SHAKTI DHAR Vs. D D UPADHYAY

JUDGEMENT

(1.) THIS revision came up for hearing before one of us (T. S. Misra, J.). He was of the opinion that a view different from the one expressed by a Division Bench of this Court in Sarjoo Prasad v. Second Additional District Judge, Kanpur and others,(A.I.R. 1975 All. 13.) which was followed by a learned Single Judge of this Court in Gaurl Shanker Mtsra v. M/s. Shiv Shanker Lal Ram Nath and others,(1978 A.L.J. 819=19778(4) A.L.R. 465) and by another Single Judge in Hafizur Rehman and others v. Mohamad Askari and another(A.I.R. 1978 All. 428) was possible. He was also of the view that the revision raised an important question as to the interpretation of the provisions of Section 7 and Order L of the Code of Civil Procedure as also of Sections 15, 16 and 17 of the Provincial Small Cause Courts Act read with provisions of U. P. Civil Law Amendment Act 1972. In his opinion the question was of general importance. He, therefore, was of the view that the revision should be heard by a Full Bench. Accor dingly he directed the papers of the case to be laid before Hon. the Chief Justice for constituting a Full Bench to decide the rivision petition. THIS is bow his matter has come up before us. The facts of the case fall within a narrow campus. The opposite party in the revision filed suit No. 78 of 1976 against the applicant for his ejectment from the house in question. THIS suit was tried and decreed on 26-4-1977 by the learned Additional District Judge, Lucknow exercising powers of Small Cause Court. Thereafter the decree-holder opposite party moved an application for execution of the decree in the same Court. Against this application two objections were raised on behalf of the Judgment-debtor applicant. His first objection was that in view of the pro vision contained in Section 70 (a) (iii) of the Code of Civil Procedure the decree in question could not be executed by a Court exercising powers of Small Cause Court. His second objection was that after the amendment of Section 39 by the Code of Civil Procedure (Amendment) Act 1976 (U. P. Act No. 104 of 1976), the decree could not be transferred for execution to a regu lar Civil Court and, therefore, the decree in question was inexccutable. He therefore, prayed that the execution case be struck off and it may be held that the decree in question was inexecutable. The learned Additional District Judge upheld the second objection of the applicant, but he rejected the first objection. While rejecting the first objection be placed reliance upon the decision of a learned Single Judge of Maharashtra High Court in Brij Mohan Bhagwan Sahai Joshi v. Datta Traya Shankar Dixi.(1975 Mah. L.J. 937) The learned Court below 'held that if the provisions of Section 7 and Order L were read together, irresistible inference was that they did not include Rules 35 and 36 of Order XXI of the Code of Civil Procedure and, therefore, the Court of Small Causes was competent to execute a decree passed against a tenant or his ejectment from immovable property. Against the above judgment of the learned Court below the judgment-debtor applicant has come up in revision. He has passed both the grounds for asserting that the decree passed in favour of the opposite party cannot be executed. We will first take up his second objection relating to transfer of the decree to a regular civil Court. Section 38 of the Code of Civil Proce dure prescribes that a decree may be executed either by the Court which passed it, or by the Court to which it is sent for execution. Sub-section (1) of Section 39 provides that the Court which passed a decree may, on the application of the judgment- debtor, send it for execution to another Court of competent jurisdiction. By Code of Civil Procedure (Amendment) Act 1976 sub-section (3) was added to Section 39. THIS sub-section (3) as it then stood, read as follows:- "(3) For the purposes of this section, a Court shall be deemed to be a Court of competent jurisdiction if, at the time of making the application for the transfer of decree to it, such Court would have jurisdiction to try the suit in which such decree was passed". Sub-section (5) thus defined the term 'competent jurisdiction' used in sub-section (1) of Section 39, The argument of the learned counsel for the applicant was that in view of the provision contained in sub- section (3) of Section 39 the decree in question could be transferred only to such Court which would have jurisdiction to try the suit in which the decree was passed. According to the learned counsel on the date the application for execution was made the jurisdiction to try a suit filed by a lessor for the eviction of the lessee from a building after the termination of lease was cognizable only by a Court of Small Causes and, therefore, by virtue of the provision contained in Section 16 of the Provincial Small Cause Court Act regular Civil Court had