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Shiva J. Maharaj Gauri Shanker Mahadeoji Vs. Durga Prasad - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 2643 of 1958
Judge
Reported inAIR1964All37
ActsCode of Civil Procedure (CPC) , 1908 - Sections 47 - Order 23, Rule 3
AppellantShiva J. Maharaj Gauri Shanker Mahadeoji
RespondentDurga Prasad
Advocates:S.B.L. Gaur and ;K.B.L. Gaur, Advs.
DispositionAppeal dismissed
Excerpt:
.....- section 47 and order 23 rule 3 of code of civil procedure, 1908 - compromise decree received in suit for ejectment and arrears of rent - condition appended that in default of payment of agreed money tenant will be ejected - ejectment is penal provision - decree to the extent of ejectment cannot be executed. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board..........and the said suit was decreed in terms of a compromise which contained the following terms:'the suit is decreed for rs. 987/8/- but dismissed regarding the relief for ejectment and the parties are to bear their own costs; in case the defendant does not pay the aforesaid amount by july 27, 1950 the suit will be considered to have been decreed for ejectment also and the plaintiff will be entitled to execute the decree for ejectment and arrears of rent.'3. it appears that the respondent defaulted in payment of the decretal amount and thereafter an execution application was filed against him by the appellant for arrears of rent and for ejectment. the respondent preferred an objection to the execution application inter alia on the ground that the decree was not executable as regards.....
Judgment:

R.S. Pathak, J.

1. This is a decree-holder's appeal against an order passed by the learned Civil and Sessions Judge, Saharanpur holding that the decree for ejectment was not executable.

2. The appellant was the landlord of certain property of which the respondent was tenant, A suit was tiled by the appellant for ejectment and arrears of rent, and the said suit was decreed in terms of a compromise which contained the following terms:

'The suit is decreed for Rs. 987/8/- but dismissed regarding the relief for ejectment and the parties are to bear their own costs; in case the defendant does not pay the aforesaid amount by July 27, 1950 the suit will be considered to have been decreed for ejectment also and the plaintiff will be entitled to execute the decree for ejectment and arrears of rent.'

3. It appears that the respondent defaulted in payment of the decretal amount and thereafter an execution application was filed against him by the appellant for arrears of rent and for ejectment. The respondent preferred an objection to the execution application inter alia on the ground that the decree was not executable as regards ejectment inasmuch as the condition relating to ejectment on default of payment of the decretal amount was in the nature of a penal clause.

4. The objection of the respondent was rejected by the executing Court, but an appeal filed by the respondent was allowed by the learned Civil and Sessions Judge, Saharanpur who held that the stipulation regarding ejectment was in the nature of a penal clause and, therefore, the decree in that respect was not executable.

5. Learned counsel for the appellant has strenuously contended before me that the aforesaid stipulation as to ejectment was not in the nature of a penal clause. He urges that the suit was decreed for recovery of the amount of Rs. 987/8/- and for ejectment in case that amount was not paid by July 27, 1950. There is no force in this contention. The terms of the compromise, on which the decree was founded, plainly show that the only relief to be granted in the suit was that for the recovery of Rs. 987/8/-, there being a clear stipulation that the suit was to be dismissed as regards the relief for ejectment. From the terms of the compromise it cannot be said that the relief for ejectment was to be refused subject only to the payment of the amount by the date stipulates. That would be, if such construction were given, to alter the entire context in which the conditions of the compromise stood in relation to each other. The compromise provided that in case the defendant-respondent defaulted In payment of the amount the suit would be considered as having been decreed also for ejectment. The sense of the language indicates that although the decree for ejectment had not been granted in the suit, nevertheless on default of payment of the decretal amount the decree for ejectment would be treated as having been granted. From this, I have no hesitation in holding that the relief for ejectment was stipulated as a penal clause on default 01 payment of the decretal amount. It was intended to act as a coercive provision for the purpose of enforcing the terms agreed upon between the parties.

6. Learned counsel for the appellant has cited a decision of this Court in Kishen Prasad v. Kunj Behari Lal, : AIR1926All278 The terms of compromise in that case were, however, different. There although the amount claimed in the suit was Rs. 15,000/-, the plaintiff agreed by the compromise that if a certain amount was paid by certain dates he would remit the balance of his claim, but that in case there was a default in this behalf on the part Of the defendant he would be entitled to recover the entire amount of his claim. It is apparent that a concession was offered by the plaintiff and that concession would be available only so long as the defendant complied with the stipulation which requires payment of the agreed amount by certain agreed dates. It was never the case merely that the plaintiff had agrees to a smaller amount. The plaintiff had agreed that if a certain smaller amount was paid in accordance with certain conditions he would abandon his Claim to the balance.

7. In my opinion, therefore, this appeal has no forcewhich is accordingly dismissed. Nobody appears for Werespondent and, therefore, there shall be no order as tocosts.


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