S.K. Mal Lodha, J.
1. This is a revisional application under Section 115 C.P.C., by the decree-holders against the order of the learned District Judge, Bikaner dated March 6, 1974 by which he set aside the order dated October 4, 1913 passed by Munsif, Bikaifer in Execution Case No. 105 of 1972 by which the objection of the judgment-debtor with regard to the excitability of the decree was dismissed.
2. The decree-holders-petitioners obtained a decree against the non-petitioner-judgment-debtor for arrears of rent and ejectment. The non-petitioner preferred an appeal in which a compromise was arrived at between the parties. As a result of the compromise, the decree passed by the learned Munsif was modified and the compromise was made part of the decree. It may be stated here that the landlords-petitioners sought ejectment on the ground of default in payment of rent The term's of the decree, which arc ?relevant for the disposal of this revision, are these.
The appeal of the appellant is partially accepted. The impugned judgment and decree are modified to the extent that the plaintiff respondent shall not be entitled to get the suit house vacated from the defendant appellant so long as he continues to pay the monthly rent of the suit house to the plaintiff
... ... ... ...It is further directed that if the defendant makes any default in making payment of the rent of the suit house the plaintiff shall be entitled to get possession of the suit house from the defendant appellant through court through execution proceedings. The compromise filed by the parties shall be part of the decree.
The relevant Part of the compromise is also reproduced below:
1& ;g fd vihykaV us jsLiskMsUV ls dqy tsj fMxzh 750@& vnkyr olwyh es vnk dj fn;s gS 'ks'k jde fnukad 3&3&72 dks vnk dj nh tkosxh A
2& D;ksfd vc vihykaV gj ekg fdjk;k jsLiskMsUV dks vnk djrk jgsxk ml lwjr es jsLiskMsUVku vihykUV ds f[kykQ bUnzjkt dks dk;Zokgh ogka dj ldsxk A
vihykaV dk ,d ekg dk gh fglkc dj nsus dh lwjr es jsLiskMsUVku dk;Zokgh bUnzjkt djk ldsxk A
According to the decree-holders, the judgment-debtor paid the entire amount of costs and rent upto March 31, 1972 An application for execution of the ejectment part of the decree was filed on May 17, 3972 stating that the judgment debtor has failed to make payment of rent for the month of April, 1972. The case of the decree-holders was that amount of rent of the aforesaid month was neither tendered for paid and thus the judgment debtor committed a default and failed to comply with the terms of the decree passed on compromise and, therefore, they are entitled to get possession of the suit premises from the judgment-debtor. On July 8, 1972, the judgment-debtor submitted an objection petition stating that he has been paying rent according to the decree of the appellate court and on refusal by the landlords to accept the rent and to issue receipt, rent has been regularly tendered through money-order. He, there fore, prayed that the proceedings for eviction be stated and it be declared that the decree is in executable. The decree-holders submitted the reply on August 12, 1972, inter alia contending therein that the decree for arrears of rent and ejectment was maintained in appeal and the parties had only entered into compromise with regard to the mode of satisfaction of the decree. According to the decree-holders, as the judgment-debtor has failed to comply with the mode of satisfaction mentioned in the decree and has failed to make payment of rent to them, they were within their rights to get the decree executed On 7-10-1972 an application was moved on behalf of the decree-holders stating the details of the defaults committed by the judgment-debtor. In this connection, it may be stated here that according to the decree-holders, six month' rent amounting to Rs. 120.10 had become due upto 30-9.72 whereas the judgment-debtor had paid only in respect of two months namely, April and May, 1972. The learned Munsif, after recording the evidence of the parties and hearing arguments by his order dated 4-10.1978, dismissed the objection of the judgment-debtor and held that the decree holder are entitled to excuse the decree The learned Munsif was of the opinion that the terms of the decree passed by the appellate court en the basis of the compromise merely suggests that the judgment debtor was allowed concession and there is no penal clause in the compromise decree in respect of which any relief against forfeiture may be allowed to him Feeling aggrieved by the aforesaid order of the learned Munsif, the judgment-debtor filed appeal. The learned District Judge accepted the appeal and sec aside the order of the learned Munsif and ordered that the decree-holders are not entitled to proceed with the execution of the decree for ejectment unless the judgment debtor fails to deposit the arrears of rent upto March 15, 1974. Against the appellate judgment dated March 6, 1974, the decree-holders have preferred this revision.
3. I have heard Mr. R.P. Dave for the petitioners and Mr. R.R. Nagori for the non-petitioner and have also perused the record of the case.
