JUDGMENT
V.D. Misra, J.
(1) This revision arises out of the following circumstances. One Jai Gopal instituted a suit for ejectment and recovery of rent under section 13 of the Delhi and Ajmer Rent Control Act (Act No. 38 of 1952), hereinafter referred to as ‘the Act’, on 16th July, 1955, in respect of House No. 5346, situated in Basti Chamaran, Paharganj, Delhi. The defendants were Mst. Khazano, Tara Chand and Chandu Lal minor. The grounds for ejectment were non-payment of rent and bona fide personal requirement of the landlord. This suit was resisted by the defendants on various grounds but later on a compromisfe was arrived at and after obtaining the permission of the Court to enter into a compromise on behalf of the minor, Chandu Lal, the compromise was recorded and decree for ejectment was passed in terms thereof on 2nd February, 1956. According to the terms of the decree, it was executable after 16 months and after plaintiff Jai Gopal had deposited Rs. 3,700.00 in Court, which amount was to be paid to the judgment-debtors only when they had given vacant possession of the house. The suit with regard to the recovery of arrears of rent was dismissed and the parties were directed to bear their own costs.
(2) On 6-6-1959 Jai Gopal decree-holder made an application for execution of the decree against the judgment-debtors who raised various objections to the execution of this decree. One of the objections raised was that the decree sought to be executed was’ based upon a compromise and not upon any finding of the Court as required under scction 13 of the Act and so it was null and void and not executable. The executing Court, following the then existing decisions of the Punjab High Court, overruled this objection by an order dated 7-9-1960. An appeal was filed against this decision which was also dismissed by an order dated 30th October, 1961. A revision was filed before the High Court which was also dismissed on 19th December, 1962.
(3) Jai Gopal sold his specific half share in the house in dispule in March 1962 to Kani Ram, and Babu Lal, th present respondents. In April 1962 he sold the remaining specific half share in the house in dispute to one Ramji Lal. Kani Ram, Babu Lal and Ramji Lal applied to the Court under Order 21, rule 16, Civil Procedure Code, and transfer in their favor was attested by the Court by order dated 13th June, 1963. They also made an application under scetion 19 of the Slum Areas (Improvement and Clearance) Act for obtaining permission of the competent authority to execute the decree, which was given to them by an order dated 23rd September, 1967. However, on 9th February, 1968, Ramji Lal sold his right, title and interest in a portion of the house in dispute to Tara Chand, one of the judgment- debtors. On 26th July, 1968, an application for execution was made against Mst. Khazano, Tara Chand and Chandu Lal minor, the judgment-debtors, by Kani Ram and Babu Lal. The judgment-debtors again raised various objections to the execution of the decree.
(4) On the pleadings of the parties, the executing Court framed the following issues :-
(1)Whether the decree has become unexecutable as alleged ?
(2)Whether issue No. 1 is barred by res judicata as alleged ?
(3)What is the effect of Ramji Lal’s not joining in the the execution ?
(4)What is the effect of sale by Ramji Lal of his share in favor of judgment-debtor ?
(5)Whether the tenancy has been renewed as alleged. if so, to what effect ?
(6)Relief.
(5) Before the executing Court issue No. 3 was not pressed and issues Nos. 1 and 2 were decided against the judgment-debtors. In respect of issue No. 4 it was held that Kani Ram and Babu Lal were entitled to recover possession of the specific portion which was purchased by them from Jai Gopal. Issue No. 5 was also decided against the judgment-debtors and it was directed that warrants for possession be isseued. An appeal was filed against this order but the appellate Court upheld the findings of the executing Court and dismissed the appeal.
