M/S Vasanth Colour Laboratories Pvt ... vs Smt Divya

Judgment debtor in Execution No.1094/2015 is

seeking for quashing of the order dated 15.10.2015 -

Annexure-F, whereunder the Executing Court has ordered

for issuance of delivery warrant.

2. I have heard the arguments of Sriyuths S Shaker

Shetty, learned Advocate appearing for writ petitioner -

judgment debtor and H.S.Dwarakanath, learned Advocate

appearing for respondent - decree holder.

3. Parties are referred to as per their rank before the

Executing Court.

:3 :

4. Decree holder filed the execution petition in

question i.e., Execution Case No.1094/2015 for the relief of

issuance of delivery warrant in respect of the property

bearing No.35-A, situated at Kengal Hanumanthaiah Road,

Bengaluru, morefully described in the schedule to the

Execution Petition contending interalia that as per the

compromise decree, judgment debtor had not vacated the

property and undertaking given has been violated and hence,

in order to enjoy the fruits of the compromise decree,

execution case as noticed herein above, came to be laid by

the decree holder before the City Civil Court, Bengaluru

(CCH-9).

5. The Executing Court by order dated 26.05.2015

issued cause notice to the judgment debtor. Subsequently

by order dated 24.08.2015 cause notice was ordered to be

issued to the judgment debtor through special Bailiff. On

04.09.2015 Executing Court permitted the decree holder to

take notice to judgment debtor through Registered Post :4 :

Acknowledgment Due and by Courier service. Thereafter, by

order dated 09.10.2015 held notice of service sufficient and

after hearing the learned Advocate appearing for decree

holder posted the matter for orders to 15.10.2015 and on

15.10.2015 ordered for issuance of delivery warrant. On the

same day, learned Advocate appearing for judgment debtor

filed an application under Section 47 of CPC for which

opportunity was extended to the decree holder to file

objections and the Executing Court reiterated the issuance of

delivery warrant as per order already passed.

6. Thereafterwards, matter has been preponed by

Executing Court and after receiving the application filed by

the Objector under Order 21 Rule 27 CPC, adjourned the

matter for pronouncing orders, after hearing the arguments

of advocates. On the next date i.e., on 31.10.2015, an

application under Order 21 Rule 97 CPC was filed by the

Objector and matter was adjourned from time to time. In the

meanwhile, the judgment debtor has filed the present :5 :

petition calling in question the impugned order dated

15.10.2015 - Annexure-F whereunder Executing Court has

issued delivery warrant.

7. It is the contention of Sri Shaker Shetty, learned

Advocate appearing for the judgment debtor that order

passed by this Court in C.P.No.60/2011 dated 12.11.2011-

Annexure-E would create a new tenancy. He would also

contend that earlier notice of termination issued by the

decree holder terminating the tenancy is wiped out on

account of new tenancy created and thereby a fresh lease

had been created. Therefore, execution proceedings is bad in

law. He would also submit when an application under

Section 47 CPC is filed before Executing Court, a duty is cast

on the Executing Court to examine the said application and

consider all questions raised therein and without

adjudicating the said application, delivery warrant could not

have been issued and Executing Court would have no

jurisdiction to issue delivery warrant in such circumstances. :6 :

7.1) He would also elaborate his submission by

contending that a new lease came to be created under the

doctrine of Novatio since earlier contract had come to an end

i.e., on 30.04.2015 and after expiry of two years from

01.05.2011, petitioner having started to pay enhanced rent of

5% over and above ` 1,50,000/- per month and till the said

new lease created after 01.05.2011 and continued till

30.04.2015 is terminated by issuance of fresh notice, the

decree for ejectment obtained would not be executable. He

would further submit that affidavit of undertaking submitted

by the petitioner that he would deliver vacant possession on

30.04.2015 stood waived in C.P.No.60/2011 since the time

was extended in C.P.No.60/2011 till 30.06.2015 and thereby

there is alteration.

7.2) He would also contend that cause notice issued

by the Executing Court and dispatched by Registry through

Registered Post Acknowledgment Due was not returned but

purported notice dispatched through Courier has been :7 :

returned with endorsement 'refused' and such declaration

cannot be made by the Court and only if notice is dispatched

through post with correct address, proper stamp and if same

is not returned within 30 days, then only presumption can

be drawn under proviso to Rule 5 of Order 9 CPC, as

otherwise, not.

