Sunday, 7 August 2016

Whether tenant can challenge consent decree passed against him?

Coming to the decision of this Court in Smt. Nai
Bahu v. Lala Ramnarayan and others (1978) 1 SCC 58,
all that this Court held is that a landlord whose right to
seek the eviction of his tenant is restricted by a statute (to
the grounds specified in the statute) cannot successfully
evict the tenant only on the basis of a compromise decree
passed in a suit for eviction of the tenant. Apart from the
consent of the tenant, one of the statutorily stipulated
grounds rendering the tenant liable for eviction must
necessarily exist for the validity of such a decree. In other
words, this court held that a tenant who suffered a consent
decree can still raise a question that none of the statutory
conditions existed which render him liable for eviction
when the consent decree came to be passed.
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.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 52 OF 2014
[Arising out of SLP (Civil) No.21560 of 2011]
Shivshankar Gurgar …Appellant
Versus
Dilip …Respondent

Chelameswar, J.



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:
“H. If the defendant violates any of the aforesaid
conditions, the plaintiff shall be entitled to get the
vacant possession of suit accommodation from the
defendant wherein defendant shall have no objection.”
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)
6. The operative part of the order reads as follows:
“10. It is for this reason, I am constrained to remand
the case to executing court for deciding the issue again
arising out of the execution application filed by the
petitioner. The executing court will decide the
application keeping in view the law laid down in Nai
Bahu1
 case and any other case which governs the field
and will record categorical finding on following issues:
1. Whether compromise decree dated 25.7.2005 is
nullity in so far as it relates to a relief of eviction of
respondent from the suit house?
1 Smt. Nai Bahu v. Lala Ramnarayan and others (1978) 1 SCC 58
3Page 4
2. If not then whether default alleged is made out by
the petitioner so as to entitle him to execute the decree
for eviction?
7. On remand, by the order dated 17.4.2007, the
executing court recorded a finding that the respondent
had paid the entire amount due under the compromise
decree in the executing court although such a payment
was made beyond the period of six months stipulated in
the compromise decree. Further, the executing court
examined the submission made by the respondent that in
view of section 13(1)(a) of the Act the compromise decree
insofar as it provided for eviction of the respondent in the
event of his failure to make the deposit of arrears within
the stipulated time is void. The operative portion of the
order of the executing court reads as follows:
“20. …. Hence, in respect of issue No.A it is decided
that the compromise decree is void in respect of
eviction relief and no such eviction can be ordered
contrary to the provisions of M.P. Accommodation
Control Act for default in payment of rent. Since
executable part of compromise decree has been held to
be void, in such circumstances the executing court
cannot pass an order for eviction for default in payment
of arrears of rent or remaining part of arrears of rent.
Accordingly issue No.B is decided.”
4Page 5
8. Aggrieved by the said order, the appellant herein
again approached the High Court by way of a Civil Revision
Petition No.173 of 2007. The High Court by its judgment
under appeal dated 28.10.2010 dismissed the revision.
Hence this appeal.
9. The reasons recorded by the High Court are as
follows-
“8. Undoubtedly entire rent was deposited by the
respondent. It is also not in dispute that the amount
was not deposited within a period of six months as per
terms and condition of the compromise decree.
However, later on the rent was deposited. Since the
ground was available to the petitioner under Section
12(1)(a) of M.P. Accommodation Control Act as the
respondent did not tender the rent within a period of
two months from the date of notice and also did not
deposit the rent within one month from the date of
receipt of summons under Section 13(1) of the Act,
therefore, there was no reason for the petitioner to
enter into compromise and condone the delay in
depositing the rent and give further time to the
respondent of another six months to deposit the rent.
It appears that since there was serious dispute between
the parties relating to the title of the petitioner,
therefore, the concession was given by the petitioner.
Vide order dated 23.11.2005 learned Executing Court
has further extended the time by another 15 days for
depositing the arrears of rent keeping in view the good
conduct of the respondent.
9. From perusal of the order dated 23.11.2005 it
appears that the amount of Rs.10,000/- was deposited
by the respondent on that day only. Thus, vide
judgment and decree dated 25.07.2004 respondent
was required to deposit the arrears within six months
which expired on 24.01.2005. In execution petition,
time was further extended by 15 days vide order dated
23.11.2005. The order dated 23.11.2005 was not
challenged by the petitioner, meaning thereby the

petitioner agreed with the order whereby time was
further extended.
10. Apart from this if the rent is deposited by the
tenant as per Section 13(1) of the Act, then respondent
is entitled for protection against eviction under Section
12(3) and 13(5) of the Act and in case of default for
three consecutive months another suit for eviction can
be filed against respondent. In the facts and
circumstances of the case, this Court is of the view that
no illegality has been committed by the learned
Executing Court in dismissing the execution petition in
full satisfaction. Hence, petition filed by the petitioner
has no merits and the same is dismissed.”
10. It is argued by the learned counsel for the appellant
that the executing court erred in coming to the
conclusion that the compromise decree is inconsistent with
the section 13 of the Act and the High Court simply
failed to record its finding on the correctness of the order
of the executing court but went astray.
11. On the other hand, the learned counsel for the
respondent submitted that the executing court’s
conclusion that the compromise decree insofar as it
provided for the eviction of the respondent is void and
calls for no interference in view of section 13 of the Act
even though the High Court failed to examine the said
question.

