Sarla Devi vs Hari Ram Sood

Rajendra Nath Mittal, J.—This revision petition has been filed by Smt. Sarla Devi decree-holder against the order of Senior Sub Judge Ambala dated 8th September, 1977.

Briefly the facts are that the decree-holder filed an application for execution of the order of ejectment dated 30th June, 1966 passed by the Rent Controller, Ambala which was affirmed by the High Court in revision petition,--vide order dated 7th March, 1969.

The judgment-debtor filed objection petition u/s 47 of the CPC stating that the decree-holder had filed an application for execution earlier and he filed objections to the effect that the order of eviction was a nullity as the provisions of the East Punjab Urban Rent Restriction Act were not applicable to the property situated in Ambala Cantt. That objection petition was accepted and the application for execution was dismissed. The decree-holder, it is further stated, filed a fresh application for his ejectment which was dismissed by the Rent Controller on 24th February, 1970. She went up in appeal before the Appellate Authority which was dismissed on 14th February, 1971 and a revision petition against the order of the Appellate Authority was also dismissed by the High Court on 10th April, 1972. The decree-holder had been accepting rent from him after the order of ejectment dated 30th June, 1966 and consequently that decree is not executable.

The objection petition was contested by the decree-holder. He pleaded that it was held by this Court that the East Punjab Urban Rent Restriction Act was not applicable to the Cantonments and consequently, the order dated 30th June, 1966 was found by the executing Court to be a nullity. Subsequently the Cantonment (Extension of Rent Control Laws) Amendment Act, 1972 was passed by which the order of ejectment passed in accordance with any Rent Control Act in force in the State in which the Cantonment was situated, was validated from the date from which the Rent Control Act was extended to that Cantonment. Consequently she was entitled to execute the order of ejectment.

On the pleadings of the parties the following issues were framed:

Whether the decree is executable in view of the subsequent conduct of the decree-holder? OP--DH.

Relief.

The Subordinate Judge accepted the objection petition and held that the order dated 30th June, 1966 was not executable and consequently dismissed the execution petition.

The question to be determined is whether the order of ejectment in the earlier petition on the ground that the Petitioner required the premises for her own use and occupation, which had been held to be nullity but, validated later, can be executed by her though the subsequent petition for ejectment on the same ground had been dismissed. The facts are not disputed. The order of ejectment was affirmed by the High Court on 7th March, 1969. That order was declared to be nullity by the executing Court. The Cantonments (Extension of Rent Control Laws) Act, 1957 was amended by the Cantonments (Extension of Rent Control Laws) Amendment Act, 1972. Section 3 relates to power to extend to cantonments laws relating to control of rents and regulation of house accommodation. After amendment, the section reads as follows:

(1) The Central Government, may by notification in the Official Gazette, extend to any cantonment with such restrictions and modifications as it thinks fit, any enactment relating to the control of rent and regulation of house accommodation which is in force in the State in which the cantonment is situated:

(2) The extension of any enactment under Sub-section (1) may be made from such earlier or future date as the Central Government may think fit:

Provided that no such extension shall be made from a date earlier than--

(a) the commencement of such enactment, or

(b) the establishment of the cantonment, or

(c) the commencement of this Act, whichever is later.

(3) Where any enactment in force in any State relating to the control of rent and regulation of house accommodation is extended to a cantonment from a date earlier than the date on which such extension is made (hereafter referred to as the ''earlier date''), such enactment, as in force on such earlier date, shall apply to such cantonment and where any such enactment has been amended at any time after the earlier date but before the commencement of the Cantonments (Extension of Rent Control Laws) Amendment Act, 1972, such enactment as amended shall apply to the cantonment on and from the date on which the enactment by which such amendment was made came into force.

Where before the extension to a cantonment of any enactment relating to the control of rent and regulation of house accommodation therein (hereafter referred to as the ''Rent Control Act''),--

(i) any decree or order for the regulation of or for eviction from any house accommodation in that cantonment, or

(ii) any order in the proceedings for the execution of such decree or order, or

(iii) any order relating to the control of rent or other incident of such house accommodation,

was made by any Court, tribunal or other authority in accordance with any law for the control of rent and regulation of house accommodation for the time being in force in the State in which such cantonment is situated, such decree or order shall, on and from the date on which the Rent Control Act is extended to that cantonment, be deemed to have been made under the corresponding provisions of the Rent Control Act, as extended to that cantonment, as if the said Rent Control Act as so extended were in force in that cantonment on the date on which such decree or order was made.

