ORDER
P.B. Mukharji, J.
1. This is an application by the defendant to set aside the order made in this suit on 19-7-1949, upon the applicant paying to the decree-holder plaintiff a sum of Rs. 1221 and Rs. 1914-2-0. The order dated 19-7-1949, was made on the summons taken out by the plaintiff under Chap. XIIIA of the Rules of this Court. This order of 19-7-1949 was made by consent of parties and had the following terms : (a) The parties were directed to file their respective affidavits of documents within a week from the date of the order. (b) Inspection of the documents disclosed by the parties forthwith after discovery, (c) Liberty to apply for an yearly date for hearing of the suit, (d) Without prejudice to the contentions of the parties the applicant was directed to pay on or before 27-7-1949, to Messrs. P. D. Himatsingha & Co., solicitors for the plaintiffs a sum of Rs. 8138-4-0 and Rs. 1881 and also a sum of Rs. 612 on or before the 7th of each and every succeeding months all such sums to be held by them subject to orders of this Court, (e) In default of the applicant’s paying any of such sums as aforesaid within the time as specified a decree be made in terms of the prayers of the summons.
2. Then what happened was this. The applicant paid the two sums of Rs. 8138-4-0 and Rs. 1881 in terms of that order of 19-7-1949. The applicant also paid Rs. 612 in terms of that order up to the month of February 1950. Then there was a default by the applicant for the months of March and April. Having regard to the default clause the decree followed in pursuance of the order of 19-7-1949.
3. The present application is now being made by the applicant to set aside the consent order of 19-7-1949 which resulted in the decree for possession by virtue of the default clause. The application is said to be made under Section 18 (1), Rent Control Act of 1950.
4. It is necessary to set out the contentions of the parties in this suit as they appear on the pleadings because the consent order of 19-7-1949 was made without prejudice to the respective contentions of the parties. The plaintiff sued the defendant as a tenant and the plaintiff proceeded on the basis that the defendant was a defaulter for more than three consecutive months and incurred the statutory forfeiture under Section 12 (3) of the Rent Act of 1948. The written statement of the defendant, however, denied altogether any tenancy. The defence is that the plaintiff lent and advanced to the defendant a gum of Rs. 2,00,000 and a conveyance was executed by the defendant in respect of Premises Nos. 138 and 138/1, Harrison Road being the premises in suit in favour of the plaintiff. According to the defendant no rent was payable but the said loan was repayable within five years with interest at 5%. The definite case of the defendant was that he was never a monthly tenant and that the provisions of the West Bengal Premises Rent Control Act, 1948, did not apply at all to his case. Without prejudice to contentions as to whether the defendant wag or was not a tenant the parties agreed to the terms of settlement specified in the consent order of 19-7-1949.
5. The applicant now comes forward with the petition in support of the notice of motion to set aside this consent order of 19-7-1949. In the petition the applicant repeats that he was never a tenant of the plaintiff. Yet the applicant asks this Court under Section 18 (1) of the Rent Act of 1950 to set aside the decree or order and learned counsel appearing for the applicant has stated to the Court that if the order is set aside then the defendant will proceed with his defence that he was never a tenant at all. The curious position, therefore, is that this Court is required to apply the Rent Act of 1950 to a case where the tenant himself says that he has never been a tenant and the Court is further required to help the defendant in so using the Rent Act of 1960, that ultimately he may be enabled to support his defence in suit that he has never been a tenant and thus put himself out of the operation of the Rent Act.
6. Two questions have been argued before me by Mr. A. K. Sen, learned counsel for the respondent plaintiff in defence to this application. Mr. Sen’s first argument is that Section 18 (1) of the Rent Act of 1950 does not apply to a consent order or to a consent decree. His second argument is that the Rent Act of 1950 cannot be abused in this manner, and a party cannot be allowed to blow hot and cold.
