Dixit, J.:— This is an appeal under Section 23 of the High Court Act against the judgment of Mehta J., dated 14-5-1951 in Civil Second Appeal No. 77 of 1951. The suit which has given rise to this appeal was instituted by the plaintiff-appellant against the defendant-respondents for the recovery of arrears of rent and ejectment from certain shop-premises. The plaintiff alleged that on 26-4-1944 the defendants took from him on rent the premises in question for a period of one year on a monthly rent of Rs. 26/- and that on this date the defendant Ismail on his own behalf and on behalf of his younger brother Fida Hussain executed a Kirayar nama; that after the expiry of the period of tenancy the defendants continued to be the tenants of the plaintiff on the terms and conditions embodied in the Kirayanama; that as the defendants made a default in the payment of rent and as the plaintiff needed the premises for his own use, the plaintiff on 4-11-1949 served upon the defendants a notice to quit asking them to deliver possession of the premises on the expiry of the current month and to pay the arrears of rent upto the date of the notice within one month.

2. As the defendants did not vacate the premises in spite of the notice the plaintiff instituted a suit in the Court of Munsiff, Mandsaur on 6-12-1949 for the recovery of possession of the premises and for arrears of rent amounting to Rs. 187/14/-. There was a claim for mesne profits also at the rate of Rs. 45/- P.M from 7-12-1949. The defendant Ismail without giving any specific reply as to the execution by him of the Kirayanama, pleaded that he had no authority to execute any Kirayanama on behalf of his younger brother that he made no default in the payment of rent and that he had sent by money order the amount of arrears of rent namely Rs. 187/14/- to the plaintiff but the plaintiff refused to accept it. He further stated that the tenancy had not been determined in accordance with law and that the plaintiff was not entitled to any relief. The defendant Fida Hussain took the plea that he was not a tenant of the plaintiff; that he did not execute any Kirayanama in favour of the plaintiff and that, therefore, the question of determination of the tenancy or payment of arrears of rent did not arise. He also stated that the plaintiff was already in possession of certain premises situated in another Mohalla and was using those premises for his residence and shop.

3. On these pleadings the trial court framed inter alia the following issues: (1) whether the defendant Ismail executed the Kirayanama & whether the defendant Fida Hussain was bound by the Kirayanama; (2) whether the plaintiff refused to accept the money-order for Rs. 187/14/- being the amount of rent sent to him by the defendants; (3) whether the tenancy was terminated in accordance with law; (4) and whether the plaintiff needed the shop-premises for his own use.

4. After the evidence of some witnesses of the plaintiff was recorded, the parties settled the dispute arising out of the suit and on 28-8-1950 a decree was passed by consent in terms of the agreement. The terms of settlement provided that there would be a decree for vacant possession together with arrears of rent amounting to Rs. 187/14/- and Rs. 234/- for mesne profits upto the date of the decree and for future mesne profits at the rate of Rs. 26/- P.M The defendants undertook to vacate the premises and make over the vacant possession by 1-3-1951, and to pay the amount of rent and mesne profits due from them in the manner specified in the agreement. The agreement also mentioned that as the plaintiff needed the premises for his own use, the defendants would vacate the premises by 1-3-1951.

5. As the defendants did not vacate the premises, before the agreed date, the plaintiff took out execution of the decree. The application for execution was resisted by the defendants on the ground that the consent decree for ejectment was not passed on any of the grounds stated in Section 4 of the Madhya Bharat Sthan Niyantran Vidhan samvat 2008 (hereinafter referred to as the Act); that the decree being contrary to the provisions of the Act, was not executable and that, therefore, they could not be ejected from the premises. This contention was negatived by the executing Court and the execution case was directed to proceed. The judgment-debtors then appealed to the Court of District Judge, Mandsaur. The learned District Judge upheld the order of the executing Court. Thereupon the judgment-debtors preferred a second appeal to this court.

6. Mehta J. who heard the appeal took the view that under the Act a tenant could be ejected only on the grounds mentioned in S. 4 of the Act; that a tenant could not contract himself out of these provisions and consent to a decree for eviction; that it was competent for the executing Court to go behind the compromise decree and find out whether it was inexecutable on account of its being inconsistent with the provisions of the Act; that as in the present case the plaintiff sought ejectment mainly on the ground that he required the premises for his own use and as the trial Court gave no finding as to the existence of this ground for ejectment, the executing Court must make an enquiry as to whether the plaintiff was entitled to eject the respondents under S. 4(g) of the Act. He accordingly remanded the case to the lower Court for an enquiry whether the plaintiff has made out any ground under S. 4 of the Act for the ejectment of the respondents.

7. In this appeal Mr. Chitale learned counsel appearing on behalf of the appellant contended that the learned Single Judge erred in permitting the respondents to raise the objection in the execution proceedings, that the decree-holder had not made out any ground under S. 4 of the Act for ejectment and, therefore, they could not execute the compromise decree. It was said the an executing Court could not question the validity, the legality or correctness of a decree when there was nothing to show that the Court passing the decree had no inherent jurisdiction to pass it and that the Court executing the decree was not competent to make an enquiry into the facts to find out whether the Court passing it had or had no jurisdiction to do so.

