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PETITIONER: KASHI RAM

       Vs.

RESPONDENT: RAKESH ARORA

DATE OF JUDGMENT18/08/1987

BENCH: MUKHARJI, SABYASACHI (J) BENCH: MUKHARJI, SABYASACHI (J) OZA, G.L. (J)

CITATION:  1987 AIR 2230            1987 SCR  (3)1001  1987 SCC  (4)  84        JT 1987 (3)   389  1987 SCALE  (2)387

ACT:     Limitation   Act,   1963:   Article   136--Decree    for execution--Period of limitation--What is.     Delhi  Rent  Control  Act, 1958: Section  42   Order  of eviction-Execution  of--Period of limitation--What  is--Per- mission under s. 19 of Slum Act 1956---Obtaining and  effect of.

HEADNOTE:     The Rent Controller passed an order of eviction  against the appellant-tenant in October, 1960 on the ground of  bona fide  requirement of the landlord. The appeal  against  this order  was dismissed by the Rent Tribunal in October,  1961. The application of the respondentlandlord for permission  to execute  the order of eviction under Section 19 of the  Slum Areas  (Improvement  of Clearance) Act, 1956 filed  in  May, 1962  was  dismissed by the Competent  Authority  in  March, 1963.     In  the  meantime in January, 1964 the  Limitation  Act, 1963  came  into operation. The respondent  filed  a  second application  in  April, 1978 for permission to  execute  the eviction order. Permission was granted in June 1979.     In  September, 1979 the respondent filed an  application before the Rent Controller for execution of eviction  order. Objections  under Section 47, Order 21 Rule 22  and  Section 151  of the Code of Civil Procedure were filed on behalf  of the  tenant. The Rent Controller passed an order  on  August 22,  1980  holding that the execution  application  was  not barred by limitation, but stayed the execution to decide the question of fresh tenancy.     An appeal against this order was filed by the  appellant before the Tribunal which held that the execution was  main- tainable  and was not barred by limitation and that  supple- mentary  objections  were not maintainable. The  High  Court confirmed  this  order by dismissing the  second  appeal  in limine. In the appeal by the tenant before this Court, the  question for 1002 consideration was whether the decree for eviction under  the Rent Act passed against the respondent was executable by the

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appellant  or whether the same had become barred by  limita- tion or by res judicata Allowing the appeal, this Court,     HELD: 1.1 The claim to execute the order of eviction  of the  Rent  Controller dated 15th October,  1960  had  become time-barred. [1009G]     1.2 It was not just, equitable and in good conscience to allow such stale claims to be effectuated and that would  be contrary  to the principles of the Limitation Act,  1963  as well as the Indian Limitation Act, 1908. [1009E-F]     1.3  The execution of the decree for eviction passed  on 15th of October, 1960 became time-barred on 14th of October, 1960 under Article 182 of the Indian Limitation Act, 1908 as it  stood then. Under s. 31(a) of the 1963  Limitation  Act, the  provisions  of  the 1963 Limitation Act  would  not  be availed of in respect of an application for which the period of  limitation  had expired before the commencement  of  the 1963  Limitation Act, that it to say, 1.1.1964. But even  if Article 136 of the Limitation Act, 1963 was attracted it had become  barred after 12 years from the date of  the  decree, i.e. 15th October, 1960. [1007G-H; 1008A]     1.4  There  was no requirement of permission  under  the Slum  Act and, as such, no impediment in putting the  decree dated 15th October, 1960 into execution. Second  application for  permission  was  filed after a lapse of  more  than  15 years; there was, in any event, no legal impediment or legal bar which prevented the respondent from making the  applica- tion  for  permission to the competent authority  under  the Slum Act before. [1009B-C]     1.5 The order of eviction passed by the Rent  Controller as confirmed by the Tribunal in 1961 had become obsolete  in 1978  when the second attempt to execute the same was  made. [1009E]     Des Raj and another v. Noor Khan, A.I.R. 1985 Delhi 470; Ravi Dutt v. Rattan Lal, [1984] 2 SCR 614 and Lala  Baijnath Prosad and others v. Nursingdas Guzrati, A.I.R. 1958 Calcut- ta 1 at p. 8, referred to.

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No.  289  of 1982. 1003     From  the  Judgment and Order dated 17.7.  1981  of  the Delhi High Court in S.A.O. No. 249 of 1981.     Soli  J. Sorabji, Anil Kumar Gupta and Brij Bhushan  for the Appellant. B.R. Agarwala for the Respondent. The Judgment of the Court was delivered by     SABYASACHI  MUKHARJI,  J. This appeal by  special  leave arises from the order of the High Court of Delhi dated  17th of July, 1981 dismissing the second appeal in limine against the’  order dated 2nd July. 1981 in RCA No. 87 1 of 1980  of the Rent Control Tribunal, Delhi.     The order of eviction in this case on the ground of bona fide  requirement  of the landlord was passed  by  the  Rent Controller  on or about 15th of October, 1960. There was  an appeal  from the said order of the Rent Controller  and  the appeal  was dismissed on or about 9th October, 1961  by  the 2Rent Tribunal. In May 1962 the respondent filed an applica- tion before the Competent Authority under section 19 of  the Slum Areas (Improvement of Clearance) Act, 1956 (hereinafter called  ’the Slum Act’) for permission to execute the  order of eviction.

