1. At the outset of the hearing of the matter, Mr. V. J. Desai, appearing for the petitioners (judgment debtors Nos. 1 and 2). stated that no second appeal lay and only revision lay, as decided by a Division Bench of this court in Gandhi Gopaldas Gordhandas v. Bai Lalitabi Marghabhi. : AIR1971Guj270 and, therefore, request that leave the granted to covert this covert this second appeal into a Civil Revision Application and the request has been granted. The appellant will, therefore, be referred to as 'the petitioners' and the respondents will be referred to as 'the petitioners' hereafter.
2. The facts leading rise to this revision petition briefly stated are as under:
3. Opponent NO. 1 filed Civil Suit No. 268 of 1969 against the present petitioners for recovery of arrears of rent to the extent of Rs. 642/-. Agreed amount of rent was Rs. 22/- per month. Opponent No. 2 was joined as a party in that suit on the basis that he was a surety. In that suit, possession in of the leased property was sought from the tenants. on the ground non-payment of rent. IN that suit, parties entered into a compromise and consent decree came to be passed on the basis of that compromise, by the leaned Civil Judge Junior Division, Dohad on 24-12-1968. According to the decree-holder (opponent NO. 1) certain concretion was made in favour of the judgment-debtors. Conditions of concession having not been complied with, the decree-holder had become entailed to execute the decree for possession and eventually sought for possession by executing the decree for possession, passed in the aforesaid suit.
4. The judgment-debtors (petitioners) raised objection and clamed that there was appeal clause. Penalty was provided. They should, therefore, be relieved of forfeiture an the decree for possession should not be executed.
5. The executing Court negatived the contentions raised by the judgment-debtors by its order. dated 13-1-1970. and directed that the Darkhast should proceed further and ordered to issue warrant for possession under Order 21, Rule 35 of the Civil Procedure Code (which will be hereinafter referred to as 'the Code').
6. Being dissatisfied with that order passed by the Executing Court, the judgment-debtors (petitioners) preferred Regular Civil Appeal NO. 6 of 1970 in the District Court of Panchmahals at Godhra. The leaned District Judge on construing the terms of the relevant consent decree, came to the conclusion that the consent decree did not a create a relationship of a landlord and a tenant or the said relations were not even continued by the consent decree. Accessing to him the judgment-debtors were given a concession that the decree for possession shall not be executed provided they paid up the amount of Rs. 375/- in monthly installments of Rs. 125/- payable from 23-1-1969. regularly. Now, in order to be entitled to the concession, they should strictly comply with the conditions before as laid down by the Full Bench of the Bombay High Court in Waman Vishwanath v. Yeshwant Tukram. 50 Bom LR 688 = (AIR 1949 Bom 97 (FB) and the decision of a Division Bench of the Bombay High Court in Gajanan Govind v. Pandurang Keshav. : AIR1951Bom290 . In terms he came where the judgment-debtors were given concession on certain terms which were conditions precedent and consequently. the judgment-debtors had to the entitle themselves to the concession. It is no disputed that the judgment-debtors had not paid the amounts of installments regularly as contemplated by the consent decree and that being so, they are not entitled to the concession now claimed by them. The question of relief against forfeiture, therefore, does not arise in the instant case. In that view of the matter he dismissed the appeal with costs.
