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Arjun Lal Vs. 3rd Addl. District Judge and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ Petn. No. 5772 of 1979
Judge
Reported inAIR1981All93
ActsConstitution of India - Article 226; Code of Civil Procedure (CPC) , 1908 - Sections 47, Order 21, Rule 10
AppellantArjun Lal
Respondent3rd Addl. District Judge and ors.
Appellant AdvocateK.G. Srivastava, Adv.
Respondent AdvocateS.K. Gupta, Standing Counsel
DispositionPetition dismissed
Excerpt:
.....under the compromise, the decree-holders were at liberty to apply for the execution of the decree. 6. the petitioners challenged the correctness of the order passed by the executive court by way of revision but without any success. 7. it may be stated that before the lower revisional court, the points urged on behalf of the petitioners were that time was not of the essence of the compromise and that in any case the term providing for execution of the decree in the event of the failure of the petitioners to give the notice stipulated thereunderwas penal in character and that consequently it was open to the court to relieve the petitioners from the consequences of the breach of the said term. whether there existed circumstances of such exceptional character as to entitle the..........the ejectment of the latter as well as for recovery of arrears of rent and mesne profits. the said suit was decreed by the court of the learned civil judge, shahjahanpur in september, 1973. lakshmao das, petitioner no. 2 preferred an appeal. during the pendency of the appeal, the parties entered into a compromise which was recorded on 9-1-1974. the material terms of the compromise were that the plaintiffs would not execute their decree for ejectment for a period of four years i.e. up to 31-12-1977. during this period, the defendant lakshman das was to pay rs. 13 per month as damages for use and occupation of the premises, besides the municipal tax due in respect of the premises in suit if, however, the defendant-appellant lakshman das, his two brothers saheb ram and arjun lal wished to.....
Judgment:
ORDER

A.N. Verma, J.

1. This petition is directed against concurrent orders passed by the courts below dismissing an abjection filed by the petitioners against the execution of a decree obtained by the respondents Nos. 3 to 5 against petitioner No. 2.

2. These are the facts :

The respondents Nos. 3 to 5 as the owners and landlords of the accommnoda-tion in dispute--of which the petitioner No. 2 Lakshman Das was the tenant --filed a suit for the ejectment of the latter as well as for recovery of arrears of rent and mesne profits. The said suit was decreed by the court of the learned Civil Judge, Shahjahanpur in September, 1973. Lakshmao Das, petitioner No. 2 preferred an appeal. During the pendency of the appeal, the parties entered into a compromise which was recorded on 9-1-1974. The material terms of the compromise were that the plaintiffs would not execute their decree for ejectment for a period of four years i.e. up to 31-12-1977. During this period, the defendant Lakshman Das was to pay Rs. 13 per month as damages for use and occupation of the premises, besides the Municipal Tax due in respect of the premises in suit If, however, the defendant-appellant Lakshman Das, his two brothers Saheb Ram and Arjun Lal wished to continue In possesr-sion of the premises after 31st December, 1977 as tenants thereof on a monthly rental of Rs. 20, they might give a writ-tea notice within one month prior to 31st December, 1977 to the plaintiff-landlords conveying to them their said intention so to continue in occupation of the premises as tenants and in that event the plaintiff-landlords would let out the premises to the three brothers upon their execution of a rent note. If, however, the said three brothers did not give such a notice the plaintiff-landlords would be at liberty to execute their decree.

3. Admittedly, the defendant Lakshman Das and his brothers did not give the aforesaid notice to the plaintiff-landlords within the stipulated period. They, however, gave a written notice dated 3rd of December, 1977 conveying their intention to take the premises on rent upon the terms mentioned in the compromise.

4. The plaintiff-decree-holders relying upon the failure of the defendant Lakshman : Das and his two brothers to give the notice contemplated under thecompromise and upon the other terms of the compromise applied for execution of their decree for the ejectment of Lakshman Das in February, 1978, Lakshman Das and his brothers filed an objection purporting to be under Section 47 of the Code of Civil Procedure. In the objection, it was asserted that the delay of three to four days in sending the notice was caused on account of the death of the father-in-law of Arjun Lal, the brother of the defendant Lakshman Das. It was asserted that time was not of the essence of the contract and that, therefore, there was no breach of the terms of the compromise. The decree-holders on the other hand contested this stand of the defendant Lakshman Das and his brothers on the ground that the decree was liable to be executed upon its plain terms and that the brothers of Lakshman Das at any rate were not entitled to file objections under Section 47 of the Code of Civil Procedure, they not being parties to the suit.

5. The executing court overruled the objections of the petitioners holding that time was of the essence of the compromise and that on the failure of Lakshman Das and his brothers to give the notice stipulated under the compromise, the decree-holders were at liberty to apply for the execution of the decree. The executing court further held that Saheb Ram and Arjun Lal, the brothers of Lakshman Das were at any rate not entitled to file objections under Section 47 of the Code of Civil Procedure as they were not parties, to the suit The executing court dismissed the objections of the petitioners and directed that the execution shall proceed without any delay.

6. The petitioners challenged the correctness of the order passed by the executive court by way of revision but without any success. The revisional court also overruled the objections of the petitioners. Thereupon, the petitioners filed a revision in this court under Section 115 of the Code of Civil Procedure but the same was dismissed on 23-7-1979 on the ground that a second revision was not maintainable, following a Full Bench decision of this court. Thereafter, the petitioners filed this petition.