Learned counsel for the appellant proceeded to say that the plaintiff founded his suit for ejectment on the allegation that the tenancy had been determined by a valid notice and that the defendants fell into arrears of rent and further that he required the premises in question for his own use that the respondents could have resisted the suit on the ground that they were not in arrears of rent or that the landlord did not require the premises for purposes stated in S. 4(g) of the Act.

8. But instead they chose to settle the dispute and agreed to pay the arrears of rent, and accepting the fact that the plaintiff needed the house for his own use further agreed to vacate the premises by 1-3-1951; that S. 12 of the Act which provided that no decree for eviction shall be passed except on one or more of the grounds mentioned in S. 4 did not mean that no decree for ejectment could be made if the parties agreed that it should be made; that there was nothing in the Sthan Niyantran Vidhan Samvat 2006 to prevent a tenant from forgoing the protection given under the Act and agreeing to vacate the premises; that, therefore, the compromise made by the defendants was perfectly lawful and the decree passed on the basis of the compromise was valid, binding and conclusive between the parties so long as it was not set aside either in appeal or revision and the defendants were estopped from challenging its validity in execution proceedings.

9. It was further argued that even if the compromise was not in conformity with the provisions of the Act the executing Court could not go into the question whether the agreement on which the decree was passed was or was not lawful and that it was for the Court passing the decree to consider whether under Order 23, Rule 3 the agreement was according to law and that though the consent decree may not be according to law, it could not be said to be a nullity as having been made by a Court without jurisdiction. Learned counsel pointed out that the terms of the consent decree and the pleadings of the parties showed that the real ground on which the decree for eviction was passed was non-payment of rent by the defendant tenants and the fact of the premises being required by the plaintiff for his own use.

10. In support of his contentions Mr. Chitale relied on — ‘Satish Chandra v. Bimalendu Sen’, AIR 1951 Assam 27 (A); — ‘Sahabuddin v. Mohaniai’, AIR 1951 All 227 (B) —‘Raja Chetty v. Jagannathadas Govind Das’, AIR 1950 Mad 284 (Q); — ‘Shvamlal v. Shayamlal’, AIR 1933 All 649 (FB) (D); — ‘Bajirao Narhar Peshwa v. Sakharam Balvant Peshwe .’, AIR 1931 Bom 235 (E); — ‘Municipal Committee, Morsi v. Kamal Narain’, AIR 1849 Nag 131 (F); —‘Bhagsingh v. Govindram’, AIR 1943 Nag 325 (G); — ‘Hriday Nath v. Ramchandrav’, AIR 1921 Cal 34 (FB) (H).

11. In reply the argument of Mr. Sanghi, learned counsel for the respondents is that under S. 12, Sthan Niyantran Vidhan Samvat 2005 the Court has no jurisdiction to pass any decree for ejectment unless there is in existence one of the several circumstances mentioned in S. 4 of the Act; that Ss. 4 and 12 contemplate that the court must find on the evidence on record or on the admission of the tenant that there exists one or more of the grounds stated in S. 4 for the ejectment of the tenant: that apart from such an admission of the tenant leading to an order for possession no different in kind from one made in inviturn, the Court cannot give effect to an agreement, whether by way of compromise or otherwise inconsistent with the provisions of S. 4 and pass a decree for eviction of the tenant.

12. It is further argued that an executing Court is not always bound to execute a consent decree according to its terms; that a consent decree is a mere creature of agreement between the parties; that a contract between the parties is not the less a contract and subject to the incidents of a contract because there is superadded to it the command of a Judge 2nd that if the compromise in terms of which the decree has been passed is shown, to be unlawful, the decree would be unenforceable and the validity of such a decree can be challenged in execution.

13. Mr. Sanghi further submitted that the ground on which a consent decree is passed is the factum of agreement between the parties and the motives which impelled the parties to come to an agreement do not in any sense form the basis of the consent decree and that, therefore, merely because in this case there was a decree for rent and the decree recited that the plaintiff-appellant needed the premises for his own use, it could not be said that the decree for ejectment was made on the grounds covered by clauses (a) and (g) of S. 4 of the Act and was one which on the face of it was a valid decree. The decisions to which we have been referred by the learned counsel for the respondents in support of his arguments are — ‘Sm. Parbati Debi v. Dr. S.N Sen’, 50 Cal WN 242 (I); — ‘Sm. Kironsashi Dassee v. Hirendra Nath Das’, 50 Cal WN 245 (J); — ‘Manick Chandra v. Haripada Roy’, AIR 1949 Cal 151 (K); — ‘Harrison Road Properties v. Ramdhandas Jhajharia’, AIR 1951 Cal 225 (L); — ‘Barton and Michell v. Fincham’, (1921) 2 KB 291 (M); — ‘Rossiter v. Langley’, (1925) 1 KB 741 (N).

