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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  52  OF 2014 [Arising out of SLP (Civil) No.21560 of 2011]

Shivshankar Gurgar …Appellant

Versus

Dilip …Respondent

J U D G M E N T

Chelameswar, J.

1. Leave granted.

2. The appellant filed civil suit under section 12(1)(a) of  

the  Madhya  Pradesh  Accommodation  Control  Act,  1961  

(hereinafter  referred to as the “Act”)  for eviction of the  

respondent and recovery of arrears of rent.  On 16.4.2002  

the suit came to be decreed  ex parte.  The said decree  

came  to  be  set-aside  on  an  application  filed  by  the  

respondent with a direction to file the written statement  

and also deposit the entire arrears within 30 days in the  

court.  

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3. On 25.7.2004 a compromise memo signed by both  

the parties came to be filed under which the respondent  

acknowledged  his  liability  to  pay  arrears  of  rent  to  the  

appellant  to  the  tune  of  Rs.11710/-  and  also  costs  

quantified to Rs.4000/-.   The respondent  also agreed to  

pay the amount within a period of six months.  It was also  

specifically agreed as follows:  

“H. If  the  defendant  violates  any  of  the  aforesaid  conditions,  the  plaintiff  shall  be  entitled  to  get  the  vacant  possession  of  suit  accommodation  from  the  defendant wherein defendant shall have no objection.”

4. In  view  of  the  said  compromise,  the  matter  was  

referred to the lok adalat and the civil suit was decreed in  

terms of the compromise.

5. On 21.7.2005 the  appellant  filed  an  application for  

the execution of the compromise decree alleging that the  

respondent failed to fulfil his obligations arising out of the  

compromise  decree  and,  therefore,  the  appellant  is  

entitled to recover possession of the premises.  The events  

that  followed  are  narrated  by  the  High  Court  in  the  

judgment under appeal as follows–

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“On  04/10/2005  after  appearance  respondent  filed  objections wherein it was alleged that signatures were  obtained  by  the  petitioner  on  the  said  compromise  under undue influence and no receipt was issued by the  petitioner for a sum of Rs.10,000/-, which was paid by  the respondent.  The said application was dismissed by  the  learned  Executing  Court  vide  order  dated  24/10/2005 and it was directed that since the Executing  Court cannot go behind the decree, therefore, warrant  of  possession  be  issued.  Again  on  09/11/2005  objections were filed in which adjustment of Rs.25,000/-  was claimed.  Vide order dated 22/11/2005 objections  filed  by  the  respondent  was  dismissed,  however  15  days time was granted to deposit the amount. Since the  amount  was  deposited  by  the  respondent,  therefore,  vide order dated 23/12/2005 Executing Court dismissed  the execution holding that since the relief of possession  of  suit  accommodation  was  in  alternate  and  the  respondent  has  deposited  the  amount  though  belatedly,  therefore,  petitioner  is  not  entitled  for  alternative  relief  and  the  execution  petitioner  was  dismissed,  against  which  an  appeal  was  filed  on  07/01/2006  and vide  order  dated 16/03/2006 learned  Appellate Court  held that the Executing Court  has no  jurisdiction to go behind the decree but no relief was  granted  to  the  petitioner  against  which  Writ  Petition  was filed by the petitioner  on 05/02/2006,  which was  numbered as  WP No.6163/06 and  vide order dated  08.02.2007 Writ  Petition  was  allowed  and  the  matter  was remanded to  the  Executing  Court  with  direction to decide the points framed by the Writ Court  for determination.”

(emphasis supplied)

6. The operative part of the order reads as follows:

“10. It is for this reason, I am constrained to remand  the case to executing court for deciding the issue again  arising  out  of  the  execution  application  filed  by  the  petitioner.   The  executing  court  will  decide  the  application  keeping  in  view the  law laid  down in  Nai  Bahu1 case and any other case which governs the field  and will record categorical finding on following issues:

1. Whether compromise decree dated 25.7.2005 is  nullity  in so far  as it  relates to a relief  of  eviction  of  respondent from the suit house?

1  Smt. Nai Bahu v. Lala Ramnarayan and others (1978) 1 SCC 58

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2. If not then whether default alleged is made out by  the petitioner so as to entitle him to execute the decree  for eviction?