no jurisdiction to try such suit. The learned counsel, therefore, argued that since the regular civil Court had no jurisdiction to try the suit in which the decree under execution was passed the decree could not be transferred to the said Court, THIS contention of the learned counsel for the applicant was countered by Sri R. N. Tilhari, appearing on behalf of the decree-holder opposite party. The learned counsel urged that the term 'competent jurisdic tion' used in Section 39 referred to 'pecuniary jurisdiction' and, therefore, if the transferee Court had pecuniary jurisdiction to try the suit in which the decree sought to be executed was passed the transferee Court would be a Court of competent jurisdiction within the meaning of Section 39 of the Code. In support of his contention the learned counsel placed reliance upon two single judge decisions of this Court in (Jauri Shanker Misra v. M/s. Shiv Shanker Lal Ram Nath and others (Supra) and Hafizur Rehman and others v. Mohammad Askari and another (Supra). In Gaurt Shanker's case, K. C. Agarwal, J. noticed the argument of the learned counsel as follows:- "The submission of the learned counsel for the judgment debtor was that the words 'of competent jurisdiction point out that the Court to which the decree is sent for execution should be a Court having jurisdic tion to entertain the suit. It was submitted that as after U. P. Act No. 37 of 1972 a suit for ejectment by a landlord against a tenant can be enter tained only by a Judge, Small Causes, and the transferee Court could have no jurisdiction to entertain the said suit, the transfer made was ineffective and Invalid." Dealing with the above argument the learned Judge observed as follows:- "Read in the light of the recommendation of the Law Commission, it would be seen that the words 'of competent jurisdiction' have to be res tricted in their operation. They do not mean that the Court executing the decree should have the jurisdiction over the subject matter and to pass decree in the suit itself. There are no reasons which could justify the taking of the view canvassed by the learned counsel for the plaintiff." Again at page 471 the learned Judge observed as follows:- "The words used are not such which lead to the conclusion suggested by the learned counsel for the defendant. The words have to be read in their context. Reading the same, its meaning has to be confined to the pecuniary jurisdiction and not the jurisdiction over the subject matter........." Thus the conclusion of K. C. Agarwal, J., was that the term 'competent jurisdiction in Section 39 refers to the pecuniary jurisdiction and not jurisdic tion over the subject matter of the suit itself. In Hafizur Rehman's case (Supra) K. N. Goyal, J., in paragraph 9 of the judgment appearing at page 430 of the report observed as follows:- "The amendment made in Section 39 by Act No. 104 of 1976 should not make any difference to this legal position. It cannot be said that the Munsif's Court is not a Court of competent jurisdiction within the mean ing of the new Explanation to Section 39. As held in Manzurul Haq v. Hakim Mohsin Ali,(A.I.R. 1970 All.604 (FB)) by a Full Bench of this Court and also in Bhaiyalal v. Tikaram,( A.I.R. 1970 M.P. 237(FB)) the Small Cause Court is a Court merely of preferential jurisdiction in respect of suits of the nature specified in Section 15(2) of the Provincial Small Cause Court Act 1887 and not a Court of exclusive juris diction. Accordingly the Munsif 's Court or the Civil Judge's Court, accor ding to the value of the suit, must also be held to be a competent Court for purposes of Section 39.........." Thus R, N, Goyal, J, was also of the view that the term 'competent jurisdic tion' used in Section 39 referred to pecuniary jurisdiction and not to jurisdic tion over the subject matter of the suit. These decisions do lend support to the contention of the learned counsel for the opposite party. The learned counsel for the applicant, however, urged that these decisions did not lay down the law correctly and, therefore they should be reviewed. The question is now of only academic interest inasmuch as sub-section (3) of Section 39 has been replaced and substituted by U. P. Ordinance No. 15 of 1978 with effect from 1-8-1978. The Ordinance was replaced by the Code of Civil Procedure (Uttar Pradesh) (Amendment) Act 1978 (U, P. Act No. 31 of 1978). The substituted sub-section (3) of Section 39 reads as follows;- "(3) For the purposes of this section, a Court shall be deemed to be a Court of competent jurisdiction if the amount or value of the subject-matter of the suit wherein the decree was passed does not exceed the pecuniary limits, if any, of its ordinary jurisdiction at the time of making the application for the transfer of decree to it, notwithstanding that it had otherwise no jurisdiction to try the suit." The above amendment has accepted the view expressed by brothers