JUDGMENT
The only point to be decided is whether the principle of relieving against a forfeiture for non-payment of rent can he applied to a case where the terms of the holding are embodied in a razinamah presented in a suit and accepted by the Court with the observation that it should have the force of a decree. But for the fact that there is a decree, this case is not distinguishable from that in Kottal Uppi v. Edavalath Thathan Nambudiri.
Although the proceedings are most informal, we do not think that execution could not issue. And it is accordingly argued that as there is a decree, the Court must enforce it in its literal terms without regard to considerations which would arise if a mere contract was in question. The case cited Shire kuli Timapa Hegdi v. Mahablyu is an authority in favour of the view. But the weight of this authority is diminished by the omission to refer to the manner in which he Judicial Committee in Rai Balkishen Bass v. Raja Run Bahadoor Singh dealt with the decree which was there under discussion. The point decided in that case was that a certain provision for interest was not penal. The fact that the Committee did not decline to discuss that question because the provision was contained in a decree, certainly affords ground for the inference that the doctrine of relieving against a penalty was considered to be applicable.
If the strict view propounded by West, J., is correct, it must follow, as the District Munsif rightly points out, that in a case like the present the tenant cannot claim any compensation for improvements, because there is no provision for it in the decree. West, J., must say that it is not permissible to consider the terms which having regard to the usage of the country the parties would assume to be embodied in their contract. In fact the circumstance that there has been a contract must be ignored when once a decree is founded on it. In a case where there is nothing more on the part of the Court than a mere adoption of the contract, it seems to us that the Court must be taken to adopt the contract with all its incidents. If the parties really did not intend the mulgeni to be forfeited on account of default in the payment of some trifling sum, we do not see why it should be said that the Court had that intention. Holding this view and having regard to the case above cited [Rai Balkishen Dass v. Raja Run Bahadoor Singh], we are unable to follow the decision in Shirekuli Timapa Kegda v. Mahablya, and must hold that it was competent to the Court to relieve against the forfeiture.
With regard to the merits it is said that the tenant is entitled to no indulgence, because he has been in effect denying the landlord's title and deliberately withholding rent. We have no sufficient materials for saying whether the circumstances are such as to entitle the tenant to be relieved against the consequences of his default.
The District Judge is directed to return a finding after taking such evidence as may be adduced on the question whether in the circumstances of the case the tenant is entitled to relief, and if so, on what terms. If it is found that the tenant is not so entitled, the District Judge must estimate the value of the improvements.
The finding should he submitted within four weeks from the date of this order. Ten days will be allowed for filing objections after the finding has been posted up in this Court.