ORDER
C.V. Jani, J.
1. This revision application under Section 115 of the Code of Civil Procedure filed by the original judgment-debtor against the judgment and order of the learned District Judge, Broach, in Regular Civil Appeal No. 47/85 confirming the order of the learned Civil Judge (JD), Valia, District Broach, overruling the objections of the judgment-debtor regarding the executability of a consent decree passed in Regular, Civil Suit No. 8/71 arises from a long-drawn, litigation between the parties. The following are the relevant facts.
2. The applicant Bhailalbhai Trikambhai had been occupying the property as a tenant. After serving the requisite statutory notice the opponents filed Regular Civil Suit No. 8/71 against the applicant on 6-2-71 for recovering possession of the sit premises on the ground of arrears of rent from 1-9-67 to 1-4-68 and also for recovering arrears of rent as well as mesne profits up to 30-12-1970. After about 5 years, the parties arrived at a compromise and submitted consent terms exh. 83. We will advert to these consent terms in details in the course of appreciating the submissions advanced on behalf of the applicant, but shortly stated, the applicant-defendant admitted that he had been in arrears of rent, which he had agreed to deposit on or before 29-4-77. It was further agreed that a decree for handing over possession of the suit-premises on 1-5-77 was required to be passed in view of the fact that the tenancy of the defendant had been terminated. At the same time a concession was stipulated in this agreement to the effect that if the amount of arrears was deposited on or before 29-4-77, the plaintiff would not execute the decree and would continue the defendant as a tenant. The parties were present in the court, compromise was read over to them and on their admitting the same, the learned Civil Judge was satisfied about the admissions made by the parties in this compromise and passed an order for drawing a decree in terms of compromise.
3. Thereafter the applicant defendant filed Regular Civil Suit No. 156/76 for setting aside the aforesaid decree on the ground of fraud, misrepresentation and coercion. This suit was dismissed on 31-7-81 and Regular Civil Appeal No. 86/81 filed by him also came to be dismissed by the learned District Judge, Broach, on 6-3-84. The applicant’s Second Appeal No. 129/84 also was dismissed by the High Court at the admission stage on 6-7-84. During this entire period the applicant continued to be in possession of the suit premises by virtue of the interim relief obtained by him. The opponents thereafter filed execution application No. 45/84 for recovering possession of the suit premises. The applicant raised four objections namely:
(i) that the consent decree was merely a money decree;
(ii) that a new tenancy had been created by the judgment creditor;
(iii) the learned Civil Judge had not taken into consideration the defendant’s contention as regards standard-rent while recording the compromise; and
(iv) the consent decree was a nullity.
4. The learned Civil Judge found that the consent decree in Regular Civil Suit No. 8/71 could not be said to be nullity inasmuch as the decree had been passed after being satisfied about the existence of statutory ground under the Rent Act.
The learned Civil Judge also found that there was absolutely no evidence regarding creation of new tenancy between the parties.
5. The applicant challenged the order of the executing court for issuance of a warrant for possession by filing Regular Civil Appeal No. 47/85. Without entering into the question whether such an appeal against an order passed in execution is maintainable, the learned District Judge, Bhroach, held that no new tenancy was created and the applicant-tenant had been given time for payment of arrears just by way of concession.
6. The applicant has challenged this judgment of the Appellate court by filing this revision application. It is not in dispute that the execution of the decree for eviction passed in Regular Civil Appeal No. 8/71 has been stayed till now.
7. The only submission made by Mr. B.R. Parikh for the applicant is that the decree under execution is merely a money decree and the stipulation for handing over possession of the suit premises in default of payment had been made to secure the payment of the amount agreed upon between the parties. According to Mr. Parikh, such a penal clause cannot be enforced, if the payment of the arrears is made even after the time stipulated in the consent terms.
8. Mr. Parikh relies on certain unreported judgments of this Court:
(i) Judgment in Lalsing Ramchandra v. Pushpavati, G.R.A. No. 210/77 decided by R.C. Mankad, J. on 1-12-78;
(ii) Judgment in Shantilal Gordhandas v. Haji Ismail, Second Appeal No. 734/68 decided by J. U. Mehta on October 12, 1970; and
(iii) Judgment in Second Appeal No. 592/ 64 decided by the Division Bench constituted by S. H. Sheth and D. P. Desai, JJ. on 15-6-70.
9. In all these judgments it was laid down that if the clause in the consent decree as regards recovery of possession in default of payment of rent in arrears as stipulated was enforced merely to secure the payment thereof and the dominant intention of the parties was to secure such payment, the decree for possession was not executable if default in payment before the stipulated date was committed. It was held that in such cases the decree sought to be executed would be essentially a money decree for the recovery of the arrears of rent and that the coercive term regarding handing over of the possession was inserted merely to secure payment of rent in arrears. Thus the test laid down in these judgments was that of dominent intention of the parties. On the facts of the case in these three cases, it was held that there was really no decree for possession and so, warrant for possession could not be issued.
10. Mr. D. N. Pandya, learned Advocate appearing for the opponent on the other hand relied on the judgment of this Court in Doshi Kantital Kanaiyalal v. Modiya Chandulal thhotalal Ranchhoddas, AIR 1973 Guj 80, wherein a learned single Judge of this Court, after considering a number of judgments of the Bombay High Court and the Gujarat High Court, held that if the decree did not provide for penalty or forfeiture, but provided a concession to the judgment-debtor on certain conditions, the court was justified in executing the decree and in such cases, the relationship of landlord and tenant was not created or continued under the agreement. It was held that the stipulation in the agreement restraining the judgment creditor from taking possession in case of regular payment was not a penal clause, but it was a concession given to the judgment debtor.