7. Being dissatisfied with the order, judgment-debtors Nos. 1 and 2, have preferred the present revision to this Court.
8. Mr. V. J. Desai, appearing for the petitioner urged that the present case fell within thereto of the decision of a Full Bench of the Bombay High court in Krishna Bai v. Hari Govind Kulkarni, (1906) 8 Bom LR 813 and not within the ratio of the decision of a Full Bench of the Bombay High Court in 50 Bom LR 688= (AIR 1949 Bom 97 (FB) ). He urged that if para 4 of the consent decree is read along with para. 1 of the consent decree in question, it is evident that the intention of the parties to the proceeding was to see that payment is secured. with a view to see that the payments is secured penal clues was incorporated. Penal clues was that in case the amounts are not paid as agreed upon a the due dates, the decree-holder will be entitled to execute the decree for possession and recover possession form the judgment-debtors. Mr. Desai submitted that the parties intended to continue the relation ship of the landlord and tenant between the parties and only in case there was default in payment of the amounts agreed upon, by way is penalty it was provided that the landlord will be entailed to get possession by executing the decree in question. That is in substance the nature of the decree submitted Mr. Desai. He also has urged before me that even the Executing court can been give relief against forfeiture. Even if the two Courts bellows have not given this relief against for feature. this Court can grant such relief. Mr. Desai further submitted that an unreported decision of the Court in civil Revn Appln j., after the different of opinion arose between the Judges of the Division Bench of this Court. consisting of S. H. sheth and D. P. Desai, JJ., clearly supported his argument. He also invited my attention to two there decision; One decision of the Bombay High Court and one decision of the Supreme court an done decision of the Supreme court to which I will make reference at an appropriate stage.
9. Before I advert to the authorities cited at the Bar I first propose to refer to the terms of the decree, the interpretation of which will decide the case one way or the other.
10. Para, 1 of the consent-decree in terms states that the defendant do hand-over possession of the suit property subject to the condition following on 23-4-1969. In case the defendant make default in that half the plaintiff is entitled to taken the possession of the suit property by executing the decree from the defendants.
11. Para 2, states that a regards the suit claim, costs and mesne profits upto the date payment of Rs. 475/- in lump has been agreed upon . Towards it, Rs. 100/- have been paid by the defendants to the plaintiff in cash. Balance of Rs. 375/- is agreed to be paid by the defendant to the plaintiff by monthly installments of Rs. 125/- The first installments is to commerce from the 23-11969 and the remaining installments are to be paid accordingly on the date of the following months. It is provided in that para the if defendants make any default therein the plaintiff is entitled to recover that amount by the executing the decree against the defendants.
12. Para 3 of it read:
'From to-day till the plaintiff gets possession of the suit property for use and occupation by way of the means profits, the defendants agreed to give Rs. 22/- per month separately. In case the defendant make default therein, the plaintiff is entitled to recover that amount by executing the decree and in that every, if any Court-fees are to be paid by the plaintiff the defendants ours give credit for the same'.
13. Para 4 of it reads:
'In case the defendants pay regularly all the aforesaid sums to the plaintiff the plaintiff is not entitled to recover possession of the suit property from the defendants and in that the event it is to be deemed that there is on condition of taking possession as stated in para. 1 above'.
It is prayed that such a decree be passed in favorite of the plaintiff against the defendant. It is significant to note that in para. 1 of the consent decree a decree for possession has been passed in favorite of the plaintiff. The decree-holder is entitled to get possession by executing get decree on 23-4-1969. No doubt, the pry of the decree was subject to the terms following thereafter. Terms mention din para 2, made provision from the amount found due including the suit claim and meson profit upto the date of the compromise and that amount was agreed to be paid by monthly installments stipulated therein. A clear provision was made as to what is to be done in case there was default. That amount was agreed to be recovered by executing the decree. In para 3, similar provision was made that mesne profits have to be paid by the defendants every month at the Rate of Rs. 22/- to the plaintiff till the date the plaintiff gets the possession of the suit property. In that very para proviso was made as to what is to be done if there was default in that behalf. It was agreed that it was to be recovered by the plaintiff by executing the decree against the defendants. Even a provision was made for paying the Court-fees for those mesne profits. Para 4 which is the penultimate clause,. refers to the consecution give by the plaintiff to the defendant. In teems it is recited that in that in case the defendant regularly pay all the aforesaid sums. in the event the plaintiff has not to take possession of the suit property from the defendants. It is only in the event it will be deemed the there in no terms regrind taking of possession in para. 1. It is, therefore , evident that this is not a penal clause. It does not impose any penalty,. In my opinion, on careful reading of these four Paras of the consent decree there is no escape from the conclusion that this is not a penal clues; it does not provide for any penalty. It is a concession given to the judgment-debtors by the decree-holder the tin the case the judgment-debtors pay all the aforesaid sums regularly, the decree-holder is not to recover possession of the suit property to which he is entitled an din that event i.e. on fulfillment of those conditions. It will be deemed the conditions in para No. 1 regarding taking of possession has not been entered into, that is. it is non-existent.
