Gopinathan Nair v. Sankaran Madhavan — 1983 DIGILAW 230 (KER)

ORDER K.K. Narendran, J. 1. In this Civil Revision the petitioner judgment debtor challenges the order of the execution court rejecting his claims for benefits under the Kerala Land Reforms Act 1 of 1964 and ordering delivery of possession of the decree schedule property after demolishing the structures therein. The points that arise for consideration in this Civil Rivision are: (1) whether a compromise decree is executable in the absence of any indication in the decree that the judgment debtor is to be evicted after the period he was allowed to continue in possession?; (2) A suit for eviction of a lessee was compromised by giving the lessee some time to vacate on payment of enhanced rent. Will he continue to be a lessee or will he be only a licensee after the decree? If only a licensee, can he claim the benefits of S.106 of the Kerala Land Reforms Act 1 of 1964?; (3) The judgment debtor filed a suit and obtained an injunction restraining the decree holder from interfering with his possession. Can the court executing the decree ignore the injunction and order delivery of the property in execution? and (4) Even if as a result of the compromise decree the lessee ceased to be a lessee and continued thereafter only as a licensee, can he claim the benefits of S.106 of the Kerala Land Reforms Act 1 of 1964 and escape eviction if he satisfied the conditions insisted by the section which gives fixity to lessees of leases for commercial and industrial purposes? In that case, can the execution court order delivery without referring the question to the Land Tribunal for its findings? 2. The short facts of the case, shorn of unnecessary details, are: The petitioner took on rent about 20 cents of land which belonged to the first respondent for putting up a cinema theatre. On 2nd April, 1962 the petitioner executed a lease deed agreeing to demolish the structures and hand back vacant possession of the land after five years. Alleging that the petitioner did not vacate as per the lease deed, the first respondent filed a suit for eviction and for injunction against repairing the theatre shed. The suit was compromised and, as per the compromise decree, dated 3rd June, 1968, the petitioner was allowed to continue for eight years on condition that he should pay an increased rent of Rs. The suit was compromised and, as per the compromise decree, dated 3rd June, 1968, the petitioner was allowed to continue for eight years on condition that he should pay an increased rent of Rs. 40 per month. After the compromise decree, the first respondent assigned the decree to the second respondent. On 2nd June 1980 the respondents filed an execution petition to execute the decree. The petitioner contented that the compromise decree was not capable of execution, that there was renewal of the lease as per the compromise decree, that he was entitled to the protection of the Kerala Land Reforms Act 1 of 1964 and that he could not be evicted. The execution court rejected the petitioner's contentions and ordered delivery holding that as per the compromise decree the petitioner continued in the property only as a licensee. The petitioner has challenged the above order of the execution court in this civil revision. 3. Before the execution petition was filed, the petitioner filed a suit against the respondents on 17th April, 1980 for declaration of his rights under S.106 of the Kerala Land Reforms Act 1 of 1964 and for a permanent injunction to restrain the respondents from preventing the petitioner from effecting necessary repairs to the theatre. Then on 19th April, 1980 the respondents filed a suit for a declaration of their title and possession of the property, for a declaration that the petitioner was only a licensee and his licence was terminated in 1979 and also for a permanent injunction to restrain the petitioner from trespassing into the property. In both the suits, applications for temporary injunctions were moved. The Sub Court granted the injunction prayed for by the petitioner and refused the injunction prayed for by the respondents. The respondents challenged the orders before this Court in civil miscellaneous appeals. This Court disposed of the appeals on 29th January 1982 by a common judgment, confirmed the orders of the Trial Court and dismissed the appeals by recording the undertaking given by the counsel for the petitioner that the petitioner will remove the structures put up by him in the property if he ultimately loses in the suits. 4. Before this Court, the petitioner produced three documents including the rent deed, dated 4th February 1962 executed by him. 5. 4. Before this Court, the petitioner produced three documents including the rent deed, dated 4th February 1962 executed by him. 5. The learned counsel for the petitioner contended that the compromise decree is not executable as the same does not provide for eviction of the petitioner after the eight years' extension he was allowed as per the decree. It was also contended that by the compromise decree the lease was not terminated and that it was only renewed for eight years and so, the petitioner continued as a tenant and hence he is entitled to the benefits of S.106 of the Kerala Land Reforms Act 1 of 1964 as amended by Act 35 of 1969. The learned counsel for the respondents contended that the respondents are entitled to evict the petitioner by executing the decree after the eight years' time granted to him to vacate as per the compromise decree. It was also contended that since the compromise decree gave the petitioner only eight year's time to vacate, there was no renewal of the lease and the petitioner was only a licensee and hence S.106 of Act 1 of 1964 will not apply. 