B.K. Thapar and Others vs Sudhir Kumar and Others

S. Murtaza Fazl Ali, J.—These two appeals are directed against an order passed by a single Judge of this Court in proceedings for

execution of a decree passed by Nair J. dated 23-12-1958. The learned Judge has directed that the decree in question is executable only to this

extent that the applicant before him would be entitled to joint possession along with the judgment-debtors to the extent of their six annas share. The

Judgment-debtors before the single judge challenged the executability of the decree while the decree-holders applicants prayed for Khas

possession through the court by executing the decree. Both the judgment-debtors and the decree-holders have filed appeals against the order of

the learned Single Judge. As the two appeals involve common questions of fact and law, we propose to decide both these appeals by one

common judgment. For the purpose of convenience judgment debtors before the trial court would be referred to as the non-applicants and

decree-holders before the court, below as applicants in this judgment.

The facts giving rise to the present appeals may be briefly summarised as follows:

Sardar Uttam Singh Khorana had executed a lease in favour of the non-applicants judgment-debtors on 17th Assuj 2011 which was registered on

18th Assuj 2011 in respect of the building including cinema machinery and furniture. The lease was for a fixed term of three years and the rent

payable under the lease was Rs. 3,000/- per month. One of the terms of the lease was that after the expiry of the lease, the tenants had the option

to renew the lease with the consent of the landlord. After execution of the lease the non-applicants tenants came into possession of the properties

leased out to them and started running a cinema business therein. On expiry of the period of lease, the landlord Sardar Uttam Singh Khorana

brought a suit for ejectment against the non-applicants judgment-debtors on 6-3-1958, but Sardar Uttam Singh died during the pendency of the

suit, Before his death, however, Uttam Singh had executed a will by which Joginder Singh and Davinder Singh two of his sons were to get 6 and 4

annas respectively in all his properties and for the remaining six annas a public trust was constituted. On 23-12-1958, a compromise was entered

into between the legal representatives of the original landlord Sardar Uttam Singh and the non-applicants judgment-debtors by which the tenants

were allowed to continue as lessees till 31-12-1962 on the terms and conditions of the lease. Under the compromise decree, however, the

Defendants were given the option to vacate even earlier than 1-1-1963 after giving two months notice in which case the landlords agreed not to

charge rent for the remaining period of the lease.

The original lease was for a period of three years but by the compromise the fresh lease was for a period of four years. There was also a term in

the agreement constituting the compromise that the tenants were liable to ejectment and were to vacate the premises on 1-1-1963. Subsequent to

the terms and conditions of the original lease which were continued by the fresh lease on 1-11-1960, Joginder Singh one of the landlords sold his

six anna share to the applicants Sudhir Kumar and others and assigned his interest in the decree for a consideration of one lakh and twenty five

thousand. On 14-10-1961, the remaining landlords! of ten annas share, Davinder Singh and the Trust executed an agreement in favour of the non-

applicants judgment-debtors agreeing to renew the lease for a period of three years after 1-1-1963 on practically the same conditions as before

With certain additions. On 3-1.-1968,. Davinder Singh on his own behalf and on, behalf or trustee filed an application before a single judge that

the entire decree be recorded as having been satisfied and accordingly the court recorded full satisfaction of the decree by his order dated 4-1-

1963.

On the same day the applicants Sudhir Kumar and others filed an application for executing the decree and for delivering Khas possession over

their shares in the demised properties. Another application was filed by the applicants on 5-1 -1963, praying to the court to review its order

directing that the decree be satisfied in full. The application for review was accepted by the learned Judge by his order dated 17-1-1963, by which

the satisfaction was recorded only to the extent of the shares of the non-applicants judgment-debtors. In other words, the position was that the

decree stood satisfied with respect to ten annas share of the landlords and not with respect to six annas share owned by the applicants Sudhir

Kumar and others. Subsequently, the applicants pressed for the execution or their six anna share before the learned single Judge. The non-

applicants judgment-debtors filed several objections contending that the decree was inexecutable. The learned judge after considering the

objections filed by the non-applicants held that the decree was executable lo the extent of six anna share of the applicants but that the decree being

a joint one, no Khas possession could be given to thorn. The learned Judge accordingly passed an order for execution of the decree under Order

21 Rule 35(ii) of the Code of Civil Procedure. Thus the learned Judge merely delivered symbolical possession over the properties lo Hit

applicants. Against this order, both the applicants and the non-applicants judgment-debtors have come up in appeal before us.

