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PETITIONER: B. V. PATANKAR AND OTHERS

       Vs.

RESPONDENT: C. G. SASTRY

DATE OF JUDGMENT: 08/09/1960

BENCH: KAPUR, J.L. BENCH: KAPUR, J.L. SINHA, BHUVNESHWAR P.(CJ) GAJENDRAGADKAR, P.B. SUBBARAO, K. WANCHOO, K.N.

CITATION:  1961 AIR  272            1961 SCR  (1) 591  CITATOR INFO :  R          1967 SC1193  (12)  R          1980 SC 214  (12)  RF         1991 SC1094  (4,5)

ACT: Rent Control-Restrictions against eviction of tenants-Decree for  possession of house-Delivery  given in the  absence  of tenant-Executing   Court   ignoring   restrictions-Legality- Repugnance  Mysore  House  Rent  and  Accommodation  Control Order, 1948, ss. 9 and 16 and Transfer of Property Act, 1882 (Act IV of 1882),Code of Civil Procedure (Act V of 1908) ss. 47, 151.

HEADNOTE: The  appellants  in execution of a decree  passed  in  their favour  for  possession  over a  house  obtained  possession thereof  on  July  22,  1951.  The  order  for  delivery  of possession was made without notice to and in the absence  of the  respondent.  The respondent made an application in  the Executing  Court  under ss. 47, 144 and 151, Code  of  Civil Procedure  for setting aside the ex-parte order of  delivery and  for redelivery of possession of the house to him or  in the  alternative, for an order to the appellants for  giving facilities  for removing the moveables from the house.   The Executing Court upheld the contention of the appellant that 76 592 the  respondent’s  application  was  not  maintainable.   On appeal  by  the  respondent the High  Court  held  that  the Executing Court had no jurisdiction to order the eviction of the respondent because of the provisions of the Mysore House Rent  and  Accommodation Control Order, 1948, which  was  in operation on the date of eviction and under ss. 9 and 16  of which  certain restrictions were placed on the  eviction  of tenants.   On  appeal to this Court by  special  leave,  the appellants  contended, inter alia, as they did in  the  High Court  also-,  that the Mysore House Rent Control  Order  of 1948  was  repugnant to the provisions of  the  Transfer  of Property Act, 1882 (IV of 1882), which became applicable  in

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the  State of Mysore by Part B States (Laws) Act, 1951  (Act III  of 1951), which came into force on April 1, 1951 ;  and therefore  the House Control Order could not operate on  the rights  of the parties on the day when the  Executing  Court made the order for delivery of possession to the appellants, i.  e.,  July 9, 1951, or when delivery was  actually  given i.e., on July 22, 1951. Held, that the Transfer of Property Act came into force only when  it  was extended by notification dated  September  12, 1951,  under s. 3 of that Act, i.e., from October  1,  1951, and  therefore  the  Mysore  House  Rent  and  Accommodation Control Order, 1948, was not repealed as from April 1, 1951, when the Part B States (Laws) Act, 1951, came into force and was in force when the possession was delivered.  It was then an  existing  law  which  was  saved  by  Art.  372  of  the Constitution  and remained unaffected by Art. 254,  and  the question of repugnancy to the Transfer of Property Act  (Act IV of 1882) did not arise in this case. M/s.   Tilakram  Rambaksh v. Bank of  Patiala,  A.I.R.  1959 Punj. 440, considered. Section 47 of the Code of Civil Procedure was applicable  to the  proceeding out of which this appeal has arisen  because the question whether the decree was completely satisfied and therefore  the  court became functus officio  was  a  matter relating  to  execution, satisfaction and discharge  of  the decree. Ramanna v. Nallaparaju, A, I. R. 1956 S. C. 87 and J. Marret v.   Mohammad  Shirazi  and  Sons, A.I.R.  1930  P.  C.  86, considered. Where  the court was not aware of the statutory  restriction by which the execution of a decree was prohibited and passed an  ejectment  decree against a tenant the  Executing  Court could not execute the decree and any possession given  under an ex parte order passed in execution of such a decree could be set aside under s. 151 of the Code of Civil Procedure. K.Muhammad Sikri Sahib v. Madhava Kurup, A.I.R. 1949 Mad. 809, considered.  1 The contentions of the appellant based on the ground of  res judicata and estoppel were without any force.  Sections 9(1) and  16 of the House Rent Control Order placed  restrictions on 593 the  power of the Court to execute the decree  and  ignoring them   was   not  merely  an  error  in  the   exercise   of jurisdiction.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 302 of 1955. Appeal  by special leave from the judgment and  order  dated April  3, 1954, of the Mysore High Court in  Regular  Appeal No. 195 of 1951-52. S.A. Gopala Rao and B. R. L. Iyengar, for the appellants. Mirle N. Lakshminaranappa, P. Ram Reddy, R. Thiagarajan  and C. V. L. Narayan, for the respondent. 1960.  September 8. The Judgment of the Court was  delivered by KAPUR   J.-This  appeal  has  little  substance  and   must, therefore,  be  dismissed.  The appellants are  the  decree- holders  and  the  respondent is  the  judgment-debtor.   On February  3,  1941, by a registered deed the father  of  the appellants leased to the respondent the house in dispute for a  period of 10 years with an option of renewal for  further periods  for as long as the respondent wanted.   This  house