7. The argument whether Section 18 (1) of the Rent Act of 1950 applies to a consent decree or order requires careful consideration. It involves the interpretation of the word ‘decree’ in the expression
“where any decree for the recovery of possession of any premises has been made on the ground of default in payment of arrears of rent under the provisions of West Bengal Premises Rent Control Act, 1948”
used in Section 18 (1) of the Statute of 1950. On a proper construction of the word ‘decree’ in Section 18 (1) of the Rent Act of 1960 I am of the opinion that the power to vacate a decree for ejectment given to the Court by that section is only given in respect of a decree which the Court after consideration of the circumstances and in the exercise of its judicial function has made in invitum as regards the tenant. A construction enabling the Court to vacate a decree which has been made by the consent of the parties would be to say that Section 18 (1) empowers the Court to alter a compromise which the parties themselves have agreed to although the Court does not decide on the merits of the contention whether the applicant is or is not a tenant. That is not how I understand the words “any decree …. has been made” occurring in that sub-section. I am unable to construe this section to mean that a compromise decree where the parties have entered into their own agreement without deciding whether the defendant is at all a tenant can be vacated under that sub-section. This sub-section, in my opinion pre-supposes that the Court has exercised its own mind in the making of the decree to the extent at least of showing that the decree has been made ‘on the ground of default in payment of arrears of rent under the Rent Act 1948″ as contemplated in that subsection. The present consent decree before me is not made on that “ground”. The parties under a consent order or decree formally enter into an agreement involving mutual concessions and the Court accepting that agreement makes an order in the same terms and no other. In making a consent decree the Court expresses no opinion on the merits of the controversies between the parties and does not act in invitum but merely puts the agreement on the record of the Court. A contract or an agreement is made thus between the parties which passes without alteration into the record of the Court and specially as in this case with the express provision in the consent order that such agreement or consent of parties is “without prejudice to the contentions of the parties.”
8. Before Section 18 (1) of the Bent Act of 1960 can be applied it must be shown that the decree that is intended to be vacated is a decree for the recovery of possession “made on the ground of default in payment of arrears of rent under the Rent Act of 1948” and the application for vacating the decree must be by the tenant. In the consent order or decree that I am dealing with in this case it cannot be said that it is such a decree or that the applicant is a tenant.
9. I therefore hold that such a consent decree or order cannot be vacated under Section 18 (1) of the Rent Act, 1950.
10. This view is in consonance with the view expressed in Wellesley v. White, (1921) 2 K. B. 204: (90 L. J. K. B. 926) decided by Lush J. and McCardie. This English case was concerned with Section 5 (3), Increase of Rent and Mortgage Interest Restrictions Act 1920 and the decision was that the order or judgment mentioned in that particular sub-section did not apply to an order or judgment made by the consent of the parties. On a different sub-section of the same English Act a contrary decision was given and that was in Rossiter v. Langley, (1925) 1 K. B. 741: (94 L. J. K. B. 400) which was concerned with Section 5 (2). Curiously enough although this decision of Rossiter v. Langley, (1926-1 K. B. 711: 94 L. S. K. B. 400) noticed the decision of Wellesley v. White (1921-2 K. B. 204 : 90 L. J. k. B. 926), it did not dissent from the latter. Salter J. who gave the judgment and with which Fraser J. agreed at p. 745 in Rossiter v. Langley, (1925-1 K. B. 741 : 94 L. J. K. B. 400) observed:
“In regard to Wellesley v. White (1921-2 K. B. 204: 90 L. J. K. B. 926) I do not think that we are necessarily differing from the decision of the Divisional Court in that case.”
11. The point in my opinion should also be taken as concluded by the authority of Manick Chandra v. Hari Pada, decided by the Court of Appeal deciding an appeal from the decision of Ormond J. on the Original Side. This decision of the Court of Appeal is reported in 52 C.W.N. 230: (A. I. R. (36) 1949 Cal. 151) and was concerned with the Calcutta House Rent Control Order, 1943. Mukherjea J. delivered judgment in the Court of Appeal with which Harries C. J. concurred. At p. 234 of the Report the following observations are made:
“I agree with Clough J. that the ground upon which a consent decree is passed is the factum of agreement between the parties. The reasons for which the parties did arrive at an agreement and the motives which actuated them in doing so are altogether immaterial and in no sense constitute the basis of the consent decree. The motives which impelled the parties to come to an agreement may not be the same. The tenant may have reasons of his own for vacating the premises and shifting elsewhere, whereas the landlord might agree to get rid of the tenant for a different reason altogether. But so long as the parties agree that the defendant should vacate the premises a decree can be passed by the Court on the basis of the agreement itself without anything further to go upon. ……
That would be to re-open for decision the very question which the parties chose to leave undecided in the suit itself. Again it happens, not infrequently that the tenant agrees to pay some money as rent to the landlord only for the purpose of purchasing peace or for the purpose of getting some other incidental advantage in the nature of further time to vacate the premises although nothing might be due actually as rent. It would not be correct to say in such cases that the amount which the tenant thus agrees to pay is the rent in arrears within the meaning of Para. 9B (3) Calcutta House Rent Control Order. It may be argued that while this is true in regard to cases where by consent of the parties a simple decree for possession is made and the tenant agrees to vacate the premises immediately or within a certain time, yet there may be cases where the compromise itself would indicate that the decree for possession was consented to because of a certain legal position which both the parties assumed to be correct and which constituted the foundation of the agreement.”