14. With great respect to Mehta J., and after careful consideration of the reasons advanced by him and the arguments of learned counsel appearing before us, I do not find myself in agreement with his decision. I think the executing Court was right in overruling the objection of the respondents that the consent decree was not executable. It appears to me that though the main question raised by this appeal is one of the powers of the executing Court to question the validity, legality or correctness of a decree, the really important question in this case is, whether under S. 12 of the Act a consent decree for ejectment can be passed. It is well settled that an executing Court must take and execute a decree as it stands except where it is shown that the Court passing a decree had no inherent jurisdiction to pass it. It is only when a decree on the face of it appears to be null and void as being passed by a Court without jurisdiction that the executing Court has jurisdiction to refuse to execute the decree.

15. The Court executing the decree is not competent to embark on an enquiry into facts tending to show that the Court which passed it had no jurisdiction to do so. A decree may not be according to law yet it is binding and conclusive between the parties until it is set aside either in appeal or in revision and the executing Court has no jurisdiction to refuse to execute the decree on the ground that it is not according to law. ‘See — ‘Ramaswami Aiyengar v. Kailash Thevar’, AIR 1951 SC 189 (O); — ‘Jnanendra Mohan v. Rabindra Nath’, AIR 1933 PC 61 (P); — ‘Sri Raja Papamma Rao v. Sri Vira Pratapa H.V Ramachandra Razu’, 19 Mad 249 (Q); — ‘Gorachand Haidar v. Prafulla Kumar’, AIR 1925 Cal 907 (FB) (R); — ‘AIR 1943 Nag 325 (G)’.

16. Mr. Sanghi learned counsel for the respondents did not dispute this proposition which is now too firmly established to admit of any challenge. He, however, sought to get over the difficulty created in his way by this proposition by contending that the learned Munsiff had no jurisdiction to pass a consent decree for ejectment against the respondents in terms of the compromise as it offended against the provisions of Ss. 4 and 12, Sthan Niyantran Vidhan. I am unable to accept this contention as soimd. Section 12 of the Act no doubt provides that in all suits pending at the date of the coming into force of the Act no decree for eviction shall be passed except on one or more of the grounds mentioned in S. 4. These provisions are obviously intended in the interest of the tenants and to give some protection to them from being turned off from their residences by rapacious landlords, in these days of shortage of accommodation.

17. These provisions do not confer any benefit upon the landlords. They do not furnish any additional grounds for ejectment. The grounds for ejectment remain what they are under the Transfer of Property Act. Sections 4 and 12 only give protection to the tenant from ejectment and furnish him a new defence. That being so, there can be no occasion for the operation of statutory restriction on the Court's power to pass a decree for ejectment when there is no dispute between the landlord and the tenant as to ejectment and the Court is not called upon to adjudicate upon the question whether having regard to the provisions of S. 4 the tenant is liable to be ejected. Section 12 does not mean that even if the tenant is willing to vacate the premises forthwith or at a future date according to his convenience, the Court shall not pass a decree for ejectment unless there is in existence one or more of the grounds mentioned in S. 4.

18. Such a construction of S. 12 would clearly be to the detriment of the tenant and in some cases to the benefit of the landlords, quite contrary to the obvious intention of the legislature to afford some measure of protection to the tenants from their landlords and not from themselves. The learned Single Judge took the view that it was not open to the respondents to contract out of the provisions of S. 4 of the Act and by agreeing in the suit to give up possession by 1-3-1951, they contracted out of those provisions. He relied on the decision of the Bombay High Court in — ‘Post Master General, Bombay v. Chenmal’, AIR 1941 Bom 389 (S) and of the Lahore High Court in — ‘L. Prem Parkash v. Mohanlal’, AIR 1943 Lah 268 (T). To my mind, the question of contracting out of the provisions of the Act does not at all arise in the present case. We are not concerned here with a tenant who, having agreed in his contract of tenancy not to avail himself of the protection which the Act gives him, has claimed that protection on being sued by the landlord for the recovery of possession of the tenanted premises.

19. Nor are we concerned with the question whether a tenant against whom a consent decree for eviction was passed before the coming into force of the Act, is entitled to the benefit of S. 11 of the Act and claim the protection under S. 4. The question before us is whether a tenant who has agreed to give up possession in a suit instituted after the coming into force of the Act and allowed a consent decree to be passed on the agreement, can claim the protection under S. 4 and resist the execution of the decree on the ground that it was not made on any of the grounds stated in S. 4. Now, as pointed out by Scrutton L.J in — ‘1921-2 KB 291 (M)’, which case I propose to consider fully later a tenant who agrees in the contract of tenancy to give up possession on a named date does not contract out of an Act putting statutory restrictions on the power of the Court to make an order for recovery of possession. The agreement to give up possession on a certain date is not an agreement to give up the right to claim protection under the Rent Control Act concerned.

20. The tenant is not estopped by such an agreement on his part from claiming the protection which the Act gives him when the landlord takes proceedings against him to recover possession. Similarly when a tenant agrees in a suit to give up possession on a certain date and to have an order for recovery of possession made against him, he does not contract out of the Act. But in such a case when a consent decree has been passed, the tenant cannot change his mind thereafter and claim the protection of S. 4 of the Act and say that the decree is not executable as it was not made on any one of the grounds specified in S. 4. The reason is simple. The tenant having lore-gone in the suit the protection given to him by the Act and failed to take the defence that he could have taken and having allowed a decree for possession to be made against him, cannot on the doctrine of res judicata question the legality or the accuracy of the decree which is binding and conclusive between the parties.