E. C. Agarwal J. and K. N. Goyal, J. In view of this amendment It is not neces sary to review the decisions in Gayal Shanker Misra's case and Hafizur Rehmarts case. In view of the amendment it is competent now for a Court of Small Causes to transfer its decree for execution to a regular Civil Court having pecuniary jurisdiction over the subject matter of the suit. Now we come to the first question raised on behalf of the applicant. The question Is whether a Court of Small Causes is competent to execute a decree for eviction of a lessee from a building after determination of his lease passed in favour of a lesson. The answer to this question depends upon the interpretation of certain provisions of the Code of Civil Procedure 1908 (hereinafter) referred to as the (Code) and the Provincial Small Cause Court Act, 1887 (hereinafter referred to as the Act). Sub-section (1) of Section 15 of the Act prescribes that a Court of Small Causes shall not take cognizance of the suits specified in the Second Schedule as suits excepted from the cognizance of a Court of Small Causes by which the suit is triable. Sub-section (2) thereof prescribes that subject to the exceptions specified in the Schedule and to the provisions of any enact ment for the time being in force, all suits of a Civil nature of which the value does not exceed five hundred rupees shall be cognizable by a Court of Small Causes. In its application to the State of U. P, the figure of Rs.500/- stands amended. For the purposes [of the present revision it is not necessary to mention the value which is applicable in this State. Schedule II referred in sub-section (1) of Section 15 contains 44 articles. Cases falling within the ambit of these 44 articles are exempt from the cognizance of the Court of Small Causes. In other words a Court of Small Causes is not competent to entertain suits of the natute specified in the Second Schedule of the Act. Article 4 of the Schedule as It stood prior to 1972 was as follows- "A suit for the possession of immovable property or for the recovery of an interest in such property." By U. P. Act No. 37 of 1972 the article was substituted as follows:- "A suit for possession of Immovable property or for the recovery of an interest in such property, but not including a suit by a lesson for the evic tion of a lessee from a building after the determination of his lease, and for the recovery from him of compensation for the use and occupation of that building after such determination of lease. Explanation......" A perusal of the various articles contained in the Second Schedule would indi cate that prior to 1972 no suit in respect of an immovable property was enter-tainable by the Court of Small Causes. For the first time a suit for eviction of a lessee by a lesson was made cognizable by a Court of Small Causes. Section 16 of the Act provides that save as expressly provided by the Act or by any other enactment for the time being in force, a suit cognizable by a Court of Small Causes shall not be tried by any other Court having jurisdiction within the local limits of the jurisdiction of the Court of Small Causes by which the suit is triable. The combined effect of the provisions contained in sub-section (2) of Sections 15 and 16 of the Act is that a regular Civil Court is debarred from taking cognizance of a suit which falls within the cognizance of the Court of Small Causes. Sub-section (1) of Section 17 of the Act lays down that the procedure prescribed in the Code of Civil Procedure, 1908, shall, save in so far as is otherwise provided by the Code or by the Act, be the procedure to be followed in a Court of Small Causes in all suits cognizable by it and in all proceedings arising but of such suits. Thus where a specific provision to the contrary has not been made the procedure prescribed in the Code of Civil Procedure has to be followed by a Court of Small Causes in suits cognizable by it a,nd also in all proceedings arising out of such suit. These proceedings obviously include execution proceedings also. Section 7 of the Code provides as follows:- "The following provisions shall not extend to Courts constituted under the Provincial Small Causes Courts Act, 1887 (9 of 1887) or under the Berar Small Cause Courts Law, 1905 or to Courts exercising the jurisdic tion of a Court of Small Causes under the said Act or law or to Courts in any part of India to which the said Act does not extend exercising a corresponding Jurisdiction that is to say,- (a) So much of the body of the Code as relates to: (i) Suits exempted from the cognizance of a Court of Small Causes; (ii) The execution of decrees in such suits (iii) The execution of decrees against immovable property j and (b).............................." Order L Rule 1 of the Code prescribes as follows:- "1. PROVINCIAL SMALL CAUSE COURTS.