6. In Sudhir v. B. K. Thaper 1970 (3) SCR 114 the Supreme Court construed a compromise decree and held: "The question whether under the terms of the compromise the parties entered into a fresh lease or the decree holders merely granted an extension of time for delivery of possession of the premises demised essentially depends on the intention of the parties who entered into the compromise as could be gathered from the compromise petition as well as the compromise decree. It is necessary to note that in the compromise petition, it is specifically stated that the parties had agreed 'that the defendants shall remain as lessees of Uttam Talkies Residency Road, Jammu on terms and conditions on which they previously held the said premises machinery furniture fittings etc. up to 31st December, 1962 and pay to the plaintiff rent at Rs. 3000 per month from 1st January 1959 in the following proportion..........................But by incorporating the terms of the old lease, to the extent not covered by the new terms, the parties had agreed to incorporate into the new agreement the term relating to renewal found in the original lease. 3000 per month from 1st January 1959 in the following proportion..........................But by incorporating the terms of the old lease, to the extent not covered by the new terms, the parties had agreed to incorporate into the new agreement the term relating to renewal found in the original lease. On an analysis of the terms of the compromise, it is seen that the lessors had granted a fresh lease of the cinema talkies demised; a monthly rental was fixed in respect of the same and the lessees were given an option to renew the lease at the end of the term fixed though that right is subject to certain conditions. Under these circumstances, the direction in the decree to vacate the suit premises at the end of the term fixed in the compromise in accordance with the terms of the compromise would amount to an ineffective direction. Such a direction cannot be considered as an ejectment decree. It is at best a declaration of the right of the lessors to eject the lessees at the end of the lease period if the lessees fail to get a renewal...... Therefore there is no force in the contention that because the compromise had fixed the period during which the defendants could continue as lessees, the renewal clause in the original lease deed did not become one of the terms of the agreement. We are unable to consider the clause in the compromise referring to the original lease as a barren clause or that it is not wide enough to reach the renewal clause. ............the lessor cannot unreasonably withhold his consent, when the lessee exercises his option to renew the lease on the strength of one of the terms in the lease deed. On a consideration of all the terms in the compromise petition, we are satisfied that the parties intended to create a fresh lease and not that the lessees were only permitted to be in possession of the leasehold for the prescribed period as licensees". In the above case, the lease deed gave the lessee an option to renew the lease with consent of the lessor. The suit brought at the end of the lease period was compromised allowing the tenancy to continue for a certain period on the terms and conditions of the original lease and the lessee was to vacate thereafter. In the above case, the lease deed gave the lessee an option to renew the lease with consent of the lessor. The suit brought at the end of the lease period was compromised allowing the tenancy to continue for a certain period on the terms and conditions of the original lease and the lessee was to vacate thereafter. One of the legal representatives of the deceased lessor sold his rights in the property and the assignee sought execution of the compromise decree. It was in the above facts and circumstances that the court held that there was a renewal of the lease by the compromise decree. In Ramamurthy Subudhi v. Gopinath ( AIR 1968 SC 919 ) the question was whether by the compromise decree in a suit for ejectment of a tenant a fresh lease was created or the tenant only continued as a licensee. The Supreme Court held: "The compromise deed did not create a lease but a license. It was difficult to impute to the decree holder an intention to create a fresh tenancy while the fact that he brought the suit showed that his intention was to reject the judgment debtor after having purported to terminate the tenancy. The fact that the word 'rent' had been used in the compromise deed was not conclusive as in its wider sense rent meant any payment made for the use of land or buildings and thus included the payment by a licensee in respect of the use and occupation of any land or buildings. The period of five years granted under the deed to the judgment debtor for continuation of the possession also did not militate against the construction that the compromise only created a license for the decree holder had lost in the Trial Court and it was only in the court of appeal that the compromise was arrived at." (Headnote) The fact that the tenancy in the above case was in respect of a building does not make any difference. The above decision was followed in Kalloo v. Dhakadevi ( AIR 1982 SC 813 ) wherein it has been held: "When a compromise takes place in the course of execution of a decree-for eviction, the compromise may extinguish the decree and create a fresh lease, or the compromise may provide a mere mode for the discharge of the decree. The above decision was followed in Kalloo v. Dhakadevi ( AIR 1982 SC 813 ) wherein it has been held: "When a compromise takes place in the course of execution of a decree-for eviction, the compromise may extinguish the decree and create a fresh lease, or the compromise may provide a mere mode for the discharge of the decree. What actually takes place depends on the intention of the parties