# Smt. Hasina Bibi and others v. VIth Additional District Judge, Allahabad and others

- **Citation:** (2003) 1 ILRA 30
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2002-12-09
- **Case number:** Civil Misc. Writ Petition No. 7646 of 1998
- **Bench:** Anjani Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-hasina-bibi-and-others-v-vith-additional-district-judge-allahabad-and-others-39203
- **Pages:** 6

## Headnote

Code of Civil Procedure Order 21- rule 2-
Execution
of
Compromise
Decree-
execution court directed for compliance
of terms of compromise - revisional court
instead of remanding the case- set-aside the order passed by the Trail court
on the pretext after compromise new
tenancy has been created- hence no
question of execution of compromise
decree- various legal aspect discussed.

Held- para 6

Be that as it may, in view of the rival
contentions,
the
decision
of
the
revisional court deserves to be set aside
on the ground that the Court below
should consider the relevant contentions
and the law referred to above and
thereafter record a findings, which has
not been done in the order impugned in
the present writ petition while allowing
the
revision
and
dismissing
the
objection. There is yet another reason
that the revisional court while exercising
the revisional power for setting aside the
finding recorded by the trial court should
have remanded the matter to the trial
court, which has not been done. For this
reason alone, the order impugned in the
present petition deserves to be set aside
and is hereby set aside.

## Text

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30 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
not taken before petitioner was allowed
to take higher classes and that staffing
pattern was not approved by them. The
petitioner was teaching under a contract
with the corporation and thus the liability
of payment of salary cannot be saddled
upon educational authorities.

11. In the facts and circumstances of
the case, I cannot hold the respondents
guilty
of
wilfully
and
knowingly
disobeying the orders of the Court. The
contempt
petition
is
accordingly
dismissed
and
notices
issued
are
discharged.

The record of writ petition be
detached and be listed separately.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 9TH DECEMBER,
2002

BEFORE
THE HON'BLE ANJANI KUMAR, J.

Civil Misc. Writ Petition No. 7646 of 1998

Smt. Hasina Bibi and others ...Petitioners
Versus
VIth Additional District Judge, Allahabad
and others

 ...Respondents

Counsel for the petitioners:
Sri M. Islam

Counsel for the Respondents:
Sri K.K. Nirkhi
S.C.

Code of Civil Procedure Order 21- rule 2-
Execution
of
Compromise
Decree-
execution court directed for compliance
of terms of compromise - revisional court
instead of remanding the case- set-aside the order passed by the Trail court
on the pretext after compromise new
tenancy has been created- hence no
question of execution of compromise
decree- various legal aspect discussed.

Held- para 6

Be that as it may, in view of the rival
contentions,
the
decision
of
the
revisional court deserves to be set aside
on the ground that the Court below
should consider the relevant contentions
and the law referred to above and
thereafter record a findings, which has
not been done in the order impugned in
the present writ petition while allowing
the
revision
and
dismissing
the
objection. There is yet another reason
that the revisional court while exercising
the revisional power for setting aside the
finding recorded by the trial court should
have remanded the matter to the trial
court, which has not been done. For this
reason alone, the order impugned in the
present petition deserves to be set aside
and is hereby set aside.

(Delivered by Hon'ble Anjani Kumar, J.)

1. By means of present writ petition
under Article 226 of the Constitution of
India petitioners, who were the opposite
parties before the revisional court, have
challenged the order passed by the
revisional court dated 13.11.1997, copy of
which has been annexed as Annexure -4
to
the
writ
petition,
whereby
the
revisional court has allowed the revision
filed by the revisionist permitting the
execution of the compromise decree,
which has been arrived at between the
parties during the pendency of the
revision before the revisional court.

2. The facts leading to the filing of
present writ petition are that petitionersland lord filed suit no. 642 of 1977 for
arrears of rent and ejectment against the
respondent no. 3 (defendant in the suit).
The aforesaid suit was decreed for arrears
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1 All] Smt. Hasina Bibi and others Vs. VIth A.D.J., Allahabad and others
31
of rent and ejectment on 22.9.1982 by the
Small Causes Court. Aggrieved by the
aforesaid decree dated 22.9.1982 before
the revisional court under Section 25 of
the Provincial Small Causes Courts Act,
which was pending before the revisional
court when a compromised have arrived
at between the parties and the revision
was dismissed by VII Additional District
Judge,
Allahabad
vide
order
dated
24.5.1990, the land lord decree holder
filed an application for execution of the
compromise decree wherein it has been
agreed upon that defendant respondent no.
3 shall not be liable for ejectment. The
respondent no. 3 filed objection against
the compromise decree and its execution,
which was rejected by the executing court
under Section 47 of Code of Civil
Procedure vide its order dated 5.2.1994.
Thereafter respondent no. 3 filed civil
revision no. 67 of 1994 against the order
dated 5.2.1994 stating therein that this
decree being a compromise decree and
has been given effect to and thus has
become un-executable. The revisional
court allowed the revision filed by the
judgment debtor vide its order dated
13.11.1997 and held that the rejection of
the objection by the executing court is not
inconsonance with the law. The revisional
court has held that in view of the
compromise decree, which has resulted
into compromise decree created a new
tenancy and therefore the compromise
decree has exhausted and is no more open
for execution and after setting aside the
order passed by the trial court allowed the
revision.