7. It may be stated that before the lower revisional court, the points urged on behalf of the petitioners were that time was not of the essence of the compromise and that in any case the term providing for execution of the decree in the event of the failure of the petitioners to give the notice stipulated thereunderwas penal in character and that consequently it was open to the court to relieve the petitioners from the consequences of the breach of the said term. Another argument raised before the lower revisional court was that the said term travelled beyond the scope of the suit and was, therefore, liable to be ignored not being sanctioned by Order 23, Rule 3 of the Code of Civil Procedure. Counsel for the petitioner did not urge any of these points in support of the petition.

8. Counsel, however, advanced an argument which was not submitted before the courts below. He urged, relying upon a decision of the Supreme Court in the case of Caltex India v. Bhagwan Devi Marodia, AIR 1969 SC 405 that even if time was of the essence of the contract it was open, to the courts below to go into the question whether the default said to have been committed by the petitioners had not occurred for reasons beyond the control of the petitioners and if the court came to the conclusion that the default occurred for such unavoidable reasons, it had power to relieve the petitioners from the consequences of the breach. That being so, it was submitted, the court below committed an error in not examining the circumstances which had led to the default. I cannot agree.

9. There are many objections against accepting the aforesaid argument. The first is that such an argument which necessarily implies investigation of facts, was not advanced before the courts below. Whether there existed circumstances of such exceptional character as to entitle the petitioners to claim a relief from the consequences of the breach of an essential term of the compromise is indisputably a matter of fact, which not having been specifically raised before at least the revisional court, cannot be per-mitted to be raised in these proceedings. Besides, the petitioner has not laid the foundation for entertaining such a plea even in the writ petition. Indeed, he did not even file a copy of his objections, nor even of the reply filed thereto.

10. The second objection to the argument is that, strictly, the present is not a case of renewal of a lease. Here the stipulation was for the grant of a fresh lease after 31-12-1977 in favour of Lakshman Das and his brothers (who were not previously the lessees of the premises) and that too on a different rate of rent. It is significant to note that during the period prior to 31-12-1977 Laksh-man Das was to pay Rs. 13 as damages for use and occupation as distinct from rent. From a reading of the various terms of the compromise, it seems clear that under it, it was stipulated that a fresh lease shall be granted in favour of Lakshman Das and his two brothers beginning from 31-12-177 upon the latter's executing the rent note. The principled on which default or delay could be ignor-ed by courts in exceptional cases such as accident, fraud and the like, therefore, could not automatically, apply to cases where a fresh lease has to be granted upon certain terms and conditions essential to the right to claim the grant of such a lease. Counsel was unable to point out any principle Or provision which might entitle the petitioners in a situation analogous to that existing in the present case to the grant of a relief by courts under such circumstances.

11. The third and the more serious objection to the acceptance of the contention raised by the petitioners' counsel is that we are concerned here with the execution of a decree. The powers and limitations of an executing court are far too well established to require elaboration. That the executing court cannot go behind the decree and has to execute it as it stands can hardly be disputed. The Caltex India Limited (AIR 1969 SC 405) (supra) case arose out of suit for specific performance of a contract to renew a lease on the ground that the petitioner was entitled to grant (sic) a decree, notwithstanding the delay in exercising the option of renewal as the delay or default had been caused for reasons beyond the control of lessee.

12. In my judgment, even if the court seized of the suit could not (on) some equitable principle overlook the default or delay even where time is of the essence of the contract, no such principle can be applied to matters in execution. For, the executing court has to take the decree as it stands and execute it without embarking upon an enquiry such as the learned counsel for the petitioners would want this court to undertake. For all the afore-j said reasons, this court holds that the. courts below rightly overruled the objections of the petitioners.

13. Counsel for the petitioners did not challenge the findings of the courts below to the effect that time was of the essence of the contract and that the terms of the compromise were not in the nature of a penalty. Nor did the counsel for the petitioner challenge the finding of the lower appellate court that the petitioners can-not get any benefit even if it is held that the last clause of the compromise travelled beyond the scope of the suit.

14. Counsel for the petitioners cited some decisions in support of his contention that a compromise decree is nothing but a contract with the seal of the court superadded to it. This proposition is unexceptionable but it does not take the matter further for the petitioners. The petitioner haying failed to avail themselves of the opportunity of getting a fresh lease executed in their favour within the time stipulated under the compromise the decree-holders were at liberty to apply for the execution of the decree upon the plain terms thereof.

15. Counsel for the petitioners also did not challenge the finding recorded by the trial court that the petitioners Nos. 1 and 3 not being parties to the suit, were not entitled to file objections under Section 47 of the Code of Civil Procedure. Upon the finding, the petitioners Nos. 1 and 3, at any rate, have no right to file objections against the execution of the decree.

16. Learned counsel for the petitioners also placed reliance on a decision of the Supreme Court reported in AIR (1979 SC 621 (M. P. Sugar Mills Co. Ltd. v. State of Uttar Pradesh). This case has absolutely no application to the facts of the present case. The decision is concerned only with the extent to which the State can be said to be bound by the principle of promissory estoppel.

17. In view of what has been stated above, this petition fails and is dismissed. There will be no orders as to costs. The execution of the decree for the ejectment of the petitioners shall, however, remain stayed only for a period of three months. The petitioner shall handover vacant possession of the premises in dispute to the respondents No. 3 to 5 within these three months.


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