21. Here, I must notice the decision of the Patna High Court in — ‘Bhagwati Prasad v. Radha Kishun’, AIR 1950 Pat 354 (U) which was cited at the Bar. In the Patna case when a landlord sued the tenant for ejectment, the tenant omitted to claim the protection which the Bihar Rent Control Act 1947 gave to him. A decree for ejectment was passed. In execution proceedings of the decree the tenant took the objection that he was not liable to be evicted in execution of the decree as certain grounds specified in Section 11 of the Bihar Act on which alone the eviction of a tenant could be ordered, did not exist. The learned Judges of the Patna High Court held that though the tenant could not raise the objection in the ejectment suit, he was not debarred by constructive res judicata from raising the same objection in execution proceedings and that there could he no estoppel against a statute.

22. Now, I do not say that the conclusion of the learned Judges, on the facts of the case and the wording of Section 11 of the Bihar Rent Control Act was wrong. But I must say that if the learned Judges intended to lay down as a general preposition that even if a tenant omits to claim in an ejectment suit the statutory protection given to him and allows a decree for ejectment to be passed, he would still be entitled to claim the benefit of the protection in execution proceedings and resist the execution of the decree, then I differ from their decision. After the passing of the decree in the circumstances indicated above, it is not the doctrine of estoppel by an act of party himself that is operative but it is the doctrine of res judicata — sometimes spoken of as estoppel by judgment — that prohibits the parties from challenging the legality or the correctness of the adjudication.

23. In cases such as the one under consideration, there can therefore, be no question of the applicability of the principle that there can be no estoppel against a statute and of the tenant being I allowed to claim the statutory protection in execution proceedings. To revert to the point of contracting out of the provisions of the Sthan Niyantran Vidhan as it does not arise in the present case, it is unnecessary to consider the question whether on the decisions relied upon by the learned Single Judge or on the test laid down in — ‘Soho Square Syndicate Ltd. v. E. Pollard and Co., Ltd.’, 1940-2 All ER 601 (V) and followed by the Madras High Court in — ‘AIR 1950 Mad 284 (C)’, the Madhya Bharat Sthan Niyantran Vidhan Samvat 2006 is an Act which prohibits a tenant from contracting out of its provisions.

24. In my opinion there is nothing in the Act to prevent a tenant from agreeing in a pending suit to deliver up possession of the tenanted premises either forthwith or at a future date. Such an agreement with the landlord would be perfectly lawful and hieing lawful, the Court is bound to record it and make a decree in accordance with it under O. 23, R. 3 of the CPC.

25. It must be borne in mind that it is for the Court passing the decree to consider under O. 23, R. 3 whether the agreement between the parties is or is not lawful. The executing Court has no power to see whether the agreement on which me decree was passed was valid, lawful and binding on the parties see — ‘AIR 1943 Nag 325 (G)’, — AIR 1933 All 049 (FB) (D). The question whether the compromise was lawful or not and could be recorded by the Court is one outside the scope of execution, proceedings. The respondents are, therefore, not entitled to challenge the validity of the consent decree in the execution proceedings on the ground that the compromise on which it was passed was unlawful as being contrary to S. 4, Sthan Niyantran Vidhan. I do not accept the contention of the learned counsel for the respondents that if none of the grounds mentioned in S. 4 were present, then a decree for ejectment passed by the Court whether on contest or on compromise, would be a decree of a Court without jurisdiction.

26. The jurisdiction of the Court to try a suit for ejectment does not depend upon any of the facts stated in S. 4. This section no doubt puts a statutory restriction on the power of the Court to pass a decree for ejectment in cases where a tenant is on willing to give up possession. But the Court's jurisdiction to try a, suit for ejectment is quite independent of the circumstances mentioned in S. 4. In the exercise of that jurisdiction the Court is competent and has to determine whether the facts justifying ejectment exist. The decision as to these facts is the main question which the Court has to decide. The Court has not to find these facts to enable itself to obtain jurisdiction before proceedings to decide whether there are grounds for ejectment.

27. In this connection I need only refer to the decision of the Calcutta High Court in — ‘AIR 1921 Cal 34 (FB) (H)’ and of this Court in — ‘Jamuna Prasad v. Lachhiram’, AIR 1953 Madh-B 197 (W) where the distinction between the existence of jurisdiction and the exercise of jurisdiction, and the difference between collateral facts on which jurisdiction depends and facts which form a part of the very question which the Court has to determine in the exercise of its jurisdiction has been pointed out. If, therefore, in the exercise of its jurisdiction the Court does not give a finding as to any of the circumstances covered by S. 4 or arrives at a wrong decision as to them and passes a decree for ejectment, then the decree may not be according to law but it could not be deemed to be null and void as having been made by a Court having no inherent jurisdiction.