(6) The first contention of the petitioners is that the compromise decree for eviction of the petitioners passed by the trial Court was null and void and unexecutable and that the previous decisions setting aside their objections do not operate as res judicata. As regards the executability of the decree the contention of the respondents is that it is not. in fact, a compromise decree. It was passed on the basis of admissions made by the defendants that they owed money to the decree-holder and that they were tenants. The compromise was only to the extent that the plaintiff accepted the defendants’ ‘statement. I am afraid, the case is not so simple as stated by the learned counsel. The relevant terms of the decree as translated by the executing Court are as follows :- “ASper statement of parties the suit for ejectment of the suit property is decreed against the defendant. Execution can be carried out after 16 months; that the plaintiff would deposit Rs. 3,700.00 in the Court and the same be paid to the judgment-debtors when they would actually deliver the possession to the decree-holder; that the suit about rent stands dismissed and parties are left to bear their own costs,”
(7) Both the Courts below have proceeded on the basis that it was a compromise decree and it was never the contention of the respondents that it was something else than a decree based on a compromise. I have gone through the record and I find that before the compromise was recorded an application was moved on behalf of Chandu Lal minor seeking the necessary permission of the Court to compromise the matter on his behalf. The Court passed the following order :- “THEcompromise is for the benefit of the minor. I, therefore, allow it.”
(8) It is thereafter that statement of the counsel for the defendants was recorded and decree was passed in terms of the compromise, The decree which was prepared also shows that it was a decree based on the compromise having included the fact that permission had been granted to the minor for that compromise since it was for his benefit. In these circumstances it cannot be said that the decree in question was not a compromise decree.
(9) Section 13 of the Act is in the following terms :-
“(1)Notwithstanding anything to the contrary contained in any other law or any contract, no decree or order for the recovery of possession of any premises shall be passed by any court in favor of the landlord against any tenant (including a tenant whose tenancy is terminated) :
PROVIDED that nothing in this sub-section shall apply to any suit or other proceeding for such recovery or possession if the court is satisfied– * * * * * * * * * * * * * * * * * * and then follows a list of grounds on which eviction can be ordered. This shows that there is a prohibition in passing any order or decree unless the Court has applied its mind and satisfied itself about the existence of various grounds mentioned in that section. Any decree passed without such satisfaction will be null and void and not executable. The Supreme Court, while dealing with, similar circumstances in Shrimati Kaushulya Devi & others v. Sim K. L. Bansal, 1969 R.C.J. 152 following their earlier decision in Bahadur Singh and another v. Muni Sbrat Dass and another, 1969 R.C.J. 276 held that a compromise decree was a nullity as the order passed on the basis of a compromise did not indicate that any of the statutory grounds mentioned in section 13 of the Act existed. In the circumstances, it is held that the decree is a nullity and it cannot be executed.
(10) The next question to be decided is whether the previous decisions will operate as res judicata and bar a decision of the question whether the decree is a nullity or not. The lower appellate Court has given no reasons as to why the previous decision of the executing Court dated 7-9-1960 and of the High Court dated 19-12-1962 will operate as res judicata.. Section 11 of the Civil Procedure Code deals with the principle of res judicata. It lays down that a matter directly and substantially in issue in a suit if directly and substantially in issue in a previous suit between the same parties or between parties under whom they or any one of them claim, litigating under the same title and had been heard and finally decided by a competent Court, shall not be tried again. The petitioners contend that issues may be of fact. of law and of mixed questions of fact and law. As regards the issues of law, in case they are pure questions of law having no relation to the circumstances, decision regarding such an issue will not operate as res judicata. The Supreme Court in Mathura Prasad Bajoo Jaiswal and others v. Dossibai N. S. Jeejeebhoy, 1970 R.C.R. 396, while deciding the question of res judicata, held as under :- “BUTthe doctrine of res judicata belongs to the domain of procedure : it cannot be exalted to the status of a legislative direction between the parties so as to determine the question relating to the interpretation of enactment effecting the jurisdiction of a Court finally between them, even though no question of fact or mixed question of law and fact and relating to the right in dispute between the parties has been determined thereby. A decision of a competent Court on a matter in issue may be res judicata in another proceeding between the same parties: the ‘matter in issue’ may be an issue of fact, an issue of law, or one of mixed law and fact. An issue of fact or an issue of mixed law and facts decided by a competent Court is finally determined between the parties and cannot be re-opened between them in another proceeding. The previous decision on a matter in issue alone is res judicata : the reasons for the decision are not res judicata. A matter in issue between the parties is the right claimed by one party and denied by the other, and the claim of right from its very nature depends upon proof of facts and application of the relevant law thereto- A pure question of law unrelated to facts which give rise to a right, cannot be deemed to be a matter in issue. When it is said that a previous decision is res judicatu, it is meant that the right claimed has been adjudicated upon and cannot again be placed in contest between, the same parties. A previous decision of a competent Court on facts which are the foundation of the right and the relevant law applicable to the determination of the transaction which is the source of the right is res judicata. A previous decision on a matter in issue is a composite decision : the decision on law cannot be dissociated from the decision on facts on which the right is founded. A decision on an issue of law will be as res judicata in a subsequent proceeding between the same parties, if the cause of action of the subsequent proceeding be the same as in the previous proceeding, but not when the cause of action is different, nor when the law has since the earlier decision been altered by a competent authority, nor when the decision relates to the jurisdiction of the Court to try the earlier proceeding, nor when the earlier decision declared valid a transaction which is prohibited by law.”