4. This revision was presented on July 1, 1974. The Code of Civil Procedure, 1908 was amended by the Code of Civil Procedure (Amendment) Act, 1976, and came into force from February 1, 1977. Reference hereinafter co the various provisions of the Code of Civil Procedure 1903 will be to the provisions as they stood prior to its amendment by the Code of Civil Procedure (Amendment) Act, 1976. Section 2(2) defines 'decree'. The determination of any question within Section 47 is expressly included in the definition of the 'decree'. Though such determination is neither made in a suit nor n drawn up in the form of a decree, Section 47 C.P.C. provides for questions to be determined by the court executing the decree. Sub-section (1) of Section 47, C.P.C. says that all questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of she decree, shall be determined by the Court executing the decree and not by a separate suit. The question whether a decree is capable or incapable of execution is prominently one coming under this Section and a decision on such a question is a decree. The judgment debtor preferred objections praying therein that it be declared that the decree is in executable. The objection was dismissed and, therefore, the decision on the question that the decree is executable was a decree as that order decided the rights of the parties with regard to the matter in controversy in the proceedings under Section 47, C.P.C. At the objection covered by Section 47 was dismissed, the judgment-debtor rightly preferred an appeal before the learned District Judge on October 23, 1973 under Section 47/96, C.P.C. That appeal was allowed by the learned District Judge by the order under revision. In these circumstances, the decree holders should hive preferred second appeal against the appellate judgment under Section 100, C.P.C. as the order passed by the executing court holding that the decree was not in executable amounted to a decree under Section 2(2) read with Section 47, C.P.C. and that order was set aside by the appellate court holding that the decree-holder are not entitled to proceed with the execution of the decree for ejectment unless the judgment debtor fails to deposit the arrears of rent uoto March 15, 1974. The decree-holders, instead of preferring an Execution Second Appeal, filed a revision. No revision lies under Section 115, C.P.C., against the order against which an appeal lies as Section 115 C.P.C. provides that the High Court may call for the record of any case which has been decided by any court subordinate to such High Court and in which no appeal lies thereto. In these circumstances, the revision preferred by the decree-holders under Section 115, C.P.C. is not maintainable.
5. In the memo of revision, it has been stated that both the lower courts have not drawn any decree and as such, the decree holders are preferring this revision petition and if this Court comes to the conclusion that only second appeal lies, this revision may be ordered to be converted into second appeal. It is well settled taht where an appeal lies but only a revision is filed, the High Court can treat such revision as an appeal under Section 47, C.P.C. and dispose it of accordingly.
6. Learned Counsel for the decree holders contended that the learned District Judge has completely faild to consider the mist important fact that it was not necessary for them to enter into a compromise simply to secure regular payment of the rent because of the provisions of the Rajasthan Premises Control of Rent and Eviction) Act, 1950 (hereinafter referred to as the Act), which are very clear that if any tenant fails to make payment of rent for six months, he will render himself liable to be evicted under Section 13(1)(a) and that the decree-holders had obtained decree in their favour and they would not enter into a compromise which would, in future, reader the decree in executable and futile. He further contended that the learned District Judge committed a serious error of law in holding that the decree-holders by coir promise, had not given any concession to the judgment-debtor but it is in the nature of penalty and forfeiture clause According to the learned Counsel, the decree passed by consent permitted the judgment-debtor to live in the suit premises so long as he did not make any default in payment of the rent for any month and further provided that on failure in payment, the decree for ejectment would become executable at once and, therefore, in the event of such failure, the court is bound to execute the decree in accordance with its terms and could not relieve against the consequences of failure on equitable considerations According to the learned Counsel, no fresh tenancy came into existence and the terms provided in the decree on the basis of the compromise were not penal. In support of his arguments, learned Counsel placed reliance Konchada Ramnmurty Subudhi v. Gopinath Naik and Ors. : 2SCR559 , Doshi Kantilal Kanaiylal and Anr. v. Modiya Chandulal Chhotalal and Anr. AIR 1973 Guj. 80 and Nonjibhai v. Ramkishan and Ors. : AIR1977MP112 , Mr. R.R. Nagori learned Counsel for the judgment-debtor on the other hand vehemently argued that the condition in the decree that the decree-holders would be entitled to get the possession of the premises in suit through court by levying execution if the judgment-debtor makes any default in making payment of the rent was with an object to secure regular payment of rent and the appellate decree passed on compromise cannot be said to be decree for ejectment as such According to the learned Counsel, the tenancy which was terminated, was revived and a fresh tenancy came into existence on entering into the compromise and if She condition is allowed to operate, it would create hardship to the judgment-debtor. The stand taken by the judgment-debtor comes to this tint the term contained in the decree is penal and relates to forfeiture clause and the judgment debtor should be relieved of the same; and that the appellate decree dated March 6, 1974 passed on the compromise was in violation of Section 13(1) of the Act as from it, it is not clear that the court was satisfied with regard to one or more of the grounds entitling the decree-holders to evict the judgment-debtor. Learned Counsel invited my attention to Krishanabai v. Hari Govind and Anr. ILR XXXI Bom. 15, In re vishwanth M. Hegde : AIR1951Bom290 and Gandhi Gopaldas v. Gorachandas : AIR1971Guj270 . He submitted that even if there was any default in payment of rent by the judgment-debtor as contemplated by the appellate decree dated Match 6, 1974, the decree holders accepted the rent and, therefore, there was waiver of the default. In this connection, he placed reliance on Bunda v. Smt. Hashmat .
