IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 1ST AUGUST 2011 / 10TH SRAVANA 1933 OP(C).No. 375 of 2011(O) ------------------------------ AGAINST THE ORDER DATED 17/01/2011 IN EA.245/10 EP.311/09 IN OS.129/2005 of SUB COURT,ALAPPUZHA .................... PETITIONER --------------- P.V.ANTONY, S/O.VARGHESE, AGED 52 YEARS, PUTHENPURACKAL, PATHIRAPPALLY P.O., ALAPPUZHA. BY ADVS. SRI.K.S.HARIHARAPUTHRAN SRI.GEORGE MATHEW SRI.DIPU JAMES SRI.M.D.SASIKUMARAN SMT.K.V.RAMYA RESPONDENT(S): --------------------- THE COIR BOARD EX-TRAINEES - COIR MATS & MATTINGS CO-OPERATIVE SOCIETY NO.768 PATHIRAPPALLY P.O., ALAPPUZHA DIST, REP. BY ITS SECRETARY, PIN - 688 521. R1 BY ADV. SRI.B.PRAMOD THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 01/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs O.P.(C). NO. 375/2011 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF AWARD DATED 21/11/2006 IN O.S. 129/2005 OF LOK ADALATH ON 21/11/2006. P2: COPY OF E.P. NO.311/2009 IN O.S. NO.120/2005 FILED BY RESPONDENT BEFORE SUB COURT, ALAPPUZHA. P3: COPY OF E.A. 245/2010 IN E.P.311/2009 IN O.S.120/2005 SUB COURT, ALAPPUZHA. P4: COPY OF OBJECTION IN E.A. 245/2010 FILED BY RESPONDENT BEFORE SUB COURT, ALAPPUZHA. P5: COPY OF ORDER IN E.A. 245/2010 IN E.P.311/2009 IN O.S.129/2005 OF SUB COURT, ALAPPUZHA DATED 17/01/2011. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A. TO JUDGE. svs THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.375 of 2011 --------------------------------------- Dated this 01st day of August, 2011 JUDGMENT The point that arises for a decision in this original petition under Art.227 of the Constitution is whether the compromise decree is executable?. An objection to that effect was raised by the petitioner/defendant but, overruled by the executing court as per Ext.P5, order dated January 17, 2011 on E.A.No.245 of 2010 (in E.P.No.311 of 2009 in O.S.No.129 of 2005) of the Court of learned Sub Judge, Alappuzha. 2. Short facts necessary for a decision of the question are: Respondent, according to it permitted petitioner to occupy its factory building subject to certain terms and conditions for a specified period. On the expiry of the said period, respondent filed O.S.No.129 of 2005 for eviction of petitioner. Petitioner contended that it is a lease arrangement. Certain other contentions were also urged before the learned Sub Judge. While so, the dispute was referred to the Adalath where, parties reached a settlement and based on that settlement the Adalath passed an award. Learned Sub Judge disposed of that suit accordingly. Respondent sought execution. Petitioner filed O.P(C).No.375 of 2011 -: 2 :- E.A.No.245 of 2010 objecting to the executability of the decree. Various contentions were raised in E.A.No.245 of 2010. The objections were overruled by the learned Sub Judge by the impugned order. 3. It is contended by learned counsel for petitioner that the decree is merely declaratory in nature. Parties, by the settlement renewed or extended the lease and hence respondent cannot execute the decree since the compromise decree does not entitle respondent to do so. According to the petitioner, remedy if any available to the respondent is only to seek eviction by separate suit if terms and conditions of the compromise are not complied by petitioner. Learned counsel has placed reliance on the decision of the Supreme Court in Bibekananda Bhowal Vs. Satindra Mohan Deb (AIR 1996 SC 1985) . 4. Per contra, it is contended by learned counsel for respondent that executability of the compromise decree does not depend upon the wording of the decree and whether it specifically provides for execution. According to the learned counsel, executability depended on the power of the executing court and the terms and conditions referred in the compromise. It is pointed out by learned counsel that though the lease was extended for a further period of three years as per compromise, O.P(C).No.375 of 2011 -: 3 :- the said period expired and hence respondent was not required to issue notice under Sec.106 of the Transfer of Properties Act (for short, "the Act”) since the lease expired by efflux of time under Sec.111 of the said Act. It is contended by learned counsel that at any rate, the compromise contains conditions on the non compliance of which respondent has got a right to evict petitioner in execution of the same decree. It is contended that, that part of the compromise decree is separable from the remaining part of the compromise and hence on non compliance of conditions respondent is entitled to evict petitioner in execution of the decree. Learned counsel has placed reliance on the decisions in Gopalwarao Dewakato Vs. Janagavai (1975 KLT SC SN 26 (C.No.62), Gopinathan Nair Vs. Sankaran Madhavan and Anr. (ILR 1984 (1) Ker.464), Sadasivan Vs. Kesavan (1986 KLT 91) , Sreedharan Vs. Bhaskaran (1986 KLT 102) and Achuthan Vs. Dr.A.J.John (1986 KLT 804). It is also contended by learned counsel that even the decision of the Apex Court in Bibekananda Bhowal Vs. Satindra Mohan Deb (supra) would show that if the compromise decree is separable it is open to the respondent to get that part of the decree which could be executed for non compliance of conditions stipulated in the compromise. O.P(C).No.375 of 2011 -: 4 :- 5. It is necessary to refer to the relevant provisions of the compromise decree. Ext.P1 is the compromise entered between the parties on 21.11.2006. It is seen from Ext.P1, that as per the settlement between the parties the rental arrangement is either renewed or extended for a period of three years subject to the conditions referred therein (from clause 2 onwards). Clause 2 states about liability of petitioner to pay the rent arrears as stipulated therein and states that if the rent arrears is not paid in the manner stated in clause 2, respondent/plaintiff has the right to realise the said amount from petitioner. It is further stated that if the amount is not paid with interest within the period of six months, extended lease would become void and petitioner/defendant will be liable to vacate the premises. 