14. In my opinion the present case falls within the ratio of the decision of a Full Bench of the Bombay High Court is 50 Bom LR 688 = (AIR 1949 Bom 97) (FB) (supra) and does not fall within the decision of a Full Bench of the Bombay High Court in (1906) 8 Bom LR 813 (FB) (supra).
15. A Division Bench of the Bombay High Court in 53 Bom LR 100 = (AIR 1951 Bom 290 has considered the aforesaid two decision and conclude that there was not conflict in between in those two decisions. they operated tin two different fields. the relevant observations made therein are at page 102. They are:
'The decree in question is a compromise decree and in it was passed by the Civil Judge Junior Division Poona, in Civil Suit No. 551 of 1946 on August 22, 1947. This is suit had been filed by the landlord against his tenant claming to the recover possession of the premises let to the tenant on the ground that the had committed default in the payment of rent. According to the plain the tenant was liable to pay Rs. 84/- as per rent before the date of the suit. By the compromise decree the defendant was order to pay the as mount of Rs. 84/- costs of the suit and the rent which had accrued due since the institution of the suit upto the end of August 1947. It was admitted by the plaintiff that his amounted in all the Rs. 188/- out of the which Rs. 100/- had already been paid by the defendant. In effect therefore the defendant was ordered to pay to the balance of Rs. 88/- and Rs. 4-8-0 as the rent for September. The whole of this amount of Rs. 92-8-0 had to be paid by the defendant before the end of September 1947. On these terms the consent decree allowed the defendant to remain in possession of the premises as a tenant of the plaintiff. The consent decree further provided the tin case the defendant made a default in paying the amount as aforesaid the plaintiff should recover possession of the property thought Court. The judgment-debtor did not pay amount on or before September 30 1947. but paid Rs. 92/- on October 1. 1947. there upon the decree-holder filed the present execution application and clamed to recover possession of there premises on the question. Peddling the hearing of this application the judgment-debtor paid annals eight which he had failed to the pay even on October 1, 1947, and he also tenders in Court the amount of rent which the Court below has dot consider was whether the judgment-debtor should be relieved against for feature.'
It was in content of these of the it fact has been observed at page 103 by Gajendragadkar, J., speaking for the Full Bench :
'There can be no doubt that the present case falls within the principle laid down by the Bench of the this court in Krishna Bai's case (1906) 8 Bom LR 813 (FB). In the said case the plaintiff was seeking to enforce by the suit her right to forfeiture which had been declared in a consent decree. The decree was merle declamatory and could not have been executed. That is why is the decree-holder had to filed a separate suit to enforce the teems of the said decree. The defence raised by the judgment-debtor in the said suit was that the should be relieved against forfeiture and the said plea of the defendant was accepted by the Full Bench'.
It is observed at page 104:
'.............. The Full Bench in Woman's case 50 Bom LR 688 = (AIR 1949 Bom 97) (FB) preferred the view express by Beaumont. C. J. and ruled that the contrary view would adopted by Macleod, C. J. on several occupation should be treated as no longer good law. Shortly stated the view accepted by the Full Bench was that if it appears that the decree in question directs a certain sum of money to be paid by the particular date and adds a condition that if the said month is not paid on the said date, a large sum shall be paid, that condition is in the nature of a penalty against which a Court of enquiry can grant relief and award to the party seeking payment only such damages as may have suffered by the non-performance of the terms as to the payment of the money. On the other hand, if the decree makes a particular sum payable on a curt date and it follows the said direct by a condition allowed to the debtor a concession, as for example, the liberty to pay a lesser sum or to pay the said sum by installments,. then the party who seeks to taken advantage of that to concession must carry out strictly the conditions on which the concession was grand. If the terms on which the concession was thus given are not carried out, there is not power in the Court to relieve the defaulting party from the obligation of so doing'.
