V.B. Raju, J.
1. This is a second appeal by the original judgment-debtor. The respondent had obtained a decree in a suit for possession of the suit premises. The decree was a consent decree and provided that the defendant should hand over the possession of the suit premises to his landlord, the plaintiff, by 11-7-61 if he failed to pay Rs. 129/-and odd as arrears of rent before 11-7-61. The original plaintiff then filed Darkhast No. 112 of 1961 for recovering possession of the suit premises and in that Darkhast proceeding there was a second compromise between the parties and the learned Judge in appeal refers to that compromise as a compromise adjusting the decree and amending the original decree accordingly. He observes that by the new amended decree the defendant agreed to pay arrears of rent and other dues and further agreed to vacate the suit premises on 11 -2-62. A further clause was added whereby the decree-holder agreed that the premises may not be got vacated if the defendant paid mesne profits regularly at the rate of Rs. 18/-. The plaintiff then filed Darkhast on 29-3-62 on the ground that the defendant had failed to hand over possession on 11 -2-62 and on the ground that he had not paid rent or mense profits and that fallen due. The learned trail judge ordered the Darkhast to proceed and rejected the objections of the judgment-debtor.
The appeal to the District Court of Rajkot was dismissed by the Assistant Judge.
I must allow the appeal for the following reasons. Under the original decree which was based on a compromise the judgment-debtor was to pay the arrears of rent at the rate of Rs. 14/- per month and was to hand over possession of the suit premises on 11-7-61 if he failed to pay the arrears of rent. But if he paid the arrears of rent on or before 11 the defendant was to continue in possession.
Some consent decrees may have the effect of creating a statutory tenancy while some consent decrees may not have such an effect. It is observed in Dattatraya Vishnu v. Padmakar 63 Bom. L.R. 148 relied on by the Learned Counsel for respondent as follows:
Where a conditional decree for eviction either by consent or in invitum is passed by the Court the landlords right to eviction becoming effective on the failure of 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 Rents Hotel and Lodging House Rates Control Act 1947 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.
But it is difficult to agree with this view because Section 5(7) of the Saurashtra Rent Control Act 1951 (Act XXII of 1951) so far as relevant reads as follows:
'tenant' means any person by whom or on whose account rent is payable for any premises and includes:
(a) xx xx xx xx
(b) any person remaining after the determination of the lease in possession with or without the assent of the landlord of the premises leased to such person or his predecessor who has derived title before the 20th day of December 1948:
(c) xx. xx xx xx
Sub-clause (b) of this section is substantially in the same terms as Clause (b) of Section 5(11) of the Bombay Rent Act. In such cases admittedly there is a contractual tenancy at the beginning which is followed by the statutory tenancy. Merely by reason of the fact that a suit is filed the statutory tenancy does not come to an end. But a Court has of course the power of terminating the statutory tenancy by ordering possession to be handed over by the tenant to the landlord. 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 to 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 therefore difficult to agree with 63 B.L.R. 148 Dattatraya Vishnu v. Padmakar which is cited by the Learned Counsel for the respondent.
But as already observed the Court has a power of terminating the statutory tenancy by ordering that the tenant should hand over possession to the landlord and by handing over possession. In the instant case the order of the Court was that the tenant should hand over possession to the landlord on 11-7-61 if he failed to pay the arrears of rent. If in the execution of the said decree possession had been handed over either on 11-7-61 or later the statutory tenancy would have come to an end on the date when the possession was handed over.
But in the instant case in the Darkhast No. 112/61 which was given to execute the decree for possession there was a second compromise between the parties. According to the parties the decree was adjusted by a compromise. This is also the view taken by the lower appellate Court which observed that the decree was adjusted by the compromise between the parties and the original decree was amended accordingly.
A decree can be amended only by an appellate Court. It cannot be amended by parties even by consent. Under the guise of an adjustment the decree cannot be amended. The provision relating to adjustment of decrees is contained in Order 21 Rule 2 Civil Procedure Code which reads as follows:
Rule 2. (1) Where any money payable under a decree of any kind is paid out of Court or the decree is otherwise adjusted in whole or in part to the satisfaction of the decree-holder the decree-holder shall certify such payment or adjustment to the Court whose duty it is to execute the decree and the Court shall record the same accordingly.
