P.L. Morada vs S.D. Bakshi

D.B. Lal, J.—Shri S. D. Bakshi landlord of Grange Villa filed a petition u/s 13 of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter to be referred to as the Act of 1949) against his tenant Major (Retd.) P. L. Morada on the ground of personal requirement of the accommodation. This petition was allowed on 22-3-1972 and an order directing the tenant to put the landlord in possession was made by the Controller. Subsequently the order was appealed against and also revised by the High Court but nevertheless it was maintained. Thereafter the landlord applied for execution on 12-4-1973 before the Subordinate Judge, Simla u/s 17 of the Act of 1949. In that execution case an objection was taken u/s 47 of the Code of CPC that the Civil Court had no jurisdiction to execute the order of eviction and that it was the Controller who could execute the order in view of Section 23 of the Himachal Pradesh Urban Rent Control Act, 1971, which had come into force with effect from 5-11-1971. This objection was dismissed by the executing Court as well as by the District Judge in first appeal. Thereafter a second appeal was filed in the High Court. During the pendency of that appeal an application was moved on 12-12-1973 by the tenant under Order 41, Rule 27 of the Code of Civil Procedure, seeking to adduce additional evidence to prove that a considerable part of the building had fallen vacant and that the landlord no longer stood in the need of any more accommodation and as such it could not be held that he required the disputed residential building for his own occupation. The High Court without deciding this application allowed the appeal on 7-3-1974 as it was held that the Controller specified in Section 23 of the Himachal Pradesh Urban Rent Control Act, 1971, alone had the authority to execute the order and that he could only do that after satisfaction u/s 14 of that Act resulting in a fresh order of eviction under that section. Thereafter the landlord went to Supreme Court in a further appeal but during the pendency of that appeal it was discoverd that the Himachal Pradesh Urban Rent Control (Amendment) Act, 1975, had come into force and thereby a proviso was added to Sub-section (2) of Section 28 of that Act which provided that an order passed u/s 13 of the Act of 1949 could be executed in accordance with the provisions of the Act under which it was passed. The obvious inference was that the Act of 1949 was only pertinent and u/s 17 of that Act the Civil Court had the jurisdiction to execute the order. However, the learned Judges of the Supreme Court left two questions open to this Court while making the order of remand in that appeal- Namely that the High Court could dispose of the application under order 41, Rule 27 of the CPC after ascertaining if additional evidence was needed to decide the question as to the requirement of the landlord within the meaning of Section 13(2)(a)(1)(a) and secondly the High Court may also have to consider the question whether the tenant is entitled to raise that question at the stage at which he intends to do so.

After the appeal came back to the High Court with that order of the Supreme Court, the tenant filed another application on 12-9-1975 under the same provision, that is to say Order 41, Rule 27 whereby he repeated his request to produce additional evidence so that he could establish that the landlord no longer bona fidely required the accommodation for his own use as some extra accommodation was vacated by some other tenant of which the landlord had come into possession. The foremost question that seems to arise relates to the very stage at which the question regarding additional evidence arises. Can it be stated that during execution stage when an order directing the tenant to put the londlord in possession, is already passed by the Controller, a fresh satisfaction is needed before actually evicting the tenant as to whether the requirement of the landlord continues or any alteration has taken place in his need due to any portion of the building having fallen vacant. In other words can the Court go behind the order directing eviction of the tenant at the execution stage and de novo satisfaction of the Controller is required u/s 13 of the Act of 1949. The learned Counsel for the tenant relied upon the language of Section 13 and further took assistance from the object behind the Act emerging from the preamble which is described, as an Act to restrict the increase of rent of certain premises situated within the limits of urban areas and the eviction of tenants therefrcm. The learned Counsel porceeds to argue that the object behind the Act is to restrict the eviction of the tenants and, therefore, double satisfaction is needed for the Controller-one at the time of making the order directing eviction and secondly at the time of execution actually evicting the tenant.