16. A Division Bench of this Court . consisting of S. H. Sheth and D. P. Desai JJ. in : AIR1971Guj270 (supra) has also taken the same view observing:
'The questions which naturally in execution of decree of such types which contain penal of forfeiture clause are: whether the decree contains a penal clause, whether the judgment-debtor is entitled to relief against forfeiture, whether the decree bodies independent agreement as to the delivery of the possession so as to secure payment of arrears of rent and compensation contemplated by the agreement or whether it is a decree for possession our-right in execution of which possession of the suit premises can be recovered.
There are two judicial pronouncements on the question:
(1) Whether a decree passed ether by consent of invitum, permits payment of the decorate amounts in instalments and provides that on failure of 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 its terms. and are not at liberty to relieve against the consequences of failure on equitable considerations except against penalties or against forfeitures. In such case, the Court has to determine whether a certain obligation undertaken by a judgment--debtor is in the nature of a penalty or whether it is the result of a concession conferred upon him by the decree-holder. A Court of equity can grant relief against a condition which is in the nature of penalty but if the decree-holder has conferred concession upon the judgment-debtor in case the latter fulfills the obligation undertaken by him within a specified time and if the judgment-debtor does not duly fulfill his obligation. he loses the concession and the Court has no jurisdiction to grant any relief to him in such a case.
(2) The Court can grant relief against forfeiture if. under the consent decree, the status of landlord and tenant between the parties has arisen from contract or custom.
Thus, where the relationship of landlord and tenant was created or continued between the parties by a compromise decree, the judgment-debtor (tenant) would be entitled to relief against forfeiture resulting form his failure to pay the rent at the stipulated time.
It is, therefore, for the executing Court to decide whether the case with which it is dealing attracts the ratio laid down in Krishnabai's case, (1960) 8 Bom LR 813 (FB) or in Waman Viswanath's case. 50 Bom LR 688 = ( ( air 1949 Bom 97) (FB).
In my opinion, if I may say so with respect. this decision correctly lays down the ratio.
17. I will now refer to the unreported decision of Divan, J. in Civil Revn. Appln. No.1393 of 1970, decided on 23.12 .1970 (Guj) relied upon by Mr. Desai in support of this arguments. Divan J., has considered all these decisions and has laid down the same ratio, as stated earlier by me, by quoting the observations made by the Division Bench of this Court in the aforesaid decision. the relevant observations made in regard to the terms of the decree, which divan. J. was called upon to construe. are as under:
'In the instant case it is clear that though originally the plaintiff-landlord had filed a suit praying for a decree for eviction against the defendants-tenants and also praying for arrears of rent under the terms of the compromise decree it was only provided that by agreement the arrears of rent had been fixed at rupees 500/- as a lump sum, though in fact they were much more, and also it was provided that the arrears of rent should be paid by instalments of Rs.18/- each. In case any tow instalments were not paid by the tenants then a provision was made in the decree that the decree-holder would be entitled to recover procession of the rented premises. It should be borne in mind that under the consent decree, no decree for possession was passed in favour of the landlord with a further provision that in case the amount, of arrears of rent was paid by regular instalments without committing a default, possession was not to be obtained. Thus it was not a case of a concession being given to the tenant in case he aid up the arrears of amount by regular instalments on due dates. But what was provided by the consent decree was that this amount of arrears of rent should be paid by instalments of Rs.18/- each and in case of default being committed in payment of any two instalments the much heavier loss of possession of the suit premises was to follow. Thus it was a case of money decree payable by instalments with the condition imposed that if default was committed in payment of any two instalments the penal clause was to follow and as pointed out by Sir John Beaumont in Burjori's case, (AIR 1934 Bom 370) which was followed by the full Bench in Woman's case, 50 Bom LR 688 = (AIR 1949 Bom 97) (FB), it was open to the executing court to grant relief against such penal clause. It should be noted that in the instant case the Court of the first instance has relieved against forfeiture and has granted relief to the judgment-debtor by providing that if the amount of arrears was paid upto date on or before a particular date the warrant for possession should not be executed against him at all. In my opinion, in passing the order that he did the trial Judge has correctly followed the principle laid down by Sir John Beaumont in Burjori's case and by the full Bench in Woman's case and by the subsequent Division Bench in Gajanan's case. : AIR1951Bom290 '.