(2) The judgment-debtor also may inform the Court of such payment or adjustment and apply to the Court to issue a notice to the decree-holder to show cause on a day to be fixed by the Court why such payment or adjustment should not be recorded as certified; and if after service of such notice the decree-holder fails to show cause why the payment or adjustment should not be. recorded as certified the Court shall record the same accordingly.
(3) A payment or adjustment, which has not been certified or recorded as aforesaid shall not be recognized by any Court executing the decrees.
2. The expression used is where the decree is otherwise adjusted in whole on in part to the satisfaction of the decree-holder. An adjustment of the decree therefore must be only to the satisfaction of the decree- holder and it is sufficient if the decree-holder certifies such adjustment to the Court. If the decree-holder certifies such adjustment to the Court, it is not necessary to give a notice to the judgment-debtor. But if the judgment-debtor informs the Court of such an adjustment then notice will have to be given to the decree-holder. It is therefore clear that the adjustment contemplated is an adjustment which should be to the satisfaction of the decree-holder. The adjustment must be in whole or in part satisfaction of the decree. In other words the decree must be extinguished either in whole or in part.
If the decree says that Rs. 150/- shall be payable by the judgment- debtor to the decree-holder an adjustment by consent of both the parties which provides for the payment of Rs. 200/- can never be an adjustment of the decree even if the payment were to be made two years later. Similarly if the decree provides that the possession shall be handed over on 11-7-61 an agreement between the parties whereby the parties agreed that possession may be handed over on 11-7-62 provided an additional amount of Rs. 100/- is paid to the decree-holder cannot amount to an adjustment. If the decree-holder alone informs the Court of such an adjustment such an adjustment cannot be recorded without giving notice to the judgment-debtor. The adjustment contemplated by Order 21 Rule 2 are adjustments which can be recorded on the mere information of the decree-holder without reference to the judgment-debtor. In the instant case although the rent payable by the tenant was at Rs. 14/- per month to the landlord the agreement between the parties provided for the payment of Rs. 18/- per month to the landlord by way of mesne profits and not by way of rent. The amount of the monthly payment and its nature were both sought to be changed by the agreement between the parties. It therefore amounted to clear variation and would therefore be contrary to the provisions of Order 21 Rule 2 Civil Procedure Code.
The same view is taken in Azizur Rahman Choudhury v. Aliraja Choudhury 32 Calcutta Weekly Notes 434 wherein it is held as under:
The adjustment of a decree referred to in Order 21 Rule 2 C.P.C. is such an adjustment as completely or partly extinguishes the decree under execution and cannot mean an adjustment to give effect to the terms of which would be to create a new decree at variance with the decree under execution and which will again have to be executed.
3. The same view was also taken in Kurani Debya v. Jogamaya Debya A.I.R. 936 Calcutta 518 wherein it was observed that an act of the parties agreeing to vary the decree is not an adjustment of the decree.
But it is contended by the Learned Counsel for the respondent that an agreement of the parties whereby they agreed as to the manner in which the decree is to be satisfied although that manner may be different from the manner stated in the decree would not be an amendment of the decree but would amount to an adjustment. Such an agreement would not either wholly or partly extinguish the decree and would not either in whole or in part satisfy the decree as to come within the words of Order 21 Rule 2. The Learned Counsel for the respondent relies on : AIR1936Cal518 Kurani Debya v. Jogamaya Debya, where it is observed that an agreement made by a judgment-debtor with a decree-holder providing for the satisfaction of a decree which differs from the one mentioned in the decree itself is not a variation of the decree directing payment of money but is merely an adjustment to the satisfaction of the decree-holder as contemplated by Order 21 Rule 2(1).