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   On or about 21st of March, 1963 the said application was dismissed by the Competent Authority under the Slum Act.  In the meantime in January, 1964. the Limitation Act, 1963 came into  operation. On the 19th of April. 1978, the  respondent filed  a second application before the  Competent  Authority for  permission to execute the order of eviction.  In  June, 1979  permission  was granted by the  appropriate  authority under the Slum Act. On 28th of August, 1979 the appeal  from the  said Rent Controller was dismissed by the  High  Court. Thereafter on or about 25th of September, 1979 the  respond- ent  herein filed an application before the Rent  Controller for  execution of the decree. Objections under  section  47, Order  21 Rule 22 and section 15 1, Code of Civil  Procedure were  filed on behalf of the appellant. On 22nd  of  August, 1980 order was passed by the Rent Controller that the execu- tion application was not barred by limitation. Execution was stayed, however, to decide the question of fresh tenancy.     There  was an appeal under section 38 of the Delhi  Rent Control  Act, 1958 filed by the appellant against the  order of 22nd of August, 1004 1980. Thereafter the Tribunal in July 1981 ordered that  the execution was maintainable and was not barred by  limitation and  it was further held that supplementary objections  were not  maintainable.  On  17th of July, 1981  the  High  Court dismissed  in  limine  the second appeal from  the  same  as aforesaid.     The question that falls for consideration is whether the decree for eviction of the tenant under the Rent Act  passed against  the appellant was executable by the  respondent  or whether  the  same  had become barred by  limitation  or  by principles  of res judicata. As mentioned  hereinbefore  the decree-holder  had filed an application under section 19  of the  Slum  Act to obtain the permission from  the  competent authority  in the year 1962. The permission was not  granted and  the  application was dismissed in the  year  1963.  The decree-holder  filed a fresh application seeking  permission from  the competent authority in the year 1978. The  permis- sion  was  granted by the order dated 18th  of  June,  1979. Thereafter  on 25th September, 1979 the decree-holder  filed application seeking execution of the order of eviction.     The main objection raised by the appellant on the  point of  limitation was firstly, that the decree in question  was passed in 1960 and therefore the decee-holder ought to  have got  it executed within 12 years by 1970. Secondly,  it  was contended that the application under section 19 of the  Slum Act  was filed in the month of March, 1975 but  the  decree- holder  did  not take any steps for 12 years  which  expired before  20th  of March, 1975 to obtain permission  from  the Competent Authority and from that aspect also the  execution application was time barred.     There  are  two aspects of the matter which have  to  be borne in mind, one was, when the decree became executable in the  facts and circumstances of the case and what  would  be the  period  applicable  for such execution.  On  the  other aspect of the matter, it is necessary to consider the  ques- tion whether once permission under the Slum Act was refused, does it create resjudicata for the second application?     As  mentioned  hereinbefore the Rent Controller  by  the impugned  order held that the execution application was  not barred  by  time  because in the opinion of  the  said  Rent Controller  till such time the permission of  the  Competent Authority  (Slums)  was obtained, no  execution  application could have been filed. The Trial Court further held that the amendment to section 19 of the Slum Act did not affect

