B. V. PATANKAR AND OTHERS versus C. G. SASTRY

1 S.C.R. SUPREME COURT REPORTS

territory of India from at least August 15, 1947, till.the 26th November, 1949.

Shanno Devi v. Mangal Sain Das Gupta ].

We have therefore come to the conclusion that the High Court was right in sustaining Man gal Sain 's . claim to be deemed citizen of India under Art. 6 of the Constitution and, in that view was also right in allowing his appeal and ordering the dismissal of the Election Petition.

In the view we have taken as regards Mangal Sain's claim to citizenship under Art. 6 of the Constitution it is not necessary to consider whether his claim to citizenship under Art. 5 of the Constitution was also good.

We therefore dismiss the appeal with costs.

Appeal dismissed.

B. V. PATANKAR AND OTHERS

C. G. SASTRY

(B. P. SINHA, c. J., J. L. KAPUR, P. B. GAJENDRA· GADKAR, K. SuBBA RAO and K. N. WANCHOO, JJ.)

Rent Control-Restrictions agaiiist 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, z948, ss. 9 and z6 and Transfer of Property Act, z882 (Act IV of z882),-Code of Civil Proce~ure (Act V of z908) ss. 47, z5z.

The appellants in execution of decree passed in their favour for possession over house obtained possession thereof on July 22, r95r. 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 r5r, Code of Civil Procedure for setting aside the ex-parte or.}er 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

Septetnber _8.

R. JI. Palankar 6- Otht1s v. C. .. '·iastry

[1961 J

the respondent's application was not maintainable. On appeal by the respondent the High Court held that the Executing Court had no jnrisdic!ton to order the eviction of the respondent because of the provisions of the Mysore !louse J<ent 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 tlus Court by special leave, the appellants coutended, inter alia; as they did in the High Court also, that the Mysore House Henl Control Order of 1948 was repugnant to the provisions of the Transfer of Property Act, 1882 (IV of 1882), which became applicable in the State of )fysore by Part States (Laws) Act, 1951 (Act III of 1951), which came into force on April l, 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 o! 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 O<:tober 1, 1951, and therefore the ~lysore House Rent and Accommodation Control Order, 1948, was not repealed as from April l, 1951, when the Part 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 l V of 1882) did not arise in this case.

Mjs. Tilakram Rambaksh v. Hcm/1 of Patiala, A.LR. 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 satisfi<'d and there-fore the court becaruc functus officio was n1att~r relating to execution, satisfaction and discharge of the decr'ee.

Ramanna v. Nallaparaju, A. I. R 1<156 S. C. 87 an<l ]. Marrct v. Mohammad Sl11rozi and Sons, A.I.I<. 1930 P. C. 86, considered.

\Vherc the court was not aware of the st:ttutory. restriction by which the execution of decree v..·as prohibited and passed an ejectment decree against tenant the r~xecuting Court could not execute the decree and any possession gi\•en under an ex parte order passed in execution of such decree could be set aside under s. 151 of the Code of Civil Procedure.

K. Muhammad Sikri Sahib v. Madhava J(un•p, A.LR. 1949 ~lad, 809, considered.

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 J<ent Control Order placed restrictions on

the power of the Court to execute the decree and ignoring them . was not merely an error in the exercise of jurisdiction.

CIVIL APPELLATE JURISDICTION: No. 302 of 1955.

Civil Appeal

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 0. 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. '.!'he appellants are the decree-holders and the respondent is the judgment. debtor. On February 3, .. 1941, by registered deed the father of the appellants leased to the respondent the house in dispute for period of 10 years with an option of renewal for further periods for as long as the respondent wanted. This house was used by the res-pondent for his hotel.

The father died on January 25, 1945. On Decem-

ber 21, 1945, the appellants filed suit for declara-tion that the deed of lease .of February 3, 194 l, exe-cuted by their father was not for legal necessity or for the benefit of the family, tb at the alienation was not binding on them and the option of renewal under the lease was void and unenforceable on account of un-certainty. The appellants further prayed for delivery of possession and for decree for sum of Rs. 2,655 as past mesne profits and future mesne profits a.t Rs. 250 per mense.m as from December 1, 1945. The respon-dent filed his writ,ten statement on March 11, 1946, and a.n additional written statement on November 26, 1946, whereby he raised an objection to the jurisdiction of the court by reason of the Mysore l!ouse 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

B. V. Patankar & Others v.

C. G. Sastry

Kapur J

B. I'. J'ni(J 1·':11, ;. U.'l;c1s v. ."(apur .f.

nature an<l seope of the suit had been misconceived by the trial court and that it was not based on relation-ship of landlord and tenant and therefore s. 8(1) of the :\lysore Hou so Rent Control Order was inapplic-able 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 l\Iay I, 1941, as it was supported by legal necessity ; but the option of rene: .val was void and unenforceable for uncertainty and therefore decree for possession was passed to be 0pPra.tive on the expiry of ten years, i.e., May 1, 1951. Un appeal the High Court confirmed that decree on '!gust 22, 1950.