Mr. Mahajan appearing for the applicant decree-holders submitted that the court below having held That the decree was executable should

have; granted delivery of Khas possession in accordance; with the original decree passed by Nair J. the further submitted that ft was always open

to one of the decree-holders to execute the entire decree for the benefit of Other decree-holders and acting on this principle the possession of the

entire properties should lave been delivered to tie applicants. Mr. Mahajau further argued that the renewal of. the lease by executing a fresh

agreement by Davinder Singh and others in favour of the non-applicants was invalid and could no! defeat, the right of the applicants. On the other

hand, Mr. Das appearing for the non-applicants judgment-debtors has submitted that thc decree was inexecutable and the application for

execution filed by the non-applicants should have been dismissed in toto.

In our opinion, the main point lo be decided in the present appeals, is the question as to whether or not, the decree passed by this Court on 23-

1.2-1958 was executable. If this point is decided in favour of the non-applicants judgment-debtors, the questions raised by Mr. Mahajan need not

be gone into at all. In this connection, the executability of the decree in question has been assailed by Mr. Das appearing for the judgment-debtors

on the following grounds:

(1) That the decree being purely declaratory in nature and containing no directions for the delivery of possession through court was inexecutable.

(ii) That on a construction of the decree, it would appear that the parties created a fresh lease of the properties and once this is done, the remedy

or the applicants was to file a suit for ejectment after giving notice to them under the provisions of Transfer of Property Act.

(iii) That the applicants having given their assent to the renewal of the lease by their conduct, the lease stood renewed and the judgment-debtors

will be deemed to be holding over and could be ejected only after giving valid notice.

(iv) That as a fresh lease was executed, the decree was inoperative as it related to matters outside the scope of the suit.

These are the only grounds pressed before us by the learned Counsel appearing for the judgment-debtors. In order to appreciate the argument

raised by the learned Counsel, we may have to construe the decree passed by this Court which may be quoted thus:

The above mentioned suit coming this day for disposal the following decree in accordance with the compromise arrived at between the parties is

passed:

The Defendants shall remain as lessees of the Uttam Talkies Residency Road (Jammu with the machinery, furniture fitting, etc. on the conditions

and terms as laid in the agreement dated 17th Assuj 2011 and registered on 18th Assuj 2011 upto 31st December 1962 and pay the Plaintiff's

rent at the rate of Rs. 3,000/- per month from 1st January 1959 in following proportion:

a/- S. Davinder Singh four annas in a rupee

b/- S. Joginder Singh Six annas in a rupee

c/- M/s. Davinder Singh. Gopal Dass and Manohar Lai Trustees six annas in a rupee.

(2) The Defendants shall be liable to ejectment and shall vacate the premises on 1st January 1963 on the terms and conditions as stated above.

(3)The rent account upto 31st December 1958 has been separately settled and paid.

(4)'The Defendants shall have right to quit (he leased premises at any time before 31st December 1962 provided they give two months previous

notice to the Plaintiffs in this behalf. In such contingency ront due upto the date of handing over the possession shall he recoverable.

It is not disputed that at the time of the aforesaid decree, Joginder Singh had not sold his interest to the applicants Sudhir Kumar and others and

under the terms and conditions of the decree the rent of Rs. 3000/- was to be paid to Joginder Singh, Davinder Singh and the trust. That this rent

was paid regularly by the tenants as provided for by the decree is not also disputed. We are clearly of the opinion, that the terms of the decree are

plain and unambiguous and, therefore, it is not necessary to look into the conduct of the parties with a view to finding out the real intention of the

parties. The decree has clearly created a fresh lease for a period of four years continuing the terms and conditions of the original lease.

Furthermore, the decree read as a whole is purely declaratory in nature and contains no directions that if the tenants do not give up possession on

the stipulated date of 1-1-1963, possession should be obtained through court by executing the decree. This appears to us to be the very crux of

the matter. There is one important aspect of the matter which also shows that the decree was never intended to be executable. In the previous

lease, as submitted above, there was a clause by which the lease was given the option to the consent of the landlords. This condition has also been

incorporated in the lease created by the decree by virtue of Clause (1). It is, therefore, obvious that even on 1-1-1963, it was open to the lessee to

have claimed renewal of the lease with the consent of the landlord. If the landlords had given their assent to the renewal of the lease, then no

question of giving up possession would have arisen. It is manifest from the terms of the decree that such a contingency was actually contemplated

by the parties at the lime when they entered into compromise. This circumstance is, therefore, wholly inconsistent with the decree being one- of an

executable nature.