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1005 the pending execution application, or in other words,  limi- tation  would not have started running. However,  the  trial court  held that in regard to dispute about the creation  of fresh  tenancy the matter required investigation  and  after holding  that  execution  application was  within  the  time adjourned the case for evidence of the appellant and  stayed the  execution during the pendency of the  said  objections. The  said objections have been overruled and these  are  not subject matter of this appeal. Aggrieved  by,the  said  order the  appellant  filed  appeal before  the Rent Tribunal. The Tribunal noted  the  relevant provisions of the Slum Act. Section 19(1) as it stood before the amendment read as follows:                         "19(1)   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  buildings in a slum area  shall  be               entitled  to  execute  such  decree  or  order               except with the previous permission in writing               of the Competent Authority."               Section  19(1)  of the said Act now  reads  as               follows:                         "19(1)   Notwithstanding    anything               contained in any other law for the time  being               in  force,  no person shall  except  with  the               previous  permission in writing of the  Compe-               tent Authority,               (a)  institute, after the commencement of  the               Slum Areas (Improvement and Clearance)  Amend-               ment  Act,  1964, any suit or  proceeding  for               obtaining any decree or order for the eviction               of  a  tenant from any building or land  in  a               slum area, or  .............  "     It  is not disputed that 12 years had expired  when  the execution  petition was filed from the date of the order  of eviction but not from the date the permission of the  Compe- tent  Authority (Slums) was obtained. The  question,  there- fore,  is whether the Indian Limitation Act 1908 or  Limita- tion  Act, 1963 was applicable to the execution  proceedings and whether the limitation would start running from the date the  permission of the Competent Authority (Slums)  was  ob- tained.     So far as the first question about the applicability  of the  Limitation Act, it is necessary to refer to section  42 of the Delhi Rent Control 1006 Act, 1958 (hereinafter called ’the Act’) which provided that an order of eviction has to be executed like a decree of the Civil  Court. The provisions of the Code of Civil  Procedure executing  the decree are made applicable by  legal  fiction recognised  by virtue of section 42 of the Act. In any  case procedure of the Small Causes is adopted by the  Controllers under  the provisions of the Act wherein also  in  execution the provisions of Code of Civil Procedure are applicable and as  such law of limitation would be attracted. The  question is  when the limitation starts running. Once the  limitation started running then unless the statute comes to the  rescue of  a  person the period would expire after  the  efflux  of time.     Discussing  certain authorities the Rent  Tribunal  held that  the limitation started from the date of the  grant  of the  permission  and as such the execution  application  was well  within  time. The Tribunal dismissed the  appeal.  The

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High Court summarily rejected the second appeal.     The  question  before us is whether this  execution  was barred  by  limitation  and secondly, whether  there  was  a question  of  res judicata because a prior  application  for permission by the Slums Clearance Authority was rejected.     This particular point was considered by a learned single Judge of the Delhi High Court in Des Raj and another v. Noor Khan,  (A.I  .R. 1985 Delhi 470, where the High  Court  held that  under  Article  136 of the Limitation Act  of  1963  a decree was executable within 12 years from the date when  it became  executable.  where the decree when passed,  was  not enforceable no execution could be levied and hence period of limitation  would not commence. A decree of eviction  passed under the Delhi and Ajmer Rent Control Act, 1952 on  19-2-60 according  to  the said decision became executable  only  on 8-5-81  in  the case when permission under the Slum  Act  to execute  it was obtained and therefore the 12 years’  period prescribed  by Art. 136 Limitation Act, 1963 to execute  the decree was held to have commenced only on 8-5-81 and not  on 19-2-60.     The  High  Court followed a Full Bench decision  of  the Allahabad  High Court and a division bench decision  of  the Patna High Court. It was further held that there was no  bar under  section 19 of the Slum Act to a second or  subsequent application  seeking  permission  to execute  the  order  of eviction  of tenant obtained under section 13(1)(e)  of  the Delhi  and  Ajmer  Rent Control Act, 1952, in  view  of  the changed 1007 circumstances entitling grant of the permission being shown.     This  decision  negates the  two  principal  contentions urged in this case on behalf of the appellant, namely  there was  no  question  of res judicata  in  granting  subsequent permission  under the Slum Act if changed  circumstances  so warranted  and  secondly limitation would  start  after  the permission  was  granted. But the Delhi High  Court  had  no occasion  to  consider the effect of the  decision  of  this Court in Ravi Dutt v. Rattan Lal, [1984] 2 SCR 614 where  it was held that the relevant provisions of the Delhi Rent  Act for eviction on the ground of bona fide requirement being in Chapter III A of the said Act had overriding effect and  the Slum Act was rendered inapplicable. If that is the  position then  no permission under Slum Act was at all  necessary  in case of a decree for bona fide requirement. The said princi- ple was reiterated in two previous decisions. If that was so then  the  decree for eviction having been  passed  on  15th October, 1960 and the application for execution being  filed on  or  about  25th September, 1979 was  clearly  barred  by limitation.     But  the basic question in the instant case as  we  have noted  from  the facts of the case is that  the  decree  for eviction under the Rent Act was passed in October, 1960  and the  appeal against the same was dismissed in October,  1961 by the Tribunal. Thereafter an application was made in  May, 1962  for permission under section 19 of the Slum Act as  it then  stood  was  dismissed in March,  1963.  Thereafter  no action was taken upto 1978. When in 1978 action was initiat- ed  by filing the second application under the Slum  Act  12 years  from the dismissal of the application under the  Slum Act had passed and the decree had become barred. The  decree had clearly become barred by limitation. Article 136 of  the Limitation Act. 1963 provides that a decree can be  executed within 12 years from the date on which it became executable. Decree  passed  by the Rent Controller even if  it  was  not executable and enforceable unless permission under the  Slum

