JUDGMENT
A.K. Sinha, J.
1. This appeal is preferred by the judgment-debtor appellant against a judgment and order of affirmance rejecting his application under Section 47 and Section 151 of the Civil Procedure Code in an execution case started by the decree-holder for taking delivery of possession of the disputed property.
2. In a suit filed, inter alia, on the ground of building and re-building by the respondent Union Carbide India Ltd., for rejecting the judgment-debtor a compromise petition was effected under which the judgment-debtor agreed to deliver vacant possession of the disputed premises in parts to the decree-holder from time to time on different dates. Although possession of the separate portions of the disputed premises was delivered according to the terms of the compromise the appellant failed ultimately to deliver possession of the portion of the disputed premises with which we are now concerned and the respondent put the decree into execution. The Court in course of such execution proceeding issued a writ for delivery of possession and thereafter on or about 1st February, 1969, the appellant made an application under Section 47 read with Sec. 151 of the Code of Civil Procedure praying inter alia, for recalling the writ for delivery of possession substantially on the allegation that the respondent with the help of large number of persons described as anti-social elements and the Court’s Bailiff was trying to take forcible possession. The appellant also made a separate application for temporary injunction which gave rise to another miscellaneous case which, however, was rejected but with which we are not concerned now.
3. This application, however, was opposed by the decree-holder — his case being, in short, that the application was not maintainable and in any case possession of the disputed premises was already taken.
4. The learned trial Court dismissed the application on the view that the possession was already taken and therefore, the application was not maintainable. On appeal the appellate Court concurred with the view taken by the trial Court and dismissed the appeal on consideration of an additional point, namely, that even if compromise decree was passed without proof of any grounds taken in the ejectment suit, it was still valid and binding as such decree for its ejectment was passed on admission of the appellant.
5. In the appeal before us the question as to whether delivery of possession of the disputed premises was complete by executing the writ is concluded by concurrent finding of fact. We are therefore unable to go into this question over again in the second appeal.
6. This leaves us to the only other point for consideration as to whether the compromise decree entered into between the parties was without jurisdiction and a nullity and if so whether the Executing Court has power to restore possession to the appellant. It is undisputed that the ejectment suit was filed on several grounds including the ground of reasonable requirement for building and rebuilding. This point though taken for the first time before the Appellate Court below was considered unnecessary for its decision on the application; nevertheless the Court entered into the question and reached the conclusion relying on a Bench decision of this Court in (1964) 68 Cal WN 353, Dr. T, S. Gupta v. Kanahialal Ruia, that this compromise decree was necessarily based upon “the admission or acceptance of the plaintiff’s allegations or averment as to its requirement of the suit premises for building purposes and therefore would give the Court jurisdiction to pass a decree for ejectment”.
7. Mr. Banerjee for the appellant has argued firstly, that such a petition of compromise in a suit of this nature could not be treated as admission of the grounds; secondly, it is said that the grounds as to reasonable requirement etc., not having been established on evidence, the Court had no jurisdiction and the compromise decree passed was a nullity. In aid of such contention reliance is placed on a decision of the Supreme Court, , Smt. Kaushalya Devi y. K. L. Bansal, in which it appears, in considering similar question although under different enactment it has been held that such a compromise decree without proof of the grounds alleged in the plaint would be without jurisdiction and a nullity. Thirdly, Mr. Banerjee has contended that even if possession was taken which, according to him, is very much disputed, the Court had in the circumstances of this case power enough to restore such possession of property although execution stands dismissed on full satisfaction. In support of this argument Mr. Banerjee has relied on two decisions of the Supreme Court (B. V. Patankar v. C. G. Sastry) and (Merla Rammana v. Nallaparaju).
8. Mr. Deb for the respondent did not support the decision of the appellate Court in view of the first and second contentions raised by Mr. Banerjee. But what he says is that the principle in Kaushalya Debi’s case (supra) or in another decision cited by him in Ferozilal v. Manmal, has no application to the facts of the present case. Firstly, the same argument is repeated namely that “the writ for delivery of possession having been executed no further question could arise for recalling the writ. Reliance is placed on a decision of the Supreme Court ia , Shew Bux Mohata v. Bengal Breweries Ltd. In this case, it appears from the Nazir’s return the concerned defendant was not bodily removed in executing the writ for delivery of possession and further the defendant was not so removed because of certain arrangement arrived at between it and the decree-holder. In that context the Supreme Court held that full possession having been obtained by the decree-holder in execution of the decree it was not again open to him to start another execution and ask for khas possession. We do not think, this decision of the Supreme Court has any bearing on the question involved in the case now before us. On the other hand, from the decision of the Supreme Court cited by Mr. Banerjee in the same Report B. V. Patankar’s case (supra) it appears that while considering almost similar question in the background of Mysore House Rent Control Act of 1945 as to executability of a decree and the Court’s power to recall the writ of possession, the Supreme Court has held that where Executing Court was not aware of the amendment “of the Rent Restriction Act by which the execution of a decree was prohibited and passed an ejectment decree against a tenant, the Executing Court could not execute the decree and any possession given under an ex parte order passed in execution of such a decree could be set aside under Section 151 of the Civil Procedure Code. The prohibition is equally puissant in the present case and Section 47 read with Section 151 would be equally effective to sustain the order of redelivery made in favour of the respondent”. It is not necessary to go into details of the other earlier Supreme Court decision cited by Mr. Banerjee (supra) for this case was considered in the above decision of the Supreme Court and the broad proposition namely, that where under a void execution sale delivery of possession was taken, an application by a party to the suit to recover possession of the disputed properties would be maintainable was accepted by the Supreme Court. Mr. Deb, however, has sought to contend that the provisions of Mysore Rent Control Act were quite different as there no order for execution for delivery of possession of premises in occupation of a tenant would be valid and therefore principles indicated in the decision in B. V. Patankar’s case have no application to the question involved in the present case. We fail to see how this is so. The whole question really is whether the decree or order for execution, as the case may be, is passed without jurisdiction and is nullity. It is true that under our Act question is not regarding the validity of order for execution but that of decree. But this is a difference really without any distinction, for, if the decree is passed without jurisdiction and is a nullity the same, consequence will follow. The whole proceedings in execution to put the decree-holder in possession would be without jurisdiction and the Court has enough power to restore the aggrieved party to its former position in such an execution proceeding under Section 151 of the Civil Procedure Code. In our opinion, the above decisions are authority for the proposition that where a decree which is passed without jurisdiction and is a nullity is put into execution and delivery of disputed properties is taken an application by the aggrieved party who has been thrown out of possession to recall the writ and to restore possession thereof is perfectly maintainable. The first contention raised by Mr. Deb therefore fails.