7. On  remand,  by  the  order  dated  17.4.2007,  the  

executing  court  recorded  a  finding  that  the  respondent  

had paid  the entire  amount  due under  the  compromise  

decree in the executing court although such a payment  

was made beyond the period of six months stipulated in  

the  compromise  decree.   Further,   the  executing  court  

examined the submission made by the respondent that in  

view of section 13(1)(a) of the Act the compromise decree  

insofar as it provided for eviction of the respondent in the  

event of his failure to make the deposit of arrears within  

the stipulated time is void. The operative portion of the  

order of the executing court reads as follows:  

“20. …. Hence, in respect of issue No.A it is decided  that  the  compromise  decree  is  void  in  respect  of  eviction  relief  and  no  such  eviction  can  be  ordered  contrary  to  the  provisions  of  M.P.  Accommodation  Control  Act  for  default  in  payment  of  rent.   Since  executable part of compromise decree has been held to  be  void,  in  such  circumstances  the  executing  court  cannot pass an order for eviction for default in payment  of arrears of rent or remaining part of arrears of rent.  Accordingly issue No.B is decided.”

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8. Aggrieved  by  the  said  order,  the  appellant  herein  

again approached the High Court by way of a Civil Revision  

Petition No.173 of 2007.  The High Court by its judgment  

under  appeal  dated  28.10.2010  dismissed  the  revision.  

Hence this appeal.

9. The  reasons  recorded  by  the  High  Court  are  as  

follows-

“8. Undoubtedly  entire  rent  was  deposited  by  the  respondent.  It  is  also not  in  dispute  that  the amount  was not deposited within a period of six months as per  terms  and  condition  of  the  compromise  decree.  However,  later  on the rent was deposited.   Since the  ground  was  available  to  the  petitioner  under  Section  12(1)(a)  of  M.P.  Accommodation  Control  Act  as  the  respondent did not tender the rent within a period of  two months from the date of  notice and also did not  deposit  the  rent  within  one  month  from  the  date  of  receipt  of  summons  under  Section  13(1)  of  the  Act,  therefore,  there  was  no  reason  for  the  petitioner  to  enter  into  compromise   and  condone  the  delay  in  depositing  the  rent  and  give  further  time  to  the  respondent of another six months to deposit the rent.  It appears that since there was serious dispute between  the  parties  relating  to  the  title  of  the  petitioner,  therefore, the concession was given by the petitioner.  Vide order  dated 23.11.2005 learned Executing Court  has further extended the time by another 15 days for  depositing the arrears of rent keeping in view the good  conduct of the respondent.

9. From  perusal  of  the  order  dated  23.11.2005  it  appears that the amount of Rs.10,000/- was deposited  by  the  respondent  on  that  day  only.   Thus,  vide  judgment  and  decree  dated  25.07.2004  respondent  was required to deposit the arrears within six months  which  expired  on  24.01.2005.   In  execution  petition,  time was further extended by 15 days vide order dated  23.11.2005.   The  order  dated  23.11.2005  was  not  challenged  by  the  petitioner,  meaning  thereby  the  

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petitioner  agreed  with  the  order  whereby  time  was  further extended.

10. Apart  from  this  if  the  rent  is  deposited  by  the  tenant as per Section 13(1) of the Act, then respondent  is entitled for protection against eviction under Section  12(3)  and 13(5)  of  the Act and in case of  default  for  three consecutive months another suit for eviction can  be  filed  against  respondent.   In  the  facts  and  circumstances of the case, this Court is of the view that  no  illegality  has  been  committed  by  the  learned  Executing Court in dismissing the execution petition in  full satisfaction.  Hence, petition filed by the petitioner  has no merits and the same is dismissed.”

10. It is argued by the learned counsel for the appellant  

that  the  executing  court  erred in  coming  to  the  

conclusion that the compromise decree is inconsistent with  

the  section 13  of  the  Act  and  the  High Court  simply  

failed to record its finding on the correctness of the order  

of the executing court but went astray.

11. On  the  other  hand,  the  learned  counsel  for  the  

respondent  submitted  that  the  executing  court’s  

conclusion  that  the  compromise  decree  insofar  as  it  

provided for  the  eviction of  the  respondent  is  void  and  

calls for no interference in view of section 13 of the Act  

even though the  High  Court  failed  to  examine  the  said  

question.  

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12. The High Court did not examine the correctness of  

the conclusion of the executing court that the compromise  

decree  insofar  as  it  pertained  to  the  eviction  of  the  

respondent in the event of his failure to deposit the arrears  

of rent within time stipulated in the compromise decree is  

inconsistent with the provisions of the Act and therefore  

void.

