C GSASTRY Vs. B VPATANKAR

JUDGEMENT

(1.) This petition is filed under Articles 132 and 133 of the Constitution of India by the petitioners for issuing a certificate to prefer an appeal to the Supreme Court against, the order of this Court in R. A. 195/51-52, relating to execution proceedings.

(2.) Briefly stated, the relevant facts necessary for appreciation of the points raised in this petition are these ; Late M.P. Viswanatha Rao, the manager of a Joint Hindu family pf himself and has sons (the petitioners) leased out a family property in Bangalore, to the respondent under, a registered deed of lease dated 3-2-1941, for a period of ten years certain and the lease to commence from 1-5-1941 coupled with an agreement reserving an option to the respondent to renew the lease after the expiry of the original period. The lessor died on 25-1-1945. Soon after this, the petitioners filed a suit in O. S. 66/45-46 on the file of the Court of the District Judge, Bangalore, for the relief that the lease effected by their father was not for legal necessity binding on them and that as a consequential relief they claimed immediate possession of the property, when nearly six years of the initial period of lease had to run. Amongst other contentions, the respondent raised a preliminary objection regarding the maintainability of the suit on the ground that such a suit was barred under the provisions of the House Rent Control Order, then in force. The trial Court upheld the objection of the respondent and dismissed the _suit. On appeal, the High Court in R.A. 41/47-48 set aside that judgment and remanded the suit for disposal on merits, for the reason that the suit, as framed, was not by a landlord against a tenant but by the junior surviving coparceners to set aside an alienation by their father who was managing the family estate. Ultimately, the trial Court held, on merits, that the lease by the then managing member of the family was prudent act binding on the petitioners in all respects, except-ing the agreement to renew the lease after the expiry of the initial period of ten years. Being aggrieved against that decision both the parties preferred appeals. The petitioners filed R. A, 128/48-49 and the respondents filed cross-objections in the High Court. Both the appeal and the cross-objections were dismissed.

(3.) While deciding the suit, the trial Court declared, under the general issue framed in the suit, that the option of renewal of lease after the expiry of the initial period, was void and unenforceable on account of uncertainty and directed the respondent to hand over possession of the property after the termination of the original period of lease which had to expire on 1-5-1951. This conclusion was also confirmed by the High Court in the appeal referred to above. In Ex. 74/51-52, the petitioners applied to the trial Court for delivery of possession of the property after the expiry of the period fixed in the-decree. The executing Court, without notice to the respondent, ordered delivery and this was duly effected on 22-7-1951. The respondent thereupon filed a petition for setting aside the ex parte order and, as a consequence, to restore possession of the property along with some moveables which were represented to have been fixed by him for better enjoyment of the leased premises. He also contended in that petition that the executing Court had no jurisdiction to order delivery of possession of the property without the permission of the Rent Controller, under the then House Rent Control Order, for the reason that the decree actually passed in the original suit partook of the nature of eviction of a tenant by the landlords. That petition was dismissed by the trial Court, and on appeal by the respondent this Court upheld the contention of the judgment-debtor in R. A. No. 195/51-52. It is against that order that the petitioners seek a certificate to appeal to the Supreme Court.