In support of his submissions, he would rely upon the

following judgments:

(1) (2014)5 SCC 660 VASU P SHETTY vs HOTEL VANDANA PALACE AND OTHERS.

(2) (2014)3 SCC 678 VINOD KUMAR vs STATE OF KERALA

(3) AIR 2002 SC 2370 SUSHIL KUMAR SABHARWAL vs GURPREET SINGH AND OTHERS

(4) AIR 1959 SC 620

TRIVENIBAI AND ANOTHER vs SMT.LILABAI

(5) AIR 1979 SC 1745 V DHANAPAL CHETTIAR vs YESODAI AMMAL

(6) AIR 2004 CALCUTTA 267 M/S.SARASWAT TRADING AGENCY vs UNION OF INDIA :8 :

(7) AIR 2002 SC 251 N.S.S.NARAYANA SARMA AND OTHERS vs M/S.GOLDSTONE EXPORTS (P) LTD AND OTHERS

(8) (2005)7 SCC 653 DEVASAHAYAM (DEAD) BY L.RS. vs P.SAVITHRAMMA AND OTHERS

(9) AIR 1967 SC 155 GOPALAKRISHNA PILLAI AND OTHERS vs MEENAKSHI AYAL AND OTHERS

(10) AIR 1981 SC 1829 AIR INDIA vs NARGESH MEERZA AND OTHERS

(11) AIR 1989 SC 1510 MODERN HOTEL, GUDUR,REP. BY M.N.NARAYANAN vs K.RADHAKRISHNAIAH AND OTHERS

(12) (2007)6 SCC 401 M.VENKATARAMANA HEBBAR (DEAD) BY L.RS. vs M.RAJAGOPAL HEBBAR AND OTHERS

(13) AIR 1994 ANDHRA PRADESH 197 PARUCHURU NARASIMHA RAO vs NUNE PANDU RANGA RAO AND ANOTHER

(14) AIR 1982 BOMBAY 532 KALYANDAS MANILAL SHAH vs S.M.KANKARIA AND ANOTHER

(15) AIR 1988 ALLAHABAD 225 UNION OF INDIA vs S.B.SINGH

(16) AIR 1978 SC 22 SMT.NAI BAHU vs LALA RAMNARAYAN AND OTHERS :9 :

(17) AIR 1977 SC 1201 SUNDER DASS vs RAM PARKASH

(18) (1976)1 KAR.L.J. 35 PADMAVATHI BAI vs PARVATHIAMMA

(19) (1994)3 SCC 375 THARUMAL AND ANOTHER vs MASJID HAJUM PHAROSAN VA MADRASSA TALIMUL ISLAM, MIRZA IZSMAIL ROAD, JAIPUR

(20) JT 1993(2) S.C. 341 CHIRANJILAL SHRILAL GOENKA (DECEASED) THROUGH L.RS. vs JASJIT SINGH & OTHERS

8. Per contra, Sri H.S.Dwarakanath, learned

Advocate appearing for respondent - decree holder would

support the impugned order and contends that order dated

15.10.2015 has got spent itself and as such, writ petition

does not survive for consideration.

8.1) He would further elaborate his submission by

contending that when co-ordinate Bench of this Court has

passed the order in C.P.No.60/2011 on 15.06.2015 -

Annexure-D, correctness or otherwise of the said order

cannot be gone into since said order came to be passed at the

instance of the judgment debtor, either to challenge the said : 10 :

order or to contend that said order is not required to be

implemented by either of the parties particularly, when the

judgment debtor having had the benefit flowing from such

order.

8.2) On the issue of service of cause notice, he would

submit judgment debtor was fully aware about the pendency

of execution petition since the judgment debtor himself had

filed a memo dated 15.06.2015 in C.P.No.60/2011 seeking

permission of this Court to withdraw I.A.No.1/2015 (filed by

judgment debtor for extension of time) and indicating in the

said memo about execution petition No.1094/2015. Said

memo dated 15.06.2015 - Annexure-R2 will establish that

judgment debtor had knowledge of execution petition

No.1094/2015. He would contend that said memo is duly

signed by the authorised signatory of judgment debtor -

company and it has been never objected to. As such, he

would contend that judgment debtor cannot be heard to

contend he had no knowledge of execution petition pending : 11 :

or on account of non delivery of cause notice, its right has

been prejudiced.