In the instant case, as said earlier a decree for possession in terms has been passed. By para 4, a concession is that in case the tenant pays all the aforesaid sums regularly, the plaintiff has not to take possession of the suit property from the defendant and in that event, it is to be deemed that the condition of taking possession mentioned in para 1 has not been existing. In my opinion, this is a clear case of a concession. It is not a case of penal clause. The judgment-debtors would, therefore, be entitled to get the concession only if the conditions agreed upon are fulfilled. They are to be strictly fulfilled. admittedly, the conditions have not been fulfilled. The judgment-debtors are, therefore, in my opinion, not entitled to the concession granted. It being not a case of penalty, there is no question of relieving against forfeiture.
18. Mr. Desai invited my attention to the decision of the supreme Court in Lala Praduman Kumar v. Virendra Goyal. : 3SCR950 . The ratio of that decision is:
'The covenant of forfeiture of tenancy for non payment of rent is regarded by the courts as merely a clause for securing payment of rent, and unless the tenant has by his conduct disentitled himself to equitable relief the Courts grant relief against forfeiture of tenancy on the tenant paying the rent due, interest thereon and costs of the suit.
In terms, section 114 (Transfer of Property Act, 1882) makes payment of rent at the hearing of the suit in ejectment a condition of the exercise of the Court's jurisdiction but an appeal being a rehearing of the suit, in appropriate cases it is open to the appellate court at the hearing of the appeal to relieve the tenant in default against forfeiture. Passing of a decree in ejectment against the tenant by the court to grant of First Instance does not take away the jurisdiction of the appellate Court to grant equitable relief'. There is no dispute about the proposition enunciated therein. In the instant case, as said earlier, the question is whether under the consent terms concession is given and that concession is available if certain conditions are fulfilled or it provides for penalty.
19. Mr. Desai also invited my attention to the decision of a Division Bench of the Bombay High Court in Krishnarao Pandurang v. Balvant Keshav, AIR 1925 Bom 404, where in it is observed:
'Although an executing court cannot modify or vary the terms of a decree, it has power to relieve a party to a decree against the consequences of his default in not observing the obligations imposed upon him by a decree.'
This decision also is not helpful for deciding the question that is posed before me.
20. Mr. Desai also invited my attention to a the decision of this Court in Chhotalal Davalji v. Bai Labhkunver Dahyabhai, (1963) 4 Guj LR 710, Raju, J, has observed therein:
'Merely by reason of the fact that a suit is filed, the statutory tenancy does not come to an end. Until the possession is handed-over either voluntarily or by the court the statutory tenancy continues. The clause in the decree that possession should be handed-over makes no difference in this position. It is only when possession is handed-over that the statutory tenancy comes to an end as a result of the operation of the order of the Court. If in pursuance of the decree passed by the Court the tenant is not evicted, the statutory tenancy continues until he is evicted.'
It is further observed therein:
'The words used by the parties in the agreement are not decisive of the question whether what is granted is a lease or not. In the compromise or the agreement between the parties the decree-holder agreed that the premises may not be got vacated if the defendant pays mesne profits at the rate of Rs.18/- per month regularly. although the word 'mesne profits' has been used, the agreement may amount to a lease.'
In my opinion, this decision also is not very helpful for deciding the question that is posed before me.