Un July 9, 1951, the appellants took out execution 0f the decree and on July 22, 1951, possession was deli-Yered to them. The order for delivery was made with-out notice to and in the absence of the respondent. The proceedings, "spot mahazar" that the respondent came t<' the spot after delivery of the major portion of the property in dispute had been delivered to the appel-lants.

On August 13, 1951, the respondent ma.de an appli-

~.,tion in the Executing Court, the District Judge, under ss. 47, 144 and 151 of the Code of Civil Proce-<it>re for setting a.side the ex parte order of delivery a.nd for redelivery of possession of the house to him and in the alternative for a.n order to the a.ppellants to give facilities to him (respondent) to remove tho vitrious moveables and articles mentioned in the peti-tion. The appellants pleaded that the application was not maintainable. The District Judge, on Novem-ber 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 mo\•eables which were in the house a.t the timo rc~pondent wa8 evicted. The High Court held that tho Executing Court bad no jurisdiction to order the ndct ion of the respondent because of the provisions of Mysore House ltont and Accommodation Control

'9[60 ]

Order, 1948, which was in operation on the date of

eviction. The High Court having refused to gi~.e B. v. Patankar certificate under art. 133 the appellants obtamed c;. Others special leave to appeal from this Court on January 12, v. 1955, and this is how the matter has come to this c. G. Sastry Court.

c;. Others v. c. G. Sastry Kapur f.

The question for decision mainly turns upon the applicability of the provisions of the two House Rent 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 sec-tion was:-

Section 8 "(1) tenant in possession of house shall not be evicted therefrom, whether in execution of decree or otherwise before or after the termina-tion of the tenancy' except in accordance with the provisions of this clause; ................................... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . .

(2) landlord wishing to evict tenant in possession shall apply to the Controller for direction in that behalf. If the Controller after giving the tenant reasonable opportunity of showing cause gams [. t th ]ea.pp l" 1ca t" 10n, 1s . sa t" 1s fi ,. .................... " . This Order was replaced by the Mysore Rent a.nd Accommodation Control Order of 1948 which ca.me into force on July l, 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) tenant in possession of house shall not be evicted therefrom whether in execution of decree or otherwise except in accordance with the provisions of this clause ..................... "; ......... . 12) landlord who seeks to evict a' tenant in possession shall apply to the Controller for direction in that behalf. If the Controller, after giving tenant suitable opportunity of showing cause against such application, is satisfied:-satisfied:-

application, is satisfied:-satisfied:-. . . . . .. . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... . . . . . . . . . "

Section 16 "Nothing in this Order shall prevent

D. V. /'(lft111h.!1r 6- Others v. C. G. Sastry Kap11r J.

landlord frnm filing suit, fur eviction of a. tenant be( ore a. com pctent civil court, provided that no decri>e for eviction cf tenant, passed by a. civil court shall be executed unless 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 tho :'llysore House Hent Coutrol Or<lrr of 1948 was repugnant to the provisions of the Tra.usfer of Property Act (Act IV of 1882) which was brought into force in the State of :\1ysore by Pa.rt States (Laws) Act, l9;il (Act] II of 1951). This Act was enacted on February 22, 1951, and came into force on Aprill, 1951, which was termed the appointed day. It was contended therefore that the House Control Order cc>uld not operate on the rights of the parties on the day when the Executing Comt made the order for delivery of possession to the appellants, i.o., July 9, 19.51, or when the deli rnry was actual! y gi ,·en, i.e., on ,July 22, 1951. To test the force of this argument it is necessary to examine tho provisions .of Part, State" (Laws) Act and how and when as consequence of it the Transfer of PropPrty Act became ctft'ctive and operative. in the State of Mysore. 8cctiun 3 of that Act deals with the cxten. fiion and amendment of certain Acts and Ordinances. The Acts and the Ordinances specified in the Schedule were amended and became applicable a8 specified and as consequence the fourth paragraph of s. I for the words" lfombay, Punjab or Delhi", the words "that the said States" wne substituted. Therefore the effect of the Part States (Laws) Act merely was that qlla the Transfer of Property Act, tho State of Mysore was placed 011 the same footing as the States of Bom-bay, Punjab or Delhi. It was by virtue of Notifica-tion ~o. 2676.Cts. 46-51-5 dated September 12, 1951, that the Tran~fer of Property Act was extended to the State of Mysore as from October l, )951. Conse-quently the laws of the State applying to leases which would include the :M vsore House Rout Control Order of 1948 continued w· be in force and applicable to cases that were pending till it was repealed by the

I S.C.R.