28. Learned Counsel for the respondents though he was at first inclined to argue that S. 12 of the Act contemplated a decree by the Court after adjudication and did not permit the Court to pass an ejectment decree on consent, conceded later during the course of in arguments that the Court could pass a consent decree for ejectment. He, however, maintained that the terms of the decree or the proceedings in the suit must show that the real ground on which the agreement was made between the parties was the existence of one or more of the grounds referred to in S. 4. I am not impressed by this argument. If, as I have said, already, the question whether the compromise is lawful or not and could be recorded by the Court cannot be enquired into by the executing Court, then it is immaterial to consider the ground and reasons which led the parties to the compromise.

29. The executing Court is concerned with the decree actually passed and not with the reasons given for passing the decree. As Mr. Chita]e learned counsel for the appellant has rightly pointed out S. 12 of the Act does not say that a decree for ejectment in order to be valid must itself contain one or more of the grounds enumerated in S. 4 to justify it. In these circumstances I am of the view that the judgment-debtor respondents cannot be allowed to raise the objection in the execution proceedings that the appellant did not require the premises for his own use or that none of the grounds which would justify a decree for ejectment under S. 4, Sthan Niyantran Vidhan Samvat 2005 existed at the time of the passing of the decree.

30. The view I have taken is supported by the cases — ‘AIR 1951 All 227 (B)’ & —‘AIR 1951 Assam 27 (A)’, cited by Mr. Chitale. In the Allahabad case the tenant in a suit for ejectment entered into a compromise and agreed to vacate the house rented by him within six months. A compromise decree was accordingly passed. The tenant, however, did not vacate the premises by the appointed date. Thereupon the decree-holder applied for execution of the decree for ejectment. The tenant took the objection that the compromise decree was not executable under Section 15 of the U.P (Temporary) Control of Rent and Eviction Act, 1947 which provided that in all pending suits for ejectment, no decree for eviction shall be passed except on one or more of the grounds mentioned in S. 3 of the Act. It was argued on behalf of the tenant that this provision invalidated the consent decree.

31. Malik C.J rejected this objection and observed as follows:

“Act 111(3) of 1947 was passed for the benefit of the tenants on account of house shortage and to prevent their eviction. It was open to a tenant to forgo the protection given under the Act and to agree to vacate the premises on a fixed date. In the case before me the tenant entered into a compromise and he agreed to vacate the premises on 7-5-1947. The decree of the Court is based on this compromise. I do not see how the provisions of the Act can invalidate the consent decree”.

32. It will be seen that the Allahabad case dealt with a provision similar to S. 12, Madhya Bharat Sthan Niyantran Vidhan and is directly in point here. In the Assam case a tenant when sued for ejectment did not take advantage, of the protection conferred by section 6(1) of the Assam Urban Areas Rent Control Act, 1946 and instead entered into a compromise with the plaintiff landlord agreeing to vacate the house by a certain date. A compromise decree was accordingly passed. The tenant, however, failed to vacate the premises and when the decree-holder took out execution proceedings, the tenant resisted the execution of the decree on the ground that as the decree-holder did not require the house ‘bona fide’ for purposes enumerated in clause (c) of the proviso to S. 6 of the Act, the decree-holder was not entitled to eject him under S. 6(1) of the Act, which provided that so long as the tenant paid to the full extent the rent allowable under the Act and performed the conditions of the tenancy no order or decree for the recovery of possession of any house shall be made or executed.

33. The learned Judges of the Assam High Court held that it was not open to the judgment-debtor-tenant to raise the objection in the course of the execution proceedings that the decree-holder did not require the house ‘bona fide’ and, that he could not execute the decree. They further said that:

“There is nothing in the Act which prevents the tenant from contracting himself out of the privilege allowed to him by the Act. Instead of utilising the privilege given, he may agree to vacate on a date that is convenient to him. When he does so, the compromise or the arrangement between the parties must be accepted and given effect to by the court under O. 23 R. 3 of the CPC. The compromise in this case therefore, was accepted and embodied in the decree of the Court. The decree binds the parties and is enforcibie like any other valid contract between parties……”

34. Mr. Sanghi learned counsel for the respondents sought to distinguish the Assam case by saying that in that the learned Judges regarded the passing of a consent decree as a “satisfactory cause” within the meaning of clause (c) of the proviso to S. 6 disentitling the tenant to the benefit of the provisions of S. 6(1). It is no doubt true that the learned Judges observed that assuming that the tenant could take in execution proceedings the objection he did, the consent decree was a “satisfactory cause” within clause (c) of the proviso to S. 6 for the eviction of the tenant. But as I read the entire judgment in the Assam case, it seems to me that the learned Judges decided the question of principle of the executability of the compromise decree in that case quite independently of their view of a compromise decree as affording to the landlord a, satisfactory cause within clause (c) of the proviso to Section 6 of the Assam Rent Control Act, for the eviction of the tenant.