to the compromise. And the intention has to be gathered from the terms of the compromise and the surrounding circumstances including the order recorded by the court on the basis of the compromise." (para 6) The court further held: "Para 1 of the compromise petition shows that the judgment debtor had already 'vacated half of the shop and given its possession' and time was granted till 31st December 1972 for vacating and delivering possession of the other half of the shop as the judgment debtor wanted time till then lest his business 'will be ruined by vacating the shop in hurry'. This clearly shows that the intention of the parties was not to create a fresh lease in respect of the half of the shop in possession of the judgment debtor, but to help the judgment debtor find out, not in a hurry, alternative accommodation for his shop so that his established business was not 'ruined' and time for vacating the half of the room was given till 31st December 1972. And this was also how the compromise petition was understood by the Executing Court when it recorded in para 3 of its order: 'The judgment debtor to give vacant possession of the shop to the decree holder by 31st December, 1972 according to the compromise........'. The intention of the parties clearly was not to extinguish the decree for eviction but to create a mode of its full discharge." (para 7) In Nai Bahu v. Lala Ramnarayan ( AIR 1978 SC 22 ) one of the questions that arose for consideration was whether a new lease was created by a compromise decree which allowed the tenant to continue in possession of a portion of the premises let out for five years more. The Supreme Court held: "After a careful consideration of the terms of the compromise and the whole tenor of the compromise petition it is absolutely clear that there was no intention to create a lease between the parties. The Supreme Court held: "After a careful consideration of the terms of the compromise and the whole tenor of the compromise petition it is absolutely clear that there was no intention to create a lease between the parties. It is the dominant intention of the document which must guide the construction of its contents. In the recitals of the compromise petition in three places it is stated categorically that 'the plaintiff shall be entitled to execute her decree against the defendants.' There was, therefore, no intention to create a lease with regard to any portion of the property although certain arrangements had been entered for the intermediate occupation of a certain portion before vacating that portion after expiry of five years. The few alterations and improvements agreed upon by consent were merely an arrangement for vacating two floors and in order to vacate the remaining portion after using it for five years. There was no intention whatsoever to create a new lease." (para 20) In Laxman Prasad v. Shyam Swarup ( AIR 1980 All 242 ) it has been held: ".......... it is the substance and not the form of the document which would determine its legal character and more often than not the words 'rent' or 'tenant' are loosely used in a wide sense and what is actually implied by the use of the word 'rent' in such context is really either mesne profits or damages or compensation for use and occupation .......... . The real test as held by the Supreme Court is the intention of the parties. So far as the agreement of compromise in the present case is concerned, the document evidencing compromise leave no room for doubt that the intention of the parties was not to continue the old tenancy or create a new tenancy. It was, in fact, merely a concession granted to the appellant to retain possession for a period of ten years. No doubt, the tenant was granted immunity from eviction within that period if there was no default in payment of rent. However, on the expiry of the said period even the past conduct of the tenant could not save him from eviction. Howsoever good a paymaster he may be but the spectre of eviction after ten years stared him in the face. However, on the expiry of the said period even the past conduct of the tenant could not save him from eviction. Howsoever good a paymaster he may be but the spectre of eviction after ten years stared him in the face. Notwithstanding the compromise the landlord had armed himself with a relentless weapon which would throw out the tenant after a certain time and against which there was no protection whatsoever. In my opinion the fact that the plaintiff arrogated to himself the unfettered power to evict the appellant after ten years provides a clue for holding that the compromise decree reduced the appellant to the status of a mere licensee and not a tenant ............ . It is my considered opinion on a perusal of the document of compromise in the instant case that the dominant intention of the same was not to create a lease." (Para 11) In the above case, reference was made to Ratilal Narbheram v. Walji Nagji ( AIR 1975 Bom. 218 ) wherein it has been held: "There is a distinction between the consent decree where under the tenancy is continued and a consent decree for eviction, whereunder an ex-tenant is allowed to retain possession for a specified period by way of concession. In such cases the landlord's right to take possession is postponed and no new tenancy is created, nor the old tenancy is continued." 