7 Before examining the rival contentions raised by the learned Counsel for the parties, it would be convenient to refer to the findings arrived at by the learned District Judge:
(1) that in the instant case, upto May 15, 1972, no payment wa made or tendered by the judgment-debtor. So in any case, default was committed by him; and
(2) that it would appear from the terms of the appellate decree dated March 6, 1974 that what was intended was to secure regular payment of rent and that by entering into such a compromise, a fresh contract or tenancy had arisen or the existing tenancy was allowed to continue and as such, the judgment-debtor is entitled to relief against forfeiture resulting from his failure to pay rent at the stipulated time.
8. I will first examine whether the decree pissed by She learned District Judge, Bikaner on April 1, 1972 was a nullity and could not be executed as iron its perusal, it is not clear that one or more conditions for eviction under Section 13(1) of the Act were satisfied. The suit for eviction and arrears of rent was decreed against the judgment debtor by the Munsif, Bikaner on January 4, 1972 The material portion of the decree passed by the Munsif is,-
nkok oknh;ku rkjh[k nk;j nkok rd fdjk;k 30 iSls------------------------bykok bUryk; edku ftldk fooj.k fuEufyf[kr gS fMxzh fd;k tkrk gS A-----------------------------bUryk; edku dh /kkjk 138 ds vuqlkj oknh fu;ekuqlkj djok ldsxs A Rajasthan Premises (Control of Rent and Eviction) Act 1950
On appeal by the judgment-debtor, a compromise was entered into. The relevant portion of that compromise his already been reproduced above. On the bans of that, compromise decree was pissed. The relevant terms of the decree passed on the basis of the compromise hive also been referred to above. It is true that the existence of one of the statutory grounds mentioned in Section 13(1) of the Act is a sine gna nan to the exercise of jurisdiction under the Act In order to enable the court to pass a decree for eviction. It was held in Nagindas Ramdas v. Delpatram Iccharam alies Briram and Ors. : 2SCR544 that if at the time of passing a decree, there was some material before the court on the basis of which the court be prima facie satisfied about the existence of statutory ground for eviction, it would be presumed that the court was so satisfied and the decree fir eviction, though apparently pissed on the basis of the compromise, would be valid, and that 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 express or implied admission made in the compromise agreement itself This decision was followed in Roshanlal v. Madanlal 1976 RCR 112 in which it was observed that the compromise must indicate either on its face or in the back ground of other material in the case that the tenant expressly or impliedly is agreeing to suffer a decree for eviction because the landlord, in the circumstances, is entitled to have such a decree under the law. The matter was again examined in Suleman Noor Mohamea etc. v. Umarbhai Janubhai 1978 (2) RCR 12. His Lordship Untwalia, J., speaking for the Court, observed as under,-
While recording the compromise under Order XXIII Rule 3 of the Code, it is not necessary for the Court to say in express terms in the order that it was satisfied that the compromise was a lawful one. It will be presumed to have done, so, unless the contrary is shown.
The facts clearly show that he had incurred the liability to be evicted under the said provisions of law and the compromise decree was passed on the tenant's impliedly admitting such liability....