12. The High Court did not examine the correctness of
the conclusion of the executing court that the compromise
decree insofar as it pertained to the eviction of the
respondent in the event of his failure to deposit the arrears
of rent within time stipulated in the compromise decree is
inconsistent with the provisions of the Act and therefore
void.
13. From the judgment under appeal, the relevant
portion of which is extracted earlier at para 9, it appears
that the High Court dismissed the case of the appellant on
three grounds (i) that the appellant need not have
entered into a compromise which led to the decree.
According to the High Court, such a compromise was
entered into by the appellant as in the view of the High
Court - there was a serious dispute about the title of the
appellant (ii) When the execution petition was filed by the
appellant, the executing court by its order dated
23.11.2005 granted 15 days time to the respondent to pay
the balance of the arrears of rent. The appellant did not

choose to challenge the said order. According to the High
Court, such failure of the appellant implies that the
appellant acquiesced in the said order, hence, the
appellant/landlord was not entitled for the recovery of the
possession of his property; (iii) in view of the fact that the
respondent eventually deposited the arrears of rent his
possession is required to be protected in view of section
12(3) and 13(5) of the Act.
14. We are of the opinion that all the reasons given by
the High Court are unsustainable in law.
The reasons which compelled the appellant to enter
the compromise are irrelevant for the issue at hand. The
respondent/judgment debtor cannot flout the compromise
decree with impunity on the ground that his opponent
entered the compromise in view of some serious dispute
about the maintainability of his claim. The conduct of the
appellant in entering the compromise only debars the
appellant to recover possession within the period of six
months from the date of the compromise decree whether
the respondent paid the arrears of rent or not till the last

date. If the respondent paid the said amount any time
within the period of six months, the appellant would be
debarred from seeking the eviction of the respondent on
the cause of action which led to the filing of the eviction
suit.
15. Coming to the second reason i.e., the failure of the
appellant to challenge the order of the executing court
dated 23.11.2005 (by which the executing court granted
15 days time to the respondent to deposit the balance of
the arrears of rent) debar the appellant to recover
possession of the property in dispute is equally untenable,
because:
(i) in our opinion, the order of the executing court dated
23.11.2005 is beyond his jurisdiction and a nullity. The
only source which confers powers on the civil court to
enlarge time is found under Section 148 of the Code of
Civil Procedure which reads as follows:-
148. Enlargement of time – Where any period is
fixed or granted by the Court for the doing of any act
prescribed or allowed by this Code, the Court may, in
its discretion, from time to time, enlarge such period
not exceeding thirty days in total, even though the
period originally fixed or granted may have expired.