21. I have referred to the decision of the Full Bench of the Bombay High court and on construing the terms of the consent decree, it appears that the case falls within the ratio of Woman's case. 50 Bom LR 688 = (AIR 1949 Bom 97) (FB).
22. It has been urged finally by Mr. Desai that the decree in question which is a consent decree, is a nullity, as there is a fetter on the jurisdiction of the court under the relevant provisions of the Act. Section 13 of the Act lays down:
'(i) Notwithstanding anything contained in this Act but subject to the provisions of Section 15 a landlord shall be entitled to recover possession of any premises if the court is satisfied.......... In the instant case, in the consent terms, there is no mention made expressly that the Court is satisfied that the present case falls under one of the clauses mentioned in Section 13 of the Act.
23. Section 12 (1) of the act reads:
'(1) A landlord shall not be entitled to the recovery of possession of any premises so long as the tenant pays or is ready and willing to pay, the amount of the standard rent and permitted increases, if any, and observes and performs the other conditions of the tenancy, in so far as they are consistent with the provisions of this Act.'
Mr. Desai submitted that this section also puts fetters on the jurisdiction of the Court. He, therefore, urged that there would be no difference in the case when possession is sought for, on one of the grounds mentioned in Section 13 of the Act or possession is sought on the ground of non-payment of rent. In both the cases, tenant cannot waive any of the rights given under the Act. He, therefore, contended that in the absence of any express statement made by the court which passed the decree on the basis of the consent terms. that the tenant was not entitled to protection on the basis of the provisions of Section 12 or section 13 of the Act, the decree is a nullity and the executing court would not be justified in executing such a decree which is a nullity.
24. In support of his submission, Mr. Desai invited my attention to certain observations made by a division Bench of this court in second appeals Nos. 1037 of 2965. 866 of 1964, etc., decided on 10th/11th November. 1970 (Guj). The Division Bench consisted of J.B. Mehta and D. A. Desai, JJ. all the three decisions of the supreme court have been referred to therein. several English decisions have also been referred to therein. It is observed therein:
'It is true that the relevant provision of the Delhi Rant Control Act in Section 13 is a composite section, which combines Sections 12 and 13 of the Bombay or Saurashtra Rant Act. It is also true that his relevant Section 13 (i) starts with a non-obstante clause that notwithstanding anything to the contrary contained in any other law or any contract, no decree of eviction shall be passed by any court in favour of the landlord against any tenant unless the Court is satisfied of one or the other of the catalogued grounds. As we have already pointed out, in such a public welfare statute even on the ground of general public policy, this prohibition against contracting out would always have to be implied because such a statute is not intended only for personal or individual protection but on wider public policy grounds must have an extended operation.'
It is further observed therein:
'without such a satisfaction, the court is incompetent to pass a decree for possession. In other words. The jurisdiction of the court to pass a decree for recovery of possession of any premises depends upon its satisfaction that one or more of the grounds mentioned in Section 13 (1) have been proved. In the case before their Lordships at no state the Court was called upon to apply its mind to the question whether the alleged ground of sub-letting was true or not. The order made by the Court did not show that it was satisfied that sub-letting complained had taken place not was there any material on record to show that it was so satisfied. In these circumstances their Lordships held that from the record it was clear that the Court had proceeded solely on the basis of the compromise arrived at in passing this eviction decree,. and therefore, such a decree under execution must be held to be a nullity.'