The decree for arrears of rent and ejectment was passed by the trial court on January 4, 1972 and by consent, the judgment-debtor got it modified that the decree-holders shall not be entitled to get the suit house vacated from the judgment-debtor so long as he continues to pay the monthly rent of the suits house to the decree-holders and that if the judgment debtor commits any default in making payment of the rent of the suit house, the decree-holders shall be entitled to get its possession from the judgment-debtor through court through execution proceedings. It is, therefore, clear that there existed statutory ground for eviction when the decree for ejectment was passed by the Munsif on January 4, 1972. Keeping in view the law laid down by their Lordships of the Supreme Court in the aforesaid decision and the circumstances leading to the compromise between the parties. In the appellate court aid the terms of the decree passed by the appellate court on April 1, 1972, it is futile for the learned Counsel for the judgment debtor to contend that the decree dated April 1, 1972 does not show that there existed any statutory ground under Section 13(1) of the Act for evicting the judgment-debtor. The argument of the learned Counsel that the decree dated April 1, 1972 was pissed on the basis of the compromise is a nullity and therefore it could not be executed, is not tenable. The learned District fudge was, therefore, right in my opinion when he came to the conclusion thit the argument raised on behalf of the judgment debtor that the decree dated April 1, 1974 was in violation of Section 13(1) of the Act is devoid of any force.
9. Before I advert to the authorities cited at the Bar, I first propose to examine the terms of the consent decree passed by the appellate court on April 1, 1972. The Munsif decreed that suit for arrears of rent and ejectment on January 4, 1972. The appeal of the judgment-debtor was partially allowed and the judgment and decree passed by the Munsif were modified. The modification was to the extent that the plaintiff-respondent (decree holders) shall not be entitled to get the suit house vacated from the defendant appellant (judgment debtor) so long as he continues to pay the monthly tent of the suit home to the plaintiff and a further direction was made that if the defendant (judgment-debtor) makes any default in making payment of the rent of the suit house, the plaintiffs (decree-holders) shill be entitled to get possession of the suit house from the defendant (judgment-debtor) 'through court through execution proceeding' (not happily worded). It is, therefore, clear that the decree for ejectment cement which was passed in favour of the plaintiffs (decree-holders) was maintained. This was, of course, subject to the terms mentioned above. In case the judgment-debtor regularly paid the monthly rent, the decree-holders were not entitled to take possession of the suit property. This is farther borne out from the subsequent direction made in the consent decree dated April 1, 1972 that incase of default in payment of monthly rent, the plaintiff decree-holder shall be entitled to get possession 'through court through execution proceedings.'
10. Amongst others, the following two terms of the compromise on the basis of which a decree was passed, came up for consideration before then Lordships of the Supreme Court in Konchada Ramamurty's case : 2SCR544 ,-
(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) ... ... ... ... ... ... ... ... ...(c) ... ... ... ... ... ... ... ... ...(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) ... ... ... ... ... ... ... ... ...
and it was observed then in,.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 purported to terminate the Tenancy.
It was further held,-.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 aid tenant....
In the circumstances of that case, it was held that the compromise did not create a lease.
11. A Division Bench of the Gujarat High Court in Gandhi Gopaldas v. Gordhandas case : AIR1971Guj270 observed as under,-
The questions which naturally arise from the decree of this type are as follows: (1) whether the decree contains a penal Clause (2) whether the judgment-debtor is entitled to reliedf against for feature (3) whether the decree embodies an independent agreement as to the delivery of possession so as to secure payment of arrears of rent and compensation contemplated be the agreement or wheter it is a decree for possession out-right in execution of which possession of the suit premises can be recovered....
After noting Waman Vishwanath Bapat v. Yeswant AIR 1949 Bom. 97 Ganjan Govind v. Pandurang Keshav : AIR1951Bom290 and other cases, their Lordships of the Gujarat High Court in that case even used the decision reported in Tribhuvandas Lallubhai Shah v. Chhotolal Chunilal Shaha AIR 1963 Guj. 256 and Gandhi Gopaldas' case : AIR1971Guj270 were noticed by J.M. Sheth, J., in Doshi Kantilal Kanaiyalal and Anr. v. Modiya Chandulal Chhotalal Ranchhoddas and Anr. : AIR1973Guj80 . In that case, the terms of a consent decree which is somewhat similar to the consent decree dated April 1, 1972 in the present case, came up for consideration and the learned Judge observed,-.In my opinion, on careful reading of these fair paras of the consent decree, there is no escape from the conclusion that this is not a penal clause; it does not provide for any penalty. It is a concession given to the judgment-debtors by the decree-holders that is case the judgment debtors pay ail the aforesaid sums regularly, the decree-holder is not to recover possession of the suit property to which he is entitled and in that event, i.e. on fulfilment of those conditions it will be deemed that condition in para No. 1 regarding taking of possession has not been entered into, that is, it is non existent.