-The provisions here inafter specified shall not extend to Courts constituted under the Provin cial Small Cause Courts Act, 1887 (9 of 1887), or under the Berar Small Cause Courts Law, 1905 or to Courts exercising the jurisdiction of a Court of Small Causes under the said Act or Law, or to Courts in any part of India to which the said Act does not extend exercising a corresponding jurisdiction that is to say- (a) So much of this Schedule as relates to- (i) Suit excepted from the cognizance of a Court of Small Causes or the execution of decrees in such suits; (ii) The execution of decree against immovable property on the interest of a partner in partnership property. (iii) The settlement of issues; and (b) The following rules and orders:- Orders II Rule 1 (frame of suit); Order X, Rule 3 (record of examination of parties); Order XV, except so much of Rule 4 as provides for the pronounce ment at once of judgment; Order XVIII, Rule 5 to 12 (evidence); Order XLI to XLV (appeals); Order XLVII, Rules 2, 3, 5, 6, 7 (review); Order LI." The material question for determination in this revision is whether a decree for eviction of a tenant in a suit filed by the landlord after termina tion of tenancy is a decree against immovable property or it Is a decree against person for or in respecting immovable property, on behalf of the applicant it was urged by his learned counsel Sri S. K. Kalia that such a decree is a decree against immovable property. The argument of the learned counsel was that the term 'against- was of wide import and it included also a decree in respect of immovable property. The learned counsel forced his argument by inviting our attention to the meaning of the term 'against' given in Webster's Third International Dictionary. The eighth meaning given to the word in the said Dictionary is thus; "With respect to: relating to" On this basis of the definition the learned counsel urged that a decree for eviction of a tenant from immovable property was, in any case, a decree with respect to or relating to immovable property and would thus be a decree against immovable property within the meaning of the term used in sub-clause (iii) of clause (a) of Section 7 of the Act and also within the meaning of sub-clause (ii) of clause (a) of Rule 1 of Order L of the Code. As against the argument of Sri Kalia, Sri Tilhari placed reliance upon the meaning mentioned at 2a and 4a in the same dictionary, At 2a the meaning given is as follows:- "Prom an opposite direction and into contrast with" At 4a the meaning is thus: "In opposition or hostility to" Sri Tilahri also placed reliance upon the definition of the term given in Ox ford Concise Dictionary, Fourth Edition. In this dictionary the following definition is contained of the term 'against';- "In opposition to;.................................. in contrast to;. opposite to" On the basis of the above definitions the learned counsel argued that the term "decrees against immovable property" referred to those decrees which determined hostile claim of title to immovable property by rival claimants. The learned counsel contended that a decree for eviction of tenant from im movable property was for immovable property and not against immovable property. The dictionary meaning of the term "against" is not helpful for deciding the controversy. One of the meanings of the term 'against' as noticed above, is 'with respect to' or 'relating to'. It cannot be denied that a decree for eviction of a tenant from immovable property is with respect to or relating to immovable property. Sri Tilahri then invited our attention to the definition of the term 'lease' contained in Section 105 of the Transfer of Property Act and contrasted the same with the definitions of the terms 'sale', 'exchange' 'gift' and 'mortgage' contained in Sections 54, 118, 122 and 58 of the Act. Section 105 reads as follows:- "105. A lease of immovable property is a transfer of a right to en joy such property, made for a certain time, express or implied, or in perpetuity in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee who accepts the transfer on such terms." On the basis of the above definition the learned counsel urged that when a tenant was inducted into an immovable property he acquired merely a right to enjoy that property without acquiring any interest therein, as was acquired by a transferee when an immovable property was sold, exchanged, gifted or mortgaged. In cases of sale, exchange or gift, the learned counsel pointed out there was transfer of ownership itself, while in the case of mortgage there was transfer of interest in immovable property. The argument, though attrac tive, does not bear judicial scrutiny. While indicating distinction between a lease and a licence their Lordships of the Supreme Court observed in the case of Associated Hotels of India Ltd. v. R. N. Kapoor,(A.I.R. 1959 S.C. 1262) in paragraph 27 occurring at page 1269 of the report as follows:- "There is a marked distinction between a lease and a