KUMARAN NAIR v. MARIAPPAN PILLAI — 1966 DIGILAW 318 (KER)

Judgment :- 1. After the return of finding by the District Judge in pursuance of my order dated 17th June 1966, counsel for the respondent raised the point that in execution proceedings from which the present second appeal arises, the appellant cannot plead that there was no valid decree against him or that he is not liable to surrender possession. The objection was raised before the District Judge and has been dealt with in the order under appeal but was unfortunately not raised before me at the time of my order dated 17 61966 calling for finding. It becomes necessary therefore to state the facts of the case a little more fully. 2. The matter arises out of proceedings in execution of a decree in O. S. No. 97 of 1962, Munsiff's Court, Palghat. The appellant was the 4th defendant therein and the respondent was the plaintiff. The decree was for redemption of a mortgage in respect of six items of properties in favour of the 1st defendant. The appellant was a lessee of one of the shops in item No. 6. On 30 31964, a compromise petition was filed between the plaintiff and the 1st defendant by which it was agreed that the plaintiff was to pay the panayam amount of Rs. 1,300/- to the 1st defendant and that the plaint items were to be free from the mortgage and item 6 was to be recovered, by the plaintiff from the defendants, and the arrears of rent due from the defendants 2 to 6 up-to-date were to be realised by the plaintiff. The compromise was recorded and a decree in terms of the compromise followed. The operative portion of the judgment, as extracted in the order under appeal reads: "Razi filed by plaintiff. Plaintiff files affidavit. Suit decreed in terms of razi" The decree which follows set out in the preambulary part thereof, that the "Parties" have compromised the subject-matter of the suit, and by Clause.3 directed that the parties do abide and be governed by the terms contained in the schedule of compromise set out in the decree. Among the terms set out in the schedule of compromise to the decree, it is enough to note only the following clause: The decree was not appealed against. On 20-10-1964, the 4th defendant applied by IA. Among the terms set out in the schedule of compromise to the decree, it is enough to note only the following clause: The decree was not appealed against. On 20-10-1964, the 4th defendant applied by IA. No. 2979 of 1964 for amending the decree in O. S. No. 97 and prayed for deletion of the clause in the decree directing surrender of possession of item 6 in the plaint schedule to the plaintiff by the defendants. This was opposed by the plaintiff-decree-holder and the following order was passed. "it is seen that the suit was decreed on a compromise petition filed by the plaintiff and the 1st defendant alone. Hence the decree is amended thus: In the first portion of the decree commencing from "This suit coming on for final hearing doth order and decree" the words "The parties have compromised" will be amended as "the plaintiff and 1st defendant have compromised." After amendment, Clause.3 of the decree directing that the "Parties" do abide and be governed by the terms set out in the schedule of compromise, and the terms in the schedule directing surrender of possession of item 6, remained unchanged. 3. The plaintiff applied by E. P. No. 646 of 1964 for delivery of possession and an order for delivery was made. The 4th defendant thereupon filed E. A. No. 1360 of 1964 to recall the delivery ordered by the Court. The Munsiff allowed this application and held that actual delivery of possession could not be effected and that the plaintiff might, if necessary, apply for symbolical delivery. On appeal the District judge reversed the decision and directed the dismissal of E. A. No. 1360 of 1964. Hence this second appeal by the 4th defendant. 4. It is on the basis of the above facts that objection has been raised by the counsel for the respondent that in execution proceedings it is not open to the appellant to question the executability of the decree or to plead that he is not liable to surrender possession of item 6. Apart from this plea, taken up rather belatedly before me, as observed earlier, the main point urged on which a finding was called for, was that the 4th defendant's lease having been granted by a usufructuary mortgagee cannot enure beyond the redemption of the mortgage. Apart from this plea, taken up rather belatedly before me, as observed earlier, the main point urged on which a finding was called for, was that the 4th defendant's lease having been granted by a usufructuary mortgagee cannot enure beyond the redemption of the mortgage. On behalf of the 4th defendant this was met by the contention that the lease having been granted in the ordinary course of management by the mortgagee under S.76 (a) of the Transfer of Property Act, the same would not terminate automatically on the redemption of the mortgage. Alternatively, it was argued that the lessee from the mortgagee was entitled to be protected from eviction under the Kerala Buildings (Lease and Rent Control) Act, and that this immunity from eviction could be pleaded even in execution. 