IDRIS Vs. MEHAR ELAHI

JUDGEMENT

(1.) This second appeal raises the important question about the scope of section 47 of the Code of Civil Procedure. When it came up for hearing before one of us (S. N. Shankar J.) it was urged on the authority of Calcutta Credit Corporation Ltd.. and another v. Happy Homes (Private) Ltd., AIR 1968 SC 471, Shama Charan v. Ved Paul, 1966 P.L.R. 69, Gauri Shankar v. Smt. Shakuntala Devi and others, AIR 1968 Punjab & Haryana 302 that Mohd. Usman, the tenant, having died after suffering termination of tenancy by a notice to quit and then by an eviction decree against him, he left no estate or interest in the property which could pass on to his sons and daughters, the present appellants. As such, they. as his legal representatives, could not plead section 47 of the Code of Civil Procedure and section 19 of the Slum Areas (Improvement & Clearance) Act, 1956, as amended by Act 43 of 1964, herein called 'the Act,' as bars to the suit against them for possession filed by the respondent-owner, involving their eviction.

(2.) As these important questions of law were being raised too often, the appeal was referred to a larger Bench; and that is how it has been placed before us.

(3.) The respondent is the owner of house No. XIV/768, situated in Gali Munshi Abdul Rahimwali, Qassabpura, Sadar Bazar, Delhi, and is in possession of its first floor. The ground floor was let out by him to one Mohd. Usman, now deceased, on a monthly rent of Rs. 22. After serving a notice terminating the tenancy, the respondent filed an application under the Delhi Rent Control Act, 1958, for the eviction of Mohd. Usman from the said premises. An eviction order was passed on November 10, 1961 against Mohd. Usman. His appeal was dismissed by the Rent Control Tribunal on June 8, 1962. The respondent then applied to the Competent Authority under the Slum Areas Act for permission to eject him from the said premises. This was declined and so was his appeal to the Chief Commissioner. On August 30, 1966 Mohd. Usman died leaving behind two sons and a widow Mst. Rabia. On September 8, 1967 the respondent filed a suit against the said heirs of Mohd. Usman, tenant out of which the present appeal has arisen, for a decree of their ejectment from the said house, on the ground that Mohd. Usman continued to live in the premises in question under the protection of law as a statutory tenant, which was his personal right, and which after his death could not pass on to his heirs, who were said to be his legal representatives. After his death, it was stated, his heirs had no right to remain in occupation of the premises or to intermeddle therewith, even as his legal representatives, and were not entitled to any protection. Their occupation was characterised as unlawful. During the pendency of the suit, Mst. Rabia also died and her two daughters Mst. Khadija Begum and Mst. Hajra Begum, who were not in occupation of any part of the premises, were brought on record as legal representatives, besides her two sons, Mohd. Idris and Mohd. Ayub, who were already on record. The aforesaid legal representatives are the appellants, who contested the suit. They admitted the factum of the tenancy as well as the aforesaid eviction decree passed by the Rent Control Tribunal and that they were the legal representatives of the decreased: but denied that they could be evicted. They pleaded, inter alia, that under section 47 of the Code of Civil Procedure, all questions relating to the execution, discharge and satisfaction of the decree between the parties, or their legal representatives, have to be determined by the executing Court and no separate suit lies. Section 19 . of the Slum Areas Act was also specifically pleaded as a bar to the suit. They under the circumstances, prayed for the dismissal of the suit. Six issues were framed in the suit, out of which, the following alone need our attention in this appeal :