KURUVILLA Vs. KESAVAN

JUDGEMENT

(1.) The short question involved in these revisions is whether an order allowing an application for removal of obstruction by a stranger in the course of the execution of an order for possession under S.11 of the Buildings (Lease and Rent Control) Act ("the Act" for short) is appealable under O.21, R.103, Code of Civil Procedure ("Code" for short) or is only revisable under S.14 of the Act. The common petitioner in the revisions obtained an order from the Rent Control Court, Kottayam for evicting the tenant of certain premises. When he applied in the Munsiff's Court, Kottayam for execution of the order the respondent in each case who is a stranger offered obstruction. The petitioner thereupon made separate applications for removal of the obstructions The execution court enquired into the applications and by its order dated February 22. 1977 allowed them, removing the obstructions. From this order the respondents preferred two revisions in the District Court purporting to do so under the proviso to S.14 of the Act. The petitioner challenged the competency of the revisions by way of preliminary objection but the learned District Judge overruled the objection by a common order which is the subject of challenge in these revisions.

(2.) Under S.14 of the Act, orders under the Sections specified therein including an order under S.11 as in this case are to be executed by the Munsiff as if they are decrees passed by him. The proviso to the Section enacts "that an order passed in execution under this section shall not be subject to an appeal but shall be subject to revision by the Court to which appeals ordinarily lie against the decisions of the said Munsiff "Counsel for the respondents contended, supporting the view taken by the District Judge, that the orders in question were orders passed in execution and were therefore liable only to revision and not to appeal as laid down by the proviso to S.14. It was urged that the provisions of the Act relating to execution constitute special provisions which are saved by S.4 of the Code and must prevail over the prescriptions of the Code relating to appeal, on which counsel for the petitioner relied. I find it unable to accept the respondents' contention. For one thing the execution contemplated by S.14 is the execution of the orders against the parties thereto. It does not contemplate investigation of obstructions offered by third parties or the orders in such proceedings. Such orders are not orders "passed in execution under this section" in the words of the proviso to S.14, although they would be orders in the course of the execution proceedings They are passed under the provisions of the Code and their scope, effect and incidents must be governed by those provisions. The Act contains no provisions governing obstructions to delivery of possession by third parties, applications for their removal, investigations of such applications, orders on such applications or their effect; they are contained only in the Code. The applications by the petitioner for removal of the obstruction of the respondents were made under O.21, R.97(1) and they were investigated as directed by sub-r.(2) under R.101. Under R.101 the Court has to determine all questions relating to right, title or interest in the property and thereafter it has to pass an order, so far as relevant, under R.98 allowing the application and directing the applicant to be put in possession of the property or dismissing the application. In the present case the petitioner's applications were inquired into and allowed. By reason of R.103, the order under R.98 and 100 in the instant case under R.98 "shall have the same force and be subject to the same conditions as to an appeal or otherwise as if it were a decree." The applications were made, investigated and adjudicated upon in accordance with these provisions of the Code and not under any provisions of the Act and the question whether an appeal lies must be governed by R.103 and not by the proviso to S.14 of the Act. The petitioner's contention is right and has to be upheld.

(3.) Counsel for the respondents argued that on this view a stranger to the main case would be favoured with a right of appeal while a party would have to be content with the circumscribed remedy of a revision. This, it was said, has no rationale to recommend it. Now if this is what the law decrees it must be given effect, whether or not it appears reasonable. But it is not without reason, as counsel sought to make out S.18 of the Act confers a right of appeal and the proviso to S 14 which provides for the less plenary remedy of revision is confined to orders passed in execution. R.101 of the Code which deals with the questions to be decided on applications under R.97 or R.99 specifically forecloses a fresh suit R.97 and 99 concern third parties and in view of the bar of a fresh suit, conferment of a right of appeal by R.103 is by no means without reason. The respondents' argument provides no ground to agree with their main contention in favour a revision.