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 result of repugnancy the House }{ent 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 Punjah High ·Court in M/s. Tilakram Rambak'sh v. Bank of Pati-ala (1) discussing the effect_ of Part States (Laws) Act on the application of the Transfer of Property Act to PEPSU said:

B. V. Patanka, 6- Others v. C. G. Sastry Kapur ].

"All that Central Act III of 1951 has done is to · make it possible for Part States to extend the Act to any part of territory by notiffoation. ActuaH' however, this was never done by PEPSU or Punjt.lJ 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 ~he time of the hearing of the appeal, the true effect of s. 3 of the Part States (Laws) Act was not brought to the notice of the learn. ed 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 Con-stitution. The argument of repugriancy, 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 comple-tely satisfied and therefore the c~:mrt became unctus officio is matter relating to execution, satisfaction and discharge of the decree. It was held by this Court in Ramanna v. Nallaparaju (')that:

"When sale in execution of decree is impugn-ed on the ground that it is not warranted by the terms thereof, that question could he agitated, when it arises between parties to the decree, only by an application under s. 47, and not in separate suit". (1) ·A.I.R •. 1959 Pb. ~+o, 447· (2) A.I.R. 1956 S.C. 87, 91.

1960 See also J. Marret v. Mohammad Shirazi & Sons ([1]) V. Pala'1kaY where the facts were that an order was made bv the 6-Olliey~ Executing Court directing contrary to the teims of v the decree the payment of certain fund to the dec-C. G. Saslry ree-holder. The Madras High Court in K. Mohammad Sikri Sahib v. illadhava Kurup (')held that where the Kapu• }. Executing Court was not aware of the amendment of tho Rent Restriction Act by which the execution of a. decree was prohibited and paRsed an ejectment order age.inst tenant, the Executing Court could not exe-cute tL, ':lecree 1rnd any possession given under an ex , parte order passed in 11xecution of such decree, could be set aside under s. 151 of the Code of Civil Proce-dure. The prohibition is equally puissant in the pre-sent case and s. 47 read with s. 151 would be equally effective •,o sustain the order. of redelivery made in fa. vour of t»e respondent.

B. V. Pala'1kaY 6-Olliey~ v

Tho applicability of res judicata and the defences of

waiver and estoppel were also raised by the appel-lants. Tho contention of res judicata was based on the plea taken by the respondent in bis written state-ment, dated l\Iarch 11, 1946, where be pleaded that the civil court had no jurisdiction to order eviction because of the House Rent Control Order, 1945, to which the ;-eply of the appellants was that consider-ing the nature of the suit and tho consequential remedy that they were seeking, the plea of jurisdic-tion of the court was not open to the respondent. Thereupon the trial court raised now 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 decree in favour of the appellants was passed on August 23, 1945. This judg-ment formed the basis of the argument before us that the plea. of inexccutability of the decree could not be raised bec~se it was barred on the principle. of res judicata. The plea of res judicata is not available to · the appellants asthe 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 executabil!ty could only be taken (lJ A.I,R. 1930 P.C. 86. (2) A.l.R. 1949 Mad. So!I· Mad. So!I· So!I·

(2) A.l.R. 1949 Mad. So!I· Mad. So!I· So!I·

at the time of the execution of the decree which in 1the instant case could not be done because the order JJ v 1' for delivery by the Executing Court was passed with-· ,~ 0 ;~:;,:· out notice to the. respondent.. We must, therefore, repel the contention based on the ground of res judi-c. G. cata. '

, 1 . · ,~ 0 ;~:;,:· ' ..

c. G. ''"''''

Kat"' ] .

The argument of waiver and estoppel is also devoid of force. This plea was based on letter which the respondent's lawyer sent in reply to the respondeut 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 so, he would hand oV'er possession to the appellants. This is slender basis for the sustain· ability 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 b~_en taken is based on statute and against statute there cannot be an estoppcl. This ground taken by the appellants is equally unsound and must be rejected. ·

Tho contention raised that ignoring ss. 9( l) and 16 of .the 1948 House Rent Control Order is no more than an error in the exercise of jurisdiction does nut appear to be sound because those sections are fetter on lw executability of-the decree and not merely an error in the exercise of the jurisdiction. In the present casl' the two sections mentioned above were restriction on the power of the court to execute the decree and therefore this argumPnt must also be rejected ..

In the result this appeal fails and is dismissed with costs.

Appeal di.smissed.