It is further observed therein:
'Therefore in all such rent control statues the public policy would itself require the Court to read this fetter on the rent Courts' general jurisdiction to pass a decree of eviction only if it was satisfied of one or the other of the relevant grounds under the Rant Act. No difficult in the applicability of the ratio could be made out merely because the scheme of the Delhi Rent Control Act in Section 13 was to enumerate all the grounds in one composite Section 13, while the scheme under the Bombay or Saurashtra Act was to split up the case in two different Sections 12 and 13. No difficulty would also be made out merely on the ground that the expression 'court is satisfied' is used in Section 13 and is not used in Section 12. The whole jurisdiction of the Rent Court exists only when the relevant ground exists only when the relevant ground exists which would permit eviction of the tenant, notwithstanding the protection of this public welfare measure. It is only if the tenant is not within the four corners of this Act that he loses protection and the Rent court would have jurisdiction to pass a decree of eviction. In such cases the tenant could never renounce this protection by waiving the benefit of this Act and his consent equally would be immaterial to confer jurisdiction on the Court to pass a decree of eviction merely on the basis of the consent terms or in the case of a private award to confer such jurisdiction on an arbitrator. It should also be noted that their Lordships have not overruled the earlier decisions, which, we have already referred to, where a clear distinction is made in such case because they fall clearly within the second category of cases envisaged by Lord Esher M.R.' The ratio which has been laid down by the Division Bench of this Court is in the following terms:'If therefore, there is foundation for the 'exercise of jurisdiction of the Rent Court, the eviction decree could not be treated as a nullity merely on the ground that the satisfaction of the Court could not be based on consent of the parties. This argument of the learned Advocates for the tenants clearly ignores Section 58 of the Evidence Act which in terms provides that the facts admitted need not be proved. When there is no doubt as to the genuineness of the admission, the admission would furnish the best proof in such adversary proceedings, especially when the parties are represented by the Advocates.'
It is further observed therein:
'If these relevant terms in the consent terms provide the basis or foundation by showing the existence of the relevant grounds under the Act, it would be for the Court concerned to be satisfied as to the existence of the relevant ground under the Act. Merely because the court commits an error in so satisfying itself or merely because its satisfaction is not expressly recorded or the materials on the record are inadequate for such satisfaction, the consent decree could not be said to be a nullity, so long as there is foundation for invoking the jurisdiction of the Rent Court.'
It is further observed therein:
'Therefore, the view of our learned Brothers Divan. J. and shah J. that if the satisfaction is not indicated by the Rent Court either in the decree or in the order recording compromise terms, the decree would be a nullity, would not, aforesaid ratio of the three latest decision of the Supreme Court, which were only in the context of the forbidden decrees passed on the award terms or compromise terms and which we have already referred to. If the Court had not properly expressed its satisfaction, that would be no ground for treating the decree as a nullity, so long as the decree shows on the face of it that the Rent Court had remained within its mandated area and had not gone outside its area of jurisdiction.'
The test laid down by the Division Bench in this decision is fully satisfied in the instant case. It is significant to not that in the instant case in para. 2 of the decree, there is clear mention that for the suit claim and mesne profits upto date, amount of Rs.475/- has been agreed to be paid in lump. It is significant to note that the recovery of possession was sought on the ground of non-payment of rent for the period over six months. Agreed rent was Rs.22/- per month. This is not merely a decree for money passed. The decree for eviction in terms has been passed. It is therefore, evident that the rent Court was acting within the mandated jurisdiction of it. It cannot, therefore, be said that his decree was a nullity. The present case falls within the ratio of the aforesaid decision of the Division Bench of this Court and, in my opinion, this is not a case where possession was in tended to be given only by way of penalty in case there was some default made in paying the future instalments. Neither the relationship of landlord and tenant is created or continued.
25. In an unreported decision in Civil Appeal No.372 of 1965 decided on 7.12.1967, the Supreme court had to consider the following question:
'The only point raised before us whether the compromise decree created a lease or a licence, It is common ground that if a lease was created the judgment-debtor would be entitled to protection against being ejected by virtue of the provision of Orissa House Rent Control Act (Orissa Act XXXI of 1958) - hereinafter referred to as the Act.
The terms of the compromise were follows:
1. Respectable people have settled the subject-matter of this appeal and the suit and so both parties agreed to compromise as follows:
(a) That the defendant-respondent should vacate the suit house on or before 1st July, 1960 (five years) failing which the appellant plaintiff will be entitled to execute this decree and recover possession of the suit house through Court after the date fixed above.