3. Sri M. Islam, learned counsel
appearing on behalf of the petitioners has
challenged the order passed by the
revisional court dated 13.11.1997 on the
ground that it is clear from the perusal of
the compromise decree that had it is clear
that in case the defendant defaults in
complying with the condition of the
compromise decree passed which was a
special matter of the revision before the
revisional court before whom the said
compromise was arrived at, will be open
and available for execution, therefore the
view taken by the revisional court in
allowing
the
revision
suffers
from
manifest error of law. On the contrary,
learned counsel appearing on behalf of the
contesting respondents relied upon a
decision of this court reported in 1973
Allahabad, 40 M/s Chitra Talkies
Versus Durga Dass Mehta. The relevant
paragraphs 7 and 8 of the aforesaid
judgment which has relied upon by
learned counsel for the petitioners are
quoted below.

"7. I am inclined to agree with the
contention of the learned counsel for the
judgment debtor respondent that the new
contract of tenancy entered into between
the decree holder and the judgment
debtor by which a fresh tenancy in the
cinema building was created in the
latter's favour with effect from 1.8.1965
was not an adjustment of the decree in
execution. My initial reaction was that the
provisions of Rule 2 , Order XXI of the
C.P. Code were applicable only to a
decree of any kind under which money
was payable and the decree in execution
in the instant case being one for the
delivery of possession , those provisions
were not attracted to it. This view of mine
found support from a decision of the
Madras High Court in the case of
Narayanaswami Naidu vs. Rangaswami
Naidu AIR 1926 Mad 749. But my
attention was drawn to the Division
Bench decision of our Court in Sri Ram
Vs. Lekhraj AIR 1952 All 814, in which
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32 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
the Madras view was dissented from and
it was held that provisions of Order XXI,
Rule 2applied to all kinds of decree or
decrees under which money way payable.

8.
The basic question, therefore, that
remains to be considered is whether the
creation of a new tenancy in favour of the
judgment-debtor was an adjustment of the
decree in execution. The decree in
execution in the instant case was for
delivery of possession by eviction of the
judgment
debtor.
The
process
of
execution is nothing but an assistance
given by the Court to the decree holder
varying from case to case depending on
the nature of the decree. The judgment
debtor in the instant case in execution
through the assistance of the officers of
the Court was liable to be dispossessed
physically. Once the judgment debtor was
dispossessed through the process of the
court full satisfaction would be accorded
to the decree holder and the decree will
stand fully satisfied. The adjustment
contemplated under Rule 2 of Order XXI
CP Code is the satisfaction of the decree-
wholly or in part. As pointed out above
under the decree in execution in the
instant case satisfaction could only be
accorded
to the decree holder by
dispossession of the judgment debtor that
is his physical removal from the cinema
building by the assistance of the officers
of the Court the judgment debtor vacates
either at his own initiative or at the
initiative of the decree holder then that
would amount to according satisfaction to
the decree holder outside the Court, that
is, without the assistance of the machinery
of the Court. It would then be an
adjustment within the meaning of Rule 2
of Order XXI of the decree in execution.
Viewed in this light. I fail to understand
how the decree in the instant case can be
said to have been adjusted when there has
been no vacating of the possession of the
cinema building by the judgment debtor at
all and his right to remain in possession is
recognized by the decree holder on the
basis of a fresh contract of lease. What
that decree holder in fact has done is
saying to the judgment debtor that " I do
not want you to vacate the premises and
with effect from 1.8.1965 I recognize
your occupation as a tenant under the
contract of lease. In doing so I do not
think that the decree holder could be said
to have intending to accord satisfaction to
the decree in execution when under some
arrangement arrived at between the decree
holder and the judgment debtor new rights
are crated by entering into afresh contract
quite
inconsistent
with
the
rights
determined under the decree in execution.
The right which was determined under the
decree in execution was that the tenancy
had stood legally terminated and the
decree holder as land lord was entitled to
the delivery of vacant possession by the
judgment debtor. In the arrangement
arrived at between the decree holder firm
and the judgment debtor to the decree
holders but on the other hand a situation
to the contrary came into existence,
namely, as a lessor the decree holder was
to put in possession the judgment debtor
who had become a new tenant. It does not
make any material difference, to my
mind, that the judgment debtor was in
occupation from before. Under the
arrangement between the decree holder
and the judgment debtor by which a new
tenancy was created in favour of the
latter, the decree in execution was not
being adjusted in the sense as explained
by me above. On the other hand an
arrangement a new between the parties on
contractual basis, quite foreign to the
rights determined by the decree in
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1 All] Smt. Hasina Bibi and others Vs. VIth A.D.J., Allahabad and others
33
execution, was arrived at between the
parties. I may illustrate my point. A
decree for possession is obtained by the
owner of a land against a trespasser. The
owner puts that decree in execution but
pending the execution the owner decree
holder sells the land on which the trespass
was committed to the judgment debtor
and a sale deed is executed and duly
registered evidencing the transaction. The
decree holder owner admits to have sold
the property. The judgement- debtor does
not apply to the Court, neither the decreeholder brings it to the notice of the Court
that a sale of the property in suit had
taken place by which the said property
stands transferred to the judgment- debtor.
The question is can the owner decree
holder still in execution through the
assistance of the Court dispossess the
judgment debtor? The obvious answer is
in the negative. If such transactions were
to amount to adjustment of the executing
Court, then much difficulty will arise. I do
not think the authorities cited by the
learned counsel for the decree holder
appellant lay down any such wide
proposition of law that in no case a
transaction
which
makes
a
decree
ineffective entered into between the
decree holder and the judgment debtor
can be set up as a bar to the execution
unless it has been got certified under Rule
2 of Order XXI CP Code. Indeed faced
with such a situation in the case of AIR
1952 All 814 (supra) relied on by the
learned counsel for the appellant the
learned Judges observed as follows :-