From a plain reading of the section it is evident that the Central Government was empowered to extend to any cantonment any enactment relating to the regulation of house accommodation in force in the State in which the cantonment was situated. The Act could be enfoced from any future or earlier date. It is further evident that if any order for eviction from any house in that cantonment was passed by any authority under an enactment relating to the regulation of house accommodation, such order was deemed to have been made under the extended enactment and thus executable. After the above-said amendment, the Ministry of Defence issued SRC 55 on 24th January, 1974 under the abovesaid section and extended the East Punjab Urban Rent Restriction Act, 1949 to the cantonements in the States of Haryana and Punjab with certain modifications and it was made applicable from 26th January, 1950. Thus the order dated 7th March, 1969 which was held to be a nullity, became executable by virtue of the abovesaid Act read with the SRC.

It is contended by Mr. Jain that the Petitioner is entitled to execute the order dated 7th March, 1969 in spite of the fact that another application for ejectment filed by her had been dismissed as she was left with no other remedy to get the house vacated when she filed the second petition for ejectment. On the other hand, Mr. Chawla contends that in view of filing the second petition by her, it would be deemed that she waived her right to eject the Respondent under the order passed on the first application for ejectment.

I have duly considered the arguments of the learned Counsel. It is a settled proposition of law that an executing Court cannot go behind the decree unless it is shown that the decree is a nullity. It also cannot alter a decree even in the light of subsequent events and has to execute it as it is. When the latter petition for ejectment was filed by the Petitioner, the order dated 7th March, 1969 had been held to be a nullity. Therefore, for getting the house vacated, there was no other option for her but to file a fresh petition for ejectment against the Respondent. Thus it was not a voluntary act of the Petitioner to have that recourse. In the circumstances it cannot be said that she abandoned her right of executing the order dated 7th March, 4969 by instituting the fresh petition for ejectment. Consequently filing of the second petition does not amount to waiver. In the above view I am fortified by the observations in Smt. Azra Abdulla v. Silton Hotel Bangalore AIR 1975 Kar 225 . In that case in an ejectment application a consent order of ejectment was passed on 14th October, 1968 in favour of the landlord. After some time he filed a review petition for suitable modification or alteration of the consent order in view of the decision in Ferozi Lal Jain Vs. Man Mal and Another, wherein it was held that an eviction order could not be passed on a compromise without the Court being satisfied about the genuineness of the claim. Subsequently the review petition was withdrawn and a second application for eviction was filed. In the meantime the period agreed between the parties according to the compromise expired. However, the judgment-debtor failed to vacate the premises. The landlord filed an execution application. At the time the second eviction application was filed, the law laid down by the Supreme Court was to the effect that the consent decree was a nullity and inexecutable. Later in view of the Supreme Court decision in K.K. Chari Vs. R.M. Seshadri, , the landlord came to realise that the order of ejectment passed on the basis, of compromise was valid and executable. Consequently he started executing that order. An objection was taken by the tenant that the same was not executable in view of filing the fresh application for ejectment against him as the filing of the applicable constituted a waiver. It was observed therein as follows:

In order to constitute waiver, at the time the second petition was filed in H.R.C. 60/72 the decree-holder must had two courses open to her and she must have chosen one of them knowing full-well that the other course was also open to her.... Both at the time the review petition was filed as well as at the time the second eviction petition was filed it was not open to the decree-holder to execute the consent order of 14th October, 1968 since the law as it was then interpreted by the Supreme Court said it was a nullity....

Hence, it cannot be said that the decree-holder had waived her rights under the consent order dated 14th October, 1968 when she filed the second petition in H.R.C. 60/72. It cannot also be said that she had abandoned her rights under the earlier consent order in view of the fact that, she had no right to execute that order as the law stood at that time. The allegations in the review petition to the effect that the consent order is a nullity and inexecutable is based on the decision of the Supreme Court and this Court referred to in that petition. It cannot therefore be said that the decree-holder voluntarily abandoned her rights under the consent order.

It was further observed that in order to constitute abandonment or waiver, it must be a voluntary act on the part of the person possessing the rights. If a person by force of circumstances was compelled to adopt one of the two courses, it could not be said that he had two courses open to him and that he adopted one and abandoned the other. I am in respectful agreement with the observations circum-above. After taking into consideration of the abovesaid circumstances, I am of the opinion that the order of ejectment in the earlier petition which had been held to be a nullity but validated later, can be executed by the Petitioner even though the subsequent petition for ejectment on a similar ground had been dismissed.

For the aforesaid reasons I accept the revision petition, set aside the order of the Courts below and remand the case to the executing Court for executing the decree in accordance with law. However, I make no order as to costs.