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V.E. Tressler Vs. Jagdish Prasad Agrawal - Court Judgment

LegalCrystal Citation
SubjectContract;Property
CourtAllahabad High Court
Decided On
Case NumberEx. Second Appeal No. 449 of 1973
Judge
Reported inAIR1976All318
ActsCode of Civil Procedure (CPC) , 1908 - Sections 47 - Order 23, Rule 3; Uttar Pradesh (Temporary) Control of Rent and Eviction Act, 1947 - Sections 3
AppellantV.E. Tressler
RespondentJagdish Prasad Agrawal
Appellant AdvocateG.C. Bhattacharya, Adv.
Respondent AdvocateN.B. Nigam and ;B.N. Agrawal, Advs.
DispositionAppeal dismissed
Excerpt:
.....of eviction need not be satisfied - held, decree not beyond scope of suit and appellant to deliver actual possession of property to decree-holder. - - on 19-4-1966, the right of reconveyance was transferred to jagdish pra-sad agrewal the respondent, in the instant appeal. execution was sought of the decree by dispossession of the appellant, as he had failed to deliver possession as agreed. (1) that the compromise decree was beyond the scope of the suit as actual possession was not demanded in the suit, (2) that the decree was satisfied as the stipulated sale deed had been executed by him, (3) that the decree being in respect of a share in the property, no ejectment was possible without an actual partition, and (4) that in any case, the appellant was not liable to be ejected from the..........47, c.p.c. the objections were:(1) that the compromise decree was beyond the scope of the suit as actual possession was not demanded in the suit,(2) that the decree was satisfied as the stipulated sale deed had been executed by him,(3) that the decree being in respect of a share in the property, no ejectment was possible without an actual partition, and(4) that in any case, the appellant was not liable to be ejected from the premises in dispute.both the courts below rejected the objections and directed the execution to proceed. the lower appellate court held that the appellant was bound by the compromise decree and proprietary possession included actual possession also. he further found that the compromise decree was not beyond the scope of the suit. the learned judge was further of the.....
Judgment:

Gopinath, J.

1. This Is a judgment-debtor's execution second appeal. One Mr. E. C. Ray sold a specified half share in house No. 343 to the appellant who it appears was occupying the same earlier. By a separate agreement entered into on the same date, the appellant agreed to reconvey the property to the vendor after five years. On 19-4-1966, the right of reconveyance was transferred to Jagdish Pra-sad Agrewal the respondent, in the instant appeal. Jagdish Prasad Agrawal filed a suit No. 770 of 1966 against the appellant for specific performance of the agreement of reconveyance and for proprietary possession over the half share. The suit was decreed on the basis of a compromise. Under the compromise decree, the appellant bound himself to execute a sale deed of the property in dispute as envisaged by reconveyance agreement. He further agreed to deliver possession of the property after a specified time. Execution was sought of the decree by dispossession of the appellant, as he had failed to deliver possession as agreed.

2. The appellant filed objections under Section 47, C.P.C. The objections were:

(1) that the compromise decree was beyond the scope of the suit as actual possession was not demanded in the suit,

(2) that the decree was satisfied as the stipulated sale deed had been executed by him,

(3) that the decree being in respect of a share in the property, no ejectment was possible without an actual partition, and

(4) that in any case, the appellant was not liable to be ejected from the premises in dispute.

Both the courts below rejected the objections and directed the execution to proceed. The lower appellate court held that the appellant was bound by the compromise decree and proprietary possession included actual possession also. He further found that the compromise decree was not beyond the scope of the suit. The learned Judge was further of the view that since the appellant had sold a specified share in the property, no question of actual partition for purposes of possession arose.

3. It was urged on behalf of the appellant that at the time of the sale of the half portion of the house in favour of the appellant, he was occupying the premises as a tenant. After reconveyance, the appellant again became a tenant of the disputed premises and his ejectment could not be sought on the basis of the compromise decree until the statutory grounds under the U. P. Temporary Control of Rent & Eviction Act were made out. This was not an objection raised before the Court below. Further the compromise decree was not a nullity. In 'Roshan Lal v. Madan Lal : [1976]1SCR878 it was held that the provisions of Order 23, Rule 3, C.P.C. apply as much to eviction suits covered by special statutes as they apply to the other suits. The suit giving rise to the execution proceedings in hand was not a suit between a landlord and tenant. It was a suit for specific performance of an agreement. The rule that eviction suits between landlord and tenants has to satisfy the statutory grounds before ejectment case be made cannot be invoked in the present case. The compromise was not in violation of any requirement of law and the decree was accordingly binding on the appellant

4. The learned counsel then urged that the decree was beyond the scope of the suit. The suit prayed for specific performance of the agreement as also for the possession of the property. The agreement to deliver possession was accordingly not beyond the scope of the suit. Further a compromise decree does not become void if it is not exactly in accordance with the reliefs sought in the suit. The validity of the decree thus cannot be questioned on that ground in these proceedings (See Shyam Lal v. M. Shyam Lal : AIR1933All649 .

5. As regards the submission that actual possession could not be obtained without partition of the property it is enough to state that the sale in favour of the appellant under the deed dated 19-1-1966 was of a specified portion of the property, as delineated in the map attached to the sale deed. The deed of reconveyance also related to the specified portion. Thus the decree holder was entitled to actual possession of the property in dispute without any rigorous as (sic) (recourse?) to partition. The decree was not satisfied only by the execution of the sale deed. The appellant had further to deliver actual possession of the property to the decree-holder.

6. No other point was pressed. The appeal fails and is dismissed. But in the circumstances of the case, I direct the parties to beer their own costs.


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