And again at p. 236 the Court of Appeal observes:
“I agree with Clough J. that the intention of the legislative authority was to give protection to the tenant against the landlord and not from himself and it is difficult to conceive of a more satisfactory reason than that all the parties concerned agreed that the tenant should vacate the premises within a certain date.”
12. The Court of Appeal lays down the principle that if there is anything in the decree to show conclusively that the particular order is being made on the basis of a rent legislation then the Statute may be attracted and relief should be granted. But if the pleadings do not conclude the matter nor does the decree show any decision of the Court on the merits of the controversies of the parties and specially when the consent order or decree was expressly made without prejudice to the contentions of the parties then such a consent order or decree, in my opinion, is not liable to be vacated or set aside. In the words of the Court of Appeal “that would be to reopen for decision the very question which the parties chose to leave undecided in the suit itself.” The Court of Appeal upheld the decision of Clough J. in Sm. Kiron Shoshi Dassi v. Hirendra Nath Dass, to C.W.N. 245. Clough J. considered both Wellesley v. White, (1921-2 K. B. 204: 90 L. J. K. B. 926) and Rossiter v. Langley, (1925-1 K. B. 741: 94 L. J. K. B. 400). There is also the decision of Gentle J. in Parbati Debi v. S. N. Sen, (53 C. W. N. 242) holding that para. 9B (3), Calcutta House Rent Control Order, does not apply to consent decree and distinguishing the two English cases that I have mentioned. Our Court of Appeal also discussed the decision of Gentle J., without expressing any dissent from it.
13. As against these authorities Mr. B. C. Mitter learned counsel for the applicant has relied on a decision of a Division Bench of this Court in Civil Revisional Jurisdiction in Md. Ekramal Huq v. Rebati Mukherjee, 53 C. W. N. 859. The Division Bench in this case dissented from the decision of Gentle and Clough JJ. and preferred to follow the decision of Ormond J. in Manik Chandra v. Hari Pada which was upset and overruled by the Court of Appeal. The Division Bench is not binding on me and I am bound to follow the decision of the Court of Appeal in Manik Chandra Pal v. Hari Pada Roy, 52 C. W. N. 230: (A. I. R. (36) 1949 Cal. 151) deciding an appeal from the Original Side.
14. Mr. Mitter has also argued that a decree merges the contentions and controversies between the parties. I am disposed to accept that submission. But the point here is that the present consent decree or order before me does not merge the contention whether the defendant is a tenant or not and does not show that the consent decree or order was made on the particular “ground” contemplated in Section 18 (1), Rent Act of 1950.
15. This disposes of the first argument and I hold that Section 18 (1), Rent Act of 1950 does not apply to a consent decree in a suit where one side pleads tenancy and the other side denies such tenancy and says that he has never been a tenant at all, and there this particular controversy is left undecided by the agreement of parties embodied in such consent decree.
16. The next argument is whether the Rent Act of 1950 could be utilised for such inconsistent purposes. Can a person be entitled to claim relief under the Rent Act of 1950 when he himself says that he has never been a tenant and can he be given on that plea the relief of vacating a decree for possession with a view to enable him to support his case that he has never been a tenant and is completely outside the operation of the Rent Act of 1950. Mr. Sen has argued that a party cannot approbate and reprobate the Act at the same time, In the view that I have taken it is unnecessary for me to decide the point.
17. In the circumstances, the application is dismissed with costs.