35. The Calcutta High Court cases and the English decision relied upon by the learned counsel for the respondents are decisions on the warding of the provisions of the Calcutta House Rent Control Order 1943 and of the English Statute “Increase of Rent and Mortgage Interest (Restrictions) Act, 1920”. Those decisions do not appear to me to be of much assistance to the respondents. In the Calcutta cases reported in 50 Cal W.N 242 (I) and 50 Cal W.N 245 (J) and in— ‘AIR 1949 Cal 151 (K)’, the provision of the Calcutta House Rent Control Order that was considered was as follows:

“* (3) Where any decree or order for the recovery of possession of any house has been made on or before the 29th day of August, 1945 on the ground that the tenant in possession of such house is not entitled to the benefit of paragraph 9 by reason of his non-compliance with the provisions of this Order as to the payment or deposit of rent due by him in respect of such house, but the possession of such house has not been recovered from the tenant

(a)………………………………

(b) The court by which the decree or order was made shall set aside the decree or order if (i) any application is made in that behalf by the judgment-debtor not later than the said 29th day of September, 1945, and (ii) the judgment-debtor pays to the decree-holder or deposits in court within such time as the court may order the rent in arrears together with such portion of the suit or proceedings as may be determined by the court”.

36. The main question that was considered in those cases was whether a decree for ejectment made by consent is a decree

“made on the ground that the tenant in possession of the house is not entitled to the benefit of paragraph 9 by reason of the non-compliance with the provisions”

37. Set out in the order regarding payment of rent. In the two cases reported in — ‘50 Cal W.N 242 (I) and — ‘50 Cal W.N 245 (J)’, it was held that a decree made on consent could not be said to be such a decree as may be set aside under the provisions reproduced above. It was pointed out that a consent decree was based on the agreement of parties, and the motive for the agreement could not be described as the ground on which the decree was made.

38. These decisions were considered by the Calcutta High Court in — “AIR 1949 Cal 151 (K)’, Mukherjea J. who delivered the judgment of the Court in — ‘AIR 1949 Cal 151 (K)’, thought it unnecessary to decide the question as to whether or not the provisions referred to above excluded consent decrees altogether. He laid down the principle that if there was anything in the decree or in the proceedings to show conclusively that the decree was made on the basis of the Rent Act then the provisions of the Calcutta House Rent Control Order referred to above would be attracted and the decree whether made in invitum or by consent was liable to be vacated or set aside. To the same effect is the decision reported in — ‘AIR 1951 Cal 225 (L) which follows — ‘AIR 1949 Cal 151 (K).

39. In all these Calcutta cases the question whether having regard to the restrictions put on the power of the Court to pass an ejectment decree except in certain circumstances mentioned in S. 9. Calcutta Rent Control Order, the Court has jurisdiction to make a decree for possession with the consent of the parties did not directly arise for determination. The question no doubt arose in connection with the contention that inasmuch as the Court has no jurisdiction to make a decree for possession unless there is in existence one of the several circumstances mentioned in S. 9, Rent Control Order and as the court must be presumed to have acted within jurisdiction, a consent decree must be token to be included in the word ‘decree’ used in the provisions of Calcutta House Rent Control Order already reproduced.

40. On this point Clough J. in — ‘50 Cal WN 245 (J)’ after distinguishing the English cases in — ‘(1921) 2 KB 291 (M)’ and — ‘(1925) 1 KB 741 (N)’, on which also reliance was placed by the respondents before us, said that the provisions in the Calcutta House Rent Control Order that no decree or order for possession could be made except in certain circumstances did not mean that it could not be made if the parties agreed that it should be made, and that there was nothing in the Calcutta House Rent Control Order to prevent the tenant from agreeing in a pending suit to deliver up possession either forthwith or at a future date and that such an agreement would be perfectly lawful. In the other Calcutta cases also, the court was inclined to hold that if the tenant agreed by compromise that a decree for ejectment be passed, the Court was entitled to pass a decree. It is thus plain that the Calcutta cases far from supporting the contentions of the respondents in the present case support the appellant.

41. Coming now to the English decisions relied upon by the learned counsel for the respondents, the first is the decision in — ‘(1921) 2 KB 291 (M). In that case, a tenant agreed with the landlord to vacate the tenanted premises on a certain date. The tenant, however, subsequently refused to vacate. The landlord then relying on the agreement brought a suit for possession. The question arose whether having regard to the provisions of Section 5(1) of the Increase of Rent (Restrictions) Act 1920, the Court could give effect to the agreement, between the parties made prior to the suit and pass a decree for ejectment.

42. Section 5(1) of that Act was as follows:

“No order or judgment for the recovery of possession of any dwelling house to which this Act applies, or for the ejectment of a tenant therefrom, shall be made or given unless—(a) any rent lawfully due from the tenant has not been, paid, or any other obligations of the tenancy (whether in the contract of tenancy or in this Act) so far as the same is consistent with the provisions of this Act has been broken or not performed………….”

43. It was held in that case that the jurisdiction of the court to make an order for possession, was restricted by S. 5(1), and that if the conditions on which alone an order could be made were not fulfilled, an order could not be made in invitum notwithstanding any agreement of the parties to the contract, and that, consequently, the landlord could not recover. It will be seen that the decision in — ‘Barton v. Fincham (M)’ dealt with the question of the power of the court, to make an order for possession when there was a contest between the parties. The Question of making an order by consent did not arise and in that case it was not held that the Court had no jurisdiction to pass an order for possession if the tenant consented to it in Court.

44. On the other hand Scrutton L.J said at p. 298:

“It was urged that the effect of our decision, would be to prevent agreements in Court. If the tenant is willing to go out, I do not see why any order is wanted; let him go; but as at present advised I do not see any reason why the Judge on being satisfied that a tenant is then ready to go out, (not that he was once willing but has changed his mind) should not make an order for possession.”