13. From  the  judgment  under  appeal,  the  relevant  

portion of which is extracted earlier at para 9, it appears  

that the High Court dismissed the case of the appellant on  

three  grounds   (i)  that  the  appellant  need  not  have  

entered  into  a  compromise  which  led  to  the  decree.  

According  to  the  High  Court,  such  a  compromise  was  

entered into by the appellant as in the view of the High  

Court - there was a serious dispute about the title of the  

appellant (ii) When the execution petition was filed by the  

appellant,  the  executing  court  by  its  order  dated  

23.11.2005 granted 15 days time to the respondent to pay  

the balance of the arrears of rent.   The appellant did not  

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choose to challenge the said order.   According to the High  

Court,  such  failure  of  the  appellant  implies  that  the  

appellant  acquiesced  in  the  said  order,  hence,  the  

appellant/landlord was not entitled for the recovery of the  

possession of his property; (iii) in view of the fact that the  

respondent  eventually  deposited  the  arrears  of  rent  his  

possession is required to be protected in view of section  

12(3) and 13(5) of the Act.

14. We are of the opinion that all the reasons given by  

the High Court are unsustainable in law.    

The reasons which compelled the appellant to enter  

the compromise are irrelevant for the issue at hand.  The  

respondent/judgment debtor cannot flout the compromise  

decree  with  impunity  on  the  ground  that  his  opponent  

entered the compromise in view of some serious dispute  

about the maintainability of his claim. The conduct of the  

appellant  in  entering  the  compromise  only  debars  the  

appellant  to  recover  possession within  the  period of six  

months from the date of the compromise decree whether  

the respondent paid the arrears of rent or not till the last  

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date.  If  the respondent paid the said amount any time  

within the period of six months, the appellant  would be  

debarred from seeking the eviction of the respondent on  

the cause of action which led to the filing of the eviction  

suit.

15. Coming to the second reason i.e., the failure of the  

appellant  to  challenge  the  order  of  the  executing  court  

dated 23.11.2005 (by which the executing court granted  

15 days time to the respondent to deposit the balance of  

the  arrears  of  rent)  debar  the  appellant  to  recover  

possession of the property in dispute is equally untenable,  

because:

(i) in our opinion, the order of the executing court dated  

23.11.2005 is beyond his jurisdiction and a nullity.   The  

only  source  which  confers  powers  on  the  civil  court  to  

enlarge time is found under Section 148 of the Code of  

Civil Procedure which reads as follows:-

148. Enlargement  of  time –  Where  any  period  is  fixed or granted by the Court for the doing of any act  prescribed or allowed by this Code, the Court may, in  its discretion, from time to time, enlarge such period  not  exceeding thirty  days  in  total,  even  though  the  period originally fixed or granted may have expired.

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It  is  obvious  from the  language  of  the  Section,  such  a  

power can be exercised only in a case where a period is  

fixed  or  granted  by  the  court  for  doing  of  any  act  

prescribed by this Court.   In a compromise decree such as  

the one on hand, the stipulation that the judgment debtor  

is required to make the payment of the money within a  

specified period is a stipulation by agreement between the  

parties and it is not a period fixed by the court.  Therefore,  

Section 148 CPC has no application to such a  situation.  

We  are  fortified  by  the  decision  of  this  court in  

Hukumchand v. Bansilal and others AIR 1968 SC 86

(ii) In our opinion, the order dated 23.11.2005 virtually  

amounts to the modification of the decree and is without  

jurisdiction on the part of the executing court, therefore, a  

nullity.   

It  is  a  settled  principle  of  law that  the  executing  court  

cannot go beyond the decree.   It  has no jurisdiction to  

modify a decree.  It must execute the decree as it is.   This  

Court  in  Deepa  Bhargava  and  Another  v.  Mahesh  

Bhargava and Others [(2009) 2 SCC 294] held thus:-  

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“9.    There  is  no doubt  or  dispute  as regards  interpretation or application of the said consent  terms.    It  is  also  not  in  dispute  that  the  respondent  judgment-debtors  did  not  act  in  terms thereof.     An executing court,  it  is well  known, cannot go behind the decree.   It has no  jurisdiction to modify a decree.   It must execute  the decree as it is….”

16. It  is well  settled that  such a void order  can create  

neither  legal  rights  nor  obligations.  Therefore,  the  

appellant cannot be denied his right to recover possession  

of the property in dispute on the ground that he did not  

choose to challenge such a void order.   

