Ram Kirpal vs Jain Sweitamna Temple Buildings and Others

Mehar Singh, J.—In a suit by Jain Sweitamna Temple and its manager Mithoo Mal, respondents, u/s 13 of the Delhi and Ajmer Rent Control Act, 1952 (Act 38 of 1952), for a decree of eviction against a number of persons including Ram Kirpal, appellant, a decree was obtained by these two respondents on February 19, 1954, and ultimately the decree of the High Court is of November 5, 1956. This litigation is not concerned with others whose eviction was sought in that suit. It so happened that in the final decree the name of Ram Kirpal appellant was omitted. On an application by the two respondents the decree was corrected and amended on December 29, 1958. That of course must have been under sections 151 and 152 of the Code of Civil Procedure. An appeal was probably not competent against such an order, but Ram Kirpal appellant all the same filed an appeal against it which was dismissed on August 25, 1959. In between these dates, on December 29, 1956, came into force the Slum Areas (Improvement and Clearance) Act, 1956 (Act 96 of 1956), providing by sub-section (1) of section 19 that notwithstanding anything contained in any other law for the time being in force, no person who has obtained any decree or order for the eviction of a tenant from any building in a slum area shall be entitled to execute such decree or order except with the previous permission in writing of the Competent Authority. The residential accommodation in regard to which the two respondents obtained decree of eviction against Ram Kirpal appellant is situate in a slum area. So, though the original final decree in favour of the two respondents of November 5, 1956, had been granted before the coming into force of Act 96 of 1956, time for its execution started running immediately on the passing of that decree, but by the time the decree was corrected and amended on December 29, 1958, Act 96 of 1956 had come into force and from that date the execution of the decree was prohibited by section 19 (1) of that Act.

The two respondents instituted an execution application on August 7, 1962. The appellant raised an objection to this decree, which has failed in both the Courts below, that the execution application is barred by time. It is against the appellate order in this respect that the appellant has filed this second appeal in the execution application of the two respondents.

