SMT. KALLOO & ORS. versus DHAKADEVI & ORS .

Citation: [1982] 3 S.C.R. 201 · Decided: 09-02-1982 · Supreme Court of India · Bench: E.S. VENKATARAMIAH · Disposal: Dismissed

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Judgment (excerpt)

• 
SMT. KALLOO & ORS. 
v. 
DHAKADBVI & ORS . 
February 9, 1982 
[B.S. VENKATARAMIAH AND BAHARUL ISLAM, JJ.J 
Code of Civil Procedure 1908 s. 47 and Or. XX!. 
Landlord.and Tenant-Decree for p0Jse1sion obtained by landlord execution 
against tenant-Matter compromised-Tenant to continue in portion of property and 
pay damages for use and occupation without default-Breach by tenant-Execution 
petition by landlord-Whether maintainable._ Test-Whether the compromise extin~ 
guishes decrees and creates fresh /ecue or provides mere mode for discharge 
of decree. 
The predecessor of the respondents filed a suit for eviction of the predecessor 
of the appellants from a shop and obtained a decree on March 21, 1960 for 
eviction. The decree-ho Ider filed an application for the execution of the decree 
on March 22, 1966 and. during the pendency of these proceedings, a compromise 
was entered into between the parties, and the Executing Court passed an order 
dated March 21, 1968 in terms of the compromise. The compromise provided 
for the judgment-debtor to give vacant possession of the remaining half of the 
shop to the decree-holder by December '31, 1972 and to pay damages for use and 
· / 
occupation by the 5th of every month to the decree-holder at Rs. 110/- per month, 
and that on six months damages being due the decree-holder will be entitled to 
have the shop vacated. 
'1 
The decree-holder filed an execution petition for. recovery of possession on 
Novell\ber 25, 1975 alleging that the judgment debtor had not paid damages at · 
the rate of Rs. 110/- per month from July 1, 1975. The judgment-debtor contest-
ed the execution proceedings contending that the terms of compromise created 
a fresh lease in favour of the judgment-debtor in resp.:ct of the remaining half of 
the shop, and that the decree was therefore not executable. The Executing Court 
upheld the objection holding that the compromise dated March 21, 1968 amounted 
to a fresh lease. 
On appeal, the District Judge, set ~side the order of the Executing Court, 
. but in Second Appeal, the High Court upheld the order of the District Judge, 
and dismissed the appeal. 
In tho appeal to this Court it was contended on behalf of the appellant/ 
judgment-debtor, that the compromise dated March 21, 1968 created a fresh lease, 
in favour of the judgment-debtor in respect of the undelivered half of th_e shop 
and the. decree-holder's remedy was by way of .a suit for recOvery of possession. 
A 
B 
c 
D 
F 
G 
H 
A 
B 
c 
D 
202 
SUPREME cotJllt R~PORTS 
(19821 3 s.t.ll. 
Dismissing t.he appeal, 
HELD : When a compromise takes place in the course o·f execution of ·a 
decrCe for eviction the compromise may extinguish the deCree and create a fresh 
iease, or the compromise may provide a mere mode for the discharge of the 
decree. What actually takes place depends upon the intention of the parties to the 
compromise, and the intention has to be gathered from the terms of the compro-
mise and the surrounding circumstances including the order recorded by the 
Court on the basis of the compromise. [205 C-D] 
In the instant case para l of the compromise petition and the order of the 
Executing Court recording the compromise disclose the intention of the parties. 
The judgment-debtor had already vacated "half of the shop and given its posses-
sion" and time was granted till December 31, 1972 for vacating and delivering 
possession of the other half of the shop as the judgment-debtor wanted time till 
then Jest bis busiriess "will be ruined by vacating the shop in hurry.'' This shows 
that the intention of the parties was nOt to create a fresh lease in respect of the 
half of the shop in possession of the judgmeOt-debtor but to help him to find out 
alternative accommodation ·and time for vacating was given till December 31, 
1972. Further, the term 'damages', and not 'rents' is used in the compromise 
petition as well as the order of tbe Executing Court. The intention of the parties 
clearly was not ·to extinguish the decree for eviction but to create a mode of its 
full discharge. [205 E-H) 
Konchada Ramamurthy Subudhi & Anr. v. Gopinath Naik, [1968] 2 SCR 559, 
referred to. 
E 
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2612 of 
F 
G 
H 
1981. 
Appeal by special leave from the judgment and order dated 
the 6th January, 1981 of the Madhya Pradesh High court (Jabalpur 
Bench) in M.P. No. 87 of 1980. 
Am/an Ghosh ~or the Appellants. 
Sobhagmal Jain and S.K. Jain for the Respondents. 

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