M V ALI Vs. KUNJANNAMMA PHILIPOSE

JUDGEMENT

(1.) S.14 of the Buildings (Lease and Rent Control) Act, provides so far as material that every order under S.11 shall "be executed by the Munsiff or if there are more than one Munsiff, by the Principal Munsiff having original jurisdiction over the area in which the building is situated as if it were a decree passed by him". The petitioners in these revisions are tenants against whom the respondents have obtained orders of eviction under S.11 of the Act. Three years after but within twelve years of the orders, the respondents made applications before the proper Munsiff under S.14 of the Act for executing the orders. The petitioners objected inter alia that the execution petitions were highly belated but this objection was rejected by the Munsiff. They carried revisions to the District Court, where however they did not press this objection. In these revisions which have been filed from the common order of the District Court, counsel for the petitioners contend that the execution petitions are barred by limitation as Art.137 of the Limitation Act 1963, which is the Article to apply, allows only three years and that the respondents cannot claim the benefit of the longer period of twelve years under Art.136. It was argued that Art.136 applies only to decrees or orders of any "Civil Court" and that an order for eviction under the Act is outside the scope of that Article, as the Rent Control Court is not a "Civil Court" and its order cannot be treated as an order of a civil court merely because S.14 permits it to be executed by the Munsiff "as if it were a decree passed by him". The fiction created by the expression "as if it were a decree passed by him", it was further contended, only attracts the provisions of the Civil Procedure Code relating to execution and does not make it an order of the "Civil Court" within Art.136 enjoying the longer period of 12 years prescribed by that Article. The result, according to counsel, is that execution of orders of eviction falls within Art.137 which is the residuary Article.

(2.) Now in point of fact, the order under execution in each case was not passed by the Munsiff Court but S.14 provides that it is to be executed by the concerned Munsiff "as if it were a decree passed by him", thereby conferring upon the order the incidents and consequences of execution as a decree. The object of the fiction which this expression creates is to render the order executable as the decree of a Civil Court and that involves that the fiction could validly be carried to its logical conclusion, as the only inhibition is that a fiction should not be extended beyond its legitimate field. To bold that the fiction embodied in the expression "as if it were a decree passed by him" amounts to making an order of eviction a decree of the Munsiff and therefore of a Civil Court is only to give full play to the fiction and the object of its creation. This construction would attract not only the provisions of the Civil Procedure Code dealing with execution of decrees but also the provisions of Art.136 which prescribes the period of limitation for the execution of decrees. If the expression attracts, as is conceded by counsel for the petitioners, the provisions of the Civil Procedure Code in the matter of execution of decrees, it is difficult to resist the conclusion that it must necessarily attract the provisions of Art.136 as well. As I said while a fiction cannot be extended beyond its legitimate field, it must be allowed full operation within its intended sphere. In the oft quoted words of Lord Asquith in East End Dwellings Co. Ltd. v. Finsbury Borough Council, 1952 A.C. 109, 132:

(3.) So carried I must reject, on principle the petitioners' contention and hold that the expression "as if it were a decree passed by him" attracts not only the provisions of the Civil Procedure Code relating to execution but also the provisions of Art.136.