9. Secondly, Mr. Deb has argued that this point was not at all taken either before the appellate Court below or in the Executing Court in the appellant’s application under Section 47 of the Code. It is said that the appellate Court merely discussed this question because the point was taken and certain arguments were advanced on behalf of the appellant in support thereof but the judgment was not really based on the conclusion reached by the appellate Court below on such point. Although such is the position we cannot support the contention raised by Mr. Deb. Firstly because, even the point on which the judgment is actually said to be based was not correctly decided. It cannot be said, in view of the discussion already made by us, that in no circumstance the Court had any power to recall the writ or re-deliver possession of the disputed property to an aggrieved party once such writ has been executed and delivery of possession has been given to the decree-holder in execution of the decree. Secondly because, for a proper decision on the point as to maintainability of the application for restoration of possession before the Executing Court, the question as to whether the decree is passed without jurisdiction and is a nullity is inseparably mixed up with the point on which the judgment is actually based. It was therefore necessary and proper for the Court to go into this question before an effective adjudication could be made on the real question in controversy between the parties. Thirdly because, on the admitted position of the parties the question being one purely of law, the appellant was entitled to raise it before the Appellate Court. Fourthly because, the Appellate Court having already decided such a question though not for the purpose of its judgment, it was open to the appellant to press the point before us. We therefore, do not find much of substance in this contention of Mr. Deb.
10. Thirdly, Mr. Deb has contended that there are no such grounds in the Delhi Ajmer Rent Control Act similar to those in (j) and (k) of Section 13 (1) of the Premises Tenancy Act which provide:
(j) Where the tenant has given notice tp quit but has failed to deliver vacant possession of the premises to the landlord in accordance with such notice.
(k) Where subsequent to the creation of the tenancy, the tenant having agreed in writing with the landlord to deliver vacant possession of the premises to the landlord has failed to do so.”
Relying on the above provisions it is argued that the compromise petition itself will operate as a notice to quit or agreement in writing by the tenant with the landlord to deliver vacant possession of the premises to him. If, therefore, it is said, the tenant in spite of such writing has failed to deliver vacant possession the execution of such a decree of compromise is maintainable as the tenant has clearly failed to deliver possession. We think, this argument is wholly misconceived. For these two grounds clearly postulate failure of the tenant in spite of notice to quit or agreement in writing to deliver vacant possession prior to the institution of the suit as an order or decree for recovery of possession of any premises can be passed only on failure of the tenant to deliver vacant possession. Here, in the instant case, clearly, the decree was neither (sic) nor could be passed on these grounds. As already noticed, the grounds were completely different but the Court without satisfying itself about the existence of these grounds passed a decree upon a petition of compromise made by the parties. We are therefore unable to accept the contention of Mr. Deb as correct.
11. Lastly, Mr. Deb has contended that the terms of compromise being legal as envisaged under Order 23, Rule 3 of the Code of Civil Procedure, it has got to be accepted by the Court and the decree has to be passed in terms thereof. To back his contention Mr. Deb has relied on n Bench decision of this Court. (1957) 61 Cal WN 67, (Sadasukh Kabra v. Jugal Kishore). In this case, it appears that on the basis of a compromise petition for payment of money advanced as loan by installment a decree was passed. The defendant having failed to pay such installment, the decree-holder put the decree into execution. Question arose, firstly, whether such a decree was valid in spite of contravention of certain provisions of the Bengal Money Lenders Act and further whether compromise decree was executable. On facts, this Court held that in recording the compromise in the present case the Court found the loan to be commercial loan and held the compromise to be perfectly lawful “it being the Court’s duty to record lawful compromise”. In this view of the matter this Court also held that “the Court must be presumed to have done its duty and recorded the compromise only after being satisfied to its lawful character, particularly when it is reasonably possible to hold in favour of the legality of such compromise.” We do not think, this case is of any assistance to the respondents. There is nothing in this case to warrant the conclusion that even if the decree is passed on the basis of a petition of compromise in contravention of the provision of particular enactment it would still be valid and binding. The last contention of Mr. Deb therefore also fails.
12. In our opinion, the Executing Court had no jurisdiction to execute the compromise decree which was passed without, jurisdiction and is a nullity. In this view of the matter the judgment and order passed by both the Courts below cannot be sustained as valid. The appellant is entitled to restoration of possession of the disputed premises and other connected reliefs.
13. Accordingly, this appeal is allowed. The judgment and order passed by both the Courts below are set aside. The application under Section 47 read with Section 151 of the Civil Procedure Code, made by the appellant is allowed. We direct the Court below to issue appropriate orders and directions to re-deliver possession of the disputed premises to the appellant. We however, do not make any order as to costs.
A.N. Banerjee,
14. I agree.
