S.N. Modi, J.
1. This appeal arises out of execution proceedings.
2. Briefly stated the facts of the case are that the decree-holder appellant filed a suit for eviction and arrears of rent on 24-10-1961 in respect of a shop fully described in para 1 of the plaint. The plaintiff sought eviction on two grounds: firstly, that he required the premises reasonably and bona fide for his own business and secondly, that the defendant-tenants had committed three defaults in payment of rent within a period of 18 months. The defendants resisted the suit and filed their written statement on 18-1-1962 denying all allegations made against them.
3. On the pleadings of the parties, the trial court framed issues on 30-7-1962 and adjourned the case to 1-8-1963 for plaintiff's evidence. The plaintiff landlord was examined on 1-8-1963. He examined two more witnesses on 4-12-1963; thereafter closed his evidence and the case was adjourned for defendants' evidence. Several adjournments were sought by the defendants to produce evidence. Ultimately, the parties arrived at a compromise on 30-1-1965. The terms of the compromise are as follows:--
^^1-;g gd oknh dks okdbZ nqdku fooknxzLr dh ilZuy ,.M jhtuscy cksukQkbZM uslsflVh gSrFkk izfroknhx.k us vnk;xh fdjk;s esa eksj nsu Fkzh fMQkYVl fofnu , ihjh;M vkQ ,VhueUFkl~ fd, gSaa A blfy, oknh dk nkok nqdku ds geryk; dk fMxzh Qjek;k fn;k tkos A
2- ;g fdizfroknhx.k dk dkjksckj QSyk gqvk gS vkSj izfroknhx.k dh mxkbZ dkQh QSyh gqbZ gSA mldh olwyh esa izfroknhx.k nqdku fooknxzLr 5 lky&vads;% ikWp lky esa nqdku[kkyh djds oknh dks laHkyk nh tkosxh A ikap lky esa nqdku [kkyh u djus dh lwjres oknh dks btjk djkdj nqdku [kkyh djkus dk iwjk 2 vf/kdkj gksxk A
3- ;g fd[kpkZ Qjhdsu viuk viuk cjnkLr djsaxs A
4- ;g fdrkfcdk eqdnesa ucjh 308@59 eqUlQyk rkjh[k27&4&61 esa tks jde izfr oknh us 102 :i;k tek djkbZ og rFkk 121130iSls izfroknhx.k us eqdnes gktk esa tks tek djkbZ gS oks vnkyr ls okil fudykusdk gd gksxk rFkk 540 :i;s vnkyr ds :o:oknh us ys fy, rFkk 171870&vads;%,d gtkj lkr lkS vBkjg lkj u;s iSls vkt izfroknhx.k ls olwy ik fy, gSa A bl rjgoknh dks rkjh[k 31&1&65 rd ds fdjk;s o ;wt ,.M vksdksis'ku dh jde olwygks xbZ A**
4. The court thereupon passed an order on the same day i.e., on 30-1-1965 in the following words:--
'Counsel for the parties present Compromise filed which has been verified. Hence the plaintiff's suit be decreed according to the compromise. Terms of compromise be entered in the decree. Order pronounced. 30-1-1965.'
The decree was then drawn up in terms of the compromise. When the tenants did not vacate the premises as per their promise in the compromise petition, the plaintiff filed execution petition on 29-1-1970. The tenants challenged the validity of the decree alleging that the same had been passed in contravention of the provisions of Section 13 of the Rajasthan Premises (Control of Rent and Eviction) Act. 1950 and hence the decree was a nullity. The executing court by its judgment dated 27-4-1970 held that the decree was not a nullity and was executable. On appeal by the judgment-debtors, the learned Additional Civil Judge, Jaipur City allowed the appeal and held that the decree was a nullity and it could not be executed inasmuch as it was in contravention of the prohibition contained in Section 13 (1) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950. It is against this order that the present second appeal has been filed by the decree-holder.
5. I have heard the learned counsel for the parties and gone through various Supreme Court Authorities cited before me. After distinguishing the formor three cases namely Bahadur Singh v. Muni Subrat Das, (1969) 2 SCR 432, Kaushalya Devi v. K.L. Bansal, AIR 1970 SC 838 and Ferozilal v. Manmal, AIR 1970 SC 794, Vaidialingam, J., speaking for himself and Dua, J., enunciated the law in K.K. Chari v. R.M. Sheshadri, AIR 1973 SC 1311 in these words:--
'The true position appears to be that an order of eviction based on consent of the parties is not necessarily void if the jurisdictional fact viz., the existence of one or more of the conditions mentioned in Section 10 were shown to have existed when the Court made the order. Satisfaction of the Court, which is no doubt 3 pre-requisite for the order of eviction, need not be by the manifestation borne out by a judicial finding. If at some stage the Court was called upon to apply its mind to the question and there was sufficient material before it, before the parties invited it to pass an order in terms of their agreement, it is possible to postulate that the Court was satisfied about the grounds on which the order of eviction was based.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . But if the tenant in fact admits that the landlord is entitled to possession on one or other of the statutory grounds mentioned in the Act, it is open to the court to act on that admission and make an order for possession in favour of the landlord without further enquiry.'
Sheshadri's case AIR 1973 SC 1311 was further considered by their Lordships of the Supreme Court in Nagindas v. Dalpatram, AIR 1974 SC 471. It was observed:
'............ if at the tune of the passing of the decree, there was some material before the Court, on the basis of which, the Court could be prima facie satisfied, about the existence of a statutory ground for eviction, it will be presumed that the Court was so satisfied and the decree for eviction apparently passed on the basis of a compromise, would be valid. Such material may take the shape either of evidence recorded or produced in the case, or, it may partly or wholly be in the shape of an express or implied admission made in the compromise agreement, itself.'
6. In the instant case there was a clear admission in the compromise justifying eviction of the tenants under Section 13 (1) (a) and (h). This admission was also incorporated in the decree. In these circumstances the executing court was not competent to go beyond this admission. The learned Civil Judge has clearly erred in holding that the decree was a nullity.
7. Mr. Bhandari, learned counsel for the respondent has next urged that as per terms of the compromise, the defendants were to vacate the shop on 30-1-1970 but the decree-holder moved execution petition one day prior to that date i.e., on 29-1-1970. It is contended that in the circumstances the execution petition was premature and is liable to be dismissed. Suffice it to say that this point was not raised either before the executing court or before the first appellate Court. In a second appeal, a new point cannot be allowed to be raised. It appears that a long period has since elapsed and the judgment-debtors waived their right to raise this objection.
8. The appeal is allowed, the order of the Civil Judge is set aside and that of the executing Court is restored.
9. Learned counsel for the respondents prays for leave to appeal to & Division Bench under Section 18 of the High Court Ordinance. Since the judgment is based on the Supreme Court decisions, the prayer is refused.