PINJARU SHAHABUDDIN SAHEB Vs. SONI HIRALAL

JUDGEMENT

(1.) This application is filed by the landlord to recall the order dated 20-6-1986 granting the tenant one year's time to vacate the premises, on the ground that before communication of the said order to the Court, possession had been delivered to him in execution of the eviction order.

(2.) In order to appreciate the point raised in this matter, it is necessary to mention certain material facts. The landlord's petition for eviction of the tenant on the ground under Section 21(1)(h) of the Act was allowed by the trial Court. While confirming the said order in revision, the learned District Judge by his order dated 19th September 1985, granted the tenant 9 months time to vacate the premises. Being aggrieved by the said order the tenant filed the above Revision under Section 115 of the Code of Civil Procedure, which ultimately came up for admission on 20th June 1986, after notice to the learned Advocate for the landlord. While rejecting the C.R.P. the tenant was granted further time of one year to vacate the premises. In the meanwhile, it transpires, that the time earlier granted by the learned District Judge to vacate the premises having expired on 19th June 1986 itself, the landlord filed an execution case before the Executing Court on 20th June 1986 seeking delivery of possession of the premises. It is not seriously disputed that before the formal communication of the order regarding extension of time, possession of the premises was delivered to the landlord at about 10-30 A.M. on 21st June 1986 in pursuance of the warrant issued by the Executing Court. The landlord has now sought for recalling the order granting further time in view of the fact that it had become infructuous in view of the delivery of the premises having been given to the landlord.

(3.) In the above facts and circumstances, the only question that arises for consideration is whether the grant of time for vacating the premises in Revision by this Court amounts to modification of the eviction order, whereby the executing Court loses its jurisdiction to order execution of the Decree? According to Mr. T.S. Ramachandra, the learned Counsel for the landlord, such an order passed does not amount to modification of the decree itself, since it is in the nature of a discretionary order, which would become infructuous, if the same is not communicated to the Court below in time. On the contrary Mr. Jaya Vittal Kolar, the learned Counsel for the tenant, contends that it amounts to modification of the decree and as such delivery proceedings resulting in the eviction of the tenant are bad in law and hence the tenant is entitled to be put back in possession of the premises. He further submitted that such an order takes effect even with out being communicated to the lower Court.