1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.6203 OF 1999 Smt.Hirabai Kondaji Chothave .. Petitioner versus Subhash B. Mantri & Ors. .. Respondents Mr.S.S.Kulkarni for the petitioner. Mr.G.S.Godbole for respondent Nos.1 to 3. CORAM : A.S.OKA, J. DATE ON WHICH SUBMISSIONS ARE HEARD : 26th February 2010. DATE ON WHICH JUDGMENT IS PRONOUNCED : 8th March 2010. JUDGMENT: . By this writ petition under Article 227 of the Constitution of India, the challenge is to order dated 5th July 1999 passed by the learned Civil Judge Senior Division, Nasik by which objections raised by the petitioner to the execution application filed by the respondents have been overruled. 2. One Shantaram Ganesh Potdar was landlord in respect of the suit premises. The suit premises consists of two rooms more particularly described in Regular Civil Suit No.97 of 1979 filed by the said Shantaram. The suit was filed under the provisions of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 (hereinafter referred to as the said Act). There was a compromise recorded in the said suit on 1st October 1983.It was recorded in the compromise that the petitioner tenant had withdrawn her contention that the contractual rent was not the standard rent and the petitioner agreed that from 1st 2 October 1983, the rent payable shall be of Rs.10/- together with taxes. The parties agreed that the said amount shall be the standard rent. Lastly, the consent terms provided that if the petitioner remains in arrears of rent for any period of six months, she will hand over the possession of the suit premises to the original plaintiff. 3. In the year 1988, the original landlord Shantaram filed a suit for eviction against the petitioner and her son. The case made out in the said suit was that the petitioner was in arrears of rent from August 1984. The notice of demand dated 16th November 1987 was issued by the original landlord to the petitioner. Within one month from the date of service of notice, the petitioner failed to deposit the arrears and therefore the suit was filed. The said suit was dismissed by the trial Court by judgment and decree dated 31st December 1991. The trial Court held that the suit was filed after amendment to section 12 of the said Act was carried out and as per amended provision, the amount of arrears of rent along with the simple interest at the rate of 9% per annum was deposited by the petitioner. Therefore, the trial Court granted relief against forfeiture to the petitioner and dismissed the suit. 4. After dismissal of the suit, on 25th October 1994, the said Shantaram purported to transfer the larger property to the respondents herein. The respondents on 27th October 1998 filed an execution application for execution of the consent decree passed in the first suit i.e Suit No.97 of 1979. As stated earlier, the consent decree was passed on 1st October 1983. The allegation in the execution application was that the petitioner has defaulted from 1st November 3 1994 and as provided in the consent decree the petitioner was liable to vacate after she commits default in payment of rent for a period of six months. To the execution application the petitioner raised various objections. It was pointed out that the entire arrears were sent by her to the respondents by money order on two occasions and the money orders were not accepted by the respondents. It was contended that the execution application was barred by limitation. It was contended that on the basis of the consent decree the respondents have no right to recover the possession. Reliance was placed on amended section 12(3) of the said Act and it was submitted that the compromise was contrary to section 12(3) as amended and therefore the decree is not capable of being executed. By the impugned order, the learned trial Judge held that the execution application was within limitation and in view of default committed by the petitioner for a period of more than six months, under the consent decree the petitioner was bound to vacate the suit premises. 5. The learned counsel appearing for the petitioner submitted that the consent decree is not a decree for possession of the suit premises under the provisions of the said Act. He submitted that the tenant can be dispossessed only if one of the grounds of eviction under the said Act is proved and decree is passed on the said ground. He, therefore, submitted that the consent decree passed in suit under the said Act was not capable of being executed. He submitted that the decree is nullity. He placed reliance on a decision of this Court in the case of Kolhapur Motor Transport Producers and Consumers Co-operative Society Ltd Vs. Ramchandra Mahipatrao Rane [1989 Maharashtra Law Journal 646]. He submitted that application for execution was not filed within a period of twelve years from the date of the decree. He submitted that before filing 4 execution application the predecessor of the respondent has filed a fresh suit for eviction against the petitioner on the ground of default and the said suit has been dismissed on merits. He submitted that in any case rent up to 1st October 1998 was sent by money orders which were refused and entire arrears up to 31st January 1999 were deposited in the Court. 