http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 5  

PETITIONER: BALAK SINGH

       Vs.

RESPONDENT: WAQF ALEE ALLAH KAYAM KARDA AHMAD ULLAHKHAN SAHEB

DATE OF JUDGMENT: 20/03/1969

BENCH: SIKRI, S.M. BENCH: SIKRI, S.M. BACHAWAT, R.S. HEGDE, K.S.

CITATION:  1969 AIR 1270            1970 SCR  (1)  46  1969 SCC  (2)  39

ACT: U.P. Tenancy Act 1939, ss. 168 and 271(2)Order under s.  168 whether an order in execution of a decree-Whether appealable to District Judge under s. 271(2).

HEADNOTE: The  appellant was the tenant of the respondent  Wakf.   The respondent obtained a decree for arrears of rent against the appellant but failed to execute it by attachment of crops as they  had  already  been  removed  by  the  appellant.   The respondent then made an application under s. 168 of the U.P. Tenancy  Act, 1939 praying that the amount of the decree  be got  paid under that section or, in default of payment,  the appellant  may be dispossessed.  Objections were  raised  by the appellant to this application but they were,  ultimately rejected  by  the Assistant Collector.  The  District  Judge allowed the appeal against the Assistant Collector’s  order. In  further  appeal by the respondent, the High  Court  held that  proceedings  under  s. 168  were  proceedings  in  the original  suit and not in execution and therefore no  appeal lay  to  the  District Judge under s.  271(2)  of  the  Act. Against the High Court’s decision; the appellant, by special leave, came to this Court. HELD : An examination of the scheme of s. 168 shows that  an application  under that section is a step in the  execution, discharge, or satisfaction of the decree.  The fact that the application is to the court which passed the decree does not necessarily show that the order passed on the application is not one relating to the execution, discharge or satisfaction of the decree, for under s. 38 of the Civil Procedure Code a decree may be executed either by the Court which passed  it, or by the court to which it is sent for execution. [50A-D] While s. 168 deals with a decree for arrears of rent against an ex-proprietary, an occupancy or hereditary tenant, s. 170 of  the Act deals with a decree passed for arrears  of  rent against  a non-occupancy tenant.  A similar  application  is provided  for  in s. 170 and the  legislature  clearly  con- templates  that this is a mode of execution for it uses  the words "the landholder may, in addition to, any other mode of execution,  apply to the court which passed the  decree  for

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 5  

issue of a notice." A mode similar to the mode or proceeding under s. 168 is thus treated as a mode of execution. [50D-E] The High Court therefore erred in holding that the appeal to the  District Judge was incompetent on the ground  that  the order  under s. 168 was not one relating to  the  execution, discharge or satisfaction of the decree. [50 D-E]

