1. This is a second appeal which arises in execution proceedings.. The respondent is the landlord of certain premises in Poona, while the appellant was his tenant. The landlord filed Civil Suit No. 3927 of 1954 in the Court of Small Causes at Poona against the appellant seeking to recover possession of, the suit premises on the ground that the tenant was in arrears of rent due from him. The suit was decided on April 4, 1955, and the trial Court passed a decree directing the defendant to pay the plaintiff a sum of Rs. 266-12-0 together with costs on or before May 31, 1955. In case the defendant failed to do so the plaintiff was to recover possession of the premises from the defendant and also to recover an amount of Rs. 186-12-0 in respect of rent and damages, the costs of the suit, and mesne profits at the rate of rupees 154-0 per month from the date of institution of the suit until the expiry of the period specified in Order XX, Rule 12(e), of the Civil Procedure Code with the proper Court-fee stamp. It appears that though the defendant was given time to pay till May 31, 1955, he made no payment and that is why on August 20, 1955, the decree-holder filed original Darkhast No. 1851 of 1955 for possession of the suit premises. The tenant applied for relief against forfeiture. The trial Court came to the conclusion that the clause that was sought to be enforced by the decree-holder was of a penal nature but that the judgment-debtor could not be relieved from its enforcement because the principle of equitable relief did not apply to decrees passed in invitum. Against this decision the judgment-debtor filed an appeal to the District Court, Poona. It was argued before the learned District Judge that the judgment-debtor under the decree had become a statutory tenant till May 31, 1955, and that the Court could relieve him against forfeiture because the clause in the decree extinguishing his statutory tenancy was by way of a penalty. The learned Appellate Judge differed from the view taken by the trial Court that in case of decrees passed in invitum though they were of a penal nature no relief could be granted. But he rejected the contention of the appellant that he was a statutory tenant and that the clause directing that the decree-holder should recover possession on his failure to pay the decretal amount was of a penal nature. The Court appears to have been of the view that the decree granted a concession to the defendant and as the decree fell within the class contemplated in the Full Bench decision of Wanton Vishwanath v. Teshwant Tukaram (1947) 50 Bom. L.R. 688, there was no question of granting any relief against forfeiture to the judgment-debtor. In this view of the matter the lower appellate Court dismissed the appeal of the judgment-debtor. It is against this decision that the present second appeal has been filed.
2. Now Mr. R. B. Kotwal, learned advocate appearing on behalf of the judgment-debtor, contends that the contractual tenancy was put an end to by the landlords as his client was in arrears but the decree of the trial Court which was a decree in invitum allowed him to remain in possession of the premises till May 31, 1955. On his paying the amount of Rs. 266-12-0 with costs on or before the due date, the claim for possession of the landlord was to be disallowed. In case he failed to do so then the landlord was entitled to recover possession of the premises, but till May 31, 1955, his possession was that of a statutory tenant by reason of the provisions of Section 5(11) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, to be hereafter referred to as the Bombay Rent Act. Under Clause (b) of Sub-section (11) of Section 5 of the Bombay Rent Act, any person remaining, after the determination of the lease, in possession, with or without the assent of the landlord, would be a tenant, and the contention is that the statutory tenancy of the judgment-debtor would be destroyed in case the tenant failed to pay the stipulated amount on or before Kay 31, 1955. Mr. Kotwal, therefore, contends that the lower Court's view that what was granted to the judgment-debtor was merely a concession was wrong. The clause in the decree directing that the plaintiff should recover possession of the premises on defendant's failure to pay a certain amount was, according to Mr. Kotwal, of a penal nature and, therefore, the Court had jurisdiction to grant equitable relief that was sought by the tenant. This is in short the submission of Mr. Kotwal in this appeal.
3. Now in order to examine this argument it is necessary to quote in full the decree that was passed by the trial Court in execution. It runs as follows:
The defendant do pay to the plaintiff a sum of rupees 266-12 together with the costs of the present suit on or before the date 31-5-1955. In case the defendant fails to do so, the plaintiff do recover an amount made up of rupees 186-12 in respect of rent and damages, of the costs of the present suit and of the mesne profits at the rate of rupees 15-4-0 per month from the date of institution of the suit until the expiry of the period specified in Order XX Rule 12(c) of the Civil Procedure Code, with the proper Court-fee stamp. The defendant do bear his own costs. In case the defendant pays the amount of rupees 266-12 into the Court, the plaintiff do withdraw the amount from the Court after paying Court-fee stamp on rupees 80/-.