(11) In this case before the Supreme Court the facts briefly were that the Sub Judge had rejected the contention that provisions of a particular Act did apply to the property in dispute, which decision was upheld by the High Court. Subsequently, the High Court changed its decision in another case and upheld the application of the provisions of the Act to similar circumstances. The Supreme Court also upheld the application of those provisions. When the petitioner moved unother petition in respect of the same property and between the same parties for the application of the same provisions of the Act. the Sub Judge held that it was barred by res judicata. This contention was negatived by the Supreme Court in the terms reproduced above.
(12) The learned counsel for the respondents has relied upon State of West Bengal v. Hemant Kumar Bhattacharjee amd others, Air 1966 S.C. 1961 Smt. Revti Devi v. Khiali Ram and others, 1967 D.L.T. 241 Tarini Charan Bhattacharjee and others v. Kedar Nath Haldar, A.I.R. 1928 Cal. 777 and Vasudeva Dhanjibhai Modi v. Rajabhai Abdul Rehman and Ors, 1970 R.C.R. 427 I am afraid these decisions are not applicable to the circumstances of this case and, on the other hand, it is fully covered by the decision of the Supreme Court in Mathura Prasad Bajoo Jaiswal case. I, therefore, hold that the principle of res judicatu does not apply to the circumstances of the instant case and it can be decided whether the compromise decree is a nullity or not.
(13) The second contention of the petitioners is that the decree finally stood transferred in favor of three persons, namely Kani Ram, Babu Lal and Tara Chand and two persons out of these three cannot ask for execution of the decree. Moreover, it is contended that the executing Court cannot itself divide the decree and order possession of a portion of the property in dispute. It is also contended that the tenancy was a joint one when the decree was passed and execution of this decree would amount to breaking up of the tenancy. The learned counsel for the respondents contents that the petitioners had given up issue No. 3 in the executing Court and they should not be permitted to raise this- plea again in revision. I find that issue No, 3, out of which this contention has arisen, had not been pressed before the executing Court as well as before the appellate Court and as such I do not allow this contention to be raised here.
(14) The last contention of the petitioners is that Kani Ram had filed a. suit against Tara Chand and Babu Lal on 1-1-1969 asking for perpetual injunction against them in which it was alleged that the property in dispute was a joint property between Kani Ram and Tara Chand and Babu Lal (Exhibit J.D./1). An application and an affidavit ill support of the same were also filed (Exhibits J.D./2 and J.D./3). However, during these proceedings it was stated by the respondents before the executing Court that a mistake was made by Kani Ram in filing the suit and that the property was not joint but was being held by Kani Ram as his specific share. It is contended that the lower Courts have drawn wrong inferences from the evidence on record to come to the conclusion that the property was sold by Jai Gopal in specific half shares and there was no necessity of partitioning the property for the purpose of executing the present decree. I find that there is a concurrent finding of fact of the courts below on this aspect and I see no legal infirmity to differ from that conclusion.
(15) The result is that the revision is accepted but, in the-circumstances of this case, the parties are left to bear their own costs.