Som Dutt (Dead) by LRs. Vs. Govind Ram
EmailAppeal: Civil Appeal No. 167 of 2000
(Arising out of S.L.P.(C) No.8734 of 1999)
(Arising out of S.L.P.(C) No.8734 of 1999)
Petitioner: Som Dutt (Dead) by LRs.
Respondent: Govind Ram
Apeal: Civil Appeal No. 167 of 2000
(Arising out of S.L.P.(C) No.8734 of 1999)
(Arising out of S.L.P.(C) No.8734 of 1999)
Judges: B.N. KIRPAL & S. RAJENDRA BABU, JJ.
Date of Judgment: Jan 10, 2000
Head Note:
CIVIL LAW
Civil Procedure Code,1908
Order 23, Rule 1 – Suit for eviction of tenant – Decree of suit by trial court – Appeal against decree – Compromise between parties during pendency of appeal whereby son of tenant allowed to remain in portion of the premises for ten years and on the expiry of ten year period premises to be vacated failing which landlord to take out execution proceedings – At the end of ten year period son of tenant refusing to vacate – Execution application of landlord allowed by executing court – High Court however reversing the decision and holding that compromise did create a new tenancy in favour of the tenant’s son – Correctness of High Court’s view. Held High Court erred in reversing the decision of executing court. Tenant’s son estopped from filing any application objecting the execution of the decree.
Civil Procedure Code,1908
Order 23, Rule 1 – Suit for eviction of tenant – Decree of suit by trial court – Appeal against decree – Compromise between parties during pendency of appeal whereby son of tenant allowed to remain in portion of the premises for ten years and on the expiry of ten year period premises to be vacated failing which landlord to take out execution proceedings – At the end of ten year period son of tenant refusing to vacate – Execution application of landlord allowed by executing court – High Court however reversing the decision and holding that compromise did create a new tenancy in favour of the tenant’s son – Correctness of High Court’s view. Held High Court erred in reversing the decision of executing court. Tenant’s son estopped from filing any application objecting the execution of the decree.
JUDGEMENT:
ORDER
1. Special leave granted.
2. A suit for eviction was filed by the appellant on 13th November, 1969 against the tenants. One of the tenants was Bishandas (defendant No. 2), the father of respondent. It ap-pears that the suit was decreed in 1975 by the trial court on the ground of bona fide need of the landlord. Thereafter, an appeal was filed and in 1981 a compromise was recorded between the parties in the appeal. Even though Govind Ram was not a party to the said suit but in the application which was filed for recording of the compromise it was stated that Govind Ram who was the son of the tenant would remain in half portion of the land for a period of 10 years and that he and his heirs would vacate the premises on 31st December, 1990 and it was also stated that if they did not vacate, the landlord would be at liberty to take out execution proceedings for the possession of the land.
3. Honesty in transaction being at a discount, Govind Ram resiled from the undertaking which was given which led to the appellant filing an execution application. The said application was allowed but the High Court in revision reversed the decision of the executing court holding that the compromise did create a new tenancy in favour of Govind Ram.
4. We do not agree with the reason given by the High Court in reversing the decision of the executing court. It is not in dispute that the premises in question were in the occupation of Bishandas, the father of Govind Ram (respondent). By virtue of the compromise which was entered into in 1981 before the ap-pellate court, the son of the tenant who was already in posses-sion was allowed to continue for a period of 10 years. Even if there be a creation of tenancy, the compromise between the parties including Govind Ram was that Govind Ram would vacate the premises on 31st December, 1990. It is on that basis that the compromise was arrived at and the order passed by the appellate court. Apart from anything else, Govind Ram is clearly estopped from filing any application objecting to the execution of the decree. On this ground alone, Govind Ram has to be non- suited.
5. We, accordingly, allow the appeal, set aside the judgment of the High Court and restore the order of the trial court. The respondent shall pay costs throughout to the appellant.
1. Special leave granted.
2. A suit for eviction was filed by the appellant on 13th November, 1969 against the tenants. One of the tenants was Bishandas (defendant No. 2), the father of respondent. It ap-pears that the suit was decreed in 1975 by the trial court on the ground of bona fide need of the landlord. Thereafter, an appeal was filed and in 1981 a compromise was recorded between the parties in the appeal. Even though Govind Ram was not a party to the said suit but in the application which was filed for recording of the compromise it was stated that Govind Ram who was the son of the tenant would remain in half portion of the land for a period of 10 years and that he and his heirs would vacate the premises on 31st December, 1990 and it was also stated that if they did not vacate, the landlord would be at liberty to take out execution proceedings for the possession of the land.
3. Honesty in transaction being at a discount, Govind Ram resiled from the undertaking which was given which led to the appellant filing an execution application. The said application was allowed but the High Court in revision reversed the decision of the executing court holding that the compromise did create a new tenancy in favour of Govind Ram.
4. We do not agree with the reason given by the High Court in reversing the decision of the executing court. It is not in dispute that the premises in question were in the occupation of Bishandas, the father of Govind Ram (respondent). By virtue of the compromise which was entered into in 1981 before the ap-pellate court, the son of the tenant who was already in posses-sion was allowed to continue for a period of 10 years. Even if there be a creation of tenancy, the compromise between the parties including Govind Ram was that Govind Ram would vacate the premises on 31st December, 1990. It is on that basis that the compromise was arrived at and the order passed by the appellate court. Apart from anything else, Govind Ram is clearly estopped from filing any application objecting to the execution of the decree. On this ground alone, Govind Ram has to be non- suited.
5. We, accordingly, allow the appeal, set aside the judgment of the High Court and restore the order of the trial court. The respondent shall pay costs throughout to the appellant.