6. Clause 3 of the compromise states about obligation of petitioner to pay rent @`.9350/- per month (I am told, it is enhanced rate from the former, contractual rent) and obtain receipts from the respondent. It is stated that if for any reason, payment of rent is defaulted either consecutively or intermittently on more than two occasions, the extended lease will stand cancelled and even without previous notice, petitioner will be liable to vacate the building. Clause 4 speaks about liability of petitioner to pay water, electricity charges in respect O.P(C).No.375 of 2011 -: 5 :- of the demised premises. Clause 5 states that to terminate the lease thus extended, it is not necessary that either party should serve notice on the other party. Certain other clauses are also stated in Ext.P1, which are not relevant for decision of the question raised before me. 7. I shall refer to the decisions that the learned counsel on both sides have cited. In Bibekananda Bhowal Vs. Satindra Mohan Deb (supra) the Supreme Court considered executability of a compromise decree. Earlier part of the compromise decree stated that defendants in the suit were to give up possession of an area of 7' x 7' within one month from the date of compromise and “in the event of non compliance defendants will be liable to ejectment in execution of the decree passed in the suit in terms of the compromise”. Clause (c) of the compromise stated that defendants were to remain in possession of the remaining portion of the demised premises as monthly tenants. They were to vacate the said portion of the demised premises on the expiry of 10 years without any notice from plaintiff. It was also stipulated that in the event of any breach of the condition, defendants will be liable to ejectment by “appropriate action in a court of law”. The Supreme Court observed as to the executability of the said compromise decree O.P(C).No.375 of 2011 -: 6 :- that so far as the earlier part concerning the area measuring 7' x 7' is concerned, there is no difficulty since the compromise decree itself provided that defendants were liable to ejectment in execution of the decree passed in the suit in terms of the compromise. Dispute arose regarding executability of the decree to the extent it related to the remaining part of the demised premises where defendants were permitted to remain in possession subject to the terms and conditions of the compromise for a period of 10 years and it was provided that in the event of any breach of those conditions defendants were liable to ejectment by appropriate action in a Court of law. The Supreme Court noticed the striking difference in the language used in the compromise decree as to the area measuring 7' x 7' and the remaining portion of the demised premises which defendants were permitted to occupy for a period of ten years and held in paragraph 13 that “had the intention been to allow the Bhowals only permissive possession for a period of ten years and ejectment thereafter in execution of the compromise decree, the decree would have so provided. It does not do so. Thereafter assuming that the tenancy of the Bhowals has come to an end the Debs cannot eject the Bhowals from the building in their possession without taking appropriate legal action by filing a suit O.P(C).No.375 of 2011 -: 7 :- for ejectment or in any other manner as may be permissible in law but not by applying for execution of the compromise decree”. In paragraph 16 the Supreme Court observed that the compromise decree did not contemplate ejectment of defendants from the premises in execution of the compromise decree. So holding, the Supreme Court found that the compromise decree was executable to the extent it concerned the area measuring 7' x 7' while in respect of remaining portion of which defendants were permitted to be in occupation for a period of ten years, it was not executable. If the conditions were violated, remedy available to the plaintiffs was to file a separate suit for eviction or in other manner by known to law seek eviction but, not by execution of the compromise decree. True, in that case, regarding the remaining portion of the demised premises is concerned, there was a clause that plaintiff was to seek ejectment by appropriate action in a Court of law which was interpreted by the Supreme Court as meaning eviction by filing of a separate suit or in any other manner known to law but, not by execution of the compromise decree. 