Mr. Mahajau appearing for the applicants decree-holders as also the learned Judge placed great reliance on Clause 2 of the decree and

particularly on the words:

The Defendants shall be liable to ejectment and shall vacate the premises on 1st January 1968 on the terms and conditions as stated above

in order to argue that this clearly indicated that possession could be delivered to the decree-holders through court if the tenants did not vacate on

the stipulated date. We are, however, unable to agree with this interpretation of Clause 2. In fact, what the learned judge over-looked was the last

words of Clause 2, which says that ""the Defendants shall be liable to ejectment on the terms and conditions as stated above."" This would obviously

mean that the Defendant could be ejected- under the terms and conditions of the lease and one of: these terms was that the Defendant had the

option to renew the lease. In other words, the Defendants could be ejected only if the landlord had refused to renew the lease. In other words, this

clause was just like any other routine clause in any lease for a fixed period wherein the lessor has undertaken to vacate the premises on the expiry

of the lease. Thus; suppose that there was no decree and we were i to construe the terms of a pure and simple; fixed term lease, the tenants could

not have been compelled to deliver possession without bringing a suit for ejectment after giving notice as required by the previsions of Transfer of

Property Act. It is well settled that a consent decree is nothing but an agreement with the command of the court superadded to it. In this view, we

are fortified by the decisions reported in: C.J. Smith Vs. A. Kenny, Official Trustee of Bengal, , Rani Amrita Sundari Debi Chowdhurani and

Others Vs. Munsi Sherajuddin Ahamed Chowdhury and Others, Krishna Bai v. Hari Govind 31 Bom 15 (FB).

It is, therefore, clear to us that the decree does not contain an unconditional direction that possession should bo surrendered to the tenants on 1-

1-1963 in any contingency whatever may happen. It seems to us that the decree merely creates a fresh lease of the properties without at all

indicating that possession should he obtained by the decree holders through court by executing the decree. The learned Judge, however, appears

to have relied upon two circumstances to come to the conclusion that the intention of the parties was that the possession should be given through

court. In the first place, he referred to the fact that the judgment-debtors themselves filed an application before the court for recording satisfaction

of the decree. Secondly, he was of the opinion that the suit being one for ejectment, what was done by the compromise, was only to allow the

tenants to remain in possession of the premises upto 1-1-1963, till which lime the execution of the decree was postponed II was also contended

by Mr. Mahajan that in the agreement to renew the lease executed by Davinder Singh and others, it was clearly mentioned that by virtue (if tills

agreement, the decree for possession stood cancelled, and Ibis would indicate that the parties treated the decree to be-one for possession and thus

executable. With very great respects we are unable to support the view of the learned Judge as also the argument of Mr. Mahajan. We are of the

opinion that the learned Judge appeals lo have fallen Into the error of taking the subsequent conduct of the applicants several years after the decree

as an indication of the intention of the parties in 1958, when the decree was passed; particularly when the intention of the parties is absolutely clear

on a plain reading of the decree which speaks for itself Thus when the terms of a decree are clear and unambiguous, it is not open to a court to

look to the conduct of the parties as was observed by a division bench of the Bombay High Court, reported in Ram-jibhai Virpal Shah v.

Gordliandas Maganlal Bhagut AIR 1951 Bom. 370, where Gajendragadkar J (as he then was) speaking for the court observed as:

If the words used in the document are unambiguous and lead only lo the inference that the relationship of landlord and tenant is thereby intended to

be created, the doctrine of intention cannot materially affect the construction of the document.

It would thus be clear that even though a landlord after determining the tenant's rights under the lease, sues for possession, it would still be open to

him pending the suit, to create a contractual tenancy between himself and the tenant if ho so desired. In other words, it is not legally impossible for

a Plaintiff in such a case to enter into an agreement with the Defendant and obtain a compromise decree In terms of the said agreement whereby

the {Defendant would become his tenant once again. A compromise decree can and often enough does operate lo create a contractual tenancy

between the parties to the decree.