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 706 of 1966. Appeal  by special leave from the judgment and decree  dated January 7, 1965 of the Allahabad High Court in F.A.F.O.  No. 254 of 1960. S.   P.  Sinha,  J,  P.   Goyal and S.  P.  Singh,  for  the appellant. C.   B. Agarwala and S. Shaukat Hussain, for the respondent. 47 The Judgment of the Court was delivered by Sikri,  J.  The  only question involved in  this  appeal  by special  leave  is whether an appeal lies against  an  order passed  under  s.  168  of  the  U.P.  Tenancy  Act,   1939, hereinafter  referred  to as the Act.  Before we  deal  this point it is necessary to give a few facts. Balak  Singh,  appellant  before us, was  a  tenant  of  the respondent  Waqf.  The respondent had obtained a  decree  on May 17, 1956, for Rs. 752 against Balak Singh for arrears of rent.   The  respondent  tried  to  execute  the  decree  by attachment of crops, but Balak Singh had apparently  removed the crops.  Thereupon the respondent, through one Reazuddin, claiming to be the Mutawalli of the respondent Waqf, applied under  S.  168 of the Act, praying that the  amount  of  the decree  got paid under s. 168 and in default of  payment  of the  decretal amount Balak Singh may be dispossessed.   This application  was filed on July 4, 1957.  On April  3,  1958, notice  was  issued under s. 168 for May 2,  1958.   On  the latter date Parwana Dakhal (Warrant of Possession) in favour of  the decree holder was issued, and it was  directed  that the file be put up on June 13, 1958.  On May 30, 1958, Balak Singh  put in a petition raising various objections, one  of them being that no notice of the proceedings taken under  S. 168  had  been  served on him.  He  further  contended  that Reazuddin had no right to file the application under S. 168. On  July  12,  1958, the  Assistant  Collector,  1st  Class, cancelled  the  order dated May 2, 1958, and  directed  that fresh  notice  be  issued under S. 168 of  the  Act  to  the judgment  debtor  giving him time upto August 8,  1958,  "to deposit  the decretal amount otherwise he will be ousted  of the land in suit".  He also directed that the decree  holder should file evidence of the succession of Reazuddin to Abdul Latif who was the previous Mutawalli. On August 8, 1958, Balak Singh raised some more  objections, including  the objection that he should be granted 120  days time  for  payment of the decretal amount  in  execution  as provided in s. 168.   On  August  8,  1958,  the   Assistant Collector held that he   had  already given a long  time  to pay the due and no question of     granting   further   time arose.   He further held that Reazuddin bad filed papers  to prove that he had a right to continue the proceedings.   The Assistant  Collector confirmed the order  previously  passed regarding  delivery of possession to the decree holder.   He noted that possession had already been delivered. Against  this  order  Balak Singh filed  an  appeal  to  the District  Judge.   The District Judge held that it  had  not been  established that Reazuddin was a legal  representative

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 5  

or  agent  of the decree holder and that, at  any  rate,  no proper  notice  under s. 168 of the Act had been  served  on Balak Singh and it was not right for the 48 Court to have confirmed the previous order without complying with  the  mandatory provisions of S. 168.   He  accordingly allowed  the appeal and sent the case back to the  execution court  with  a  direction to readmit it  and  deal  with  it according to law. The  respondent  then  filed an appeal to  the  High  Court. Mathur,  J., came to the conclusion that the appeal  to  the District  Judge was incompetent as no appeal lay against  an order  passed under s. 168 of the Act.  He was of  the  view that an order under S.   168 was passed in the main suit and not in execution.  Section 168 of the Act reads thus :               "168.  (1) When a decree for arrears  of  rent               against  an  ex-proprietary, an  occupancy  or               hereditary  tenant  has  not  been  completely               satisfied  within  one year from the  date  of               such  decree  by any mode of  execution  other               than  sale  of holdings,  the  landholder  may               apply  to the court, which passed the  decree,               for  the issue of a notice to the  tenant  for               payment of the amount outstanding and for  his               ejectment in case of the default and the court               shall thereupon issue such notice.               (2)   The  notice shall require the tenant  to               appear  within thirty days of the  service  of               the  notice, and either to show cause  why  he               should  not be rected from the holding, or  to               admit  the claim and obtain leave to  pay  the               amount  into the court within one hundred  and               twenty days from the date of his appearance in               the court.               (3)   If   the  tenant  does  not  appear   in               accordance  with the terms of the  notice,  or               having appeared either does not show cause why               he  should not be ejected or does not ask  for               leave  to  pay, the  court  shall  immediately               order his ejectment from the holding.               (4)   If the tenant appears and obtains  leave               to  pay, then, unless within one  hundred  and               twenty days from the date of his appearance in               the  court, the tenant has paid the amount  or               payment  thereof  has been  certified  to  the               court in accordance with Rule 2, Order XXI  of               the  Code of Civil Procedure, 1908, the  court               shall on the 31st of May next following, order               his ejectment.               (5)   The order of ejectment shall be executed               on  or  after  the  first  day  of  June  next               following  the date of the order.   If  within               one  month after the delivery  of  possession,               the  tenant deposits the decretal amount,  the               ejectment   order  shall  be   cancelled   and               possession restored forthwith to the tenant.               49               (6)   No  extension of time for payment  shall               be allowed :               Provided that the tenant shall be ejected only               from  such portion of the holding the rent  of               which   does  not  exceed  one-sixth  of   the               decretal amount."               The learned counsel for the appellant contends               that  an  appeal lies under s. 271(2)  of  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 5  