17. The third reason of the High Court and the conclusion  

of the executing court that the compromise decree insofar  

as it provided for eviction of the tenant in the event of his  

failure  to  pay the  arrears  of rent  within  a  period of  six  

months from the decree is contrary to the provisions of the  

Act are interlinked.  Therefore, we are required to examine  

the scope of sections 12 and 13 of the Act insofar as they  

are relevant for the present purpose.  

18. Section 12(1) of the Act restricts the right of landlord  

to evict his tenant only on the grounds enumerated in the  

said section:  

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12. Restriction  on  eviction  of  tenants.—  (1)  Notwithstanding anything the contrary contained in any  other law or contract, no suit be filed in any civil court  against  a  tenant  for  his  eviction  from  any  accommodation  except  one  of  more  of  the  following  grounds only, namely–

19.  The only ground urged by the appellant in his suit is  

that the tenant fell in arrears of rent.  Such a ground is one  

of the grounds in section 12(1)(a) of the Act which enables  

the landlord to evict  the tenant  if  he could successfully  

establish that the tenant did infact fall in arrears of rent  

and had neither tendered nor paid the amount within the  

period specified under Section 12(1)(a) despite a demand.  

Section 12(1)(a) reads as follows:-   

12(1)(a) that  the  tenant  has  neither  paid  nor  tendered  the whole of  the arrears  of  the rent  legally  recoverable from him within two months of the date on  which a notice of  demand for  the arrears of  rent has  been served on him by the landlord in the prescribed  manner.”  

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20. Section 13(1)2 of the Act stipulates that the tenant  

shall either deposit in the court or pay to the landlord an  

amount  calculated  at  the  rate  of  rent  at  which  it  was  

prayed for  by  the  landlord  for  various  periods  specified  

therein  (the  details  of  which  are  not  necessary  for  the  

present).   Such a  deposit  or  payment  is  required to be  

made in two contingencies.  They are:-

(i) upon institution of the suit for eviction of  

the tenant irrespective of the ground on which  

eviction is sought; or

 (ii) in  an  appeal  or  in  a  proceeding  by the  

tenant against the decree or order of eviction.  

It is further stipulated that such a deposit or payment is  

required to be made within a period of one month of the  

service  of  the  summons,  if  the  deposit  is  being  made  2 13. When tenant can get benefit of protection against eviction.— (1) On a suit  or any other proceeding  being  instituted by a landlord  in any of  the grounds   referred to in section 12 or in any appeal or any of other proceeding by a tenant  against any decree or order for his eviction, the tenant shall, within one month of   the service of writ of summons or notice of appeal or of any other proceeding, or  within one month of institution of appeal or any other proceeding by the tenant   as  the  case  may  be,  or  within  such  further  time  as  the  court  may  on  an  application  made to it allow in this behalf,  deposit  in the court  or pay to the  landlord, an amount calculated at the rate of rent at which it was prayed, for the  period  for  which  the  tenant  may  have  made  default  including  the  period  subsequent thereto up to the end of the month previous to that in which the  deposit  or  payment  is  made  and  shall  thereafter  continue  to  deposit  or  pay,  month by the 15th of each succeeding month a sum equivalent to the rent at that  rate till the decision of the suit, appeal or proceeding as the case may be.

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during the pendency of the suit or within a period of one  

month  from  the  date  of  institution  of  appeal  or  other  

proceeding  as  the  case  may  be.  Further,  the  said  sub-

section also recognizes the authority of the court to extend  

in  its  discretion  the  said  period  of  one  month  on  an  

application made to it.  Sub-section (2)3 provides for the  

procedure in case of any dispute regarding the rate of rent  

payable  whereas  sub-section  (3)  provides  for  the  

procedure to be followed in case of any dispute regarding  

the person to whom the rent is payable.

21. The submission that found favour with the executing  

court is that in view of section 13.

“… the decree of the aforesaid Lok Adalat that in  default of payment of arrears of rent the judgment  debtor  shall  be  liable  to  be  evicted,  cannot  be  enforced because according to Section 13 of M.P.  Accommodation Control Act, if the judgment debtor  pays  the  rent  to  the  landlord  within  one  month  from the date of issuance of summon or within the  stipulated  time  given  by  the  court  on  an  application so made by the judgment debtor, then  he  will  be  entitled  for  protection  from  eviction  under Section 12 M.P. Accommodation Control Act,  thus clearly entire decreetal amount has been paid  in  the  execution  proceeding,  therefore,  the  

3 (2) If  in  any  suit  or  proceeding  referred  to in  sub-section  (1) there  is  any  dispute as to the amount of rent payable by the tenant, the court shall, on a plea  made  either by landlord  or  tenant  in  that  behalf  which shall  be  taken at the  earliest opportunity during such suit or proceeding, fix a reasonable provisional   rent, in relation to the accommodation  to be deposited or paid  in accordance  with the provisions of sub-section (1) and no court shall, save for reasons to be  recorded in writing, entertain any plea on this account at any subsequent stage.