"Order 21, Rule 2 of the Civil P.C. is a
counter part of Order 23, Rule 3 in the
execution proceedings. The provisions of
Order 23, Rule 3, Civil P.C. can be
extended to the execution proceedings. It
is manifestly unjust that after the parties
have arrived at an arrangement or the
adjustment of a decree and one of them
has even performed a part of the
agreement the Court should not give
recognition to such an agreement and
allow and party to resile from it. "

4. In reply Sri M. Islam, learned
counsel appearing on behalf of the
petitioners has relied upon a decision
reported in AIR 1978 Supreme Court
Smt. Nai Bahu Versus Lala Ramnarayan
and others. Paragraphs 14 and 15 are
relevant for the purposes of present
controversy which are reproduced below :

"14. It is true that a decree for eviction of
a tenant cannot be passed solely on the
basis of a compromise between the parties
(see K.K. Cha Vs. R.M. Seshadri (1973) 3
SCR 691 (AIR 1973 SC 1311). The Court
is to be satisfied whether a statutory
ground for eviction has been pleaded
which the tenant has admitted by the
compromise . Thus dispensing with
further
proof,
on
account
of
the
compromise, the court is to be satisfied
about compliance with the statutory
requirement on the totality of fact of a
particular case bearing in mind the entire
circumstances from the stage of pleadings
up to the stage when the compromise is
effected.

15. When a compromise decree in
challenged as a nullity in the course of its
execution
the
executing
court
can
examine relevant materials to find out
whether statutory grounds for eviction
existed in law. If the pleadings and other
materials on the record make out a prima
facie case about the existence of statutory
grounds for eviction a compromise decree
cannot be held to be invalid and the
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34 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
executing court will have to give effect to
it."

5.