(b) That is respect of all arrears of rent claimed in the suit and the rent due during the pendency of the suit and of this appeal, as calculated up to 30th June, 1955 the defendant has paid to the plaintiff the sum of Rs.1,125 only (Rupees one thousand and one hundred twenty-five only)
(c) That in respect of future rent, i.e. with effect from 1st July, 1955 the defendant shall pay to the plaintiff at the rate of Rs.50/- a month by the end of each month until delivery, and a sum of Rs.300/- is paid to plaintiff to be kept as deposit for six months rent to be adjusted towards rent for the period of last six months ending with 1st July, 1960.
(d) In case the defendant fails to pay the rent for any three consecutive months the plaintiff will be at liberty to adjust the advance towards arrears and also to evict the defendant from the suit house without waiting till 1st July, 1960 by executing the decree and also realise the amount accrues due by then, from the defendant by executing this decree;
(e) That the house fall to the share of a minor son of plaintiff-appellant, namely Konchada Koteswarrao for whom the appellant-plaintiff-appellant will be responsible for the due compliance of the terms of this compromise.'
After referring to several Indian as well as English decision it is been observed:
'Keeping in mind the above observations, what was the intentions of the parties? It seems to us that the fact that the decree-holder had brought a suit for ejectment of the judgment-debtor and that a compromise was entered into in that suit is important. It is difficult to impute to him an intention to create a fresh tenancy while the fact that he brought the suit shows that his intention was to eject the judgment-debtor after having purposed to terminate the tenancy.
Coming to the terms of the compromise. it is true, as stressed by the learned counsel for the respondent that the word `rent' has been used but the word `rent' is not conclusive, for as observed by this Court in State of Punjab v. British India Corporation Ltd. : 2SCR114 `in its wider sense rent means any payment made for the use of land or buildings and thus includes the payment by a licensee in respect of the use and occupation of any land or building. In its narrower sense it means payment made by tenant to landlord for property demised to him.'
The learned counsel further stresses the point that Rs. 300/- were paid as deposit for six months rent `to be' adjusted towards rent for the period of last six months ending with 1st July. 1960', but it seems to us that that amount was really paid as a security for the amounts due under the compromise deed, as it was only to be adjusted against the rent for the six months. But what is very significant is clause (d) which enables the decree-holder to execute the decree if the judgment-debtor fails to pay rent for any three consecutive months. This. it seems to us, shows that the intention of the parties was not to enter into the relationship of a landlord and tenant. We may mention that the importance of this fact was adverted to in Sumatibai Waman Krilikar v. A. B. Shirgaokar, (AIR 1949 Bom 402-404) where Chagla. C. J.. observed :
`On the failure of the defendant to pay any of the amount which is fixed as rent on its due date, the only right the decree gave to the judgment-creditor was to have it executed for the amount which remained due; it did not entitle the judgment-creditor to take possession of the land on default of payment of rent.' The High Court stressed the fact that a long period of five years was granted to the judgment-debtor for continuation of the possession. In our view, the length of the period in the circumstances, does not militate against the construction that the compromise only created a license, for the decree-holder apparently had lost in the trial Court and it was only in the Court of appeal that this compromise was arrived at.
For the aforesaid reasons we hold that the compromise deed did not create a lease. Therefore, the judgment-debtor is not a tenant within Section 2 (5) of the Act which defines `tenant to mean.'
26. The result is that the two Courts below have rightly construed the consent decree and have rightly ordered to proceed further with the Darkshat and consequently. rightly ordered to issue warrant for possession under O. 21, R. 35 of the Civil Procedure Code. The revision petition, therefore fails.
27. The revision petition is dismissed. The petitioner to pay the costs of opponent No. 1 in the revision petition. Rule is discharged.
28. At the request of the petitioner's Advocate, three months' time for vacating and handing-over the possession of the suit property is given to the petitioners on condition that they deposit all the amount due upto date within two weeks from today. Warrant for possession that may have been issued or may be issued, not to be executed for a period of three months on the fulfilment of the aforesaid condition.
29. Rule discharged.