He was, therefore of the opinion that the case before him fell within the ratio of he decision of a Full Bench of the Bombay High Court in Waman Vishwanath Bapat's case AIR 1949 Bom. 97 and not within the decision of a Full Bunch of the Bombay High Court in Krishnabai's case ILR XXXI Bom. 15.
12. A Single Judge of the Madhya Pradesh High Court in Nonjibhai's case : AIR1977MP112 held as under:
Thus, where it appears that at the time of the compromise, the plaintiff was entitled to the relief of eviction bat he agreed, as a matter of concession to the defendant, to forego that relief if the defendant nude certain payments on specified dates, clause that the defendant would be liable to be evicted on his failure to pay the amounts specified therein on due dates cannot be construed as a penal clause and that is exactly the position here I, therefore, hold that the clause relating to ejectment in the decree is not a penal clause.
From the terms of the consent decree, it is clear that while maintaining the decree for ejectment, a concession was given to the judgment debtor that the plaintiffs will not be entitled to get the suit house vacated from him so long as he continues to pay monthly rent of the suit home to the plaintiff (decree-holder), This is amply borne out from the other terms following the above-mentioned terms contained in the said decree that if the judgment-debtor makes any default in making payment of the rent, the plaintiffs (decree-holders) shall be entitled to get possession of the house from him 'through court through execution proceedings'. In these circumstances, in my opinion, the learned District Judge was not right in holding that by entering into a compromise a fresh contract of tenancy had arisen or that the existing tenancy was allowed to continue and as such, the judgment-debtor is entitled to relief against forfeiture. As stated above, the consent decree dated April 1, 1972 does not impose any penalty and if the terms of which the concession was given are not carried out, there is no power in the court for relief the defaulting party from the obligation of so doing. The learned District Judge considered the statements of JDW 1 Kundanlal, JDW 2 Premratan, JDW 3 Girdharilal and DHW 1 Bulakidas and the endorsements of refusal on the coupons Ex. A1 to Ex. A4, opined that the tender was mace after the stipulated lime and, therefore, there was a default on the part of the judgment-debtor in snaking payment of rent. It has been shown that this finding was vitiated on account of any error of law or of procedure or that any mistake of law vas committed by the learned District Judge in arriving at the conclusion to which he did. In these circumstances, the learned District Judge was right in holding that the defendant (judgment-debtor) has committed default in payment of the rent for the months of April and May, 1972, In other words, he has committed breach of the condition provided in the compromise decree dated April 1, 1972 and, therefore, the condition that if the defendant (Judgment-debtor) makes any default in making payment of the rent of the suit house, the plaintiffs (decree-holders) shall be entitled to get its possession from the defendant (judgment-debtor) through court through execution proceedings came into play Section 114 of the Transfer of Property Act provides for relief against forfeiture for non-payment of rent. As held by me above, the consent decree dated April 1, 1972 does not contain any penal clause and a concession was given to the judgment-debtor by the decree-holders that in ease the judgment-debtor continues to pay the monthly rent, they will not eject the judgment-debtor. The Court can grant relief against a condition which is in the rapture of penalty but if certain concession has been conferred upon the judgment-debtor by the decree holder, in that case, when the judgment-debtor fulfills the obligation undertaken by him he can avail of the concession and if he does not duly fulfil his obligation, he loses the concession and the court has no jurisdiction to grant any relief to him in such a case. In these circumstances, after construing the consent decree dated April 1, 1972, I hold that as the judgment-debtor has committed default in payment of monthly rent, he is not entitled to avail of the concession which was allowed on the condition that the decree holders will not eject him so long as he continues to pay the monthly rent of the premises in suit.
13. For the reasons aforesaid, the learned District Judge as not right in setting aside the order of the learned Munsif and ordering that the decree-holders are not entittled to proceed with the execution of the decree for ejectment unless the judgment-debtor fails to deposit the arrears of rent upto March 15, 1974.
14. In view of the conclusion to which I have arrived at, I do not consider it necessary to examine the other contentions of the learned Counsel for the judgment-debtor and to encumber this judgment by discussing in detail all the authorities cited by him.
15. The result is that while treating this revision as a second appeal, it is allowed and the order of the learned District Judge, Bikaner dated March 6, 1974 is set aside and the order passed by the Munsif, Bikaner dated October 4, 1973 is restored. In the circumstances of the case, I make no order as to costs. The judgment-debtor is allowed three months' time for vacating the house in suit on condition that he deposits all the amount due upto date within a month from today. Proceedings for execution of the decree shall not be taken for a period of three months on the fulfillment of the aforesaid condition regarding payment of rent.