Moreover, merely because the parties treated a declaratory decree as a decree for possession that would not alter the nature of the decree. In

other words where a decree is a. purely declaratory decree and therefore Inexecutable as a mutter of fact, a legally erroneous interpretation of this

decree by one of the parties would not make the decree executable. The learned Judge has held that the decree did not create a fresh lease and he

accordingly distinguished the decisions cited before him by the learned Counsel for the judgment-debtors. Here also, we are unable to agree with

the learned Judge. Taking the decree, as it stands, there can be no, doubt that it created a fresh lease between the parties on the terms and

conditions of the original lease The lease clearly recites; ""That, the Defendants shall remain as lessees, from 1-1-1959."" The decree further states

the role of rent of Rupees 11,000. which was lo be paid in various proportions. The decree further stales, that the Defendants shall he liable to

ejectment on the terms and conditions staled above, which would mean that the Defendants would be liable to ejectment on the terms and

conditions of the lease .incorporated in the decree which were really the terms and conditions of the original lease with an additional term that the

Defendants were given the option to vacate even earlier than l-l-l963 In these circumstances, therefore, the inference is irresistible that the intention

of the parties was to create a fresh lease by virtue of the decree.

It was, however, contended by Mr. Mahajan that a lease could not be created by a decree. He has, however, cited no authority for this

proposition. On the other hand, there is abundant authority in support of the view that a compromise decree can operate as a lease. In Sumatibai

Waman Kirtikar Vs. Anant Balkrishna Shirgaonkar, a division bench of the Bombay High Court in almost identical circumstances came lo a finding

that the decree operated as a lease. In coming lo this conclusion, their Lordships relied on the fact that the agreement fixed a rent to be paid, the

period for which the lease was to continue and the tenant stipulated to hand over the properties lo the landlord after the expiry of the lease. Their

Lordships also relied on the fact that there was no recital in the agreement that if the tenants defaulted in payment of rent, possession should he

taken through court. In the present case also all the aforesaid conditions are fully satisfied and over and above! the opening part of the decree

mentions that the Defendants shall remain as lessees. In this connection, their Lordships in that case, observed as follows:

There seems to be no reason in principle why a lease cannot be made by parties arriving at a compromise of a suit and giving effect lo that

compromise in a decree of a court. If two parties agree that one will give a lease of a hind to the other and if they want that agreement to be

embodied In the decree of a court, that decree would operate as a lease as much as an instrument executed by two parties making a lease as

provided by Section 107 T.P. Act, and therefore we sec no reason whatever why if this document can be read as constituting a lease there is

anything in law to preclude the court by embodying it in u decree which it passes as a result of a compromise. Looking to the terms of the

document itself there can be no doubt that it is a lease and it does create the relationship of landlord and tenant between the judgment-creditor and

judgment-debtor.

The view of their Lordships of the Bombay High Court that a decree could operate as a lease finds ample support from the authorities reported in

E.S. Kasim Marakkayar and Others Vs. P.R.M.K. Muhammad Abdul Rahiman Marakkayar, ; Ilemanta Kumari Debi v. Midnapur Zamindary

Co., 40 Ind App 240 : AIR 1919 PC 79); Nazar Ali Vs. Indra Kumar Sutar and Others, and Sachindra Mohan Ghose Vs. Ramjash Agarwalla, .

In Ramjibhai Virpal Shah Vs. Gordhandas Maganlal Bhagat, , as referred to above, Gajendragadkar J. (as he then was) on an interpretation of

the decree in that case held that the decree amounted to license and not a lease. Similar view was taken in Narayan Ramchandra Patkar and

Others Vs. Gangadhar Keshav Musale, and Gurupadappa v. Akbar Sayad AIR 1950 Bom 252. In fact, the learned Counsel for (he non-

applicants relied on these authorities in support of his proposition that The decree was not executable. On going through these decisions, however,

we find that their Lordships, did not go into (his question at all, but held that as the decree had created a lease which was not registered u/s 17(1)

of the Registration Act, therefore, the decree was not executable. In the Jammu and Kashmir Registration Act, however, a lease of the kind that

we have in the present case is not compulsorily registrable. Thus these authorities do not assist the judgment-debtors on the question as lo whether

or not the decree is executable. The fact, however, remains that once it is settled that a decree created a fresh lease, it is manifest that if a tenant

docs not surrender possession after the expiry of period of lease, he can be ejected only after bringing a fresh suit In accordance with the

provisions of T.P. Act. In this connection we would like to refer to Chundra Nath Dey v. Burroda Shoondury Ghose ILR Cal 813, .where a

mortgage decree had provided (hat the Plaintiff was lo obtain the amount of his claim and the mortgage properly would be liable for the satisfaction

of the debt, yet their Lordships of the Calcutta High Court, held that the decree could not be executed by sale of mortgage properties as Section

99 of the Transfer of Properly Act precludes the decree holder from executing the decree. Their Lordships of the Calcutta High Court observed as

follows:

The objects of Section 05, 80, 88 and 99 of the Act are to prevent mortgagees from realizing their securities, except in the way prescribed by the

Act, and unless the action in which it sought to realize the security is one in winch the procedure followed is that prescribed by the Act, we think it

is within the provision of Section 99 and that the mortgaged properly cannot be sold in it.

