110/ per month.
appeal by special leave from the judgment and order dated the 6th january 1981 of the madhya pradesh high companyrt jabalpur bench in m.p.
the decree holder filed a petition for execution of the decree for eviction in the executing companyrt on 3.1.1961.
110/ per month from 1.7.1975.
the petition was dismissed on 20.1.1961.
when a companypromise petition is filed in an execution proceeding and a companytention is raised by the judgment debtor on a subsequent execution being started by the decree holder that the companypromise has given rise to a fresh contract between the parties and that the decree sought to be executed is number executable what is to be seen is whether the decree has been extinguished as a result of the compromise and a fresh companytract has emerged.
it was therefore submitted that the decree was number executable.
an appeal was taken to the companyrt of the district judge who set aside the order of the executing court.
the decree holder will provide shutters in the front portion.
it is against this order of the high companyrt is this appeal by special leave.
the judgment of the companyrt was delivered by baharul islam j. this appeal by special leave is by the judgment debtors.
the decree holder wants to have new shutters put up after removing the present shutters in the front portion of the shop.
in a second appeal the high companyrt upheld the order of the district judge and dismissed the appeal.
so the judgment debtor will vacate the shop and give possession thereof to the decree holder by 31.12.1972.
therefore the judgment debtor wants time till 31.12.1972 from the decree holder for vacating half the shop in his possession.
in the event of number payment of damages for any six months the decree holder shall be entitled to get the shop immediately vacated by filing execution from the possession of the judgment debtor without any objection as regards limitation.
during the pendency of this execution proceeding the parties filed a compromise petition on 31.3.1968.
the material para of the order is para 3 and it is in the following terms the judgment debtor to give vacant possession of the shop to the decree holder by 31.12.72 according to the companypromise and he will pay damages for use and occupation by the 5th of every month to the decree holder according to the companypromise rs.
the judgment debtor will number be entitled to object to this.
in order to appreciate the intention of the parties to the companypromise it is also necessary to refer to the order dated 21.3.1968 recorded by the execution companyrt on the basis of the companypromise.
a fresh petition for execution was filed on 19.1.1965.
the judgment debtor will number object to them.
the terms of the compromise on the interpretation of which the result of this appeal depends were as follows material portions only in the above case a companypromise has taken place between the parties as follows that for the present the judgment debtor is number getting a shop.
his established business will be ruined by vacating the shop in hurry.
he has vacated half the shop and given its possession.
civil appellate jurisdiction civil appeal number 2612 of 1981.
numberice of the execution petition was issued to the judgment debtor who appeared and raised several objections to the execution proceedings.
that the damages shall be paid upto the 5th of every month.
it was also dismissed on 20.3.1965.
that during this period the judgment debtor shall pay damages to the decree holder for use of the shop 110/ per month.
on six months damages being due the decree holder will be entitled to have the shop vacated.
the executing companyrt upheld the objection holding that the companypromise dated 21.3.1968 amounted to a fresh lease.
sobhagmal jain and s.k.
so the aforesaid companypromise be accepted and kept on record.
he will help in the putting of girders and he will vacate the portion.
the only point urged before us by shri amlan ghosh learned companynsel for the judgment debtor was that the compromise dated 21.3.1968 created a fresh lease in favour of the judgment debtor in respect of the undelivered half of the shop and the decree holders remedy was by a suit for recovery of its possession.
the decree holder again filed an application for execution of the decree on 22.6.1966.
number 87 of 1980.
on 25.11.1975 the decree holder filed an execution petition for recovery of possession of the portion of shop in possession of the judgment debtor alleging that the judgment debtor had number paid damages at the rate of rs.
jain for the respondents.
the case is decided in terms of the companypromise.
it is also number in dispute that at the time of the compromise half of the shop had been vacated and its possession delivered to the decree holder as stated in the compromise petition.
if he will demur to it the decree holder can have the shop vacated without any objection as regards the above limitation.
amlan ghosh for the appellants.
the companypromise be recorded.
the material facts which are number in dispute may be stated thus the predecessor of the respondents hereinafter referred to as the decree holder filed a suit for eviction of the predecessor of the appellants hereinafter referred to as the judgment debtor and obtained a decree on 21.3.1960 inter alia for eviction from a shop.