5. On a reading of the compromise and the terms thereof as set out in the schedule to the decree in O. S. No. 97 of 1962, I am of the opinion that there was a decree for surrender of possession of item 6 and that the said decree was against the "parties" to the suit who were directed by Clause.3 of the decree to abide and be governed by the terms of the compromise. The 4th defendant who was not a party to the compromise sought to get the offending portion of the compromise decree deleted, but from the order passed on his application for amendment, extracted earlier, it is clear that he did not succeed, except to the extent of substituting the words "plaintiff and 1st defendant" for the words "parties" in the preambulary part of the decree. On the terms of the decree therefore, the 4th defendant was bound to surrender possession of item 6, and could not be heard to say otherwise in execution. 6. But it was argued for the 4th defendant that a decree based on a compromise between the plaintiff and the 1st defendant to which the 4th defendant was not a party is nullity and can be ignored even in execution proceedings. For this, reliance was placed on the decision in Sankaravadivammal v. Kumarasamya (ILR. VIII-Mad. 473). In that case in a suit for partition defendant No. 7 claimed to be in possession of some items and a share in all. For this, reliance was placed on the decision in Sankaravadivammal v. Kumarasamya (ILR. VIII-Mad. 473). In that case in a suit for partition defendant No. 7 claimed to be in possession of some items and a share in all. The plaintiff and the other defendants compromised behind the back of the 7th defendant and a decree purporting to deal with all the items and to bind the 7th defendant as one of the parties thereto was passed behind her back and without her consent. When she was ejected in execution thereof, she presented a petition for cancelling the delivery of possession of the property. It was held in the first instance, that S.244 of the CPC. (corresponding to the present S.47) was not applicable. An appeal to the District Judge was rejected. On further appeal along with a revision, to the High Court, it was held that the question fell within S.244 and that defendant No. 7 is a party to the decree. Recognising the principle that a party to the decree is generally bound by it, it was observed by one of the judges, Hutchins J. "The compromise behind her back cannot possibly affect her position, nor can the decree, which on its face has no basis beyond an agreement between other parties. The decree is a nullity so far as defendant No. 7 is concerned, and the matter in dispute between her and the plaintiff has still to be determined as an issue in the regular suit." 7. This decision came in for notice in Revur Venkatasubba Rao v. Gurijala Venkalaramanaayya (AIR. 1948 Mad. 397). The question there for consideration was whether a decree made against respondents 1 to 3 and against all the exparte defendants in pursuance of a compromise between the plaintiffs and respondents 1 to 3 could be ignored by those who were not parties to the compromise. It was observed at page 4CO: "The District Court of Nellore. unlike the Court in the last cited authority, undoubtedly had jurisdiction to pass a decree in O. S. No. 64 of 1936, and indeed, to pass a decree on the terms of a compromise between the parties. The decree which it did make indubitably, is one which is binding upon the parties to the compromise. unlike the Court in the last cited authority, undoubtedly had jurisdiction to pass a decree in O. S. No. 64 of 1936, and indeed, to pass a decree on the terms of a compromise between the parties. The decree which it did make indubitably, is one which is binding upon the parties to the compromise. (14) Although the appellants and the other respondents were not parties to the compromise, nevertheless the Court had jurisdiction to make the decree and it is not invalid for want of jurisdiction; it is binding on all persons against whom it was made unless and until set aside by appropriate proceedings. Its validity cannot be challenged in execution proceedings, in which proceedings a Court can only construe and enforce a decree, it cannot consider its merits and validity. With respect, I am unable to agree with the observations expressed in 8 Mad. 473 and 45 I. C. 33 cases; they are at variance with the decisions by which I am bound or, with which T agree. In my opinion the learned District Judge was correct in holding that, unless the order and decree in O. S. No. 64 of 1936 be set aside, the appellants and the other respondents have no right to any portion of the money in Court." In Sheo Behari Lal v. Makrand Singh (AIR. 1935 Oudh 358 at 361) the principle was recognised that a decree, based on a compromise between some, against others not parties thereto, is not one without jurisdiction. 