In the instant case, the non-applicants judgment debtors were not liable to ejectment without giving notice as required by Section 112 (sic) of

T.P. Act and thus the provisions of the T.P. Act barred the execution of the decree.

Summarising the position, therefore, it appears to us that the decree in question being a declaralorv decree containing no directions for

execution of the decree and delivery of possession through court if the Defendant failed to deliver possession, the decree must be held to be

inexecutable.

We would now discuss some of the authorities which amply support the view taken by us.

In Khalli Rath Vs. Eppili Ramachandra, , a suit for possession was brought in which a compromise decree was arrived at between the parties

wherein it was stipulated that the tenant would continue in possession on The payment of rent of Rs. 5/- per mouth for one year and shall vacate

the house after 31-3-1947. The tenant did not. vacate the house and the decree-holder filed an application for delivery of possession through the

court. Their Lordships on these facts, observed as follow:

It appears lo us that it would be travelling beyond the words used by the parties in, the compromise deed lo import into it anything like a provision

directing execution lo be taken in the event of the Defendant not vacating the house after the expiry of the period of one year. The compromise

docs not say that the decree holder shall be entitled to enforce the compromise in execution proceedings and eject the Defendant. Nor docs it say

that the Defendant should deliver back possession at the end of the stipulated period. All that the stipulation amounts Is that the Defendant agreed

to vacate after a certain dale. What would happen in the event of violation of this provision was not stipulated or agreed lo between the parties. In

such circumstances, it is difficult to hold that the parties intended that the Plaintiff should recover possession by way ofexecution as the suit itself

was one for possession. We are, therefore, unable to accept theview taken by the courts below that the decree was executable as the suit itself

was for possession and would set aside the order under appeal.

It is clear from the observations of their Lordships that in absence of any directions in the compromise decree trial possession was lo be delivered

through court, their Lordships were not prepared to hold that the decree was executable.

Similarly in Mahomed Nasiruddin v. Rhagwana 22 Ind. Cas. 663 : (AIR 1914 All 103), a suit was brought by the Plaintiff to eject the

Defendant on the ground that he was a trespasser. In that suit a compromise decree was passed whereby the tenant admitted the title of the

landlord and he was allowed to remain in possession of the house as a tenant and agreed lo vacate the same whenever required by the Plaintiff.

Tudball J. of the Allahabad High Court held that as relationship of landlord and tenant had commenced immediately after the compromise the

tenant could not be ejected in execution, of the decree. His lordship in Ibis connection observed as follows:

The relation between the parties which commenced lo exist immediately after the compromise is the relation between a landlord and tenants. Prior

to that the relation had been, if it can be called one, that which exists between a trespasser and the true owner of a property. The words 'dakhal ki

digri farmai jawai' in the decree simply meant that the court was to validate the title of the Plaintiff and no more. It seems to me that the decree so

far il was capable of execution was practicallv executed by the distinct change of relation between the parties in the fact that the Defendants

continued after the decree lo hold the properly as tenants

In Dhan Mia v. Jamila Khatun AIR 1952 Gau 21, a suit was brought for recovery of arrears of rent and for eviction of the tenant. During the

pendency of the suit the parties entered into a compromise and under the compromise the Defendant was to pay up the decretal amount and was

lo continue in possession of the house on paying rent of Rs. 8/- per month It was further agreed that the tenant was lo deliver possession of the

house lo the Plaintiff on 1st Bhadra 1340 U.S. On those facts, their Lordships held that the tenant was not liable lo ejectment in execution of the

compromise decree and made the following observations:

We do not think that it was over the intention of the parties that the J.D. would be liable to eviction in execution of the compromise decree. For

instance, the new rent fixed by the agreement was Rs. 8/- and not Rs 6/4/- the rate at which (he arrears of rent were claimed in the suit If the terms

of the fresh tenancy are to be regarded as part of the compromise decree, the Plaintiff would be in a position to recover the arrears of rent at the

new rate of Rs. 8/- per mensem, without recourse to a suit. We can find no justification for such a position. If the Plaintiff then must be relegated lo

a suit for the recovery of arrears of rent at the new rate of Rs. 8/- as fixed by. the compromise, it is difficult to see how he can enforce the

judgment debtor's liability to eviction arising out of the same agreement by resorting to execution proceedings.

