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:-
“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.
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 52 OF 2014
Shivshankar Gurgar Vs Dilip
J U D G M E N T
Chelameswar, J.
Citation;2014(3) ALLMR 983 SC
1. Leave granted.
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
Bahu[1] 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?
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.”
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:-
“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:
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.”
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 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 sub-section 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 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.”
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 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
-----------------------
[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.
[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.
[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.
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