8. The decision in Gopalwarao Dewakato Vs. Janagavai (supra) only says that when a lease is determined by efflux of time notice under Sec.106 of the Act is O.P(C).No.375 of 2011 -: 8 :- not required in view of Sec.111(a) of the said Act. 9. In Gopinathan Nair Vs. Sankaran Madhavan and Anr. (supra) executability of the compromise decree was considered and decided. It was held that it cannot be said that unless there is a direction in the compromise decree to execute and release the rights conferred by the decree, the decree cannot be executed. If rights are conferred by a decree, that can be executed and released, 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 that case, the original lease was for a specific period and 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.” In view of that, it was held that notwithstanding that the compromise decree did not specifically say about the decree being executed, it could be executed. 10. In Sadasivan Vs. Kesavan (supra) it was held that if the tenant defaults payment of rent or fails to pay the rent in due time the landlord is entitled to demand surrender of building and O.P(C).No.375 of 2011 -: 9 :- a notice under Sec.106 of the Act is not required since the above contract amounted to contract to the contrary. 11. In Sreedharan Vs. Bhaskaran (supra) also, enforceability of the compromise decree was considered. There, as per the terms of the compromise plaintiff agreed to release all his rights and interests in a suit for partition of the property on payment of certain amount before 06.02.1980. On failure, defendant agreed to release all his rights to the plaintiff for a certain amount. Plaintiff was to vacate from the suit property within two months from the date of compromise. Plaintiff filed execution petition on 14.07.1980 contending that defendant did not pay the amount as agreed in the compromise before 06.12.1980 and offering to pay the amount he was liable to pay to the defendant. Plaintiff prayed in the execution petition for execution of the release deed through Court. The executability of the decree was raised as an objection. It was contended that as the decree does not mention that in the event of failure to execute the release deed it could be got executed, executing court could not execute the release deed. This Court held that unless the right to execute the decree is restricted expressly or impliedly or by the provisions of any supervening legislative enactment, executable character of the decree is not lost. It was O.P(C).No.375 of 2011 -: 10 :- held that the decree is executable. 12. Yet another decision which learned counsel for respondent has placed reliance is Achuthan Vs. Dr.A.J.John (supra). There the compromise decree provided that in case of default of tenant to pay past arrears or future rent, he can be evicted. It was held that the intendment of the award or decree has to be looked into for deciding the question whether a decree or award is declaratory or otherwise. In that case the tenant had agreed that he will surrender the building if he commits default in the matter of payment of rent or arrears of rent. That unequivocal undertaking which became part of the order of the Court was found to have made the order executable, it was held. In holding so, learned Judge placed reliance on the decision in Balakrishna Reddiar Vs. Madhavan Pillai (1978 KLT 495). There, it was held: “if going by the compromise order for eviction the tenant has agreed for vacating the premises, the mere fact that tenant was given some breathing time to vacate and to continue in possession till then on payment of rent, will not in any way help the tenant to cling on to the premises and raise a contention that he can be dispossessed only in fresh proceeding under Sec.11 of the Act”. O.P(C).No.375 of 2011 -: 11 :- 13. Reading of the above decisions would make it clear that it was in the view of the nature and character of the compromise entered into between the parties and extended duration given to the tenant on the terms and conditions it was held that the compromise decree is executable. Let me bear in mind that as time and again reminded by the Supreme Court, any decision must apply to the facts and circumstances of that case, for a decision is authority for the case it decides though, in appropriate cases the principle could be relied on. 14. Now based on the above decisions I have to consider whether the compromise decree in the present case is executable? I have already referred to the relevant clauses in the compromise. 15. It is pertinent to note that unlike compromises where notwithstanding the termination of the lease either by notice or by efflux of time the tenant is permitted to be in possession of the premises for some more time subject of course to the terms and conditions stated therein, here is a case where the compromise in short either created a new rental arrangement or extended the existing lease for three years. It is clear from the opening part of Ext.P1, compromise that subject to the terms and conditions stated (ie, clause 2 onwards) a lease was either created or the O.P(C).No.375 of 2011 -: 12 :- existing lease was extended for a period of three years from 13.10.2006. In other words the intendment of the parties as can be seen from Ext.P1 was either to create a new lease or extent the period of lease for a period of three years subject to the terms and conditions stated therein which included liability of petitioner to surrender in case there is non compliance of the conditions thereon. Clauses 2 onwards are not independent clauses but, only conditions subject to which the new lease was created or the existing lease was extended for a period of three years and on non compliance of which there may be a forfeiture of the lease enabling the respondent to seek eviction as per law notwithstanding the period of three years. 