M. Moosa vs Jyothi S. Unni

M.R. Hariharan Nair, J.—The question that arises for consideration is whether a court which executes the order of eviction passed by a Rent Control Court has got the right to order restitution.

The revision Petitioner obtained an order of eviction u/s 11(2)(b) of the Kerala Buildings (Lease and Rent Control) Act, (Act 2/1965) against the Respondent herein from the Rent Control Court, Kalpetta in R.C.P. No. 34 of 1994. In execution of the order, Petitioner got delivery. The tenant then filed an application u/s 11(2)(c) of the Act and that was allowed. The landlord has taken up that order in appeal and it is pending. In the meantime, on the strength of the order u/s 11(2)(c) of the Act, the tenant moved the execution court seeking redelivery. As per the impugned order, the Execution Court allowed, the petition of the tenant for redelivery in view of the subsequent order u/s 11(2)(c) of the Act and that is the order impugned herein.

The revision Petitioner contends that the execution court has no jurisdiction to invoke power u/s 144 of the CPC and that such a petition has to be moved before court which passed the order for eviction. The tenant would contend that the Rent Control Court is not vested with power u/s 144 of the CPC and in view of that position, petition for restitution can be filed only before the execution court which had effected delivery.

Atta Koya v. Kunhi Seethi Koya 1977 KLT 570 considered the question whether a petition for restitution in respect of the execution effected pursuant to the order of the Administrator''s Court can be maintained before the execution court to which the decree was transferred in view of the abolition of the Administrator''s Court. It was found that the application has to be filed before court which decided the case in the first instance and it cannot be made before a court to which execution of the decree had been transferred. The execution court exhausts its functions in respect of the particular order as soon as the execution of the original order is effected. It was held that the court of first instance to which the application u/s 144 has to be made is only the successor court in view of the abolition of the court which passed the decree. The aforesaid decision was taken up to the Supreme Court and it was confirmed vide Neelathupara Kummi Seethi Koya Phangal (dead) by L.Rs. Vs. Montharapalla Padippua Attakoya and others, that the application would lie only to the court of first instance or to the successor court.

Section 144 of the CPC provides as follows:

Application for restitution.-

(1) Where and in so far as a decree or an order is varied or reversed in any appeal, revision or other proceeding or is set aside or modified in any suit instituted for the purpose, the Court which passed the decree or order shall, on the application of any party entitled to any benefit by way of restitution or otherwise, cause such restitution to be made as will, so far as may be, place the parties in the position which they would have occupied but for such decree or order or such part thereof as has been varied, reversed, set aside or modified; and, for this purpose, the Court may make any orders, including orders for the refund of costs and for the payment of interest, damages, compensation and manse profits, which are properly consequential on such variation, reversal, setting aside or modification of the decree or order.

Explanation.-For the purpose of Sub-section (1), the expression ''Court which passed the decree or order'' shall be deemed to include.-

(a) where the decree or order has been varied or reversed in exercise of appellate or revisional jurisdiction the court of first instance;

(b) where the decree or order has been set aside by a separate suit, the court of first instance which passed such decree or order;

(c) where the court of first instance has ceased to exist or has ceased to have jurisdiction to execute it, the court which, if the suit wherein the decree or orders was passed were instituted at the time of making the application for restitution under this section would have jurisdiction to try such suit.

(2) No suit shall be instituted for the purpose of obtaining any restitution or other relief which could be obtained by application under Sub-section (1).

u/s 144(1) of the CPC where an order has been set aside in a proceeding like that u/s 11(2)(c), it is the court of first instance which passed the original order that is competent to order restitution.

It is true that the Rent Control Act does not contain any specific provision extending the powers u/s 144 of the CPC to that court. But this Court has found in Cheru Ouseph v. Kunjipathumma 1981 KLT 495 that in respect of procedural matters all powers which are not specifically denied by the Statute or Rules should be vouchsafed to tribunals and courts so that they may effectively exercise their judicial function. Power to advance the course of justice by relying on un-enumerated powers or inherent or residuary powers cannot be denied to such tribunals. The power u/s 144 CPC is one such power which must be attributed to Rent Control Courts. That power being one basically intended to do justice to the parties is hence found to be available to Rent Control Courts.

It is, therefore, clear that it is only the Rent Control Court, Kalpetta which passed the order u/s 11(2)(b) that has jurisdiction to order restitution and the forum is not the execution court. Nevertheless, on the facts of the present case, I do not think that any interference is required, the reason being that in the instant case the judicial officer to function as Rent Control Court and Execution Court is one and the same. It is the Munsiff of Kalpetta who in his capacity as Rent Control Court, passed the orders under Sections 11(2)(b) as also the present order u/s 144 albeit in his capacity as Execution Court. The trial records were also available with him. In the circumstances no useful purpose will be served by setting aside the impugned order on the ground of technicalities and in directing the same officer to pass fresh orders wearing his other official garb. Hence on the facts and circumstances of this case I am not inclined to interfere with the impugned order albeit the law is made clear that it is only the Rent Control which passes orders u/s 11(2)(b) that can order restitution u/s 144 of the CPC in such matters.

The court below is directed to implement the impugned order unless there is any stay of proceedings from the Appellate Authority or other competent court.