The scope and incidents of a purely declaratory decree was also pointed out by a division, bench of Hie Chief Court of Sind, reported in

Godhuinal Sanniukhmal v. Mr. Bhamcho AIR 1943 Sind 11 where Davis C.J. observed as follows:

The question only is how far is it callable ,of execution as an executory as opposed to a declaratory decree? Now it is clear from the terms of the

decree itself that it seeks to fix over a period of years the rights and duties of the parties, and particularly penalties to be Incurred on the happening

of future uncertain events.

We have here a case similar rather lo the case reported in ILR Bom 15 (FB), in which the relations of landlord and tenant are established and

provision is made for forfeiture and dispossession and penalties on the happening of some uncertain future event. Reading this compromise through

as a whole, it is clear to me that it is concerned not so much with the present right of the Plaintiff to money or property but as to his future rights on

uncertain happenings in the future such as draught, floods, failure to cultivate and so on. It is not possible to separate one term of the decree from

the other. It must be taken as a whole, and taken as a whole, it is clear lo me that while the 'agreement therein contained may be an appropriate

matter for a suit, it is not an appropriate mailer for execution, for those reasons, therefore, I think, that the appeal should be dismissed with costs.

In the same case Tyabji J. has observed:

The second question is whether these terms although properly included within the operative part of the decree were executable or were merely

declaratory. The distinction between directions in a decree which are declaratory, which operate by merely declaring the rights and obligations of

the parties created by the decree, which are not enforceble in execution, in respect of which therefore the work of the court is executed as soon as

the decree is pronounced, on the one hand, and executable directions constituting definite and absolute not contingent orders lo definite persons to

do or to refrain from doing definite things which may be enforced in execution on the other hand, has been dealt with in several decisions of this

Court....

In the present case, the ditections contained in cis. 2 to 5 and 7 to 10 not contain ait absolute directions and do not do anything amoco than

declare the rights nn(t obligations of the parties They are clearly leclmtrattmrv. rI appellant did not ask the court to execute any absolute orders in

respect of rights ascertained at the date of the decree, hut his application va to enforce an unascertained claim for compensation based on alleged

failure by the respondents to carr’m out the terms of thelease set out in the lcd-ce. I think therefore,that the decision of the learner joint

subâ€"judge who held the provisions to 10 declaratory was right....

In- Syama Charan Das Vs. Satya Prosad Choudhury, , a division bench of the Calcutta High Court, consisting of Mookerjee and Chotzncr,

observed as follows:

The compromise settled to the extent of the right of each of the rival claimants which was by no means identical in respect of the different

properties, but there was no provision that the rights so fixed were to be enforced by execution of the decree. The decree was in essence

declaratory in character and the Plaintiff could not have recovered possession in execution thereof This is in accord with the opinion expressed in

Dobee v. Joyvkee (3 Agra I.I.C.R. 381) and Tatachariar v. Singura ILR Mad 219 that a decree which merely declares the rights of the parties

and does not direct any act to be done, is incapable of execution. In such an event, a separate suit will lie to enforce the rights declared by the

decree, and in fact a regular suit affords the only method of enforcement of such right.

There is also a division bench decision of our own High Court reported in Chhaju Ram v. Suraj Prakash AIR 1957 J&K 16, which lends support

to the view taken by us. In that case also, in a suit for recovery of arrears of rent and ejectment a compromise was arrived at by which the tenant

was to continue in possession under a fresh lease and it was held that lie could not be ejected in execution of a decree. In that case, their Lordships

observed as follows:

It was because a fresh lease had been executed by the Appellant in favour of the Respondent and the Appellant was to remain in possession of the

suit property on the basis of this fresh lease and if forfeiture for a breach of an express condition provided In the lease occurs, no suit for ejectment

lies unless and until the lessor has served on the lessee a notice in writing in terms of Section 114-A of the Transfer of Property Act. We agree with

the contention of the learned Counsel for the Appellant that the recital of the terms of fresh lease in the decree sheet cannot exclude the operation

of the provisions of the Transfer of Property Act, to such a contract even though it may not be regularly drawn up. Similarly in Kizhakkiniyakath