16. The principles governing interpretation of deeds inform me that the Court is not to go behind the document to find out the intention of parties unless the terms and conditions of the document are ambiguous. The question is not what the parties may have intended but what the document reveals as their intention. Viewed in that line I can only understand that Ext.P1 is an agreement by which, subject to the terms and conditions stated therein parties either created a new lease or extended the lease for a period of three years. 17. It is true that since the lease is for a period of three O.P(C).No.375 of 2011 -: 13 :- years, in view of Sec.111(a) of the Act, it was not necessary for the respondent to terminate tenancy by notice under Sec.106 of the Act, but, it is relevant to note that Ext.P1, compromise also provides that in case parties wanted to terminate the rental arrangement (ie, before the expiry of the period of three years) it is not required for them to serve notice on the other. In other words, but for that clause (clause 5 of Ext.P1) if the parties required the lease arrangement to be terminated before expiry of the period of three years, notice was required. That also gives the indication that the intendenment of the parties by executing Ext.P1 was not to get an executable decree but, to extent the period of lease. Viewed in that line I am inclined to think, accepting the argument of learned counsel for petitioner that the compromise decree is not executable. 18. The next question is whether on account of alleged non compliance of the conditions referred in clauses 2 and 3 of Ext.P1 whether respondent is entitled to execute the compromise decree. Much reliance is placed by the learned counsel for respondent on the decision of the Supreme Court in Bibekananda Bhowal Vs. Satindra Mohan Deb (supra). Learned counsel contended that in that case, regarding the executable portion of the decree (ie, regarding 7' x 7' area) O.P(C).No.375 of 2011 -: 14 :- executability of the decree was upheld. But, that was because of the specific term in the compromise that in respect of that area, in the event of non compliance of the condition. Defendants will be liable to ejectment in execution of the decree passed in the suit in terms of the compromise. No such clause is available in Ext.P1. I must also understand that so far as present case is concerned, at no point of time before the expiry of the period of lease created by Ext.P1, respondent sought execution of the decree on the ground that terms and conditions of Ext.P1 have not been complied. On the other hand execution is sought on the ground that the period of three years provided by Ext.P1 has expired. I have been taken through the copy of execution petition which does not mention anything about the alleged violation of conditions stipulated in Ext.P1 subject to which the lease was either newly created or extended for a period of three years. In that view of the matter if the conditions were violated, that only enabled respondent to sue for eviction notwithstanding the period of three years provided by Ext.P1. It is therefore idle for the respondent to now contend that in view of non compliance with the terms and conditions in Ext.P1, respondent is entitled to execute the decree. 19. Having heard learned counsel on both sides and gone O.P(C).No.375 of 2011 -: 15 :- through Ext.P1, what I can find is not that notwithstanding the expiry of lease (prior to the date of the suit) the compromise permitted petitioner to be in possession for some more time subject to the terms and conditions mentioned in Ext.P1 so that the compromise is executable as prayed for by respondent but, it is a case of a fresh lease created or the existing lease extended notwithstanding the expiry of the lease already created, for a period of three years. If on the expiry of the said lease arrangement respondent is not bound to issue notice terminating lease in view of Sec.111(a) of the Act, that is an entirely a different matter but, that does not make the decree executable. On going through Ext.P1 I am inclined to accept the argument of learned counsel for petitioner that the compromise decree is not executable. Executing court has not referred to these aspects of the matter and hence I am unable to uphold its order. 20. At this stage learned counsel for respondent has submitted that notwithstanding that this Court found that the compromise decree is not executable there may be a direction to pay off the rent arrears. Learned counsel also pointed out that respondent society is formed of labourers and more than `.2,14,000/- is due by way of rent arrears. Learned counsel in the circumstances, requested that a direction may be given to the O.P(C).No.375 of 2011 -: 16 :- petitioner to pay off the rent arrears. Learned counsel for petitioner after getting instruction from petitioner has in fairness, conceded that entire rent arrears due will be paid within three months from this day. The said submission of petitioner is recorded. Resultantly this original petition is allowed as follows: Ext.P5, order is set aside. E.A.No.245 of 2010 will stand allowed. E.P.No.311 of 2009 will stand dismissed. Sd/- (THOMAS P JOSEPH, JUDGE) Sbna/-