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Act  had  been taken, which as noticed before  was  not  the position  in  law the steps for such permission  had  become barred. Steps for filing the application under the Slum  Act were  not taken, on refusal of the first application  within 12  years thereof. It is apparent therefrom that the  execu- tion of the decree for eviction which was passed on 15th  of October,  1960 became time barred on 14th of  October,  1963 under  Article 182 of the Indian Limitation Act, 1908 as  it stood at that time. Under Section 31(a) of the 1963  Limita- tion  Act, the provisions of the 1963 Limitation  Act  would not be availed of in respect of an application for which the period of limitation had expired before the commencement  of the 1963 1008 Limitation Act, that is to say, 1.1.64. But even if  article 136 of the Limitation Act, 1963 was attracted it had  become barred after 12 years from the date of the decree, i.e. 15th October, 1960.     In  the Bench decision the Calcutta High Court  in  Lala Baijnath  Prosad  and others v. Nursingdas  Guzrati,  A.I.R. 1958  Calcutta 1 at p. 8). Chakravartti, C.J.  speaking  for the division bench observed:                         "The right to enforce the decree, it               appears  to me, is one thing; the  possibility               or  practicability of exercising the right  is               another.  If  by the terms of  a  decree,  the               decreeholder has become entitled to execute it               immediately,  an instant right to  execute  it               has accrued to him contemporaneously with  the               passing of the decree. Even if he is prevented               by  some external circumstance from  enforcing               the  decree  for  some time, the  right  as  a               right,  is nevertheless a present  right.  And               what  is  a present right is  not  merely  the               right declared by the decree but the right  to               enforce  the decree, because if a  decree  de-               clares  certain rights in favour of  a  person               and  there is nothing in the decree itself  by               which  they  are declared with effect  from  a               future  date or which postpones the  right  to               execution to some date in the future, there is               no  reason  to  say that a  present  right  to               enforce  the  decree does not  accrue  to  the               decree-holder as soon as the decree is passed.               It  may,be  that, though  entitled  under  the               terms of the decree to enforce it immediately,               he  cannot  in  fact do so for  some  time  by               reason,  say, of having to comply  first  with               some procedural requirement, as in the present               case,  but  that  only means that  it  is  not               practicable for him yet to enforce the  decree               and not that a present right to enforce it has               not accrued. ’’     The  aforesaid  principles,  in our  opinion,  would  be applicable  to  the facts and circumstances of  the  present case. It has been emphasised that there was no impediment or disability  in  the way of the respondent  in  applying  for permission from the Competent Authority under the Slum  Act. It was, however, urged that unless the circumstances changed the permission under the Slum Act could not have been grant- ed  but  for the off chance of  circumstances  changing  and thereby  giving  a right to apply for permission  under  the Slum Act, a decree cannot be kept in suspended animation. As we have noted before after the refusal of the application in March, 1963 until April, 1978 there

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1009 were  no steps taken. This feature and this aspect,  in  our opinion, distinguishes this case from the other cases. quite apart  from  the fact that in the light of the  decision  of this Court in Ravi Dutt v. Rattan Lal, (supra) there was  no requirement of permission under the Slum Act and as such  no impediment  in putting the decree dated 15th  October,  1960 into  execution.  It has further to be borne  in  mind  that respondent  had  filed a second application  for  permission after lapse of more than 15 years, there was, in any  event. no  legal  impediment or legal bar which prevented  the  re- spondent  from making the application for permission to  the competent authority under the Slum Act before. It was argued that  the  respondent  did not apply because  there  was  no change  of circumstances which would entitle the  respondent to obtain permission. It was argued that the second applica- tion  was  made in 1978 and at that time the law  under  the Slum  Act had altered as we have noticed. It appears  to  us that in this case in any event no permission was required to execute  the  decree. Therefore the second  application  was unnecessary.  In that view of the matter in this case it  is not necessary to examine whether a second application lay or not.  We are inclined to the view that an application  might lie  if it was within the period of limitation. We need  not decide in this case the question of res judicata.     It  is  clear that the order of eviction passed  by  the Rent  Controller  as confirmed by the Tribunal in  1961  had become  obsolete in 1978 when the second attempt to  execute the same was made.     In that view of the matter we are of the opinion that it was not just, equitable and in good conscience to allow such stale claims to be effectuated and that would be contrary to the principles of the Limitation Act, 1963 as well as Indian Limitation Act, 1908.     In the premises the order dismissing the appeal from the Rent Tribunal must be set aside and the application made for execution must be dismissed. It must be held that the  claim to  execute the order of eviction of the Rent Controller  in this  case dated 15th October, 1960 had become time  barred. The appeal is allowed and the judgment and order of the High Court  are set aside. In the facts and circumstances of  the case, however, there will be no order as to costs. N.P.V.                                                Appeal allowed. 1010