8.3) He would also elaborate his submission by

contending that question of waiver does not arise since

decree holder - landlord has not accepted about creation of

new tenancy under the compromise petition. It is also

contended that notice of termination issued at the first

instance had got converted itself into a decree and as such,

waiver on the part of decree holder of his notice of

termination of tenancy would not arise at all. He would also

submit that this Court exercising jurisdiction under Article

227 of the Constitution of India should not grant any relief in

matters where orders came to be passed on the basis of

undertaking affidavit furnished agreeing thereunder to vacate

the suit schedule premises and when there is no error of

jurisdiction committed by Executing Court, present writ

petition is liable to be dismissed.

: 12 :

In support of his submission, he has relied upon the

following judgments:

(1) (2008)10 SCC 802 CHAND KHAN vs VAHID KHAN AND OTHERS

(2) (2015)5 SCC 423 RADHEY SHYAM AND ANOTHER vs CHHABI NATH AND OTHERS

(3) 1982 SCR (3) 201 SMT.KALLOO AND OTHERS vs DHAKADEVI AND OTHERS

(4) 1968 SCR (2) 559 KONCHADA RAMAMURTHY SUBUDHI & ANOTHER vs GOPINATH NAIK

(5) 1978 SCR (1) 723 NAI BAHU vs RAMNARAYAN & OTHERS

(6) LAWS (DLH)-1984-5-34 SARDARI LAL vs RAMRAKHA

(7) AIR 1999 SC 2607 DELTA INTERNATIONAL LIMITED vs SHYAM SUNDAR GANERIWALLA & ANOTHER

(8) AIR 2015 SC 3558 THE BOARD OF TRUSTEES OF THE PORT OF MUMBAI vs NIKHIL N. GUPTA & OTHERS : 13 :

9. Sri Shaker Shetty, learned Advocate appearing for

petitioner - judgment debtor has contended that undertaking

given has stood wiped out on account of extension of time

granted by this Court in C.P.No.60/2011 and fresh

undertaking had to be given by the judgment debtor which

was not furnished and as such, all orders passed by

Executing Court subsequently is a nullity. He would hasten

to add that Executing Court may be directed to hold an

enquiry on the application filed by judgment debtor under

Section 47 of CPC within a time frame for which the

judgment debtor would fully co-operate with the Executing

Court. On these grounds, he prays for allowing the writ

petition and moulding the relief accordingly.

10. Having heard the learned Advocates appearing for

parties and on perusal of original records secured from the

Executing Court, this Court is of the considered view that

following points would arise for consideration:

: 14 : (1) Whether order dated 15.10.2015 -

Annexure-F suffers from any jurisdictional error calling for interference?

(2) What order?

BACKGROUND OF THE CASE:

11. Decree holder is the owner of the suit schedule

property and same was taken on lease by the judgment

debtor. On expiry of lease period, decree holder filed a suit

O.S.NO.836/1981 against the judgment debtor for ejectment

from suit schedule property. Judgment debtor also filed a

suit in O.S.No.3396/1996 seeking specific performance of

the contract, contending interalia that under the lease deed

there is a specific clause for extension to be given for another

14 years after the expiry of stipulated period and same was

not extended. Judgment debtor also filed another suit

O.S.No.62/2006 seeking for extension of the period of lease

of the suit schedule property.

: 15 :

12. Since above referred three suits were pending in

different Courts of City Civil Court, Bengaluru, judgment

debtor filed a Civil Petition No.60/2011 under Section 24

CPC for clubbing/connecting/consolidating all the suits to be

tried in one Court. While examining said prayer for

clubbing/consolidating the suits, a compromise came to be

entered into between the parties, which was placed on record

and all the suits were ordered to be placed before City Civil

Court, CCH-9, Bengaluru and directed the said Court to

receive the compromise petition and pass the decree

accordingly. In that view of the matter, trial Court

adjudicating O.S.No.836/1981 heard the Advocates, recorded

presence of the parties and accepted compromise petition

and pursuant to the same, decree has been drawn in

O.S.No.836/1981 in terms of the compromise. On account

of judgment debtor not vacating suit schedule property as

agreed to in the compromise petition, decree holder filed

Execution Petition No.1094/2015 and after issuing cause : 16 :

notice to judgment debtor and holding service sufficient, by

impugned order dated 15.10.2015 has ordered for issuance

of delivery warrant. Same is questioned in the present writ

petition.