licence. Section 105 of the Transfer of Property Act defines a lease of immovable pro perty as a transfer of a right to enjoy such property made for a certain time in consideration for a price paid or promised. Under Section 108 of the said Act, the lessee is entitled to be put in possession of the proper ty. A lease is therefore a transfer of an interest in land. The interest transferred is called the leasehold interest. The lesson parts with his right to enjoy the property during the term of lease, and it follows from it that the lessee gets that right to the exclusion of the lesson.................. The above judgment clearly negatives the contention of Sri Tilahri that a lease of immovable property does not create interest there in favour of the lessee. According to this decision creation of lease also involves transfer of interest in immovable property. Thus the provisions of Transfer of Property Act arc also of no assistance in resolving the controversy. We would, therefore revert to Section 7 and Order L Rule 1 of the Code and inalyse the requirements of these provisions for their attraction. Sub-clause (i) of Clause (a) of Section 7 refers to suits excepted from the cognizance of a Court of Small Causes. Sub- clause (ii) refers to decrees passed in such suits, that is, for suits excepted from the cognizance of the Court of Small Causes. The result of the provisions contained in these two sub-clauses is that the provisions of the Code relating to the trial of suit excepted from the cogni zance of a Court of Small Causes will not apply to the trial of suits cogniz able by a Court of Small Causes; the same bar is continued at the execution stage also, that is, the provisions of the Code relating to execution of decrees passed in suits excepted from the cognizance of a Court of Small Causes will not apply to execution of decrees passed by a Court of Small Causes. A Civil Case has two stages-firstly, the stage when decree is passed either decree ing the suit or dismissing the same and secondly, the execution stage wherein the fruits of the decree are realised. Clauses (i) and (ii) above, cover both the stages in a case of the same nature. The Code of Civil Procedure was enacted in the year 1908 while the Provincial Small Causes Courts Act was enacted in the year 1887. Thus when Section 7 of the Code was enacted Section 15 of the Act with the Schedule referred to therein was already on the Statute Book. At the time of the enactment of Section 7 of the Code the Court of Small Causes did not possess the power to entertain suits relating to delivery of possession over immovable property whether the suit was based on title to property against trespasser or was based upon relationship of landlord and tenant. Therefore at that time the bar created under sub-clauses (i) and (ii) sufficiently covered all cases dealt with by a Court of Small Causes at the stage of trial as well as at the stage of execution. If sub-clause (iii) covered decrees covered by Clause (ii), the former clause would be surplus age. THIS raises two questions: firstly, whether the legisla ture, by incorporating sub-clause (iii), has made an unnecessary or surplus provision and secondly, whether the said sub-clause refers to a different category of cases. In Hill v. William Hill. ((1949)2 All England Law Reports) Viscount Simon observed at page 461 as follows:- "....Though a Parliamentry enactment (like Parliamentary eloquence) is capable of saying the same thing twice over without adding anything to what has already been said once, this repetition in the case of an Act of Parliament is not to be assumed. When the legislature enacts a parti cular phrase in a statute the presumption is that it is saying something which has not been said immediately before. The rule that a meaning should, if possible, be given to every word in the statute implies that, unless there is good reason to the contrary, the words add something which would not be there if the words were left out....'' Again to page 464 Lord Greene observed thus:- ".........in the absence of an appropriate context, one statutory provision which is expressed in entirely different language from another, whether in the same or a different section, is not to be interpreted as repetitive or unnecessary..............." The law in India is not different. In J. K. Cotton Spinning and Weaving Mills Co. Lid. v. State ofUttar Pradesh and others,(A.I.R. 1961 S.C. 1170) their Lordships of the Supreme Court observed at page 1174 as follows:- ".....in the interpretation of statutes the Courts always presume that the legislature inserted every part thereof for a purpose and the legislative intention is that every part of the statute should have effect...,.." In view of the above legal position who can hold sub-clause (iii) to be sur plus age or repetition of what is already contained in sub-clause Hi) only if we can find some good reasons