Elumalai vs Sri Kandaswami Devasthanam Tiruporur

Ramachandra Iyer, J.—The respondent obtained an order for ejectment against the petitioner On 5-12-1957 under the provisions of

Sections 41 and 43 of the Presidency Small Causes Courts Act. By that order the petitioner was directed to deliver possession of the property on

30-6-1957. Later, however, the order was varied presumably by consent of parties by which the time for delivery of possession was fixed as 17-

2-1958. In the meanwhile the petitioner filed O. S. No. 614 of 1958 against the respondent for a declaration that the order of ejectment would not

be binding on him: There was an injunction against the respondent executing the order of ejectment pending the suit. That suit was dismissed on

13-2-1960.

Thereupon the respondent applied to the lower court for execution of the order directing delivery of possession. During the course of execution

obstruction was offered by nine persons along with the petitioner. The lower Court with out notice to the petitioner directed the removal of the

obstruction. The petitioner seeks to revise that order.

It is contended on his behalf that the Court of Small Causes had no jurisdiction to extend the time fixed for delivery of possession, and that

therefore any order in execution that might he passed so as to enable the respondent to obtain delivery of possession after 17-2-1958 would be

invalid. In support of the contention reference is made to the decisions in Jamshedji Hormasji Vs. Gordhandas Goculdas, and Commissioner for

Port of Calcutta v. Anil Krishna, 55 Cal WN 305.

In those decisions it was held that it was not competent for the Presidency Court of Small Causes to amend or alter the terms of a decree or order

for possession, once passed u/s 45 of the Presidency Small Cause Courts Act, 1882. I cannot see how those cases can apply to the present case.

No question of amendment of the original order at all arises in this case. What the respondent applied for is the execution of the decree in the

ejection suit No. 56 of 1955. Under the provisions of Section 48 of the Presidency Small Cause Courts Act, all the provisions of the CPC

including those contained in Order XXI will apply to matters provided for in that chapter.

It would follow that the respondent would be entitled to execute the order which directed delivery of possession. I do not read the decisions

aforesaid as establishing that a court would have no power to execute the decree for ejectment beyond the time fixed by the order for ejectment.

In my opinion as the provisions of the CPC apply to the decrees in ejectment passed u/s 43 of the Presidency Small Cause Courts Act, it would

be competent for the decree-holder to apply for execution as in the case of any other decree within the period of limitation prescribed by law.

There are therefore no merits in this petition.

The petition is dismissed with costs. Petition dismissed.