RE: POINT NO.(1):

13. When said matter i.e., C.P.No.60/2011 was

pending before this Court, a compromise petition in

Misc.Civil No.8517/2007 under Order 23 Rule 3 read with

Section 89 and 151 CPC came to be filed whereunder parties

reported of having settled their dispute by compromise and

hence, this Court directed that all the three suits to be called

on 19.04.2011 in City Civil Court, Bengaluru in Court Hall

No.9 for receiving said compromise petition which had been

entered into between the parties and directed the trial Court

to dispose of all the three suits in terms of said compromise

petition and accordingly disposed of C.P.No.60/2011 by

order dated 12.04.2011 - Annexure-E. It was also recorded

in the said order that judgment debtor should vacate and : 17 :

hand over vacant possession of the suit property to the

decree holder on or before 30.04.2015. The direction issued

by this Court in C.P.No.60/2011 read as under:

"5. The City Civil Court (CCH-9) is directed to dispose of all three suits in terms of the said compromise petition, granting time to the petitioner herein, namely, M/s.Vasantha Color Laboratories Limited to vacate and handover the vacant possession of suit property in all the three suits to the first respondent, Smt.Divya Devi on or before 30.04.2015."

(emphasis supplied)

It was also made clear by this Court that further extension of

time should not be sought for by the judgment debtor.

14. Pursuant to said order passed in C.P.No.60/2011,

compromise petition came to be filed by the parties under

Order 23 Rule 3 CPC read with Section 151 CPC was taken

on record and directed judgment debtor to pay rent of

`1,50,000/- per month with single default clause

commencing from 01.05.2011 and subject to 5% : 18 :

enhancement once in two years on the last paid rent and also

directed the judgment debtor to vacate and deliver vacant

possession of the suit schedule property to the decree holder

on or before 30.04.2015 without seeking for further

extension of time and without forcing the landlord/decree

holder to file execution petition to secure vacant possession

of the suit schedule property as had been agreed to by

judgment debtor under the compromise petition.

Accordingly, decree also came to be drawn in

O.S.No.836/1981 in terms of compromise. Undisputedly, all

the parties to the compromise petition have acted upon the

compromise petition.

15. However, before expiry of the period agreed by the

judgment debtor to vacate the premises i.e., 30.04.2015, an

interlocutory application - I.A.1/2015 came to be filed in

C.P.No.60/2011 seeking for extension of time by three years

beyond 30.04.2015. Said application was supported by the

affidavit of the Managing Director of the judgment debtor. : 19 :

However, a memo came to be filed by the learned Advocate

appearing for the petitioner i.e., judgment debtor in

C.P.No.60/2011 seeking permission to withdraw I.A.1/2015,

since decree holder had already filed an execution petition to

execute the decree passed in O.S.No.836/1981 in terms of

compromise. Said memo was accepted partially by

dismissing the application - I.A.1/2015 as withdrawn and

expressly rejecting the prayer sought for by the judgment

debtor to agitate all the grounds before the Executing Court

by reiterating its order dated 12.04.2011, by order dated

15.06.2015 - Annexure-D. It has been specifically observed

in said order as under:

"5. Therefore, this Court while accepting the memo and dismissing the application in I.A.1/2015 refuse to reserve any kind of liberty to either petitioner or to respondents and would say that the order dated 12.04.2011 in every sense is final order. The order passed by the trial Court pursuant to order dated 12.04.2011 is the final order which cannot be subjected to disturbance or variance by this Court. As stated supra, the extension till 30.06.2015 is only with an intention to provide one more opportunity to the parties at the request of : 20 :

counsel for petitioner and merely because such extension is allowed for one month, will not give any edge to petitioner to make use of the same to demonstrate that there is dilution to the earlier order.