Kunhi Koyamutty Naha Haji Vs. Veeran and Others, , where the decree had allotted certain properties to the Plaintiff, it was held that the decree

was purely of a temporary nature and there was no unconditional decree giving a right to the Plaintiff to execute the same. In this connection

Somayya J. has observed as follows:

But if he does not, the allotment of certain properties to him under the partition decree stands. Ills rights are declared by that document and there is

no reason why in such a case a separate suit ought not to be entertained. It is possible that a decree may be passed in favour of the Defendant

without any condition particularly as regards the payment of court fee. If the decree allots certain properties to the parties and directs each party to

be in possession of the properties allotted to him under the decree, then it might be a decree which is executable by each and Section 47 may bar a

separate suit by a Defendant who could execute the decree unconditionally but to bring about that result it seems lo me, you must have an

unconditional decree giving the Defendant a right to execute the decree to get the properties allotted to him.

Similarly in Meghraj Sah Vs. Rajbansi Lal and Others, , where under a compromise the Defendant stated that he will have no connection or

concern with a certain plot of disputed land, it was held that in absence of clear directions that the Defendants would surrender possession and in

the event of their not doing so, possession could be delivered through court the decree WHS not executable. In that case Sahai J. observed as

follows:

If one looks into the terms, which I have quoted, it is clear that the parties merely agreed to a declaration of the Plaintiff's right, title and interest in

the disputed land. They did not say that Defendant would deliver possession of the land lo the Plaintiff nor did they say that failing delivery of

possession by the Defendants out of court, the Plaintiff would be entitled to take the delivery of possession through court. Il is perfectly clear

therefore that the parties did not agree that either of them would do any act in future in fulfilment of the term which I have quoted, nor did they

contemplate that on failure of the party concerned, The act would be done with the assistance of the court.

That being so, I am of the opinion that the decree is not executable at all because it merely declares the rights of the parties. If the Appellant seeks

to get possession of the land with the assistance of court he has no opinion but to institute a suit for the purpose.

In view of the authorities indicated above, there can be no escape from the conclusion that a decree passed by a single Judge of this Court dated

23-12-1958 in this case was a purely declaratory decree which created a fresh lease and declared the rights of the parties thereunder, and was

thus incapable of execution.

before concluding our judgment on this aspect of the mailer, we may not be taken to decide that in every case a consent decree will be

deemed lo be inoperative. 11 is well settled that generally a decree, whether it is a decree on contest or whether it follows on a compromise is

always executable but the executing court, in order lo interpret the decree has lo see the nature and the character of the decree passed. In doing

so, the executing court is not going behind the decree, but is interpreting the decree as it stands. Where the decree is only a declaratory decree,

which is not capable of execution, the court will be fully justified in refusing to execute the decree.

There may be cases where the decree though of an executable nature becomes inexecutable because of some legal bar For instance, in cases of a

decree for possession where possession of properties lo which the Rent Control Act in the various Stales apply, it has been held that a decree

becomes inexecutable because of statutory provisions of the Act. In Korah Punnen v. Parameswara Kurup Vasudeva Kurup AIR 1956 Trav-C0.

1 (FB) their Lordships held that the decree operated to create a fresh lease, but it was inexecutable because of the Rent Control Act prevalent in

that Slate.

Learned Counsel appearing for the applicants decree-holders has not been able to cite a single decision which has taken a view contrary lo the one

which we have expressed our judgment. For those reasons, we arc clearly of the opinion that the decree in question being a declaratory decree,

and containing no directions for the delivery of possession through court is inexecutable. We are also of the opinion that the decree creates a fresh

lease and the non-applicants judgment-debtors cannot be ejected without bringing a suit for ejectment under the provisions of T.P. Act.

We would now come to the next contention raised by the learned Counsel for the non-applicants judgment-debtors. Mr. Das, drew our

attention to the fact that although the lease was lo expire on 31-12-1962, and the Defendants wore lo deliver possession on 1-1-1963, the

applicants decree-holders by their conduct in issuing passes and availing of facilities provided under the lease signified their assent to the

continuance of the lease. In this connection he has invited our attention to the evidence of Chander Blum Manager of Uttam Cinema who has

stated that passes wore issued by the applicants decree-holders on 1-1-1963. This evidence is corroborated by the admission of the non-

applicants themselves in answer to the interrogatories served on them by the judgment-debtors. In answer to question No. 6, the non-applicants

clearly admitted that they had issued passes upto 1-1-1963. It was contended by Mr. Mahajan, however, that the oral evidence of Chander Bhan

should not be relied upon when the passes actually issued by the non-applicants, which are in the custody of (ho judgment-debtors, have not boon

produced before the court. We are, however, unable to agree with this contention. Clmnder Bhan had come to the witness box and given a

statement on-oath that passes were issued by the applicants decree-holders on 1-1-1963. No evidence in rebuttal was produced by the applicants

lo contradict the statement of the witness. Moreover, the statement of the witness finds ample support from the admission of the applicants

themselves in answer to Q. No. 6 of the interrogatories served on I hem by The non-applicants judgment-debtors