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was used by the respondent for his hotel. The father died on January 25, 1945.  On December 21,  1945, the appellants filed a suit for a declaration that the  deed of  lease of February 3, 1941, executed by their father  was not  for legal necessity or for the benefit of  the  family, that  the alienation was not binding on them and the  option of  renewal  under the lease was void and  unenforceable  on account  of uncertainty. The appellants further  prayed  for delivery  of  possession and for a decree for a sum  of  Rs. 2,655 as past mesne profits and future mesne profits at  Rs. 250  per  mensem as from December 1, 1945.   The  respondent filed  his  written  statement on March  11,  1946,  and  an additional  written statement on November 26, 1946,  whereby he raised an objection to the jurisdiction of the court  by reason of the Mysore House Rent Control Order of 1945.   The trial  judge upheld the preliminary objection and  dismissed the suit.  On appeal, the High Court set aside the decree on the ground that the 594 nature  and scope of the suit had been misconceived  by  the trial  court  and that it was not based on  relationship  of landlord  and  tenant and therefore s. 8(1)  of  the  Mysore House  Rent Control Order was inapplicable and the case  was remanded for retrial. On  August 23, 1948, the suit was decreed.  The trial  court held that the lease was binding for the first period of  ten years  as  from May 1, 1941, as it was  supported  by  legal necessity;   but  the  option  of  renewal  was   void   and unenforceable  for  uncertainty and therefore a  decree  for possession  was passed to be operative on the expiry of  ten years,  i.e.,  May  1,  1951.   On  appeal  the  High  Court confirmed that decree on August 22, 1950. On  July 9,’1951, the appellants took out execution  of  the decree  and on July 22, 195 1, possession was  delivered  to them.  The order for delivery was made without notice to and in  the absence of the respondent.  The  proceedings,  "spot mahazar" that the respondent came to the spot after delivery of  the  major portion of the property in dispute  had  been delivered to the appellants. On  August 13, 1951, the respondent made an  application  in the  Executing Court, the District Judge, under ss. 47,  144 and 151 of the Code of Civil Procedure for setting aside the ex parte order of delivery and for redelivery of  possession of  the house to him and in the alternative for an order  to the  appellants to give facilities to him  (respondent) to remove  the various moveables and articles mentioned in  the petition.   The appellants pleaded that the application  was not maintainable.  The District Judge, on November 14, 1951, upheld  this contention and dismissed the  application.   An appeal was taken to the High Court and it reversed the order of the Executing Court and directed the appellants to return possession  of the house in dispute to the respondent  along with  the  moveables  which were in the house  at  the  time respondent  was  evicted.   The High  Court  held  that  the Executing Court had no jurisdiction to order the eviction of the  respondent  because of the provisions of  Mysore  House Rent and Accommodation Control 595 Order, 1948, which was in operation on the date of eviction, The  High Court having refused to give a  certificate  under art.  133  the appellants obtained special leave  to  appeal from  this  Court on January 12, 1955, and this is  how  the matter has come to this Court. The   question   for-  decision  mainly   turns   upon   the applicability  of  the  provisions of  the  two  House  Rent

