Mookerjee, J.:— This is an appeal by a judgment-debtor against an order for ejectment passed in execution of a decree. The decree was made by consent of parties on the 30th September, 1919. A petition of compromise was filed on that date and a decree was drawn up on the basis thereof. Most but not all of the terms of the petition were incorporated in the decree. Under what circumstances, some of the terms were omitted does not appear from the record. Under the decree, the plaintiff, now the respondent, settled with the defendant, now the appellant, an osat raiyati interest in 2 annas 5 gandas share of the lands then in dispute, at an annual rent of Rs. 40, and for a period of 9 years from 1326 to 1334 B.S The defendant undertook to execute a registered osat raiyati kabuliyat in favour of the plaintiff within two months from the date of the decree and also to pay rent in accordance with law. The decree further provided that the defendant would pay to the plaintiff a sum of Rs. 150 as rent for the years 1322 to 1325 as also Rs. 5 as cesses making an aggregate of Rs. 165, and that such payment would be made within 2 months from the date of the decree. In a subsequent clause, it was stated that the defendant would not be able to cut down trees on the lands in suit, and would neither be able to alter their shape in any way nor dig any earth from them or do any act prejudicial to the plaintiff nor be able to transfer them or get any substitution of names. Then followed the provision that if the defendants violated any condition of the compromise, they would be ejected from the lands in suit. The decree-holder made the present application for ejectment of the defendant on the allegation that the kabuliyat had not been delivered within the period stated nor had the arrears of rent been paid within two months from the date of the decree. The defendant alleged that the sum had been deposited in Court within the prescribed period and also that the kabuliyat had been transmitted to the decree-holder by post. The Courts below have concurrently held that the judgment-debtor had not complied with the terms of the decree, and, in this view, have directed that the defendants be forthwith ejected from the land in execution. We are of opinion that this order cannot be maintained.
2. It is plain that a tenancy was created by virtue of the decree for a period of nine years from 1326 to 1334 B.S, to be held at an annual rent of Rs. 40. The defendants were consequently liable to be ejected only in accordance with the provisions of the Bengal Tenancy Act.
3. As prescribed by Sub-section (1), Clause (e) of Section 178 of the Bengal Tenancy Act, nothing in any contract between a landlord and a tenant made before or after the passing of the Act, shall entitle a landlord to eject a tenant otherwise than in accordance with the provisions of the Act. No doubt, the terms of the contract between the parties have been incorporated in the decree made by the Court. But, as was pointed out by the Court of Appeal in the case of Huddersfield Banking Company, Ltd. v. Henry Lister and Son (1) the real truth of the matter is that a consent order is a mere creature of the agreement and if greater sanctity were attributed to it than to the original agreement itself, it would be to give the branch an existence which is independent of the tree. To use the language of Kay, L.J, “A consent order is only an order of the Court carrying out an agreement between the parties.” The same idea was expressed in different terms by Mr. Justice Parke in Wentworth v. Bullen (2), when he said that the contract of the parties is not the less a contract, and subject to the incidents of a contract because there is superadded the command of the Judge. Consequently, the legality of the provision for ejectment must be tested in the light of the rules formulated in the Bengal Tenancy Act, even though the provision originally appearing in the petition of compromise has been incorporated in the decree. The Court will not, in such circumstances, assist the decree-holder to achieve his illegal purpose in defiance of express statutory prohibition.
4. Apart from these considerations, it is plain that this is pre-eminently a case in which, assuming that a forfeiture has been incurred, the Court should afford relief against the forfeiture. That it is competent to the Court to grant such relief in execution is clear from the judgment of this Court in the case of Kandarpa Nag v. Banwari Lal Nag (3), where the cases on the subject including the earlier decision in the case of Surendra Nath Banerjee v. Secretary of State (4), will be found reviewed. The circumstance that a consent decree has been passed on the basis of a compromise does not oust the jurisdiction of the Court to grant relief against forfeiture, and the Court must determine whether, on equitable grounds, relief could have been granted against forfeiture, if it had been called upon to enforce the agreement itself. In the present case, it cannot be maintained that the time mentioned, namely, a period of two months was of the essence of the contract. Besides, it cannot be disputed that the tenant has substantially performed what he was required to carry out under the terms of the compromise. He has deposited the money in Court and the sum may be withdrawn by the decree-holder at his choice. The tenant has also transmitted by post the kabuliyat to the landlord. Our attention however has been drawn to the fact that the kabuliyat does not incorporate one of the terms originally intended to be inserted therein: namely, the clause which would entitle the tenant to ask for renewal of the lease after the expiry of the prescribed term of 9 years. It has been explained on behalf of the appellant that this term was not incorporated because it might create a difficulty in the registration of the agreement as an under-raiyati lease. It is anyhow plain that the omission to insert this term, which would have operated to the benefit of the tenant alone, has not prejudiced the landlord.
5. In these circumstances, we are of opinion, that a valid tenancy for 9 years was created by the decree, that such tenancy is still in operation, and that the tenant cannot be ejected in execution of the decree.
6. The result is that this appeal is allowed, the order of the District Judge is set aside and the application for execution is dismissed with costs, in all the Courts.
7. We assess the hearing fee in this Court at one gold mohur.
8. Appeal allowed.