there for. We are unable to find any good reason for holding that sub-clause (iii) is a repetition of what had already been provided under clause (ii). The learned counsel for the applicant was also not able to suggest any reason. Starting with a presumption that sub-clause (iii) intended to provide something different from what had already been provided by sub-clause (ii), we would proceed to examine the alternative interpretations which can be placed on the language of sub-clause (iii). Only two interpretations were placed before us, one by the learned counsel for the applicant and the other by the learned counsel for the opposite party. According to the learned counsel for the applicant a decree for eviction of a tenant from immovable property is a decree directed against the property from which a tenant is sought to be evicted. Jurisdiction to try suits against immovable property vests in the regular Civil Court and not in the Court of Small Causes. Jurisdiction to execute decrees passed in such suits also vests in the regular Civil Courts and not in the Court of Small Causes. Therefore if the interpretation suggested by the learned counsel for the applicant is accepted, sub-clause (iii) would cover the game field which is already covered by the sub-clause immediately preceding it. Such an interpretation should, as far as possible, be avoided. Let us now examine the interpretation sugges ted by the learned counsel for the opposite party. Sri Tilahri submitted that sub-clause (iii) attracts cases where a personal decree is sought to be executed against immovable property, for example, when a money decree is sought to be realised by attachment and sale of the immovable property of the judg ment debtor. According to the learned counsel in a suit filed by the landlord for the eviction of his tenant from immovable property the Court is not called upon to decide any question of title to immovable property and that all that the Court is required to decide is whether the tenant should continue to enjoy the property, the right to enjoy which normally vests in the owner of the property. In other words, in such suits the Court merely decides the question whether personal relationship created between the landlord and the tenant by virtue of contract should be continued or should be terminated. The learned counsel pressed that a decree passed in such a suit is, therefore, a personal decree against a tenant although it may be in respect of or for immovable property, such a decree, according to the learned counsel, is not against immovable property. We find force in the argument of the learned counsel and accept the same. Acceptance of this argument would avoid ren dering sub clause (iii) ineffective or surplus. THIS view will not militate against the position that lease creates interest in the immovable property leased out. Once the relationship of landlord and tenant which arose out of contract is terminated, the interest also ceases. Therefore, so far as the question of possession to immovable property is concerned, the important question that is decided in a suit for eviction is whether the contract of lease has been validly terminated so as to bring to end the personal relation ship of landlord and tenant. THIS is an entirely personal matter and has no relation to the title to immovable property. In fact in view of the provision contained in Section 116 of the Evidence Act the tenant is debarred from denying the title of his landlord and consequently from raising the question of title in a suit filed by the landlord for his eviction. We accordingly hold, firstly that a decree for eviction of tenant in a suit filed by landlord is not a decree against immovable property but is a decree directed personally against the tenant, although the said decree is in respect of or for immovable property; and secondly that sub clause (iii) contemplates cases where decrees are realisable by proceeding against the judgment-debtor personally as well as against his immovable and movable properties but a decree is sought to be realised by proceeding against immovable property, that is, by attach ment and sale or sale without attachment of immovable property. In such a case Small Causes Court will not be competent to execute the decree. The above fact is prominently brought out from the language employed in Order L Rule 1 (a) (ii) of the Code. For ready reference sub-clause (ii) is reproduced below again:- "(ii) The execution of decrees against immovable property or the interest of a partner in partnership property." The above sub-clause contemplates two types of executions. If the clause is split up it would read thus:- The execution of decree against immovable property or the execution of decrees against the interest of a partner in partnership property. The second part of sub-clause (ii) is attracted where a decree passed against a partner is sought to be executed