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Control  Orders  of  1945 and 1948 and  how  far  they  were applicable  to  the proceedings in the suit  and  execution. The Mysore House Rent Control Order of 1945 came into  force on  November  6,  1945,  and  by  s.  8(1)  of  this  Act  a restriction  was imposed on the eviction of tenants and  the relevant part of this section was:- Section  8 "(1) A tenant in possession of a house shall  not be  evicted therefrom, whether in execution of a  decree  or otherwise  before or after the termination of  the  tenancy, except in accordance with the provisions of this clause; (2)A  landlord  wishing to evict a  tenant  in  possession shall  apply  to  the Controller for  a  direction  in  that behalf.   If  the  Controller  after  giving  the  tenant  a reasonable   opportunity  of  showing  cause   against   the application, is satisfied This Order was replaced by the Mysore Rent and Accommodation Control Order of 1948 which came into force on July 1, 1948. The  relevant provisions of this Order, i. e., ss. 9 and  16 which are applicable to the present appeal are as follows:- Section 9 " (1) A tenant in possession of a house shall  not be  evicted  therefrom whether in execution of a  decree  or otherwise  except in accordance with the provisions of  this clause (2)A  landlord who seeks to evict a tenant  in  possession shall apply to the Controller for a direction in that behalf If   the   Controller,  after  giving  tenant   a   suitable opportunity  of showing cause against such application-,  is satisfied:- this  Order shall Prevent 596 a  landlord  from  filing a suit for eviction  of  a  tenant before a competent civil court, provided that no decree  for eviction  of  a  tenant, passed by a civil  court  shall  be executed  unless  a certificate to that effect  is  obtained from the Controller " It  was argued on behalf of the appellants before  the  High Court  and  that argument was repeated before  us  that  the Mysore House Rent Control Order of 1948 was repugnant to the provisions of the Transfer of Property Act (Act IV of  1882) which was brought into force in the State of Mysore by  Part B  States (Laws) Act, 1951 (Act III of 1951).  This Act  was enacted  on February 22, 1951, and came into force on  April 1,  1951,  which  was  termed the  appointed  day.   It  was contended  therefore that the House Control Order could  not operate  on the rights of the parties on the day  when  the Executing  Court made the. order for delivery of  possession to the appellants, i.e., July 9, 1951, or when the  delivery was  actually  given, i.e., on July 22, 1951.  To  test  the force  of  this  argument it is  necessary  to  examine  the provisions of Part B States (Laws) Act and how and when as a consequence  of  it  the Transfer  of  Property  Act  became effective  and operative in the State of Mysore.  Section  3 of  that  Act  deals with the  extension  and  amendment  of certain  Acts and Ordinances.  The Acts and  the  Ordinances specified in the Schedule were amended and became applicable as specified and as a consequence the fourth paragraph of s. 1  for  the words " Bombay’ Punjab or Delhi ", the  words  " that  the  said States " were  substituted.   Therefore  the effect  of the Part B States (Laws) Act merely was that  qua the Transfer of Property Act, the State of Mysore was placed on  the  same  footing as the States of  Bombay,  Punjab  or Delhi.  It was by virtue of a Notification No. 2676-Cts. 46- 51-5 dated September 12, 1951, that the Transfer of Property Act  was extended to the State of Mysore as from October  1, 1951.  Consequently the laws of the State applying to leases

