Chougani M.P vs Abdul Azim

P.V. Dixit, C.J.—This Letters Patent appeal from a decision of Tare J., arises out of execution proceedings of an ejectment decree obtained by the Respondent against the Appellant from the Court of the Additional Munsiff, Bhopal. An appeal preferred by the tenant against the judgment and decree of the Additional Munsiff, Bhopal, was dismissed on 6th November, 1958. In execution proceedings of that decree, which was initiated after the Madhya Pradesh Accommodation Control Act, 1955, came into force on 1st January 1959, the tenant raised the objections that the decree was not executable as none of the grounds mentioned in section 4 of the Act existed and that the decree that was executable was of the appellate Court and not of the original Court.

The executing Court rejected the tenant''s objection resting on Section 16 of the Act. The objection that the decree of the trial Court was not executable as it had merged into the decree of the appellate Court was upheld and the execution application was dismissed. Both the tenant and the landlord then preferred appeals in the Court of the Additional District Judge, Bhopal. The learned Additional District Judge allowed the judgment-debtor''s objection that in view of the provisions of section 16 of the Act the decree could not be executed against him except on any of the grounds mentioned in Section 4. Accordingly the judgment-debtor''s appeal was allowed and the decree-holder''s appeal was dismissed. Thereupon the decree-holder came up in second appeal to this Court.

The learned Single Judge took the view that the decree for ejectment passed in favour of the Respondent before the commencement of the Act was in fact on one of the grounds mentioned in Section 4, to wt(sic), the need of the landlord, and, therefore, the executing Court had no power u/s 16 to hold any enquiry as to whether the decree in execution was passed on one of the grounds specified in Section 4. The learned Single Judge thought that the decisions in Abdul Haq v. Raghovendra Singh 1961 JLJ 1144, and Sardar Raghbir Singh v. Komalchand, 1962 JLJ SN 116, did not support the proposition that an enquiry u/s 16 was necessary even in the case of execution of a decree passed before the commencement of the Act but on a ground indicated in Section 4. He further observed that after the passing of the decree there was no change in the circumstances and the ground of bona fide need of the landlord on which the decree had been passed still existed at the time of the execution of the decree and consequently no enquiry as to the existence of a ground u/s 4 of the Act was necessary. It was further held by the learned Single Judge that the decree which was executable was that of the appellate Court and the application for execution of the decree should not have been dismissed if the decree-holder sought to execute the decree of the original Court, but that the decree-holder should have been allowed to amend the application so as to make it one for the execution of the appellate Court''s decree The learned Single Judge accordingly remitted the matter to the executing Court with the direction to proceed with the execution after the decree-holder has amended his application for execution.

Before us, the only contention that was put forward by Shri Dabir, learned Counsel for the Appellant, was that the decree of the appellate Court having been passed before the commencement of the Act, it could not be executed without any determination as to the existence of the grounds stated in Section 4 at the time of the execution; that the decree in question was not, in fact, on any of the grounds falling u/s 4; and that even if it was, Section 16 did not cease to be applicable so as to dispense with an enquiry into the existence of a ground for ejectment u/s 4 at the time of the execution.

In our view, the contention of the learned Counsel for the Appellant must be accepted. Section 16 of the Act unmistakably says that no decree for the eviction of a tenant from any accommodation passed before the commencement of the Act shall be executed against him except on any of the grounds mentioned in Section 4 The sine qua non for the execution of such a decree, as pointed out in Abdul Haq v. Baghovendra Singh (supra), is the existence of a ground falling u/s 4 at the time of the execution of the decree Therefore, a decree for eviction passed before the commencement of the Act cannot be executed unless it is first determined after enquiry whether any of the grounds mentioned in Section 4 existed at the time of the execution. Section 16 does not contain any words so as to exclude from its purview decrees passed before the commencement of the Act and on grounds resembling or somewhat akin to those mentioned in Section 4. The decisions in Abdul Haq v. Raghovendra Singh (supra), and Sarda Raghubir Singh v. Komalchand (supra), are very clearly and leave no room for introducing the qualification that no enquiry u/s 16 is necessary where the decree for ejectment, though passed before the commencement of the Act, happens to be on one of the grounds covered by Section 4.

Indeed, it is impossible to read such a qualification into Section 16 of the Act. If, as has been held in the two cases referred to above, a decree for ejectment passed before the commencement of the Act cannot be executed without the existence at the time of the execution of a ground specified in Section 4, then it is plain enough that a decree passed on a ground existing at the time of the institution of the suit cannot be said to be one passed or a ground existing at the time of execution Again, in regard to parties to a suit in which a decree for ejectment has been passed before the commencement of the Act, it cannot be said that they should have foreseen the provisions of the M. P. Accommodation Control Act, 1955, which came into force after the passing of the decree, or that they were under an obligation to make averments with reference to the provisions of Section 4. In the absence of a specific averment of a ground falling u/s 4 and an adjudication on the ground or grounds of ejectment having regard to the provisions of the Act, a decree passed in the suit cannot be said to be one founded on any of the grounds mentioned in Section 4. In such a case, it cannot be said that the existence of a ground for ejectment u/s 4 was an issue which was present to the minds of the parties and on which they had an opportunity of adducing evidence. The pleadings made or the evidence led or the observations made in a judgment in a suit resulting in a decree for ejectment before the commencement of the Act cannot be made the basis of a decision of the issue as to the existence of a ground of ejectment failing Section 4 at the time of the execution of the decree.

In fact, in the present case the decree passed by the Additional District Judge, Bhopal, was not passed on any ground falling u/s 4. The learned Single Judge was in error in reading the observation of the learned Additional District Judge that the Plaintiff (sic) the house for his own use and residence as an adjudication on the existence of a ground u/s 4 (g) of the Act. The learned Additional District Judge made this observation only incidentally while considering the question of the "final result" of the appeal before him.

In our judgment, the Respondent is not entitled to execute the decree in question without establishing the existence of any of the grounds stated in Section 4 at the time of the execution of the decree. An enquiry into the existence of these grounds is, there fore, essential. The order of the learned Single Judge remitting the matter to the executing Court must, therefore, be modified by adding the direction that the executing Court shall first call upon the decree-holder to aver the ground or grounds of ejectment of the Appellant and establish the same before proceeding with the execution of the decree. To this extent, this appeal is allowed. Parties shall bear their own costs of this appeal.