45. Learned counsel for the respondents laid some stress on the observation of Atkin L.J, at p. 299 to the effect that no agreement between the parties could give the Court the jurisdiction which the legislature had enacted that they were not to have, and said that this observation suggested that the court had no jurisdiction to make an order far possession even with the consent of the tenant in court if the conditions prescribed by S. 5(1) for an order for the recovery of possession did not exist, in my opinion the observations of Atkin L.J must be read in the context of the facts of the case. When so read, it is clear, his Lordship was referring to an agreement arrived at between the parties prior to the suit and not to one in the suit itself, when he said that no agreement between the parties could give the Court the jurisdiction. The observations become obiter if they are taken to refer also to an agreement arrived at between the parties in the court as regards the delivery of possession of the premises. I do not think that this, decision is of any help to the respondents.

46. The other decision is the decision of Salter J. in — ‘(1925) 1 KB 741 (N). In that case the court had to deal with a case under Section 5(2) of the Increase of Interest (Restrictions) Act of 1920. The provision was:

“At the time of application for or making or giving of any order or judgment for the recovery of possession of any dwelling house or for the ejectment of a tenant therefrom, or in the case, of any such order or judgment which has been made or given, whether before or after the passing of this Act, and not executed at any subsequent date, the court may suspend execution of any such order or judgment or postpone the date of possession for such period or periods as it thinks fit”.

47. With respect to the above enactment it was held that where an order for possession was made by consent, then nevertheless the tenant was entitled to apply to the Court for suspension of execution or postponement of the date on which possession should be given. The question whether the Court could make an order for possession with the consent of the parties was not considered in that case. Nor does the judgment of Salter J. suggest that the Court had no jurisdiction to make a consent order for the delivery of possession. In this connection, I would refer particularly to the remark of Salter J. that he was not differing from the decision in — ‘Wellesley v. White’, (1921) 2 KB 204 (X).

48. In — ‘Wellesley's case (X)’, the provision that was considered was Section 5(3) of the Increase of Rent (Restrictions) Act 1920 which said:

“Where any order or judgment has been made or given before the passing of this Act, but not executed, and, in the opinion of the Court the order or judgment would not have been made or given if this Act had been in force at the time when such order or judgment was made or given, the court may, on application by the tenant, rescind or vary such order or judgment in such manner as the Court may think fit for the purpose of giving effect to this Act.”

49. It was held that this sub-section applied only to an order or judgment made or given in inviturn as regards the tenant, and not to an order or judgment made or given by consent of the parties. Having regard to the words

“in the opinion of the Court, the order or judgment would not have been made or given if this Act had been in force at the time when such order or judgment was made or given,”

50. Which occur in sub-s. (3) of S. 5, the decision in — ‘Wellesley v. White (X)’ seems to me to hold that the conditions laid down in S. 5 for the making of an order for the recovery of possession do not prohibit the Court from making an order for the recovery of possession in absence of those conditions if the tenant consents to it. ‘Wellesley's case (X)’, therefore, supports the view. I have taken.

51. Mr. Sanghi learned counsel for the respondents placed reliance also on the decision of the Rajasthan High Court in — ‘Jagjiwan Singh v. Sitaram’, AIR 1954 Raj 43 (Y). From the certified copy of the judgment placed before us, it appears that in the Rajasthan case the question that was considered was whether when a compromise decree for ejectment was passed before the coming into force of the Rajasthan Premises (Control of Rent and Eviction) Act 1950, the tenant was entitled to resist the execution of the decree under S. 26 on the ground that one or other of the conditions mentioned in S. 13 of that Act had not been satisfied. Sections 13 and 26 of the Rajasthan Act are somewhat similar to Ss. 4 and 11, M.B Sthan Niyantran Vidhan Samvat 2006. As the question of the applicability of S. 11 of our Act to a consent decree made before the commencement of the Act is not before us for consideration, the Rajasthan case is not in point here.

52. Wanchoo C.J, who delivered the judgment of the Court no doubt observed that in the face of the provisions of S. 13, the Court could not pass & decree for ejectment merely because the parties agreed that a decree be so passed. But there does not appear to have been any argument at all on the question of the power of the Court to pass a consent decree for ejectment in a suit institute after the coming into force of the Rajasthan Act. In any event, in my opinion, the decision in Rajasthan case which has reference to the words of the Rajasthan Act has no applicability here.

53. Mr. Sanghi also referred us to a decision of the Bombay High Court in — ‘Guru Padappa v. Akbar Sayad’, AIR 1950 Bom 252 (Z) where it was held that when in an ejectment suit a consent decree is passed creating a fresh contractual relation between landlord and tenant, the tenant is entitled to the benefit of the protection given by the Bombay Rent Control Act, 1947 and the tenant is not liable to deliver possession in spite of the terms of the decree. The distinction between the Bombay case and this is, that in the former the consent decree created a tenancy for a fixed period, while in the present case the consent decree did not create any fresh tenancy.