The learned counsel for the appellant refers to Article 182 of the Indian Limitation Act, 1908, which provides a period of three years for the execution of a decree or order of any civil Court, the starting point of limitation, so far as it is relevant for the present argument being covered by clauses "2. (where there has been an appeal) the date of the final decree or order of the Appellate Court, or the withdrawal of the appeal, or 4. (where the decree has been amended) the date of amendment.'' The learned counsel urges that in clause (4) it is specifically stated that the time starts running from the date of amendment, where there has been an amendment of the decree and as in this case the amendment was made on December 29, 1958, so reckoning three years from that date, the execution application of the respondents on August 7, 1962, was barred by time. To this the reply on behalf of the two respondents is that it is not clause (4) that will apply because against the order correcting and amending the decree, the appellant went in appeal, which attracts clause (2), and the limitation will take a start from the date of the order of the appellate Court, which is August 25, 1959, and reckoning the time of three years from that date, the execution application made by the two respondents is well within time. In this respect the learned counsel for the two respondents points out that the competency or the non-competency of the appeal is not a material matter, and this is in reply to the contention of the learned counsel for the appellant that the application for the correction of the decree made by the two respondents was under sections 151 and 152 of the CPC with the result that no appeal was competent against an order made under those sections in that application. The stand taken by the learned counsel for the respondents is supported by Nagappa Bandappa Kadadi v. Gurushantappa Shankrappa Umbargi ILR (1932) Bom. 388, and Narmadabai Narayanshet v. Hidayatalli Saheballi AIR 1949 Bom. 115. The first was a case of an appeal against the review order, and the second was a case of an appeal against the order dismissing an application to set aside the ex parte decree. The limitation in either case was taken to have started to run under Article 182(2) of the Limitation Act from the date of the order in appeal against the order of review in the first case and against the order of dismissal of the application to set aside the ex parte decree in the second case. In the present case the only effective decree in so far as Ram Kirpal appellant is concerned is the corrected and amended decree of December 29, 1958. The reason for this is simple, and that is that before that date his name did not exist in the decree, and consequently there was no executable decree against him. There was, therefore, no occasion for him to go in appeal against any decree in which he did not figure. If he wanted to go in appeal against the original decree he would have himself had to have it corrected to have his name included in it before an appeal would have been competent on his part. So that the only effective decree so far as he is concerned is the decree as corrected and amended on December 29, 1958. It was against the order correcting and amending the original decree that he then filed an appeal and failed in it on August 25, 1959. In the circumstances of this case under clause (2) of Article 182 of the Limitation Act it is obvious that it is the date of the final order of the appellate Court that is the starting point of three years for the execution of the decree against Ram Kirpal appellant. On this consideration the approach of the Courts below is correct that the execution application of the two respondents is within time. There is another aspect of the matter. The two respondents initially brought a suit for eviction against Mohan Lal and Piare Lal as tenants and impleaded in the suit seven other persons, including the present appellant Ram Kirpal, as sub-tenants of those two tenants. As stated, a decree for eviction was made in that suit, but the learned counsel for the appellant points out that there was no order against Mohan Lai and Piare Lal evicting them, which means that the decree was only confined to sub-tenants. Now, the learned counsel for the appellants contends that sub-section (1) of section 19 of Act 96 of 1956 just confines its protection to a tenant, and a sub-tenant is not a tenant. This is also the view that really prevailed with the Competent Authority under Act 96 of 1956 when granting permission to the two respondents on February 21, 1962, to enable them to execute the decree from May 31, 1962. The learned counsel for the appellant contends that as Ram Kirpal appellant was not a tenant of the two respondents, sub-section (1) of section 19 of Act 96 of 1956 was not at all attracted. No application for permission was competent under that provision. The making of an incomplete application, according to him, cannot possibly arrest the running of the limitation against the two respondents once it started to do so after the passing of the final decree. In this respect he relies on Peare Lal v. Krishan Sarup (1963) 65 P.L.R. 793, in which the learned Judge was considering the provisions of section 17(1) of the Administration of Evacuee Property Act, 1950 (Act 31 of 1950), and came to the conclusion that in spite of the bar that evacuee property was not liable to be proceeded with in execution of any decree, that provision did not have the effect to stopping the running of the limitation for the execution of the decree once the limitation started running. It is obvious that this case has no bearing on the present case because section 17(1} of Act 31 of 1950 did not bar an execution application, but all it did was not to make available evacuee property in the execution of any decree. In other words, the execution of the decree was allowed to go in the normal way, but when it came to the question of bringing in execution an evacuee property that alone was permitted. On the other hand sub-s. (1) of S. 19 of Act 96 of 1956 says that no person who has obtained a decree for eviction shall be entitled to execute such a decree. This is an absolute prohibition. It has already been pointed out that the real decree so far as Ram Kirpal appellant is concerned is of December 29, 1958, of the trial Court when correction and amendment in the original decree was made adding the name of this appellant to it. This is a date subsequent to the coming into force of Act 96 of 1956. So on December 29, 1958, there was total prohibition to the two respondents to execute their decree. It could only become executable if and when they obtained permission u/s 19(1) of the Act 96 of 1956, and it is immediately apparent that time u/s 182 of the Limitation Act, started running against them for execution of the decree only from the date it became executable and that date according to the order of the Competent Authority under Act 96 of 1956, is May 31, 1962. So in this way again the execution application of the two respondents is within time. There remains only for consideration, in this respect, the argument of the learned counsel for the appellant that the appellant is not a tenant of the two respondents and thus section 19(1) of the Act 96 of 1956 is not attracted. The eviction of Mohan Lal and Piare Lal tenants and with them of the appellant was sought u/s 13 of Act 38 of 1952, and section 2(j) of this Act while defining the word ''tenant'' includes in it a sub-tenant. So that for the purposes of that suit the appellant was a tenant and it is in pursuance of that decree in that suit that permission has been sought by the two respondents to execute it under S. 19(1) of the Act 96 of 1956, so that for all these purposes the appellant is a tenant and the provision last mentioned directly applies to this case. It was imperative for the two respondents to seek permission u/s 19(1) of Act 96 of 1956 before they could execute the decree. I have already said that the permission to them was granted to execute it from May 31, 1962, and the execution application having been filed on August 7, 1962, is within time from any consideration.

These are the only two arguments which have been urged in this appeal and as they do not succeed, the appeal is dismissed with costs.