8. I am unable to accept the contention raised by the counsel for the appellant that a decree against persons who are not parties to the compromise can bind them only if the decree proceeded against them exparte. I do not understand AIR. 1935 Oudh 358 as having laid down such a proposition. On principle, it seems to me to make little difference whether following a compromise between some of the parties to the suit, a decree against others is made either exparte or otherwise. In either case, there is an effective decree even against those who are not parties to the compromise and unless got rid of in appropriate proceedings, the same should bind them. In either case, there is an effective decree even against those who are not parties to the compromise and unless got rid of in appropriate proceedings, the same should bind them. In the present case, there is the additional fact that the present appellant sought by I. A. No. 2979 of 1964 to delete the offending portion of the decree, but in my opinion, did not succeed in doing so. I am therefore of the view that there was a decree for surrender of possession of item 6 against the present appellant also, and that the validity of such decree cannot be canvassed in execution. 9. In this view, the main question on which elaborate arguments were addressed before me in the first instance, and on which I called for a finding, is unnecessary, and this was admitted. However, counsel for the appellant contended that the objection to the executability of the decree could be raised by him even in execution by reason of the provisions of S.11 of the Kerala Buildings (Lease and Rent Control) Act, 2 of 1965, and the identical provision in the prior Act (Act 16of 1959). S.11 (1) of the Act reads: 11. Eviction of tenants. (1) Notwithstanding anything to the contrary contained in any other law or contract a tenant shall not be evicted, whether in execution of a decree or otherwise, except in accordance with the provisions of this Act: Provided that nothing contained in this section shall apply to a tenant whose landlord is the State Government or the Centra! Government or other public authority notified under this Act: Provided further that where the tenant denies the title of the landlord or claims right of permanent tenancy, the Rent Control Court shall decide whether the denial or claim is bona fide and if it records a finding to that effect, the landlord shall be entitled to sue for eviction of the tenant in a Civil Court and such Court may pass a decree for eviction on any of the grounds mentioned in this section, notwithstanding that the Court finds that such denial does not involve forfeiture of the lease or that the claim is unfounded." 10. It seems to me that S.11 (1) contemplates only the eviction of a tenant by his landlord and has had no application where there is no relationship of landlord and tenant between the person evicting and the one sought to be evicted. In the present case, such relationship does not subsist between the plaintiff and the 4th defendant. Clause.2 (a) of S.11 enables the landlord who seeks to evict his tenant to apply to the Rent Control Court. The same idea of a proceeding between a landlord and his tenant seems to permeate the rest of the Section (See the two provisos to S.11 (1). S.12 which deprives the tenant of his right to contest an application under S.11 or to prefer an appeal under S.18, except on deposit of the admitted arrears of rent, seems to re-inforce this conclusion; for it is not to be expected that the forfeiture of rights for non deposit of rent is visited on a sub tenant, who, in law, is not liable to satisfy the arrears of rent. The absence of a provision in the Buildings (Lease and Rent Control) Act, similar to S.43 of the Malabar Tenancy Act which protects a cultivating tenant notwithstanding the extinguishment of the rights of his immediate landlord or of any superior landlord, also appears significant. The decision in B. V. Patankar and others v. C.G. Sastry (AIR. 1961 SC. 272) cited by the counsel for the appellant, is distinguishable, as the bar of the provisions of the Rent Control Act was pleaded directly by the tenant against whom a decree for eviction was obtained. The decision of the Supreme Court in Civil Appeal No. 323 of 1963 is also distinguishable as the language of S.15 of the Rajasthan Tenancy Act construed in that case, was wide enough to confer rights even on a tenant under the mortgagee. The language of S.11 of the Kerala Buildings Lease and Rent Control Act, is different. The contention of the counsel for the appellant that the provisions of the Buildings (Lease and Rent Control) Act, could be pleaded in bar of execution of the decree is therefore over-ruled. 11. The order of the District Judge is affirmed and the second appeal is dismissed with costs. 12. Leave to appeal is asked for and granted. Dismissed.