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judgment  debtor  shall  be  entitled  for  protection  from eviction.”

22. Sub-section  (5)4 declares  that  if  a  tenant  makes  

deposit or payment as required under sub-section (1) or  

(2), no decree or order for recovery of possession of the  

accommodation  can  be  passed.   Sub-section  (5)  only  

protects the defaulting tenant in possession in the event of  

his complying with the requirement of Section 13(1) or (2)  

only in those cases where the eviction is sought on the  

ground of arrears of rent falling under section 12(1)(a).   

23. The case of the appellant is one falling under section  

12(1)(a)  and,  therefore,  the  learned  counsel  for  the  

respondent placed reliance on Section 13 (5) to sustain the  

conclusion of the executing court.   Section 13(5) reads as  

follows:-

“(5) If  a  tenant  makes  deposit  or  payment  as  required by sub-section (1) or sub-section (2), no  decree or order shall be made by the court for the  recovery of possession of the accommodation on  the ground of default in the payment of rent by  the tenant, but the court may allow such cost as  it may deem fit to the landlord.”

4 (5) If a tenant makes deposit or payment as required by sub-section (1) or  sub-section (2), no decree or order shall be made by the court for the recovery of  possession of the accommodation on the ground of default in the payment of   rent by the tenant, but the court may allow such cost as it may deem fit to the  landlord.

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24. A reading of Section 13, in our view clearly indicates  

that the payment or the deposit of rent into the court by  

the judgment debtor (tenant) is contemplated only during  

the pendency of the suit for eviction or an appeal (by the  

tenant) against a decree or order of eviction.  Section 13  

has  no  application  to  the  execution  proceedings  of  a  

decree for eviction.

25. The  language  of  Section  13(1)  is  very  clear  and  

explicit in this regard.   We fail to understand as to how the  

Court could read into Section 13, a possibility of enabling  

the judgment debtor (tenant) to protect his possession by  

making the payment during the execution proceedings in  

spite of the fact that he had already been adjudged to be  

in default of payment of the rent to the landlord.   Such an  

interpretation of Section 13 would be wholly destructive of  

Section  12(1)(a).   Therefore,  not  only  the  language  of  

Section 13(1), but also an irreconcilable inconsistency that  

would arise between Section 12(1)(a) and Section 13(1) if  

the  interpretation  placed  by  the  executing  court  is  

accepted  -  in  our  view  is  sufficient  to  hold  that  the  

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executing  court’s  interpretation  of  Section  13(1)  is  

unsustainable.  

26. Coming  to  the  decision  of  this  Court  in Smt.  Nai  

Bahu v. Lala Ramnarayan and others (1978) 1 SCC 58,  

all  that this Court held is that a landlord whose right to  

seek the eviction of his tenant is restricted by a statute (to  

the grounds specified in the statute) cannot successfully  

evict the tenant only on the basis of a compromise decree  

passed in a suit for eviction of the tenant.   Apart from the  

consent  of  the  tenant,  one  of  the  statutorily  stipulated  

grounds  rendering  the  tenant  liable  for  eviction  must  

necessarily exist for the validity of such a decree.   In other  

words, this court held that a tenant who suffered a consent  

decree can still raise a question that none of the statutory  

conditions  existed  which  render  him  liable  for  eviction  

when the consent decree came to be passed.   

27. In the case on hand the tenant was clearly in arrears  

of the rent which fact is acknowledged by the compromise  

memo signed by the tenant which was incorporated in the  

decree.    Looked at any angle, we are not able to agree  

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with the judgment under appeal, nor able to sustain the  

executing court’s order dismissing the landlord’s execution  

petition.   The  appeal  is  accordingly  allowed.    The  

execution petition filed by the appellant is also allowed.  

The  executing  court  will  now  take  necessary  steps  for  

evicting the respondent from the disputed premises and  

handing over the possession of the same to the appellant.

28. In the facts and circumstances of the case, there will  

be no order as to costs.

..………………………………….J.                                               (RANJANA PRAKASH  

DESAI)

...………………………………….J.                                  (J. CHELAMESWAR )

New Delhi; January 3, 2014

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