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which  would include the Mysore House Rent Control Order  of 1948  continued to be in force and applicable to cases  that were pending till it was repealed by the 597 Mysore   Rent  Control  Act  of  1951  which  received   the President’s  assent  on  August  16,  1951.   The  argument, therefore,  that  as  from April 1, 1951,  as  a  result  of repugnancy  the  House  Rent Control  Order  of  1948  stood repealed   must  be  repelled  as  unsound  and  cannot   be sustained, because it was an existing law which was saved by art. 372 of the Constitution and remained unaffected by art. 254.   The Punjab High Court in M/s.  Tilakram  Rambaksh  v. Bank  of Patiala (1) discussing the effect of Part B  States (Laws)  Act on the application of the Transfer  of  Property Act to PEPSU said:               " All that Central Act III of 1951 has  done               is  to make it possible for Part B  States  to               extend  the  Act to any part of  territory  by               notification.   Actually,  however,  this  wag               never done by PEPSU or Punjab and the Transfer               of Property Act is not as such in force there.               It  is  unnecessary in  the  circumstances  to               examine the argument further ". Although  the question of repugnancy was raised in the  High Court  at  the time of the hearing of the appeal,  the  true effect  of  s.  3 of the Part B States (Laws)  Act  was  not brought  to  the notice of the learned Judges  nor  was  the Notification placed before them, but it was discussed by the High  Court  in its order refusing  certificate  under  art. 133(1)  of the Constitution.  The argument  of  repugnancy, therefore, is wholly inefficacious in this appeal. The inapplicability of s. 47 to the proceedings out of which the  appeal has arisen was also raised before us,  but  that contention  is  equally unsubstantial because  the  question whether  the decree was completely satisfied  and  therefore the  court  became functus officio is a matter  relating  to execution, satisfaction and discharge of the decree.  It was held by this Court in Ramanna v. Nallaparaju (2) that:               "  When  a sale in execution of  a  decree  is               impugned   on  the  ground  that  it  is   not               warranted by the terms thereof, that  question               could  be  agitated, when  it  arises  between               parties to the decree, only by an  application               under s. 47, and not in a separate suit ". (1) A.I.R. 1959-Pb. 440, 447. (2) A.I.R. 1956 $.C. 87, 91. 598 See also J. Marret v. Mohammad Shirazi & Sons (1) where  the facts  were  that an order was made by the  Executing  Court directing contrary to the terms of the decree the payment of a certain fund to the decree-holder.  The Madras High  Court in  K. Mohammad Sikri Sahib v. Madhava Kurup (2)  held  that where the Executing Court was not aware of the amendment  of the Rent Restriction Act by which the execution of a  decree was  prohibited  and  passed an ejectment  order  against  a tenant, the Executing Court could not execute the decree and any  possession  given  under an ex parte  order  passed  in execution of such a decree, could be set aside under s.  151 of the Code of Civil Procedure.  The prohibition is  equally puissant  in  the present case and s. 47 read  with  s.  151 would   be  equally  effective  to  sustain  the  order   of redelivery made in favour of the respondent. The applicability of res judicata and the defenses of waiver and  estoppel  were  also raised  by  the  appellants.   The contention  of res judicata was based on the plea  taken  by

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the  respondent  in his written statement, dated  March  11, 1946,  where  he  pleaded  that  the  civil  court  had   no jurisdiction  to  order eviction because of the  House  Rent Control  Order, 1945, to which the reply of  the  appellants was  that  considering  the  nature  of  the  suit  and  the consequential  remedy  that they were seeking, the  plea  of jurisdiction  of the court was not open to  the  respondent. Thereupon the trial court raised a new ’issue " whether this court has jurisdiction to try the suit, in view of the House Rent   Control  Order  "  which  was  decided  against   the respondent  and  a decree in favour of  the  appellants  was passed on August 23,1945.  This judgment formed the basis of the argument before us that the plea of in-executability  of the decree could not be raised because it was barred on  the principle of res judicata.  The plea of res judicata is  not available to the appellants as the prohibition on account of the House Rent Control Order was not against the passing  of the  decree  but  against its execution  and  therefore  the objection to the executability could only be taken (1) A.I.R. 1930 P.C. 86, (2) A.I.R. 1949 Mad. 809.                             599 at  the  time of the execution of the decree  which  in  the instant  case  could  not  be done  because  the  order  for delivery by the Executing Court was passed without notice to the  respondent.  We must, therefore, repel  the  contention based on the ground of res judicata. The argument of waiver and estoppel is also devoid of force. This  plea  was  based on a letter  which  the  respondent’s lawyer  sent  in  reply to the  respondent  asking  to  make arrangements  to  put  the appellants  in  possession.   The former   replied  thereto  that  his  client’   was   making arrangements  and as soon as he could do go, he  would  hand over  possession to the appellants.  This is  slender  basis for  the sustainability of the plea of waiver and  estoppel. There is no conduct on the part of the respondent which  has induced  the appellants to change their position or  has  in any  way  affected  their  rights  and  the  plea  of   non- executability  which has been taken is based on statute  and against  statute there cannot be an estoppel.   This  ground taken  by  the  appellants is equally unsound  and  must  be rejected. The  contention raised that ignoring ss. 9(1) and 16 of  the 1948  House Rent Control Order is no more than an  error  in the  exercise  of jurisdiction does not appear to  be  sound because those sections are a fetter on the executability  of the  decree and not merely an error in the exercise  of  the jurisdiction.    In  the  present  case  the  two   sections mentioned above were a restriction on the power of the court to execute the decree and therefore this argument must  also be, rejected. In the result this appeal fails and is dismissed with costs. Appeal dismissed. 77 600