7. A decree is the fruits of a litigation. The rights under a decree have to be realised by execution unless the party liable readily discharges his obligation under the decree. A compromise decree is also a decree. In the normal course, parties fight to the last and the court is called upon to give a decision on the issues involved. But when the parties compromise, the court disposes of the suit in terms of the compromise. Simply because a decree is a compromise decree, it cannot be said that the decree is not executable. It cannot also be said that unless there is a direction in the compromise decree to execute and realise the rights conferred by the decree, the decree cannot be executed. If rights are conferred by a decree, that can be executed and realised, of course subject to any supervening legislation that may come into existence after the passing of the decree. If rights are conferred by a decree, that can be executed and realised, of course subject to any supervening legislation that may come into existence after the passing of the decree. To say that a compromise decree cannot be executed in the absence of a specific direction therein, is not only against law but against commonsense also. In this case, the original lease was for a specific period. On the expiry of that period, the lessor brought a suit to evict the lessee. The suit was compromised allowing the lessee eight years' time to vacate on condition that he pays enhanced rent. Right was reserved with the decree holder lessor to throw out the lessee before the expiry of the above period if he defaults payment of rent for six months. Simply because rent was directed to be paid during the period the lessee was allowed to be in occupation, it cannot be said that the original lease was continued or renewed. The decree in question is a compromise decree for eviction, the only difference is that the eviction is postponed by eight years. This is a concession given to the leassee by the leaser to retain possession for a further period. The result is that the status of the lessee is reduced to that of a licensee. This is the price he had to pay to continue on the property for eight years more. So, the contention that the petitioner is a lessee of a commercial lease on the date when S.106 of Kerala Act 1 of 1964 as amended came into force can only be rejected. 8. The learned counsel for the petitioner then referred to the judgment of this court in C. M. A. Nos. 286 of 1980 and 65 of 1981 by which the order of injunction of the Sub Court, Kottayam granted to the petitioner restraining the respondents from interfering with the repair of the theatre was confirmed. The learned counsel contended that in view of the above judgment the execution court should not have ordered delivery by the impugned order because thereby the judgment has been nullified. The learned counsel for the respondents contended that in view of the specific provisions in S.47(1) of the Code of Civil Procedure the judgment passed in an appeal from an injunction issued in another suit cannot stand in the way of the execution court ordering delivery. 9. The learned counsel for the respondents contended that in view of the specific provisions in S.47(1) of the Code of Civil Procedure the judgment passed in an appeal from an injunction issued in another suit cannot stand in the way of the execution court ordering delivery. 9. In Azizan v. Matuklal Sahu (ILR XXI Cal. 437) Pigot, J. construing S.244 of the Code of Civil Procedure, 1882 corresponding to S.47 of the Code of Civil Procedure, 1908 held: "I find myself unable to come to any other conclusion than this, that for reasons of policy, which it is not for a Court to contravene, the Legislature has deliberately so framed S.244 as to prohibit in a separate suit between the parties to a decree any relief being granted which shall interfere with the conduct of the execution proceedings by the Court executing the decree. I do not see any escape from that conclusion, nor do I think it should be avoided, because possibly individual cases of inconvenience (not of absolute denial of all remedy) may arise from it." (Page 458) The case was referred to Pigot, J. on difference of opinion between Macpherson, J. and Banerjee, J. who constituted the division bench which heard the case first. Earlier in the judgment Pigot, J. has said: "Since the Act of 1861, the Act in force when the case of Nubo Kishen Mookerjee v. Debnath Roy Chowdhry was decided, the legislature has, by the Act of 1877, 1879, 1882, and lastly Act VII of 1888, persistently followed the policy of restricting to the Court executing the decree the determination of all questions relating to the execution of the decree and arising between the parties to it." (Page 459) The above decision of the Calcutta High Court was followed by a full bench of the Bombay High Court in Laldas v. Kishordas (ILR XXII Bomb. 463). 10. S.47(1) of the Code of Civil Procedure, 1908 reads: "47. (1) 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 the decree, shall be determined by the court executing the decree and not by a separate suit." In this case, two suits were filed before the Sub Court, Kottayam; one by the petitioner and the other by the respondents. In the suit filed by the petitioner judgment debtor, the Sub Court granted an injunction restraining the respondents, among other things, from preventing the petitioner from making alterations and repairs to the theatre. It is this injunction which was confirmed by this court by the judgment in C.M.A. No. 286 of 1980 and 65 of 1981. The question is whether the injunction issued by the Sub Court as confirmed by this Court can stand in the way of the execution court in ordering delivery. S.47(1) of the Code of Civil procedure clearly lays down that all questions between the parties relating to the execution, discharge or satisfaction of the decree shall be determined by the court executing the decree and not by a separate suit. So, no order passed by a court in a separate suit shall affect the powers of the court executing the decree. In other words, S.47(1) prohibits the interference by a court trying a separate suit between the same parties, with the proceedings of the court executing the decree. The net result is that the executing court can ignore orders passed by a court trying a separate suit between the same parties. The reason is that all questions that arise between the parties with regard to the execution of the decree are to be determined by the court executing the decree and not by any other court. So, the injunction obtained by the petitioner judgment debtor cannot stand in the way of the execution court ordering delivery. 