+ For For IN THE HIGH COURT 0F SIKKIM CIVIL JURISDICTION WP (C) No .............,...............?.9.„...„ ............................... of20...I.9 Dafodil's School & Ano. Kalparq Pradhan Appellant Petitioner (Advocate (s)) Plespondent Opposite Party (Advocate (s)) Versus Appe[lants (s) Petitioner (s) Flespondent (s) opposite party (s) rs. ha3ani Chakrabort.y and Mrs. Manju Rai Serial No. Order (s) with Signature (s) BEFORE I.1 (a -05-2010 Osh, C„) HONBLE THE CHIEF JUSTICE MR. JUSTICE BARIN GHOSH HONBLE MR. JUSTICE S. P.WANGDI, JUDGE Present: Mrs. Laxmi chakrabortiwith Ms. Manju Rai, Advocates for the petitioners. Being aggrieved by the order passed on 24.04.2010 directing issue of warrant of delivery of possession of the decreed premises, without offering an opportunity to file written objection to the execution case SGPG- 1/ High Court/ 2ooo Nee./ 2.4.2009 Case No Serial No. Order (s) with Signature (s) th SGPG- 3r High Courv 5ooo registered as Civil,(execution) Case No. 01 of 2010, the present appeal has been preferred. The subject matter of the execution case referred above is a compromise decree. In the compromise decree it has been provided in no uncertain terms that the appellant before us shall vacate the suit premises and give Khas vacant possession to the plaintiff on expiry of 31St December, 2009 without fall. The compromise decree further provides that the defendant shall pay rent fee: ed at the rate of Rs.10,000/-(rupees ten thousand) per month with effect from lst day of May 2006 which shall be payable according to English Calendar Month within lst week of the succeeding month. The order sheet of the Court below suggests that on 15.04.2010, when the case was listed before the Court below after service, the counsel appearing on behalf of the appellant prayed for time for settlement and such time was granted. On the next date which was fixed in the presence of the counsel for the appellant, a prayer was made for filing written objection. The Court below having taken . notice of the fact that the compromise decree in no uncertain terms provides that the appellant shall vacate the suit premises and give Khas possession on expiry of 31St December, 2009, we think correctly, did not permit the appellant to delay execution of the compromise decree. Before us it is being contended that while a sum of Rs.50,000/- (fifty Nos/ 2.4.2009 -.T SGPG- 3/ High Court/ 5000 Case No Order (s) with Signature (s) thousand) was paid by cheque, rent in advance for the month of January, 2010 was paid and accordingly, a new tenancy has come into force. To support such contention, recourse has been taken to the books of the accounts maintained by the appellant, which in terms of Section 34 of the Evidence Act cannot charge the respondent plaintiff without corroboration. However, despite payment made by cheque, the receipt granted therefore has not been produced before us. There is, therefore, nothing before us on the basis of which we can even prima facie hold that a new tenancy has come into force from 01.01.2010. Furthermore, in terms of the compromise decree an amount of Rs.10,000/- (ten thousand) payable as rent for the month of December, 2006 was to be paid in the month of January, 2010 and the cheque in question was encashed on 08.01.2010. That being the situation, we are also of the view that if any indulgence is shown, the same would . tantamount to permit the appellant to commit breach of the undertaking given solemnly by her while she of her own volition entered into the compromise decree. The learned counsel appearing in support of the appeal cited before us the judgment of the Honble Supreme Court rendered in the case of Bibekananda Bhowal Vs. Satindra Mohan Deb, reported in AIR 1996 SC 1985. In that case, compromise decree provided that Nos./ 2.4.2009 V Serial No. SGPG- 3/ High Court/ 5ooo Case No Order (s) with Signature (s) the defendant would be liable to be vacated from the suit land after expiry of ten years by appropriate action in Court of law. The decree thus considered in that case and the decree in the instant case are quite different and, accordingly, law pronounced by the Honble Supreme Court in that case has no application whatsoever to the present case. In the instant case as aforesaid in no uncertain terms and without any ambiguity, it` had been declared that the defendant shall vacate the suit premises and give Khas possession to the plaintiff on the expiry of 31St December of 2009 without fail. The learned counsel cited yet another I.udgment, which has been rendered by a learned single Judge of this Court in Civil Revision No. 6 of 1998 and other connected Civil Revisions. In tha.t case, the Court was concerned with new rights glowing from a new agreement entered subsequent to the compromise decree. That judgment, therefore, is of no help to the appellant, in the absence of the appellant demonstrating creation of new rights subsequent to the compromise decree, which,a. aforesaid, the appellant has failed to demonstrate. The learned counsel lastly submitted that the suit premises is not only contiguous to the premises of the school, but in the manner in which two premises have been constructed, having only one entrance, it is not NoSJ 2.4.2009 V SGPG- 3/ High Court/ 5ooo Nos./ Case No Order (s) with Signature (s) possible to take possession of the suit premises and to handover the same to the plaintiff in the suit. We feel thatjn fact, if there is any such problem the same is to be sorted out by the executing Court and an apprehended situation of that nature is no ground to challenge the order of the Court below issuing warrant of delivery of possession and accordingly, we refuse to admit the appeal. 19.05.10 ch#e 2.4.2009