             Act, which reads as follows :               " An appeal shall lie from an order  mentioned               in section 47 or section 104 or section 144 or               in  Order-XLIII, Rule 1 of the Code  of  Civil               Procedure,  1908,  and made  by  an  assistant               collector of the first class or a collector.               Such  appeal shall lie to the court,  if  any,               having jurisdiction under section 265 of  this               Act  to hear an appeal from the decree in  the               suit,  or  in the case of an  application  for               execution, to the court having jurisdiction to               hear an appeal from the decree which is  being               executed." The  answer  to the question depends on  whether  the  order under S. 168. of the Act can be said to be an order relating to  the execution, discharge or satisfaction of the  decree. It  seems to us that the order dated August 8, 1958, was  an order  relating to the execution, discharge or  satisfaction of the decree for rent, dated May 17, 1956. It  will be noticed that sub-s. (1) of s.  168  contemplates the  decree  holder having tried to execute  the  decree  by other  modes  of  execution.  If the  decree  has  not  been satisfied  within  one year of the date of the  decree,  the decree holder is entitled to apply to the Court which passed the  decree  for the issue of the notice to the  tenant  for payment of the amount outstanding and for ejectment in  case of default.  Once the conditions are satisfied the Court had no  option  but  to  issue a  notice.   The  object  of  the application  is  satisfaction  of  the  decree;  it  may  be satisfied  by payment of the amount outstanding  or  failing that by ejectment in case of default.  Under sub-s. (2)  the tenant  is  entitled to apply and obtain leave  to  pay  the amount in Court within 120 days from the date of  appearance in  the  Court.  He is also entitled to show  cause  why  he should  not  be  ejected.  Under sub-s.  (3)  the  Court  is entitled to immediately order his ejectment from the holding if the tenant does not appear in accordance with the  terms, of notice or having appeared either does not show cause  why he  should  not  be ejected or does not ask  leave  to  pay. Under  sub-s. (4) in default of payment or certification  to the  Court  in accordance r. 20.  XXI of the Code  of  Civil Procedure,  the Court is entitled to order his ejectment  on May  31, next following.  Then sub-s. (5) provides  for  the execution of the order of ejectment. 50 It  seems to us that the whole scheme of the  section  shows that  the application under S. 168 of the Act is a  step  in the execution, discharge or satisfaction of the decree.  The learned  counsel  for  the  respondent  contends  that   the application  is to the court which passed the  decree.   But this does not necessarily show that the order passed on  the application is not one relating to the execution,  discharge or satisfaction of the decree.  As provided in S. 38 of  the Civil  Procedure Code, "a decree may be executed  either  by the  Court which passed it, or by the Court to which  it  is sent for execution." While S. 168 deals with a decree for arrears of rent against an ex-proprietary, an occupancy or hereditary tenant, s. 170 of  the Act deals with a decree passed for arrears  of  rent against  a non-occupancy tenant.  A similar  application  is provided for in S.  170   and   the   legislature    clearly contemplates that this is a mode of     execution   for   it uses the words "the landholder may, in addition to any other mode  of  execution,  apply to the Court  which  passed  the decree  for issue of a notice".  A mode similar to the  mode

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 5  

or  procceding  under S. 168 is thus treated as  a  mode  of execution. In  the result we hold that the High Court erred in  holding that  the  appeal to the District Judge was  not  competent. Various  other  questions arise in the appeal  to  the  High Court.   In the circumstances we set aside the judgment  and order  passed by the High Court and remit the case to it  to dispose  of it in accordance with law.  The  appellant  will have his costs of this appeal. G.C.                   Appeal allowed. 51