Civil Appeal No 2612 of 1981
Appeal by special leave from the judgment and order dated the 6th January 1981 of the Madhya Pradesh High Court Jabalpur Bench in MP No 87 of 1980
Amlan Ghosh for the Appellants
Sobhagmal Jain and SK Jain for the Respondents
The Judgment of the Court was delivered by BAHARUL ISLAM J
This appeal by special leave is by the judgment debtors
The material facts which are not in dispute may be stated thus 2
The predecessor of the respondents hereinafter referred to as the decree holder  filed a suit for eviction of the predecessor of the appellants hereinafter referred to as the judgment debtor  and obtained a decree on 2131960 inter alia for eviction from a 203 shop
The decree holder filed a petition for execution of the decree for eviction in the executing court on 311961
The petition was dismissed on 2011961
A fresh petition for execution was filed on 1911965
It was also dismissed on 2031965
The decree holder again filed an application for execution of the decree on 2261966
During the pendency of this execution proceeding the parties filed a compromise petition on 3131968
The terms of the compromise on the interpretation of which the result of this appeal depends were as follows Material portions only In the above case a compromise has taken place between the parties as follows 1 That for the present the judgment debtor is not getting a shop
His established business will be ruined by vacating the shop in hurry
Therefore the judgment debtor wants time till 31121972 from the decree holder for vacating half the shop in his possession
So the judgment debtor will vacate the shop and give possession thereof to the decree holder by 31121972
He has vacated half the shop and given its possession
2 That during this period the judgment debtor shall pay damages to the decree holder for use of the shop  110 per month
3 That the damages shall be paid upto the 5th of every month
In the event of non payment of damages for any six months the decree holder shall be entitled to get the shop immediately vacated by filing execution from the possession of the judgment debtor without any objection as regards limitation
4 The decree holder wants to have new shutters put up after removing the present shutters in the front portion of the shop
The judgment debtor will not be entitled to object to this
He will help in the putting of girders and he will vacate the portion
If he will demur to it the decree holder can have the shop vacated without any objection as regards the above limitation
204 So the aforesaid compromise be accepted and kept on record
It is also not in dispute that at the time of the compromise half of the shop had been vacated and its possession delivered to the decree holder as stated in the compromise petition
In order to appreciate the intention of the parties to the compromise it is also necessary to refer to the order dated 2131968 recorded by the execution court on the basis of the compromise
The material para of the order is para 3 and it is in the following terms The judgment debtor to give vacant possession of the shop to the decree holder by 311272 according to the compromise and he will pay damages for use and occupation by the 5th of every month to the decree holder according to the compromise  Rs 110 per month
On six months  damages being due the decree holder will be entitled to have the shop vacated
The decree holder will provide shutters in the front portion
The judgment debtor will not object to them
The case is decided in terms of the compromise
The compromise be recorded
On 25111975 the decree holder filed an execution petition for recovery of possession of the portion of shop in possession of the judgment debtor alleging that the judgment debtor had not paid damages at the rate of Rs 110 per month from 171975
Notice of the execution petition was issued to the judgment debtor who appeared and raised several objections to the execution proceedings
But we are concerned in this appeal only with one which was that in terms of the compromise a fresh lease was created in favour of the judgment debtor in respect of the remaining half of the shop
It was therefore submitted that the decree was not executable
The Executing Court upheld the objection holding that the compromise dated 2131968 amounted to a fresh lease
An appeal was taken to the Court of the District Judge who set aside the order of the Executing Court
In a second appeal the High Court upheld the order of the District Judge and dismissed the appeal
It is against this order of the High Court is this appeal by special leave
205 5
The only point urged before us by Shri Amlan Ghosh learned counsel for the judgment debtor was that the compromise dated 2131968 created a fresh lease in favour of the judgment debtor in respect of the undelivered half of the shop and the decree holder s remedy was by a suit for recovery of its possession
When a compromise petition is filed in an execution proceeding and a contention is raised by the judgment debtor on a subsequent execution being started by the decree holder that the compromise has given rise to a fresh contract between the parties and that the decree sought to be executed is not executable what is to be seen is whether the decree has been extinguished as a result of the compromise and a fresh contract has emerged
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
In the instant case paragraph 1 of the compromise petition quoted above and the order of the Executing Court recording the compromise are important and disclose the intention of the parties
Paragraph 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 31121972 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 31121972
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 31121972 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
206 8
The above interpretation gets support from the use of the term damages  and not rents  in the compromise petition as well as the order of the Executing Court
The view we have taken gets support also from a decision of this Court reported in  In that case the appellant filed a suit for eviction of the respondent from the appellant s house
The suit was dismissed by the trial court In appeal compromise was entered into between the parties and the decree was passed in terms of the compromise
The compromise provided for the respondent s continuation of possession of the house for five years but it enabled the appellant to execute the decree by evicting the respondent if the latter failed to pay rent for three consecutive months
When the appellant sought to evict the respondent the latter claimed protection from eviction on the ground that the compromise decree created a lease
It was held by this Court that the facts that the appellant had filed a suit for eviction of the respondent and the compromise decree enabled him to execute the decree by evicting the respondent showed that the intention of the parties which was the decisive test was not to enter into a relationship of landlord and tenant
9 This appeal has no merit and is dismissed with costs
NVK Appeal dismissed


Summary:
The predecessor of the respondents filed a suit for eviction of the predecessor of the appellants from a shop and obtained a decree on March 21 1960 for eviction
The decree holder filed an application for the execution of the decree on March 22 1966 and during the pendency of these proceedings a compromise was entered into between the parties and the Executing Court passed an order dated March 21 1968 in terms of the compromise
The compromise provided for the judgment debtor to give vacant possession of the remaining half of the shop to the decree holder by December 31 1972 and to pay damages for use and occupation by the 5th of every month to the decree holder at Rs 110 per month and that on six months damages being due the decree holder will be entitled to have the shop vacated
The decree holder filed an execution petition for recovery of possession on November 25 1975 alleging that the judgment debtor had not paid damages at the rate of Rs 110 per month from July 1 1975
The judgment debtor contested the execution proceedings contending that the terms of compromise created a fresh lease in favour of the judgment debtor in respect of the remaining half of the shop and that the decree was therefore not executable
The Executing Court upheld the objection holding that the compromise dated March 21 1968 amounted to a fresh lease
On appeal the District Judge set aside the order of the Executing Court but in Second Appeal the High Court upheld the order of the District Judge and dismissed the appeal
In the appeal to this Court it was contended on behalf of the appellantjudgment debtor that the compromise dated March 21 1968 created a fresh lease in favour of the judgment debtor in respect of the undelivered half of the shop and the decree holder s remedy was by way of a suit for recovery of possession
202 Dismissing the appeal  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 upon 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
205 C D In the instant case para 1 of the compromise petition and the order of the Executing Court recording the compromise disclose the intention of the parties
The judgment debtor had already vacated half of the shop and given its possession and time was granted till December 31 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 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 him to find out alternative accommodation and time for vacating was given till December 31 1972
Further the term damages  and not rents  is used in the compromise petition as well as the order of the Executing Court
The intention of the parties clearly was not to extinguish the decree for eviction but to create a mode of its full discharge
205 E H Konchada Ramamurthy Subudhi  Anr
vs Gopinath Naik   referred to