court therefore finds that the contention of the petitioner/defendant/judgment debtor that the respondent-plaintiff could have not initiated execution proceedings seeking execution of the judgment and decree passed in O.S.No.755/2011, is required to be rejected and is accordingly rejected.
15. Consequently, the Civil Revision Petition stands dismissed.
16. Pending I.As., if any, stand disposed of.
Sd/-
(R DEVDAS) JUDGE JT/DL CT: JL