We have given our best consideration to this argument and in our opinion there does not appear to be any force in this. The learned Counsel for the Respondent brought to our notice two decisions of the Delhi High Court of which the reports are: Vas Dev v. S. Sohan Singh and Ors. 1968 D LT 492 and Sita Ram v. Jai Babu 1973 RCR 664. In Vas Dev (supra) it was held that the bona fide requirement of the landlord has to be satisfied only at the time when the order of eviction is passed. At the stage of execution the executing Court has no right to go behind the decree or order and as such the order directing eviction will not be open to question. In Sita Ram (supra) a Division Bench of that Court arrived at the same conclusion and held that the tenant could not re-open .the decree or the order in execution proceeding. Their Lordships [applied the principle of res-judicata and held that finality was attached to the proceedings. Once an order of eviction is passed it cannot be re-opened on the happening of a subsequent event at the stage of execution and a fresh satisfaction of the Controller was not needed as to the requirement of the landlord. In both these cases, however, the Courts were considering the provisions of Delhi and Ajmer Rent Control Act, 1952, and it is urged by the learned Counsel for the Appellant that u/s 14(1) of that Act an order or decree for recovery of possession could only be made by a Court or Controller in favour of the landlord against a tenant provided the conditions laid down therein were satisfied and one of the condition was the bona fide requirement of the landlord. The learned Counsel contended that in Section 13 of the Act of 1949 the language is different and contemplates both the stages, namely, the initial stage of making the order directing eviction and the execution stage when such an order is actually executed and the tenant is evicted. The learned Judges in the aforesaid two cases have of course held that the decree or order meant one and the same thing and the argument that order refers to execution order while the decree refers to the decree asking for recovery of possession, was repelled. Since we are not concerned with the language of that section we shall confine our attention to Section 13 of the Act of 1949. The relevant portion of Section 13 is in the following terms;

Eviction of Tenants.-(1) A tenant in possession of a building or rented land shall not be evicted therefrom in execution of a decree passed before or after the commencement of this Act or otherwise and whether before or after the termination of the tenancy, except in accordance with the provisions of this section ...

Sub-section (3)(a)(i)(a) of this section, however, lays down;

(3) (a) A landlord may apply to the Controller for an order directing the tenant to put the landlord in possession-

(?) in the case of a residential building, if-

(a) he requires it for his own occupation ....

It is evident in Sub-section (1) the language used is "in execution of a decree passed before or after the commencement of this Act or otherwise". The argument is that an order directing the tenant to put the landlord in possession, will fall within the ambit of the aforesaid language, used in Sub-section (1). He would be executing a decree or seeking execution "otherwise", and as such under Sub-section (1) he has further to satisfy the requirement of Sub-section (3) (a)(i)(a) so that it could be proved that the landlord still requires the accommodation for his own occupation at the execution stage. An order directing the tenant to put the landlord in possession cannot be considered to be a "decree" passed before or after the commencement of the Act or "otherwise" for which execution is sought from the tenant. In the same section the word "decree" as well as the phrase "order directing the tenant to put the landlord in possession" are used, and both of them should be construed to have different meanings. The expression "otherwise" defines the phrase "in execution of decree", meaning thereby, that the order of eviction could either be passed in execution of a decree or could be passed otherwise than in execution of a decree. The decree will of course be of a Civil Court. If there is an agreement providing for eviction of tenant and such an agreement is enforced, it may be a case where eviction is sought for "otherwise" without executing a decree passed by the Court. This apart an order directing the tenant to put the landlord in possession u/s 13 will by itself be a case falling in the category indicated by the expression "otherwise" in Sub-section (1), because that would be a case where a decree is not passed by a Court but an order is sought for directing the tenant to put the landlord in possession and for that order the satisfaction is needed u/s 13. Satisfaction having once arrived at and an order made cannot be re-opened during execution stage.

For this assistance can be had from Vas Dev (supra) and Sita Ram (supra) inasmuch as Section 47 of the CPC was applied to execution proceeding and there was a finality attached to the order made for eviction of tenant on the ground of res-judicata. As, in Delhi and Ajmer Rent Control Act, 1952 interpreted by their Lordships, so in the Act of 1949, it is not difficult to hold that the provisions of the CPC apply to execution proceedings. For this, the meaning and intendment conveyed by Section 17 will be a decisive factor. Section 17 of the Act of 1949 runs in this way:

Execution of Orders.-Every order made u/s 10, or Section 13, and every order passed on appeal u/s 15 shall be executed by a Civil Court having jurisdiction in the area as if it were a decree of that Court.