Learned
counsel
for
the
contesting respondent relied upon a
decision reported in 1985 Allahabad Law
Journal, 108 Rashid Ahmad Versus The
Munsif Muzaffarnagar and others. The
Division Bench of this court in paragraphs
10and 13, which has been relied upon by
learned
counsel
for
the
contesting
respondent, has held as under :
"10. The last contention of the petitioner
was that the effect of compromise was
that anew tenancy had been created and,
therefore, a decree for eviction of the
tenant in the present suit could not be
passed. This contention on the facts of the
present case is untenable. Reference was
made to a decision of this Court in Shri
Gandhi Ashram Meerut V. Ram Gupta
1983 All. L.J. 300. In that case a
compromise decree had been passed in a
suit
for
eviction
prior
to
the
commencement of U.P. Act No. 13 of
1972 and that decree provided for
enhancement of rent. It also provided that
the tenancy shall commence on the first of
each
calendar
month
and
the
accommodation shall stand vacated after
the
stipulated
period.
The
decree,
however, did not provide that either in
case of default of payment of rent or on
non delivery of possession after the
stipulated period, the decree holder shall
be entitled to execute the decree. The
decree was sought to be executed after the
commencement of U.P. Act No. 13 of
1972. It was held on interpretation of the
terms of the decree that the decree created
a new tenancy and the action taken for
eviction of the tenant stood exhausted.
Therefore, the eviction of the defendant
could not be made by execution of the
decree in face of the new tenancy. The
terms of the compromise decree passed in
the present case are radically different.
Here the compromise recites that if rent at
the enhanced rate was not paid within the
stipulated time, a decree for eviction
would be deemed to have been passed.
This unmistakably reflects the intention of
the decree holder not to create a fresh
tenancy. This was the crucial test
according to Supreme Court in Konchada
Ramamurty Subudhi (dead by his legal
representatives) V. Gopinath Naik AIR
1968 SC 919 for determining whether on
the terms of the compromise it was
possible to impute to the decree holder an
intention to create a fresh tenancy. In that
case
in
a
suit
for
ejectment
the
compromise decree was passed by the
appellate court enabling the decree holder
by its terms to execute the decree after the
judgment debtor failed to pay 'rent' for
any three consecutive months. The Court
held that the compromise deed did not
create a lease, likewise in Smt. Kalloo Vs.
Dhaka Devi 1982 All RC 415 (AIR 1982
SC 813) a compromise took place in the
course of execution of the decree for
eviction which, inter alia recited that the
judgment debtor had already vacated half
of the shop and was granted time till
December 31, 1972 for vacating and
delivering possession of the other half of
the shop. Interpreting these terms it was
held by the Supreme Court that the
intention of the parties was not to create a
fresh lease in respect of the half of the
shop but to help the judgment debtor to
find out not in a hurry alternative
accommodation for his shop so that his
established business was not ruined.

13. The position therefore which emerges
is that the parties should be relegated to
the position which, they held prior to the
filing of the compromise and the status
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1 All] Surajpal Sharma Vs. Deputy General Manager (Western Zone) UPSRTC and others
35
quo ante be restored. The finding of fact
recorded in the case is that the conditions
of S. 20 (4) of U.P. Act No. 13 of 1972
were not fulfilled, the arrears of rent from
1.8.1975 to 22.1.1976 (the date of the
compromise)
were
never
paid,
the
petitioner had committed default in
payment of rent and had committed
default in payment of rent and had made
himself liable for eviction. Hence in our
opinion the decree for eviction and arrears
of rent was rightly passed against the
petitioner it was a valid and executable
decree and the objections raised by the
petitioner in execution were rightly
dismissed. The impugned order is not
vitiated by any error law."

6. Be that as it may, in view of the
rival contentions, the decision of the
revisional court deserves to be set aside
on the ground that the Court below should
consider the relevant contentions and the
law referred to above and thereafter
record a finding, which has not been done
in the order impugned in the present writ
petition while allowing the revision and
dismissing the objection. There is yet
another reason that the revisional court
while exercising the revisional power for
setting aside the finding recorded by the
trial court should have remanded the
matter to the trial court, which has not
been done. For this reason alone, the
order impugned in the present petition
deserves to be set aside and is hereby set
aside.

7. In view of what has been stated
above, this writ petition deserves to be
allowed and is hereby allowed. The order
dated 13.11.1997, Annexure 4 to the writ
petition is set aside. The order passed by
the revisional court is modified that the
matter is remanded back to the trial court
with a direction to decide the matter in the
light of the observations made above.
However, the parties shall bear their own
costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 1.11.2002

BEFORE
THE HON'BLE RAKESH TIWARI, J.

Civil Misc. Writ Petition No. 17739 of 1991

Surajpal Sharma

...Petitioner
Versus
Deputy General Manager (Western Zone)
U.P.S.R.T.C. and another ...Respondents

Counsel for the Petitioner:
Sri S.C. Shukla

Counsel for the Respondent:
Sri D.K.S. Rathor

Constitution
of
India,
Article
226-
Alternative Remedy- where the disputed
question of facts, involve no specific
pleading about efficacious- alternative
remedy-
petitioner
a
conductor
-
undisputedly is within the meaning of
workman- court declined to interfere.

Held para 7 and 8

It is undisputed that the petitioner is a
workman as defined under Section 2 (z)
of the U.P. industrial Disputes Act and
proper forum for adjudication of dispute
is labour court under the provisions of
the aforesaid Act.

This Court will not exercise its powers
under Article 226 of the Constitution of
India and adjudicate upon a controversy
which requires findings of facts by
appraisal
of
orai
and
documentary
evidence. In these circumstances, it
would
be
proper
to
relegate
the
petitioner
to
the
alternative
and