54. In my judgment, for the reasons which I have endeavoured to express, the respondents by agreeing to have an order for possession made against them in the suit are not entitled to object in the execution proceedings that the decree passed on the agreement is contrary to the provisions of S. 4 of the Act and is not executable. Having reached this conclusion, it is not necessary for me to consider whether the terms of the consent decree or the proceedings in the suit disclose the existence of one or more of the circumstances mentioned in S. 4, Sthan Niyantran Vidhan Samvat 2006.

55. In the result I would accept this appeal, set aside the decision of the learned Single Judge and restore the order of the executing Court rejecting the respondents' objection that the decree is not executable. The appellant shall get his costs in all the Courts from the respondents.

A.H Khan, J.:— The facts of the case and the rulings cited by the counsel of the parties in support of their respective contentions have been elaborately set forth and ably discussed by my learned brother Dixit J. in his judgment. It is, therefore, unnecessary to travel over the ground covered by him. I would, however, like to add a few words of my own by way of further elucidation.

56. The view taken by the learned Single Bench Judge is that by agreeing to vacate the house by a certain date, the tenant has contracted himself out of the statute, namely the Sthan Niyantran Vidhan. But with great respect, I submit that there is no provision in the sthan Niyantran Vidhan which forbids the tenant to agree to vacate the house, nor is there any embargo on the landlord or the tenant not to enter into a compromise in a suit filed under the Vidhan.

57. The learned counsel for the respondent has laid great stress on S. 12 of the Vidhan and has contended that unless there exists a ground, mentioned in S. 4 of the Vidhan, the court has no jurisdiction to pass any decree for ejectment. But this argument overlooks two facts: First, that the policy of the law is to encourage the parties to come to settlement between themselves rather than that their dispute be heard and determined by a tribunal. To achieve the end, O. 23, R. 3 of the CPC has been enacted and its provisions are mandatory. Secondly, S. 9(1), Sthan Niyantran Vidhan lays down that excepting the question of Court-fess and Process fees, all the provisions of the Code of Civil Procedure would apply to proceedings instituted under the Vidhan and the rent controller would have the same powers as belong to a court under the Code of Civil Procedure

58. Now O. 23, R. 3 of the CPC allows parties to adjust; their disputes and it is incumbent on the Court to pass a decree in terms of the compromise, if the agreement is not unlawful. It is obvious that the provisions of the Sthan Njyar tran Vidhan are meant for the protection of the tenants, who may not be wrongly evicted by the landlord. But this does not mean that if a tenant agrees to vacate the premises, such agreement is bad in law, nor can it be deemed to be against public policy. In short, in no way can such an agreement be said to be hit by Section 23 of the Contract Act. The agreement being valid and lawful, the court was bound to pass a decree according to it. In this view of the matter, I am of the opinion that S. 12 of the Vidhan read with S. 9(1) of the same law, confers jurisdiction on the Court to pass a consent decree in suits filed under the Sthan Niyantran Vidhan.

59. Furthermoi'e, the contention of the learned counsel for the respondent that unless one of the grounds mentioned in S. 4 of the Vidhan exists, the court cannot pass a decree loses all its force, when we turn to the compromise itself. The plaintiff ‘inter alia’ founded his suit for ejectment on the allegation that the premises were needed for his personal use. This happens to be one of the grounds in S. 4 of the Vidhan on the basis of which a landlord can seek ejectment. The defendant in the adjustment between the parties has admitted the fact that the premises are so needed by the plaintiff. In the circumstances, it cannot be said that the decree is passed on a ground other than the one mentioned in S. 4 of the Vidhan.

60. From the perusal of the certified copy of the judgment of the Rajasthan High Court. — ‘AIR 1954 Raj 43 (Y)’ placed before us by the learned counsel for the respondent, it appears that in the Rajasthan case there was no mention in the compromise which was filed that the tenant admitted that the landlord needed the house for his own use. But in the case before as the tenant has admitted that the premises are renuired for the nsrsonai use of the landlord and for this reason alone the present case is distinguishable from the one decided by the Rajasthan High Court. Furthermore the learned Judge (Wanchoo, C.J) has stated that if any condition on which a landlord is entitled to obtain ejectment has been alleged before the trial court and decided in favour of the landlord, then on the principle of ‘res judicata’, the executing court would not go behind it.

61. In the compromise before us, the defendant has admitted that the premises are required by the landlord for his own use. In the circumstances, the question that may well be considered by us is whether a compromise decree is governed by the principles of res judicata. There was some judicial conflict on the point but the decision in — ‘In Re South American and Mexican Co.’, (1895) 1 Ch 37 (Z1) has resolved the conflict and it has been laid down that a consent decree has to all intents and purposes the same effect as a decree passed per invitum. Having admitted in the compromise, which is the basis of the consent decree, that the house is really needed by the landlord, there is estoppel by judgment (Res Judicata) against the defendant and he cannot now Question the legality or the validity of a consent decree, which is binding and conclusive between the parties. It is of the essence of public morality that a person should not be allowed to say one thing at one time and the opposite of it at another time—a moral precept on which the doctrine of estoppel is founded. I therefore, agree with my learned colleague that the appeal should be allowed with costs throughout.

B/D.H.Z

62. Appeal allowed.