Jai Lal v. Bhu Dev .

Harnam Singh, J.:— In case No. 206/2 of 1950 the Rent Controller passed order for the eviction of Bhu Dev tenant. Pursuant to that order Bhu Dev was to vacate the premises on or before the 4th of July, 1953, or within three months of his transfer from Rohtak.

2. Bhu Dev judgment-debtor was transferred to Karnal on the 4th of August, 1952. That being so, he was to surrender possession to the landlord on or before the 4th of November, 1952.

3. On the 28th of September, 1952, Bhu Dev paid rupees 90/- to the landlord who agreed that Bhu Dev may continue to be in occupation of the premises till March, 1953.

4. On the 19th of July, 1953, Jai Lal applied for the execution of the decree passed by the Rent Controller.

5. In resisting the application Bhu Dev maintained that on the 28th of September, 1952, fresh agreement had come into existence between the parties by which the decree passed by the Rent Controller was extinguished.

6. In Oudh Commercial Bank Limited, Fyzabad v. Thakurain Bind Bansi Kuer . A.I.R 1939 P.C 80..

7. Sir George Rankin dealing with a similar point observed—

“If it appears to the Court, acting under section 47, that the true effect of the agreement was to discharge the decree forthwith in consideration of certain promises by the debtor, then no doubt the Court will not have occasion to enforce the agreement in execution proceedings, but will leave the creditor to bring a separate suit upon the contract. If on the other hand, the agreement is intended to govern the liability of the debtor under the decree and to have effect upon the time or manner of its enforcement, it is a matter to be dealt with under section 47”.

8. From the perusal of receipt, Exhibit R. 1, it is plain that the true effect of the agreement was not to discharge the decree forthwith in consideration of certain promises by the judgment-debtor. That agreement was intended to govern the liability of the judgment-debtor under the decree and to have effect upon the time or manner of its enforcement. If so, Jai Lal was justified in suing out execution of the decree for the eviction of Bhu Dev.

9. For the foregoing reasons, I allow Execution Second Appeal No. 1029 of 1954 and give three months' time to Bhu Dev to surrender possession of the premises to Jai Lal. In case Bhu Dev fails to surrender possession of the premises to Jai Lal within three months from today Jai Lal will be justified in suing out execution for the eviction of Bhu Dev.

10. Parties are left to bear their Own costs throughout.

11. Appeal allowed.