Mr. Mahajan submitted that the word ""upto 1-1-1963"" docs not mean that the passes were issued on 1-1-1963. We do not see how else the

answer of the applicants can-be-interpreted except that the applicants actually issued the passes on 1-1-1963. The applicants knew full well that

the lease was to expire on 31-12-1902 as is disclosed by their answers to Questions Nos 5 and 6 of the interrogatories, which are as follows:

Is it a fact that all the terms and conditions of lease deed dated 17th Assuj 2011 remained in force and were observed upto 31st Dec. 1962.

'Is it a fact (hat the complimentary passes facilities were availed of by the landlords upto 1st January 1963.

In these circumstances, therefore, when the applicants, decree-holders admit that they issued passes on 1-1-1963, they could only mean that the

passes were issued even on 1-1-1963 and nothing else Under the terms and conditions of the original lease which were continued By, the fresh

lease created by virtue of the decree, the landlords had been given the right to avail of the facilities of issuing passes' for themselves or for their

friends in the cinema shows run by the lessee"" Thus bv issuing passes after the expiry of the lease, there can be no doubt that the applicants

decree-holders exhibited their clear assent to continue the lease. u/s 116 of the Transfer of Properly Act, which runs as under:

If a lessee or under-lessee of properly remains in possession thereof after the determination of the lease granted to the lessee, and the lessor or his

legal representative accepts rent from the lessee or under-lessee, or otherwise assents to his continuing in possession, the lease is, in the absence of

an agreement to the contrary renewed from year to year, or from month lo month, according to the purpose for which the properly is leased, as

specified in Section 106.

It will be seen that I lie acceptance of rent as contemplated by the Section is only one form of the intention of the landlord to continue the lease and

not the only form. The words ""otherwise assents lo his continuing in possession clearly denote that the landlord can give his assent in some other

form also. In the instant case, since the applicants decree-holders had given their assent in the form of availing themselves of the facilities provided

to thereunder the lease thus gave a clear assent lo continue the lease. Furthermore, it was submitted before us by Mr. Das that under the terms of

the lease the tenants had deposited a certain sum of money as security which was to be returned lo thcm after the expiry of the lease and after they

delivered possession of the properties. In the instant cast;, the applicants decree-holders did not appear lo have given any notice after the expiry of

the lease calling upon the judgment-debtors to take back their security and to deliver possession. On the other hand, they filed a petition for

execution of the decree on 3-1-1903. This conduct on the part of the applicants decree-holders taken along with the issuing of passes also goes a

long way to prove that the applicants intended to continue tire lease Once such an assent is given, the lease is .automatically renewed from month

to month or year to year as the case may be. The lessee cannot be ejected without bringing a suit for ejectment after giving a fresh notice. On this

ground also, the decree has become inexecutable.

In the view that we have taken, it into the last contention counsel for the non-applicants judgment-debtors that by creating a fresh contract the

compromise decree constituted of mailers outside the scope of the previous suit and was, therefore, inoperative. The learned Judge has given a

clear finding that the decree did not relate to matters beyond the suit and was, therefore, not inoperative on this ground. We are not prepared to

say anything on this finding, in view of our finding that the decree being a declaralory decree, was incapable of execution. Furthermore, in view of

our findings that the decree is incapable of execution, it is not necessary for us to go into the other contentions raised by Mr. Mahajan in support of

his appeal which were advanced on the fooling that the decree was executable.

For these reasons, therefore, the appeal of the non-applicants judgment-debtors is allowed and the judgment of the learned single judge giving

an order for joint possession is set aside and the application for execution filed by the applicants decree-holders is dismissed. In the circumstances

of the case, we make no order as to costs throughout

Janki Nath Wazir, C.J.

I agree that the decree being declaratory in nature is not executable. The appeal of the non-applicants is allowed and the order for joint

possession is set aside. Execution applicants, decree-holders to bear their own costs JI/DHZ