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J.K. Seth Vs. Narendra Nath Banerjee - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberS.M.A. No. 50 of 1975
Judge
Reported inAIR1977Cal388
ActsCode of Civil Procedure (CPC) , 1908 - Section 47 - Order 23, Rule 3
AppellantJ.K. Seth
RespondentNarendra Nath Banerjee
Appellant AdvocateS.K. Lahiri and ;Nani Chatterjee, Advs.
Respondent AdvocateMano Mohan Mukherji and ;Amar Roy Chowdhury, Advs.
DispositionAppeal dismissed
Cases ReferredPort of Calcutta v. Basumati Bagh).
Excerpt:
- .....by execution proceedings, but with regard to the khas possession in case of non-compliance of the terms of clause 4 and/or 5 the plaintiffs shall be entitled to get a decree for khas possession. nothing has been provided in clause 7 according to mr. lahiri, which entitles the plaintiff to execute the decree for khas possession. this clause simply declares that in case of default the plaintiff is entitled to get a decree and for that the plaintiff will have to file a suit and get a decree and that decree can be executed. both the courts below have negatived the contention raised by mr. lahiri. in support of his contention mr. lahiri refers to a decision reported in air 1923 cal 252 (syama charan v. satya prasad). in this case it has been laid that 'a decree which merely declares the.....
Judgment:

N.C. Mukherji, J.

1. This is an appeal against the order passed on May 23, 1974 by Sri S. N. Ghosh. Additional District Judge, 9th Court at Alipore in Miscellaneous Appeal No. 79 of 1974 affirming an order passed by Sri S. P. Sen Gupta, Subordinate Judge, 2nd Court at Alipore in Miscellaneous Case No. 21 of 1972 rejecting an application under Section 47 of the Civil P. C. in connection with Title Execution Case No. 1 of 1971.

2. The facts of the case may briefly be stated as follows :--

The respondent brought a suit being Title Suit No. 69 of 1969 against the appellant for ejectment on the ground of default. The said euit was decreed on compromise in terms of joint petition of compromise on April 24, 1970. As the appellant violated the terms of the compromise decree an execution case was started being Title Execution Case No. 1 of 1971. An objection was filed under Section 47 of the Code which was allowed in part but objection of the judgment-debtor regarding delivery of possession was rejected. An appeal was filed before the learned District Judge. The appeal was also dismissed and hence the second appeal. This appeal was again dismissed for default on 28th April 1976. After that the appellant filed Title Suit No. 318 of 1976 on 25th of June 1976 claiming that the decree passed in Title Suit No. 69 of 1969 was not executable and also prayed for ad interim injunction. Prayer for ad interim injunction was refused. An ap-peal was filed. The appeal was dismissed. The appellant came up to this Court but Second Miscellaneous Appeal was dismissed under Order 41, Rule 11 by us as the same was not maintainable. Then a civil Rule was issued on an application under Section 115 of the Code. Ad interim injunction was prayed for but the same was refused. Again the appellant filed an application under Section 47 read with Order 21, Rule 2, in Title Execution Case No. 1 of 1971. On 9-3-77 the learned Subordinate Judge has passed an order staying Title Execution Case No. 1 of 1971.

3. Mr. Siti Kantha Lahiri, learned, Advocate appearing on behalf of the ap-pellant contends that the compromise decree passed on 24th April 1970 is not executable so far as the recovery of pos-session is concerned inasmuch as Clause 7 of, the petition of compromise provides :

'That if the defendant fails to pay any three monthly instalments as provided in Clause 4 or any of the current amounts as provided in Clause 5, the plaintiff shall be entitled to get a decree for khas possession on eviction of the defendant from the suit premises and realise the balance of arrears, rents and mesne profits as claimed by execution proceedings and the defendant will not be entitled to resist the same.'

Mr. Lahiri submits that with regard to the arrears rents and mesne profits those can be realised by execution proceedings, but with regard to the khas possession in case of non-compliance of the terms of Clause 4 and/or 5 the plaintiffs shall be entitled to get a decree for khas possession. Nothing has been provided in Clause 7 according to Mr. Lahiri, which entitles the plaintiff to execute the decree for khas possession. This clause simply declares that in case of default the plaintiff is entitled to get a decree and for that the plaintiff will have to file a suit and get a decree and that decree can be executed. Both the courts below have negatived the contention raised by Mr. Lahiri. In support of his contention Mr. Lahiri refers to a decision reported in AIR 1923 Cal 252 (Syama Charan v. Satya Prasad). In this case it has been laid that 'A decree which merely declares the rights of parties and does not direct any act to be done, is incapable to execution. In such an event a separate suit will lie to enforce the rights declared by the decree.'