If the order is to be executed by the Civil Court as if it were its own decree, Section 47 of the Code seems to be indissolubly linked with the section. In other words, objections regarding execution, discharge and satisfaction of the decree alone will be entertain- able. The executing court will not go behind the decree for which there is ample authority. Reference can be made to Vasudev Dhanjibhai Modi Vs. Rajabhai Abdul Rehman and Others, Their Lordships have held that the decree is binding on the executing Court and it cannot go behind the decree even if the same is erroneous in law or on facts. In Jai Narain Ram Lundia Vs. Kedar Nath Khetan and Others, similarly their Lordships prohibited any rule which would have the effect of varying the conditions of the decree and observed that an executing Court cannot vary the conditions of the decree. The learned Counsel for the Appellant relied on Pasupuleti Venkateswarlu Vs. The Motor and General Traders, but with respects to their Lordships that case never related to execution of a decree for order. If the lis is pending a notice can be taken by the Court of subsequent events which greatly reflect upon the decree to be granted. That may be the position when the suit or proceeding is pending and a final order is not made. Once a final decree or order is made and that is put under execution, different considerations will arise and importing the inhibition contained in Section 47 of the Code the executing Court will not go behind the decree and will not vary the conditions or the directions of the decree.

The learned Counsel for the Appellant then referred to Sha Gomraj Poonamchand v. Ponnuru Venktrathnam Chetty AIR 1953 Mad 857 but the ratio of that case is entirely besides the point. The following observation of the learned Judge will make it clear:

The general proposition is not disputed for the Petitioner that the executing Court can not go behind the decree in execution and entertain objections other than to the jurisdiction of the Court which passed the decree. What is contended is that the non-executability of the decree in the present case which is consequent upon the amending provision of the Madras Act 8 of 1951 as construed by this Court in the reported ruling just referred to is in the nature of a valid objection to the execution petition in the Court below which renders the orders passed by it illegal, improper or irregular within the meaning of Section 12B of the Amending Act.

It is thus clear that the learned Judge was considering a statutory provision which enabled the executing Court to entertain the question as to the ground for which eviction could be sought for. In that situation it was held that the executing Court could even alter the order of eviction by following that statutory provision. No such provision can be pointed out in the present case. ''The simple proposition that the executing Court could not go behind the decree or order very much applies in the present case. There is no doubt a finality attached to the order of the Controller directing the tenant to put the landlord in possession, and to that extent the object of the Act is satisfied. If subsequently any part of accommodation falls vacant and the landlord assumes possession, he may not enter into possession of the disputed part of the building and if his default continues for one year, under a separate provision in Section 13 the tenant could apply for regaining possession. That is a safegurd provided for and has been considered sufficient by the Legislature.

As to the point regarding finality in the decision of the Controller u/s 13, reference can be made to Section 15 of the Act of 1949. The decision of the appellate authority and subject only to such decision, an order of the Controller is final and shall not be liable to be called in question in any Court of law except under revision in the High Court. This provision further makes it clear that the order of the Controller u/s 13 is final and as evident in the instant case it has been affirmed by the High Court in revision on 9-11-1972. In view of the finality attached to that order in Section 15, the executing Court will not be in a position to set at naught the said order. It will be executed as if it were a decree of the civil Court and the executing Court will not go behind the order sought to be executed before it.

The upshot of all what we have stated above is that the order directing the tenant to put the landlord in possession cannot be negatived by the executing court and as such no evidence need be recorded under Order 41 Rule 27 of the CPC in furtherance of that objection. Once the test of bona fide requirement was satisfied under Sub-section (3)(a)(i)(a) culminating in the order directing the tenant to put the landlord in possession, fresh satisfaction of the Controller at the execution stage was not required under the same provision taking regard to any intervening subsequent event touching upon the need of the landlord. The said order has to be executed as such and there is no occasion for the tenant to adduce additional evidence under Order 41 Rule 27 of the Code of Civil Procedure. As such the two applications of the tenant with that prayer are rejected.

In the result we dismiss the appeal and hold that the objection of the Appellant u/s 47 of the CPC at the stage of execution was not maintainable and was rightly rejected by the two Courts below. However, we do not make any orders as to costs.