11. In view of these submissions, the consent terms which are translated into a decree will have to be examined.
(A) The very first clause of the consent terms provides for immediate termination of the tenancy. This implies that the applicant defendant did not continue to be a tenant, after the date of compromise.
(B) The second clause in the consent terms provided for drawing up a decree for handing over possession of the suit premises on 1-5-77. This provision is absolutely unconditional and does not depend upon non-payment of arrears of rent.
(C) The third clause of the consent terms provides that if the defendant committed default in payment of rent and mesne profits amounting to Rs.700/- which had become due from 1-9-67 to 30-12-70, the plaintiff was entitled to recover the same by executing the decree against the defendant personally and against his properties. This clause makes it clear that the amount of arrears could be recovered from the defendant’s property.
(D) It is further provided in clause (iv) that if the defendant committed default in paying the amount of Rs. 1650/- which had become due by way of mesne profits or arrears between 1-1-71 and 30-6-76 and if he committed further default in payment of mesne profits till the delivery of possession, such amount could be recovered from the defendant’s property. In the same clause it is provided that the plaintiff would also be entitled to recover possession of the suit premises in execution.
(E) The last clause of the consent terms provides that if the defendant pays up the aforesaid amount of arrears of rent and mesne profit, along with cost of the suit on or before 29-4-77, the plaintiff would not execute the decree, but “continue the defendant as a new tenant.”
12. It, therefore, appears on consideration of all the clauses of the consent terms that by agreement of parties, tenancy came to an end on 27-7-76 and the defendant was directed to hand over possession on 1-5-77. He was also directed to pay all the arrears of rent and mesne profits, and in case of default it was provided that the amount would be recovered by execution against him personally and against his properties. Thus the question of treating a part of the decree for possession as penal, does not arise. On the other hand the last clause in the consent terms embodied a concession held out to the judgment-debtor by the decree holder on certain conditions. It only provided that the decree-holder would not execute the decree for possession if the amount of rent in arrears and mesne profit was deposited by 29-4-77. There is no dispute that such amount was due and payable by the defendant to the plaintiff, and the existence of arrears of rent for a period of six months or more, is a ground for eviction under Section 12 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. The learned Civil Judge on being satisfied that the compromise between the parties was voluntarily entered, recorded the compromise and passed a decree in terms thereof, which included the concession contained in the last clause. Irrespective of the concession the decree-holder would have been entitled to execute the decree for possession against the judgment-debtor and hence on construction of the relevant clause of the consent terms it cannot be said that the dominant intention of the parties was to secure the payment of money which had become due and that there was no intention to confer a right to recover possession in the decree-holder. Moreover, it does not appear from the last clause of the consent terms that a relationship of landlord and tenant between the parties had arisen from such a contract. In fact, the status of the defendant as a tenant was brought to an end by first clause of the consent terms on 28-7-76 and possession was directed to be handed over after about 10 months i.e. on 1-5-77. If, however, the defendant chose to deposit the amount of arrears before 29-4-77 he had a chance of continuing in possession of the suit premises as a new tenant. Thus, there was no question of giving a relief against the forfeiture resulting from the defendant’s failure to pay the amount of arrears within the stipulated period. None of the clauses of the consent terms is penal, but the last clause clearly provides for a concession to the judgment debtor. If the judgment-debtor did not want to take the benefit of this concession it was his choice, but the right of the decree holder to recover possession of the suit premises as per the other clauses of the consent terms cannot be defeated by any such adamant attitude on the part of the defendant. It is obvious that the defendant has been successful in continuing his possession for a period of the last 15 years by challenging the concerned decree in execution application as well as in another civil suit appeal and revision application. Can we say that on the construction of various clauses of the consent terms as well as in view of the subsequent litigation carried on by the applicant defendant that the dominant intention of the parties was merely to secure payment of the rent in arrears and that the decree was merely a money decree which could not be executed for the purpose of recovering possession from the jugment-debtor. Even without a decree for possession, the plaintiff would have been entitled to recover the amount of arrears under the relevant provisions of the law and even without the clause containing in concession the plaintiff was entitled to get a decree for eviction on satisfaction of the relevant provisions of the Rent Act. Hence it cannot be said that insertion of the clause containing in concession in favour of the judgment-debtor defeated the plaintiff’s right under the decree to recover possession, simply because the Judgment-debtor did not choose to take benefit of that concession.
13. As a result, the revision application is rejected. Rule is discharged. Interim relief is vacated. There will be no order as to costs.
14. Nr. B. R. Parikh, learned Advocate appearing for the applicant of this stage prays that the execution of the decree passed in Regular Civil Suit No. 8/71 may be stayed for a further period of 10 weeks in order that the applicant if he so chooses, may approach the higher court. Mr. Pandya for the opponents No. 1 has no objection to grant him ten weeks time. Hence it is ordered that the decree of the learned Civil Judge (JD) in Regular Civil Suit No. 8/71 will not be executed for a further period often weeks i.e. up to 18th September, 1991.