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1997 DIGILAW 575 (MAD)

Samapth & Naicker v. Kumaraswamy Mudaliar

1997-04-30

GOVARDHAN

body1997
Judgment : 1. This revision petition is against the order passed by the District Munsiff, Vanur in E.P.No.26 of 1996 in O.S.No.32 of 1991, dated 97. The said execution petition has been filed by the plaintiff/ decree holder for delivery of possession of the property on the ground that the defendant/respondent did not act in accordance with compromise decree in the suit. 2. The respondent resisted the same by contending that as per the decree, the suit has been dismissed as settled out of Court, that there is no indication that the property should be delivered to the plaintiff, and therefore the petition is liable to be dismissed. 3. After hearing the contentions of the petitioner and respondent, the learned District Munsiff has passed the impugned order, dated 2. 1997 observing that the petitioner is entitled to execute the decree, since the respondent failed to act in accordance with the compromise decree. 4. As against the order which was passed by the learned District Munsiff, the respondent has filed the present revision. The learned counsel appearing for the revision petitioner, has argued that the learned District Munsiff ought to have seen that the Executing Court had no jurisdiction to go beyond the decree and since the decree does not provide for delivery of possession, the order passed by the learned District Munsiff is wrong and it is liable to be set aside. 5. The learned counsel appearing for the respondent in the CMA has argued on the other hand that the compromise entered into between the parties has been recorded by the District Munsiff in which it has been specifically provided that the respondent/defendant should pay the amounts which are in arrears to the petitioner on the specified dates, and if the respondent/defendant pays the entire arrears as mentioned in the compromise, the petitioner/plaintiff willing to give up his claim for possession against the defendant, and if the defendant fails to pay the amount as mentioned in the compromise decree on the specified date the defendant would automatically lose his right, as a lessee of the plaint schedule property and the plaintiff is entitled to evict the defendant from the suit property and also collect the arrears of the lease with the costs to which course defendant had given his consent. Therefore it cannot be stated that the decree has not provided for evicting the tenant by taking Execution Proceedings. Therefore it cannot be stated that the decree has not provided for evicting the tenant by taking Execution Proceedings. Clause I of the decree in the suit states that the suit is dismissed in accordance with the compromise entered in to between the parties. The compromise entered into between the parties has proceeded for payment of the amounts in installments on specified dates by the defendant. It further provides for the settlement between the parties. On that basis if the defendant fails to pay the amount on the stipulated dates, he would lose his right of lessee and the Plaintiff is given liberty to evict him. The compromise also provides for the collection of the arrears of the amount with the cost of the suit. Since eviction of the tenant and collection of arrears have been provided in the compromise, if the defendant fails to pay the decree amount it cannot be stated that the decree had not provided for filing an Execution Petition for that purpose. Without taking the execution proceedings the petitioner/plaintiff cannot evict the defendant who had lost his right as lessee and the plaintiff also cannot collect the amount due as arrears of rent without resorting to such execution proceedings. The learned counsel for the revision petitioner has argued that since the decree has not provided for execution proceedings for evicting the defendant the order passed by the learned District Munsiff is erroneous. The order passed by the learned District Munsiff in as per the Compromise decree and therefore it does not suffer any infirmity to enable this Court to interfere with the same, exercising its Revisional powers. 6. The civil revision petitions is therefore dismissed. In view of the dismissal of the civil revision petition the C.M.P.No.3455 of 1997 is also dismissed.