Shivshankar Gurgar vs Dilip

2. The appellant filed civil suit under section 12(1)(a) of the Madhya Pradesh Accommodation Control Act, 1961 (hereinafter referred to as the “Act”) for eviction of the respondent and recovery of arrears of rent. On 16.4.2002 the suit came to be decreed ex parte. The said decree came to be set-aside on an application filed by the respondent with a direction to file the written statement and also deposit the entire arrears within 30 days in the court.

3. On 25.7.2004 a compromise memo signed by both the parties came to be filed under which the respondent acknowledged his liability to pay arrears of rent to the appellant to the tune of Rs.11710/- and also costs quantified to Rs.4000/-. The respondent also agreed to pay the amount within a period of six months. It was also specifically agreed as follows:

4. In view of the said compromise, the matter was referred to the lok adalat and the civil suit was decreed in terms of the compromise.

5. On 21.7.2005 the appellant filed an application for the execution of the compromise decree alleging that the respondent failed to fulfil his obligations arising out of the compromise decree and, therefore, the appellant is entitled to recover possession of the premises. The events that followed are narrated by the High Court in the judgment under appeal as follows– “On 04/10/2005 after appearance respondent filed objections wherein it was alleged that signatures were obtained by the petitioner on the said compromise under undue influence and no receipt was issued by the petitioner for a sum of Rs.10,000/-, which was paid by the respondent. The said application was dismissed by the learned Executing Court vide order dated 24/10/2005 and it was directed that since the Executing Court cannot go behind the decree, therefore, warrant of possession be issued. Again on 09/11/2005 objections were filed in which adjustment of Rs.25,000/- was claimed. Vide order dated 22/11/2005 objections filed by the respondent was dismissed, however 15 days time was granted to deposit the amount. Since the amount was deposited by the respondent, therefore, vide order dated 23/12/2005 Executing Court dismissed the execution holding that since the relief of possession of suit accommodation was in alternate and the respondent has deposited the amount though belatedly, therefore, petitioner is not entitled for alternative relief and the execution petitioner was dismissed, against which an appeal was filed on 07/01/2006 and vide order dated 16/03/2006 learned Appellate Court held that the Executing Court has no jurisdiction to go behind the decree but no relief was granted to the petitioner against which Writ Petition was filed by the petitioner on 05/02/2006, which was numbered as WP No.6163/06 and vide order dated 08.02.2007 Writ Petition was allowed and the matter was remanded to the Executing Court with direction to decide the points framed by the Writ Court for determination.” (emphasis supplied)

14. We are of the opinion that all the reasons given by the High Court are unsustainable in law.

(ii) In our opinion, the order dated 23.11.2005 virtually amounts to the modification of the decree and is without jurisdiction on the part of the executing court, therefore, a nullity.

“… the decree of the aforesaid Lok Adalat that in default of payment of arrears of rent the judgment debtor shall be liable to be evicted, cannot be enforced because according to Section 13 of M.P. Accommodation Control Act, if the judgment debtor pays the rent to the landlord within one month from the date of issuance of summon or within the stipulated time given by the court on an application so made by the judgment debtor, then he will be entitled for protection from eviction under Section 12 M.P. Accommodation Control Act, thus clearly entire decreetal amount has been paid in the execution proceeding, therefore, the judgment debtor shall be entitled for protection from eviction.”

27. In the case on hand the tenant was clearly in arrears of the rent which fact is acknowledged by the compromise memo signed by the tenant which was incorporated in the decree. Looked at any angle, we are not able to agree with the judgment under appeal, nor able to sustain the executing court’s order dismissing the landlord’s execution petition. The appeal is accordingly allowed. The execution petition filed by the appellant is also allowed. The executing court will now take necessary steps for evicting the respondent from the disputed premises and handing over the possession of the same to the appellant.

28. In the facts and circumstances of the case, there will be no order as to costs.

January 3, 2014

[1] Smt. Nai Bahu v. Lala Ramnarayan and others (1978) 1 SCC 58 [2] 13. When tenant can get benefit of protection against eviction.— (1) On a suit or any other proceeding being instituted by a landlord in any of the grounds referred to in section 12 or in any appeal or any of other proceeding by a tenant against any decree or order for his eviction, the tenant shall, within one month of the service of writ of summons or notice of appeal or of any other proceeding, or within one month of institution of appeal or any other proceeding by the tenant as the case may be, or within such further time as the court may on an application made to it allow in this behalf, deposit in the court or pay to the landlord, an amount calculated at the rate of rent at which it was prayed, for the period for which the tenant may have made default including the period subsequent thereto up to the end of the month previous to that in which the deposit or payment is made and shall thereafter continue to deposit or pay, month by the 15th of each succeeding month a sum equivalent to the rent at that rate till the decision of the suit, appeal or proceeding as the case may be.