11. The only point that remains to be considered is whether the petitioner can take shelter under the supervening legislation, namely, Kerala Land Reforms (Amendment) Act 35 of 1969 which amended Kerala Land Reforms Act 1 of 1964. The learned counsel for the petitioner contended that the transaction evidenced by the lease deed dated 2nd April 1962 was a commercial lease and the petitioner put up the cinema theatre before 20th May 1967 and hence the petitioner is entitled to the protection of S.106 of Kerala Act 1 of 1964 as amended by Act 35 of 1969. According to the learned ' counsel, for the application of the section, the petitioner need not be actually a lessee on 1st January 1970 when S.106 as amended came into force. According to the learned ' counsel, for the application of the section, the petitioner need not be actually a lessee on 1st January 1970 when S.106 as amended came into force. It was contended that even if a lessee was actually evicted before 1st January 1970, there is provision in S.106(2) for the restoration of possession. The learned counsel also referred to S.108(2) of Act 35 of 1969 and contended that the decree passed against the petitioner should be reopened and disposed of in accordance with S.106 as amended. It was also pointed out that the petitioner had raised a contention before the execution court that he was entitled to the benefits of S.106, but the executing court did not consider this contention. The learned counsel for the respondents contended that the benefits of S.106 will be there only to lessees and since on 1st January 1970 the petitioner was only a licensee and not a lessee, the petitioner cannot get the protection of the section. A contention that the transaction of 1962 itself was not a lease was also taken by the learned counsel. In support of this contention, reference was made to Parameswaran Pillai v, Gopinathan Nair ( 1975 KLT 64 ). It was then contended that as the theatre put up by the petitioner was demolished and since the same is not in existence now, the petitioner cannot claim the benefits of S.106. The learned counsel also pointed out that the petitioner did not make an application before the execution court for reopening the decree as insisted by S.108(2) of Act 35 of 1969. 12. There is some substance in this contention of the learned counsel for the petitioner. Going by the document dated 2nd April 1962 evidencing the transaction, it cannot be said that the petitioner was not a lessee. The decision in Parameswaran Nair's case is distinguishable on facts since in this case there is no reservation with the respondents of the right to take the usufructs from the trees, if any, standing in the property given for putting up the theatre. The theatre was put up before 20th May 1967. According to S.106 as amended, such a lessee of a commercial lease cannot be evicted. The suit which resulted in the compromise decree was filed to evict such a lessee. The theatre was put up before 20th May 1967. According to S.106 as amended, such a lessee of a commercial lease cannot be evicted. The suit which resulted in the compromise decree was filed to evict such a lessee. But he is yet to be evicted in execution of the decree and before that S.106 as amended came into force. In that case, even if after the compromise decree the lessee became a licensee, can he be denied the benefit of S.106 of Act 1 of 1964. On 3rd June 1968 when the suit for eviction was compromised, the petitioner was not entitled to the benefit of S.106 as it stood then. But, in view of the non obstante clause in S.106, that is immaterial. As per S.106, a lessee of a commercial lease who has constructed a building on the property before 20th May 1967 cannot be evicted even if there is a decree for eviction against him. So, if on the date when the construction was made he was a lessee, then he cannot be denied the benefit of S.106 even if he became a licensee later because of the compromise decree. S.108(2) of Act 35 of 1969 also confers a right on the judgment debtor to apply to the execution court to reopen the decree if he was not dispossessed. In the above facts and circumstances, when the petitioner contended before the execution court that he was entitled to the benefits of the Kerala Land Reforms Act 1 of 1964, the court was bound to refer the question of tenancy to the Land Tribunal as it cannot be said that a question of tenancy under S.106 of the Act will not at least arise in the case. 13. The execution court committed an error of jurisdiction in ordering delivery without referring the question of tenancy to the Land Tribunal. Hence the order impugned is set aside and the case remanded to the execution court with a direction to refer the question whether the petitioner is a lessee entitled to the benefits of S.106 of Kerala Act 1 of 1964 to the Land Tribunal. It is made clear that the Land Tribunal has to consider the claim of the petitioner under S.106 of the Act untrammelled by anything said in this order regarding the rights of the petitioner under S.106. It is made clear that the Land Tribunal has to consider the claim of the petitioner under S.106 of the Act untrammelled by anything said in this order regarding the rights of the petitioner under S.106. The Land Tribunal will have to give its findings, at any rate, within six months from today. 14. The Civil Revision Petition is allowed as above. No costs.