The facts of the case are completely different. In this case the compromise settled the extent of the right of each of the rival claimants, which was by no means identical in respect of the different properties; but there was no provision that the rights so fixed were to be enforced by execution of the decree. In such circumstances it was held that 'The decree was in essence declaratory in character, and the plaintiff could not have recovered possession in execution thereof'. In the present case in Clause 7 as has already been stated it has been provided that in default of payment as provided in Clause 4 or 5 the plaintiff shall be entitled to get decree for khas possession on eviction and realise the balance of arrears rents and mesne profits by execution proceedings and the defendant will not be entitled to resist the same. Mr. Lahiri wants to submit that execution proceedings relate only with regard to the realisation of the balance of arrears rents and mesne profits. It has not been contemplated in para. 7 of the compromise petition that the plaintiff can execute the decree for khas possession. We are unable to accept the contention raised by Mr. Lahiri and on reading the terms of para. 7 of the compromise petition carefully we are of the opinion that it has been clearly provided that in case of non-compliance of terms of Clauses 4 and/ or 5 of the petition, the plaintiff would be entitled to get recovery of possession and realise the balance of arrears rents and mesne profits by execution proceedings. Mr. Lahiri also relies on a decision reported in : AIR1958Pat546 (Meghraj Sah v. Rajbansi Lal). In this case one of the terms of the compromise decree ran that 'this defendants neither have nor shall have any connection or concern with 4 1/2 cottahs of the disputed land... ......'. It was held that 'the parties merely agreed to a declaration of the plaintiff's right, title and interest in the disputed land. They did not say that the defendants would deliver possession of the land to the plaintiff, nor did they say that failing delivery of possession by the defendants out of court, the plaintiff would be entitled to take delivery of pos-session through Court. That being so the compromise decree was not executable at all'. But in the present case it was not a simple declaration but the plaintiff got a right for recovery of possession by execution in case the defendant does not comply with the terms of Clauses 4 and 5.

4. Mr. Lahiri next submits that if two interpretations are possible in respect of a compromise decree that interpretationwhich is favourable to the judgment-debtor should be accepted. In support of his contention he refers to a decision reported in (Punjab and Sindh Bank Ltd. v. Jagdish Lal). The principle laid down in this case does not apply to the facts of the present case as the terms of the Clause 7 are clear and unambiguous and as such there is no scope for alternative interpretations. Mr. Lahiri very much relies on a Bench decision of our Court reported in ILR (1968) 1 Cal 47 (Commrs. for the Port of Calcutta v. Basumati Bagh). in support of his contention that the time is not an essence of the contract and even assuming that there has been some default in making payment there can be relief against forfeiture. In this case there was provision of payment by two equal instalments. There was a short payment of Rs. 38 in making the first instalment, but that amount was paid with the second instalment. In such circumstances it was held that the short payment of Rs, 38 in the first instalment cannot be taken as a default because the provision of payment by two equal instalments was principally made for the benefit of the defendant. Again the first payment within the period of three months was only a mode of payment. All the arrears, however, were paid within the period of six months. In this case it was held that wasilat in respect of a particular month may have been deposited after the 7th of the next succeeding month. But there was nothing on record to show that how many months there was such delay and what was the extent of delay. Considering the facts of the case their Lordships found that the parties did not intend to make time of the essence of the contract and as such the judgment-debtor could ask for specific performance notwithstanding her failure to pay the arrears and wasilat within the dates fixed by Clause 4 of the petition of compromise. As the facts of this case are different from the facts of the present case the principle enunciated does not apply here. Mr. Lahiri submits that even if a decree is passed on compromise in terms of the petition of compromise the court is required to see that there was existence of grounds for which a decree could be passed. In the present case we find that in para. 1 of the petition of compromise it is stated that the defendant admits that he is in arrears of rent for the suit premises since Sept. 1968 at Rs. 325 till April 1969, and the claim in the suit. Inpara. 2 of the petition of compromise it has been stated that the defendant has also not paid or deposited to the court any amount at the rate of rent since May 1969. In such circumstances it must be said that the grounds for eviction existed very much and the court after being satisfied about such existence recorded the compromise. All the contentions raised by Mr. Lahiri fail.

5. In the result, the appeal is dismissed on contest. The orders passed by the courts below are upheld. Title Execution Case No. 1 of 1971 pending in the Court of the 2nd Subordinate Judge, Alipore, do proceed. There will be no order as to costs in this appeal.

6. The amounts deposited by the appellant in the court below will be per-, mitted to be withdrawn by the respondents without furnishing security.

7. The prayer for stay of operation of the order is refused.

B.C. Ray, J.

8. I agree.


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