It has to be noted that though the decree states that the plaintiff would be entitled to recover possession of the premises in suit from the defendant in case the defendant fails to pay the amount stipulated in the decree on or before May 31, 1955, it does not specifically state that in case the defendant paid the amount as directed, the plaintiff's claim for possession was to be disallowed. Mr. Kotwal, however, contended that the decree seems to contemplate that in case the judgment-debtor paid the amount of Rs. 266-12-0 as stipulated, the plaintiff would not be entitled to possession and that seems to be correct. Now there, have been several decisions of this Court regarding the power of the Court to grant relief against a penal clause in a decree. The earliest case on this point is the Full Bench decision in Krishna Bai v. Hari (1906) S Bom. L.R. 813 which was a case of a consent decree and the Full Bench's view was that when a plaintiff was seeking to enforce by original suit a right to forfeiture contained in a consent decree, in the terms of a compromise, whereby the status of the landlord and tenant was established between the plaintiff and defendant, the Court, in the exercise of its equitable jurisdiction, was not precluded from granting; such relief against forfeiture as it might have granted, had the status arisen from contract or custom. Now that was a case where a suit was filed to enforce the right of forfeiture contained in a consent decree under which the plaintiff had given to the defendant her mirasi right and it was held by this Court that; it had power to grant relief against forfeiture in exercise of its equitable jurisdiction. Subsequent to this decision conflicting views came to be expressed in cases of execution of instalment decrees and this conflict was ultimately resolved by the Full Bench decision in Waman Vishwanath v. Yeshwant Tukaram. It was held in that case by the Pull Bench that where a decree, passed either by consent or in invitum, permits payment of the decretal amount in instalments and provides that on failure in payment of one or more instalments the whole amount of the decree would become payable at once, Courts are bound, in the event of such failure, to execute the decree in accordance with the terms, and are not at liberty to relieve against the consequences of failure on equitable considerations. It was observed in that case that it could not be disputed that the Court has the power to relieve against penalties or against forfeiture. But the question that has got to be determined in such cases was whether a certain obligation undertaken by a judgment-debtor was in the nature of a penalty or whether it was a result of a concession conferred upon him by the decree holder. This decision was further explained in a ruling of a Division Bench of this Court in Gajanan Govind v. Pandurang Keshav (1950) 53 Bom. L.R. 100, where the judgment of the Court was delivered by Mr. Justice Gajendragadkar who was also a party to the Full Bench decision in Waman Vishwanath v. Teshwant Tukaram. The case before the Division Bench was of a compromise decree between the landlord and his tenant, whose default was purely technical since the delay in paying the stipulated amount was of a day only and this Court upheld the decision of the two lower Courts in granting relief to the tenant against forfeiture. It was observed that in cases where the relationship of landlord and tenant was created or continued between the parties by a compromise decree, the judgment-debtor who is a tenant would be entitled to relief against forfeiture resulting from his failure to pay the rent at the stipulated time. It was also observed in that case that whenever Courts are dealing with the question of granting relief to judgment-debtors, they must decide in which class of cases the decree in question falls. If the decree falls in the class of cases which was dealt with in Krishna Bai v. Hari, the principle therein laid down must be applied. If, on the other hand, the decree falls in the other class of cases which was the subject matter of the decision in Waman Vishwanath v. Yeshwant Tukaram, it is the principle laid down in that case that must be applied.