It is obvious from the language of the Section, such a
power can be exercised only in a case where a period is
fixed or granted by the court for doing of any act
prescribed by this Court. In a compromise decree such as
the one on hand, the stipulation that the judgment debtor
is required to make the payment of the money within a
specified period is a stipulation by agreement between the
parties and it is not a period fixed by the court. Therefore,
Section 148 CPC has no application to such a situation.
We are fortified by the decision of this court in
Hukumchand v. Bansilal and others AIR 1968 SC 86
(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.
It is a settled principle of law that the executing court
cannot go beyond the decree. It has no jurisdiction to
modify a decree. It must execute the decree as it is. This
Court in Deepa Bhargava and Another v. Mahesh
Bhargava and Others [(2009) 2 SCC 294] held thus:-
1Page 11
“9. There is no doubt or dispute as regards
interpretation or application of the said consent
terms. It is also not in dispute that the
respondent judgment-debtors did not act in
terms thereof. An executing court, it is well
known, cannot go behind the decree. It has no
jurisdiction to modify a decree. It must execute
the decree as it is….”
16. It is well settled that such a void order can create
neither legal rights nor obligations. Therefore, the
appellant cannot be denied his right to recover possession
of the property in dispute on the ground that he did not
choose to challenge such a void order.
17. The third reason of the High Court and the conclusion
of the executing court that the compromise decree insofar
as it provided for eviction of the tenant in the event of his
failure to pay the arrears of rent within a period of six
months from the decree is contrary to the provisions of the
Act are interlinked. Therefore, we are required to examine
the scope of sections 12 and 13 of the Act insofar as they
are relevant for the present purpose.
18. Section 12(1) of the Act restricts the right of landlord
to evict his tenant only on the grounds enumerated in the
said section:
1Page 12
12. Restriction on eviction of tenants.— (1)
Notwithstanding anything the contrary contained in any
other law or contract, no suit be filed in any civil court
against a tenant for his eviction from any
accommodation except one of more of the following
grounds only, namely–
19. The only ground urged by the appellant in his suit is
that the tenant fell in arrears of rent. Such a ground is one
of the grounds in section 12(1)(a) of the Act which enables
the landlord to evict the tenant if he could successfully
establish that the tenant did infact fall in arrears of rent
and had neither tendered nor paid the amount within the
period specified under Section 12(1)(a) despite a demand.
Section 12(1)(a) reads as follows:-
12(1)(a) that the tenant has neither paid nor
tendered the whole of the arrears of the rent legally
recoverable from him within two months of the date on
which a notice of demand for the arrears of rent has
been served on him by the landlord in the prescribed
manner.”
1Page 13
20. Section 13(1)2
 of the Act stipulates that the tenant
shall either deposit in the court or pay to the landlord an
amount calculated at the rate of rent at which it was
prayed for by the landlord for various periods specified
therein (the details of which are not necessary for the
present). Such a deposit or payment is required to be
made in two contingencies. They are:-
(i) upon institution of the suit for eviction of
the tenant irrespective of the ground on which
eviction is sought; or
(ii) in an appeal or in a proceeding by the
tenant against the decree or order of eviction.
It is further stipulated that such a deposit or payment is
required to be made within a period of one month of the
service of the summons, if the deposit is being made
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.
1Page 14
during the pendency of the suit or within a period of one
month from the date of institution of appeal or other
proceeding as the case may be. Further, the said subsection
also recognizes the authority of the court to extend
in its discretion the said period of one month on an
application made to it. Sub-section (2)3
 provides for the
procedure in case of any dispute regarding the rate of rent
payable whereas sub-section (3) provides for the
procedure to be followed in case of any dispute regarding
the person to whom the rent is payable.
21. The submission that found favour with the executing
court is that in view of section 13.
“… 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
3
(2) If in any suit or proceeding referred to in sub-section (1) there is any
dispute as to the amount of rent payable by the tenant, the court shall, on a plea
made either by landlord or tenant in that behalf which shall be taken at the
earliest opportunity during such suit or proceeding, fix a reasonable provisional
rent, in relation to the accommodation to be deposited or paid in accordance
with the provisions of sub-section (1) and no court shall, save for reasons to be
recorded in writing, entertain any plea on this account at any subsequent stage.
1Page 15
judgment debtor shall be entitled for protection
from eviction.”
22. Sub-section (5)4
 declares that if a tenant makes
deposit or payment as required under sub-section (1) or
(2), no decree or order for recovery of possession of the
accommodation can be passed. Sub-section (5) only
protects the defaulting tenant in possession in the event of
his complying with the requirement of Section 13(1) or (2)
only in those cases where the eviction is sought on the
ground of arrears of rent falling under section 12(1)(a).
23. The case of the appellant is one falling under section
12(1)(a) and, therefore, the learned counsel for the
respondent placed reliance on Section 13 (5) to sustain the
conclusion of the executing court. Section 13(5) reads as
follows:-
“(5) If a tenant makes deposit or payment as
required by sub-section (1) or sub-section (2), no
decree or order shall be made by the court for the
recovery of possession of the accommodation on
the ground of default in the payment of rent by
the tenant, but the court may allow such cost as
it may deem fit to the landlord.”
4
(5) If a tenant makes deposit or payment as required by sub-section (1) or
sub-section (2), no decree or order shall be made by the court for the recovery of
possession of the accommodation on the ground of default in the payment of
rent by the tenant, but the court may allow such cost as it may deem fit to the
landlord.
1Page 16
24. A reading of Section 13, in our view clearly indicates
that the payment or the deposit of rent into the court by
the judgment debtor (tenant) is contemplated only during
the pendency of the suit for eviction or an appeal (by the
tenant) against a decree or order of eviction. Section 13
has no application to the execution proceedings of a
decree for eviction.
25. The language of Section 13(1) is very clear and
explicit in this regard. We fail to understand as to how the
Court could read into Section 13, a possibility of enabling
the judgment debtor (tenant) to protect his possession by
making the payment during the execution proceedings in
spite of the fact that he had already been adjudged to be
in default of payment of the rent to the landlord. Such an
interpretation of Section 13 would be wholly destructive of
Section 12(1)(a). Therefore, not only the language of
Section 13(1), but also an irreconcilable inconsistency that
would arise between Section 12(1)(a) and Section 13(1) if
the interpretation placed by the executing court is
accepted - in our view is sufficient to hold that the
1Page 17
executing court’s interpretation of Section 13(1) is
unsustainable.
26. Coming to the decision of this Court in Smt. Nai
Bahu v. Lala Ramnarayan and others (1978) 1 SCC 58,
all that this Court held is that a landlord whose right to
seek the eviction of his tenant is restricted by a statute (to
the grounds specified in the statute) cannot successfully
evict the tenant only on the basis of a compromise decree
passed in a suit for eviction of the tenant. Apart from the
consent of the tenant, one of the statutorily stipulated
grounds rendering the tenant liable for eviction must
necessarily exist for the validity of such a decree. In other
words, this court held that a tenant who suffered a consent
decree can still raise a question that none of the statutory
conditions existed which render him liable for eviction
when the consent decree came to be passed.
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.
..………………………………….J.
 (RANJANA PRAKASH
DESAI)
...………………………………….J.
 (J. CHELAMESWAR )
New Delhi;
January 3, 2014
1Page 19
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