With this clarification, memo is accepted and application in I.A.1/2015 is dismissed."

16. Perusal of the orders passed in C.P.No.60/2011

on 12.04.2011 and 15.06.2015 would clearly indicate that in

paragraph 6 of the order dated 12.04.2011 passed in

C.P.No.60/2011 it was clearly indicated by this Court that

there would be no scope for any opposition by the judgment

debtor for decree holder taking possession of the suit

schedule property. Order dated 15.06.2015 would indicate

while accepting the memo and rejecting the application -

I.A.1/2015, extension was granted to judgment debtor till

30.06.2015 so as to facilitate the parties come to a common

platform to seek extension and it was explicitly made clear

thereunder that such extension shall not be construed as

diluting its earlier order dated 12.04.2011. : 21 :

17. At this juncture itself, it would be appropriate to

note the contention raised by Mr.Shaker Shetty, learned

Advocate appearing for petitioner regarding non-issuance of

cause notice in Execution Case No.1094/2015 has resulted

in proceedings being vitiated. Said contention requires to be

examined with utmost circumspection for reasons more than

one. Firstly, when I.A.1/2015 was filed in C.P.NO.60/2011

seeking for extension of time, said application came to be

withdrawn by filing a memo indicating thereunder that

landlord - decree holder - respondent had filed an execution

petition and as such, to urge all contentions in pending

execution petition, judgment debtor wanted to withdraw

I.A.1/2015. Hence, said memo was filed. Perusal of said

memo dated 15.06.2015 - Annexure-R2 would clearly

establish that judgment debtor had full knowledge of

pendency of Execution Petition No.1094/2015. It is apt to

note at this juncture itself that memo dated 15.06.2015 -

Annexure-R2 was duly signed by the authorised signatory of : 22 :

the judgment debtor and at no point of time, till date,

contents of it has been disputed. Judgment debtor has stated

in the said memo to the following effect:

"Hon'ble Court was first pleased to issue notice on the application for extension of time given to surrender vacant possession of premises. First respondent has already filed Execution Petition No.1094/2015 in which cause notice is not yet served (since the decree is more than 2 years old). First respondent xxx 29.04.2015."

(emphasis supplied)

In view of the above fact, the irresistible conclusion which

has to be drawn is, that judgment debtor was fully conscious

of the execution petition having been filed by the decree

holder and this was well within the knowledge of judgment

debtor when memo for withdrawal of I.A.1/2015 came to be

filed on 15.06.2015. Hence, judgment debtor cannot be

heard to contend that he was unaware of execution petition

1094/2015 pending. Secondly, when cause notice of

execution was sent by Courier , judgment debtor has refused

to receive the same. Sub-rule (3) of Rule 9 of Order 5 CPC

provides for delivering or transmitting summons by : 23 :

Registered Post Acknowledgment Due or by Speed Post or by

such Courier services and Rule 9A of Order 5 CPC enables

the Court to permit the plaintiff to effect service of summons

on such defendant by Courier in addition to service of

summons provided under Rule 9 of Order 5 CPC. In this

background, when the order sheet of Executing Court is

perused, it would indicate that Executing Court on

04.09.2015 while ordering issuance of cause notice to

judgment debtor by Registered Post Acknowledgment Due

has also permitted notice to be taken through 'Blue Dart

Courier' and only on 09.10.2015 when advocate for decree

holder produced a copy of the track details of notice sent

through Blue Dart Couriers obtained from the website of

"Blue Dart" which indicated that judgment debtor has

refused to receive cause notice, has held service of notice as

sufficient on being satisfied that judgment debtor had been

evading and avoiding service of cause notice. In that view of

the matter, contention raised in this regard stands rejected

for the reasons stated supra.