4. As I have already stated it is the contention of Mr. Kotwal that the present case would fall within the principle of the decision in Krishna Bai v. Hari, The present decree is a decree in invitum and if it is read as a whole, it does not contemplate the continuance of the relationship of landlord and tenant but appears to be a conditional decree in the sense that the plaintiff was directed to recover possession of the premises in suit from the defendant in case the defendant failed to pay to the plaintiff a sum of Rs. 266-12-0 together with, costs of the suit on or before May 31, 1955. But in case the defendant paid the amount as stipulated, the plaintiff was to withdraw the amount from the Court after paying the Court-fee stamp on Rs. 80 and though the decree itself does not state so, apparently his prayer for possession was to be disallowed. If the decree under execution is a conditional decree of the type I have described, there is no question of the tenant becoming a statutory tenant under the provisions of Clause (b) of Sub-section (11) of Section 5 of the Bombay Rent Act. The decree, it appears to me, gave the plaintiff the right to evict the defendant on or after May 31, 1955, in ease the defendant failed to pay the stipulated amount so that the possession of the defendant till May 31, 1955, cannot be regarded as that of a statutory tenant but it is the possession of a person, who is under the shadow of a conditional decree for eviction. In my view that would be a proper construction to be placed on the present decree. In several cases which have arisen under the Bombay Kent Act before this Court, such conditional orders whether by consent or in invitum have been passed, the tenant being directed to pay the amount of arrears on or before a certain date and in case of his failure to do so, it is directed that the revision application pending here would be dismissed. In such cases, in my view, it can hardly be contended that the time which is granted to the tenant to pay up the arrears would enable him to become a statutory tenant during that period. Where a conditional decree for eviction either by consent or in invitum is passed by the Court, the landlord's right to eviction becoming effective on the failure of the tenant to pay the amount of rent mentioned in the decree within a stipulated time, the tenant cannot become a statutory tenant under Section 5(11)(b) of the Bombay Rent Act during the time granted to him to make the payment. He is, therefore, liable to be evicted on his failure to comply with the terms of the decree.
5. Assuming that the present decree is a decree which falls either in the class of decrees contemplated in the case of Krishna Bai v. Hari or in the class contemplated in the case of Waman Vishwanath v. Yeshwant Tukaram, in my view, on a fair reading of the decree, it would fall within the class contemplated by the latter Full Bench decision of this Court. Mr. Abhyankar, learned advocate appearing on behalf of the respondent, has pointed out that the plaintiff claimed in the suit an amount of Rs. 266-12-0 as the balance due from the defendant on the date of the filing of the suit. The decree grants the defendant time to pay this amount only till May 31, 1955, without requiring him to pay the future rent which must have fallen due during the pendency of the suit. Mr. Abhyankar, therefore, contends that the decree gave a two-fold concession to the defendant. In the first place it required him to pay only an amount of Rs. 266-12-0 which became due on the date of the suit and secondly it also allowed him further time to pay that amount. In my view, this argument is well founded. What is contemplated in the decree is that if the defendant failed to observe the condition of paying the specified amount on or before May 31, 1955, the plaintiff was to recover possession of the suit premises from the respondent. It was not contemplated in the decree that the defendant was to continue in possession as a tenant till May 31, 1955 and that that tenancy was to he deemed to be terminated in case of his failure to pay the amount within the stipulated time. The learned Appellate Judge in para. 5 of his judgment after negativing the argument that a tenancy was created under Section 5(11)(b) of the Bombay Rent Act, rightly observed that the substance of the decree was that not only the tenancy was terminated, but that the defendant was directed to surrender possession to the landlord, and the tenant was permitted to remain in possession till the date specified in the decree. But then he went: on to observe that if the tenant made payment on or before the date specified, he would continue to be a statutory tenant and Mr. Kotwal relies on this observation of the learned Appellate Judge and contends that even according to the view of the appellate Court, he would be a statutory tenant till May 31, 1955, I do not think that that conclusion can be drawn from the observations of the learned Appellate Judge, In any case, as I have already indicated, reading the decree as a whole, it appears to me that, what was granted to the defendant was a concession, and the direction that the plaintiff-landlord was to recover possession on failure of the defendant to pay the specified amount within the stipulated time, was not by way of a penalty. Even on that view the case would fall within the class of decrees contemplated in Waman Vishwanath v. Yeshwant Tukaram, and there would be no question of granting any relief to the judgment-debtor.
6. The result is that this appeal must fail. Mr. Kotwal says that his client has paid the. entire amount due from him. In view of that circumstance, there will be no order as to costs in this appeal.