6. The learned counsel appearing for the respondent submitted that the executing Court has dealt with only one objection regarding bar of limitation. He submitted that therefore the arguments that decree was nullity or was not executable cannot be considered in this writ petition and the said submissions will have to be made before the executing Court. He submitted that cause of action for executing the decree arose only after the petitioner was in arrears for a period of more than six months and from that date the execution application was filed within period of 12 years as provided in Article 136 of the Limitation Act, 1963. He reiterated that the ground that decree is inexecutable cannot be considered in this petition. He submitted that in any case default for a period of six months was admitted. He submitted that no interference was called for. 7. I have given careful consideration to the submissions. In the reply filed to the execution application, apart from bar of limitation, it was specifically contended that the decree was binding on the parties to only to the extent to which standard rent was fixed. However, that part of the consent decree as regards delivery of possession does not give right to the respondents to evict the petitioner. It was submitted that in view of amended section 12 of the said Act , consent decree was illegal and in any case it cannot be executed. 5 8. The first question is whether both the objections are considered by the executing Court. In the second paragraph of the impugned order the learned trial Judge has observed thus: “. The objection was raised on behalf of JD’s that the darkhast is barred by limitation and in not executable.” 9. In third and fourth paragraphs of the impugned order , the objection regarding limitation is dealt with. In the fifth and sixth paragraph the learned Judge has observed thus: “. In the present case, it was a compromise (consent) decree. If we peruse the terms of decree “it speak that when the J.Ds withhold the payment of rent for the period of continuous 6 months, the D.H will be at liberty to recover the possession from J.Ds. . It is contended by D.H that the J.Ds have withheld the payment of rent for 6 months. Hence, in default of payment by J.Ds the limitation with certainly run from the date of default. It is, also contended that the J.Ds are in default of payment of rent since 1.7.96 till the filing of the said darkhast. Under the circumstances, in my view the darkhast is filed well within limitation. . The objection, raised by the J.Ds has no force at all.” 10. Only on the basis of last observation that the darkhast was within limitation it was sought to be contended that only the objection regarding limitation has been considered. The second paragraph of the impugned order shows that both the objections were agitated before the executing Court. The fact that the executing Court has referred to the relevant compromise decree and in particular the clause relating to possession shows that even the second objection was considered. 11. In any event , the law is very clear. If a tenant is protected by relevant rent 6 control legislation, he cannot be evicted unless one of the grounds of eviction under the rent control legislation is established. In the present case, admittedly the petitioner had protection of the said Act. The petitioner could have been evicted only if one of the grounds specified for eviction under the said Act was established. In the present case, it is merely recorded in the consent decree that if the petitioner is in arrears of rent for any period of six months, she will have to handover possession to the landlord. Section 12 as it stood prior to 1st October 1987 provided that merely on the basis of arrears of rent a decree could not have been passed. Before a decree could be passed, notice of demand was required to be served and decree could be passed only if tenant failed to tender the entire arrears of rent within a period of one month from the date of receipt or fails to file application for fixation of standard rent. Mere arrears for period of six months is no ground under the said Act for eviction. Section 12(3) as amended from 1st October 1987 provided for relief against forfeiture subject to tenant depositing the entire arrears with 9% simple interest on or before the first date of hearing. In fact the suit filed by the predecessor of the respondents in the year 1988 was dismissed by granting relief of forfeiture to the petitioner. In the case of Kolhapur Motor Transport Producers and Consumers Co-operative Society Ltd (supra) this Court held that in case of a tenant who is protected under the said Act, by incorporating a term in the consent decree which is contrary to said Act, the landlord cannot be allowed to get a relief of possession. Before a decree for possession is passed, satisfaction of the Court is required that one of the grounds under the said Act was established. This Court held that if satisfaction of the Court as required in the said Act was not recorded, the decree for possession incorporated in the consent decree was nullity. In the present case , there is no 7 such satisfaction recorded that a ground under the said Act for passing a decree of eviction is made out. In any case, mere non payment of rent for a period of six months by itself is no ground for eviction under the said Act. In the circumstances, the decree to that extent is nullity and consequently inexecutable. It is obvious that only that part of the decree which provides for delivery of possession is inexecutable. 12. The execution application was filed only for executing that part of the consent decree which provides for delivery of possession. In the circumstances, the execution application itself was not maintainable. 13. Therefore, the petition must succeed and I pass the following order: : O R D E R : (a) The impugned order is quashed and set aside and Regular Darkhast No.93 of 1998 stands dismissed. (b) There will be no orders as to costs. (c) Rule is made absolute in above terms. (A.S.OKA,J)