: 24 :

18. Yet another contention which has been raised by

Mr.Shaker Shetty, learned Advocate appearing for petitioner

is that tenancy created earlier had resulted in termination by

the decree holder by issuance of notice and thereafter

compromise had been entered into and same resulted in

fresh tenancy being created or doctrine of Novatio would be

applicable. Said contention requires to be rejected out

rightly. The contention regarding determination of lease not

being in accordance with the provisions of Transfer of

Property Act, 1882 on the premise that under the

compromise entered into between the parties, fresh lease is

created and as such, yet again, there should be a

determination of lease on account of fresh tenancy having

been created is also liable to be rejected, inasmuch as, there

was no creation of fresh tenancy and as could be seen from

the orders passed in C.P.No.60/2011 on 12.04.2011 and

15.06.2015 - Annexures-E and D respectively, it can be

safely concluded that by virtue of a compromise petition filed : 25 :

under Order 23 Rule 3 CPC read with Section 89 and Section

151 CPC which was received on the file of this Court and

was ordered to be placed in the pending suit

O.S.NO.836/1981 for drawing up of the decree in terms of

said compromise petition did not amount to creation of fresh

lease. It is not in dispute that pursuant to such direction

issued, decree came to be drawn in O.S.No.836/1981 and as

such, to enjoy its fruits, decree holder has filed the execution

petition in question.

19. Under identical circumstances, Hon'ble Apex

Court in the case of KONCHADA RAMAMURTHY SUBUDHI

AND ANOTHER vs GOPINATH NAIK reported in AIR 1968

SC 919, has held the intention of the parties in a

compromise petition is a decisive test which will have to be

adopted to ascertain as to whether parties intended to revive

the tenancy or create new tenancy under compromise

petition. It has been further held that in spite of the fact that

word 'rent' being used in the compromise petition would not : 26 :

be a ground to contend that it amounts to a fresh lease

having been created. Hon'ble Apex Court therein was

examining as to whether the compromise deed constitute

creation of a lease or licence and held that when the decree

holder has brought a suit for ejectment of the judgment

debtor and a compromise being entered into in that suit, is

important and it would be difficult to impute to such decree

holder that he had intention to create a fresh tenancy while

the fact that he brought the suit for ejectment itself shows

that his intention was to eject the judgment debtor after

having terminated the tenancy. Hence, contention raised by

learned Advocate appearing for petitioner - judgment debtor

in this regard stands rejected.

20. In the light of aforestated discussion, this Court is

of the considered view that contention raised by Mr.Shaker

Shetty, learned Advocate appearing for petitioner relating to

Executing Court ought to have examined the application filed

by the judgment debtor under Section 47 CPC by recording : 27 :

evidence and giving a finding on such evidence is without

merit and deserves to be rejected. The issue regarding

'creation of fresh tenancy' by virtue of compromise petition

having been entered into between the parties not amounting

to said creation, directing the parties to lead evidence or

examining such a frivolous application, would only be an

exercise in futility and particularly in the facts obtained in

the present case.

21. As could be seen from the records on hand, the

judgment debtor pursuant to the decree passed in

O.S.No.836/1981 and the order passed in C.P.No.60/2011

has filed an affidavit of undertaking whereunder he has

undertaken at paragraph 5 to the following effect:

"5. I further undertake to voluntarily vacating the schedule property on or before 30.04.2015 without forcing the plaintiff to initiate any Execution against the first defendant

- lessee."

Thus, judgment debtor having entered into a compromise

under Order 23 Rule 3 CPC agreeing thereunder to quit, : 28 :

vacate and hand over vacant possession to the decree holder

and pursuant to same, having filed an undertaking in the

form of affidavit and sought extension in C.P.No.60/2011

and obtained the benefit of such extension granted by this

Court, cannot be now heard to contend that these factual

aspects are required to be ignored or it would become

inconsequential on the premise that fresh tenancy has been

created. Said contention is purely an after-thought and has

been raised with sole intention of dragging on the

proceedings.

22. In fact, the Hon'ble Apex Court in SOM DUTT

(DEAD) BY L.RS vs GOVIND RAM reported in (2000)9 SCC

345 somewhat under similar circumstances, held that even if

a new tenancy is created under the compromise, still parties

are bound by such compromise and further held though a

person is not a party to the compromise, even in such

circumstances, where his name is found in the compromise

petition and such person has taken benefit flowing from the : 29 :

terms of the compromise, cannot be heard to contend there

is creation of new tenancy. It has been held by the Hon'ble

Apex Court to the following effect:

"4. We do not agree with the reason given by the High Court in reversing the decision of the executing court. It is not in dispute that the premises in question were in the occupation of Bishandas, the father of Govind Ram (respondent). By virtue of the compromise which was entered into in 1981 before the appellate court, the son of the tenant who was already in possession was allowed to continue for a period of 10 years. Even if there be a creation of tenancy, the compromise between the parties including Govind Ram was that Govind Ram would vacate the premises on 31-12-1990. It is on that basis that the compromise was arrived at and the order passed by the appellate court. Apart from anything else, Govind Ram is clearly estopped from filing any application objecting to the execution of the decree. On this ground alone, Govind Ram has to be non- suited."