A decree might direct that the judgment-debtor should pay Rs. 1000/- to the decree-holder but by agreement the parties can come to the Court and say that Rs. 400/- out of the decree had been satisfied not by payment of money but by the sale of a buffalo. That would also be a satisfaction of the decree and such an agreement would be an adjustment within the meaning of Order 21, Rule 2. But there must be a satisfaction of the decree in whole or in part. In other words there must be an extinguishment of the decree either in whole or in part. Unless there is such a satisfaction of the decree either in whole or in part it would not be an adjustment within the meaning of Order 21 Rule 2. In the instant case the agreement between the parties dated 29-1-62 would therefore not be an adjustment of the decree as contemplated in Order 21 Rule 2 and no notice can be taken of such an adjustment for the purpose of execution. But at the same time one of the parties can rely on the agreement as an agreement whereby a fresh tenancy is granted.
4. It is true that in the compromise or 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 as held in Ramjibhai Virpal Shah v. Gordhandas 56 Bom. L.R. 365. The words used by the parties are not decisive of the question whether what is granted is a lease or not. According to this term the defendant was to continue in possession and pay Rs. 18/- per month regularly. Therefore the agreement is an agreement of lease because the defendant is allowed the exclusive possession of the suit premises and he was also required to pay Rs. 18/- per month regularly.
Lease is defined thus in Section 105 of the Transfer of Property Act:
A lease of immovable property is a transfer of a right to enjoy such property made for a certain time express or implied or in perpetuity in consideration of a price paid or promised or of money a share of crops service or any other thing of value to be rendered periodically or on specified occasions to the transferor by the transferee who accepts the transfer on such terms.
Both these requirements therefore satisfy the requirements of lease as defined in Section 105 of the Transfer of Property Act. Whatever expression the parties may have used the agreement was one of lease. Therefore by the agreement between the parties a fresh tenancy was created and it is not open to the landlord to get possession from his tenant unless the tenancy was terminated. According to the agreement it would be a lease from month to month.
The Learned Counsel for the respondent relies on a decision of my learned brother Mr. Justice Bakshi in Civil Revision Application No. 505 of 1962 decided on l/2nd November 1962 (Chhaganlal Ramdas v. Mohanlal Jamnadas). Having regard to the terms of the decree my learned brother held that the relationship of tenancy between the parties was not created or continued by the decree. He observed as follows:
In the instant case the terms of the decree considered as a whole do not warrant the conclusion that the relationship of tenancy between the parties was created or continued by the decree. Firstly there is a clear provision in the decree that the tenancy of the petitioner was terminated; secondly there is a clear provision in the decree for handing over possession to the opponent on a specified date; thirdly there is no provision in the decree for payment of an amount by way of rent; fourthly there is nothing to show in the decree that the judgment-debtor was to continue as a tenant during the period from the date of the decree till the date of the last instalment and on failure of payment the tenancy would be terminated; and lastly there is a provision in the decree that on the judgment-debtor paying the instalments regularly the judgment- creditor was to accept the judgment-debtor as a tenant.
In view of these observations it is clear that the facts of the case (decided by my learned brother are quite different from the facts in the instant case.
5. It is next contended by the Learned Counsel for the respondent that there has been appeal against the order of the trial Court ordering that the adjustment of the decree by the consent of the parties be recorded below the decree. He contends that as no appeal is filed against that order this second appeal does not lie. It is also contended that the present appeal does not lie under the provisions of Section 47 Civil Procedure Code if the adjustment by way of an agreement between the parties is contrary to the provisions of Order 21 Rule 2 Civil Procedure Code. In the instant case the Courts below have directed that a warrant should be issued for delivering possession from the tenant to the landlord. It is therefore contended that there is no question relating to the execution discharge or satisfaction of a decree as contemplated by Section 47 Civil Procedure Code. This contention is not correct because if the warrant for possession is issued by a Court when it was not proper for it to do so that would be a question relating to the execution discharge or satisfaction of the decree. That would be a question under Section 47 Civil Procedure Code notwithstanding the fact that no appeal has been filed over the order of the trial Court ordering the agreement of the parties to be recorded below the decree. Both these contentions are therefore rejected. It is open to the defendant to rely upon an agreement arrived at by him with the plaintiff in order to show that the decree is not executable and that after the decree the relationship of landlord and tenant has come into existence. These contentions are therefore overruled.
The appeal is therefore allowed and the order of the Courts below handing over possession to the decree-holder is set aside. No order as to costs.