IN THE HIGH COURT OF JUDICATURE AT PATNA
C.R. No.946 of 2008
SHARWAN KUMAR
Versus
MOSTT. SHANTI KUWAR
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2 3/7/2008 Heard counsel for the petitioner.
Petitioner seems to be aggrieved by the
order dated 17.5.2008, whereby and whereunder, the
executing court has directed for delivery of
possession.
Counsel for the petitioner submits that
true it is, that there was compromise on the basis
of which the eviction suit, Title Suit No. 23 of
2007 was disposed of, but then delivery of
possession could not be effected on the basis of
such compromise decree and for this purpose he has
relied upon a decision in the case of ‘Viveka Nand
Bhawan Vs. Satendra Prasad’ reported in A.I.R.
1996 S.C.1985.
In the opinion of this Court such
submission of the counsel for the petitioner is
absolutely misconceived, in as much as, the Apex
Court in that particular case having noted the
facts of the case and the terms of compromise
decree had found that there was a clear provision
in the compromise petition itself that the
defendants were tobe evicted after expiry of
period of ten years and that too through an
appropriate action in court of law, this Court
fails to understand as to how the facts and
consequential ratio of the aforementioned judgment
will be applicable in the present case where there
was no such condition imposed in the decree.
2
Be that as it may, once the petitioner had
entered into compromise on 27.4.2007 that not only
he will pay arrears of rent but would also give
vacant possession of the shop in question in Title
Suit No. 23 of 2007, it does not lie in the mouth
of the petitioner to make any prayer and oppose
delivery of possession.
The grievance of the petitioner that
certain amount was advanced and that has not been
refunded by the landlord-opposite party also is
misconceived and it has been fairly admitted by
the counsel for the petitioner that a separate
money suit for this purpose being Money Suit No.
13 of 2007 is still pending.
In that view of the matter, this Court
does not find any error in the impugned order.
Accordingly, this civil revision application being
devoid of merit, is dismissed.
The court below is directed to ensure that
the delivery of possession be effected within a
period of one month of receipt/production of a
copy of this order.
( Mihir Kumar Jha, J.)
Abhay Kumar