23. A person who has obtained benefit of a

compromise petition and has enjoyed the benefit flowing from

such compromise, cannot be heard to contend that the

intention of the parties to such compromise was something

else or it was intended to create a new contract, particularly

based on such compromise when undertaking has been : 30 :

given. The Hon'ble Apex Court in the case of THE BOARD

OF TRUSTEES OF THE PORT OF MUMBAI vs NIKHIL N

GUPTA (AIR 2015 SC 3558) has held that a party may be

permitted to withdraw the undertaking provided it is within

reasonable time and before availing any benefit pursuant to

the said undertaking. It is held as under:

"In the given facts and circumstances of the case, Court may permit a party to withdraw an undertaking provided it is within reasonable time and before the party has availed the benefit of the order pursuant to said undertaking. Based on the undertaking, the respondent obtained the benefit of extension of time for vacating and handing over vacant possession; the respondents are duty bound to vacate the premises voluntarily. In this case, application to withdraw the undertaking was filed only in May, 2014 after the respondents have availed the benefit of extension of time."

24. Keeping the principles laid down by the Hon'ble

Apex Court noticed herein above in mind, when the facts on

hand are examined, the contents of the compromise petition

- Annexure-R3 would clearly indicate that judgment debtor

has agreed to quit, vacate and deliver actual vacant physical

possession of the schedule property to the decree holder free : 31 :

from all encumbrances and the tenancy claims on or before

30.04.2015 without claiming any further extension of time.

Thus, judgment debtor has clearly undertaken that he would

not claim any fresh tenancy and pursuant to said

compromise entered into, he has filed the affidavit of

undertaking to vacate and has now attempted to wriggle out

of such undertaking, that too, without withdrawing the

undertaking. Hence, these facts would clearly indicate the

intention of the judgment debtor is to drag on the

proceedings and hang on to the suit schedule property, with

an attitude 'come what may'.

25. For these myriad reasons indicated herein above,

this Court is of the considered view that impugned order

does not suffer from any infirmity whatsoever either in law or

on facts calling for interference. Hence, point No.(1) is

answered in the negative i.e., against the petitioner and in

favour of respondent.

: 32 :

RE: POINT NO.(2)

25. As noticed herein above, petitioner has adopted

dilatory tactics to postpone the handing over vacant

possession of the suit schedule property to decree holder

despite giving an undertaking. The normal rule is costs

should follow the cause. Petitioner is a private Limited

Company carrying on business in the suit schedule property

from long number of years and respondent - decree holder

having filed a suit for ejectment way back in the year 1981

and hoping to secure possession of suit schedule property at

the earliest, has entered into compromise with the writ

petitioner - judgment debtor on 23.04.2011, whereunder the

respondent-decree holder has agreed to grant time to the

petitioner - judgment debtor till 30.04.2015. Despite such

undertaking being given, judgment debtor has not vacated

the suit schedule property and has ventured to drag on the

proceedings by filing frivolous applications and postponing

delivery of possession of suit schedule property to respondent

- decree holder. As such, this Court is of the considered view : 33 :

that writ petitioner would be liable to pay exemplary costs to

the respondent - decree holder.

Hence, I proceed to pass the following:

ORDER

(1) Writ Petition is hereby dismissed with costs.

(2) Order dated 15.10.2015 passed in Execution

Case No.1094/2015 by 27th Addl.City Civil Judge,

Bengaluru - Annexure-F stands affirmed.

(3) Writ petitioner to pay respondent cost of

` 10,000/- within two weeks from today, failing

which, the respondent - decree holder would be at

liberty to recover said amount from judgment

debtor in the pending execution proceedings i.e.,

Execution Case No.1094/2015.

Ordered accordingly.

Sd/-

JUDGE

*sp