by proceeding against his interest in the partnership. A decree passed personally against a partner may be executed against him personally or by attachment and sale of his movable and immovable properties and also by attachment of his interest in the partnership. The second part of clause (ii) is attracted only when execution is levied in the last manner mentioned in the proceeding sentence. On the same analogy the first part of clause (iij will be attracted when a decree passed against a person is sought to be executed not by proceeding against him personally or against his movable property but would be attracted when it is sought to be executed against his immovable property, that is by attach ment and sale of the said property. Now we would take up the causes cited at the Bar. In Brij Mohan Bhagwan Sahai Joshi v. Dattatraya Shanker Dixit, (supra) relied upon by the learned counsel for the opposite party and also referred to in the judgment of the learned Court below, the same view was taken as we have taken but for different reasons. The view taken in this judgment is that a decree for eviction against a tenant is a decree for delivery of possession and such a decree is to be executed under Order XXI Rules 35 and 36 of the Code and since these provisions are not specifically mentioned in Order L Rule 1 like other provisions enumerated under clause (b) the Court of Small Causes is not debarred from executing such decree. If this view is accepted as correct then a decree for delivery of possession passed against a trespasser in a suit based on title would also be executable by the Court of Small Causes, as such a decree is also executed under Order XXI Rules 35 and 36 of the Code. THIS intention is, however, clearly negatived by the provision contained in sub-clause (ii) of Section 7 (a) and Order L Rule 1 (a) (i) of the Code. In fact the entire Order XXI which relates to execution is missing from clause (b) of Order L Rule 1. THIS is because matters relating to execution are fully covered by sub-clauses (i) and (ii) of clause (a) of Order L Rule 1. Since matters relating to execution had already been provided in the said sub-clau ses it was unnecessary to repeat them under clause (b). Clauses (a) and (b) of Order L Rule 1 relate to the provisions of the Schedule appended to the Code of only those specific provisions of the Schedule are mentioned in clause (b) which are not covered by the general provisions contained in clause (a). In view of the express provision contained in clause (a) (ii) it was not necessary to repeat the same in clause (b) of Order L Rule 1. Therefore while agreeing with the view taken by the learned Judge of the Maharashtra High Court we do subscribe to the reasoning adopted by him. The Division Bench decision in Sarjoo Prasad v. Second Additional District Judge, Kanpur and others, (supra) was relied upon by the learned counsel for the applicant. The view taken in this case is different from the one taken by us. In paragraph 8 of the judgment occurring at page 15 it was observed as follows: "Section 7 and Order 50, Rule 1, C. P. C. exclude certain specified provisions from the Small Cause Courts. Under Section 7 (a) (iii) and clause (a) (ii) of Order 50, Rule 1, provisions relating to the execution of decrees against immovable property are excluded. In other words, the Small Cause Courts do not have the power to execute decree against immovable properties in accordance with the provisions of the Code and its Schedule.'' Thereafter in paragraph 10 the following observations occur:- "Section 38 of the Code provides that a decree may be execu ted either by the Court to which passed it or by the Court to which it is sent for execution. Section 39 of the Code provides that the Court which passed a decree may, on the application of the decree-holder, send it for execution to another Court. The Small Cause Court possesses this power. It can send a decree passed by it for execution to the regular Courts. A decree for possession of immovable property being a decree against immovable property may not be execut able by the Small Cause Court itself, but, nonetheless, under Section 39 it has the power to send such a decree for execution to a Court which can execute it." It appears from the passages reproduced above that it was not contended before the Division Bench as it was contended before us that a decree for eviction of tenant from immovable property was not a decree against immov able property but was a personal decree against a tenant and that Section 7 (a) (iii) and Order L Rule 1 (a) (ii) dealt with cases where a personal decree was sought to be realised by proceeding against immovable property. Both parties in this case, it appears, proceeded on the basis that such a decree was a decree against immovable property and was covered by the bar created under Section 7 (a) (iii) and Order L Rule 1 (a) (ii) of the Code. Thus the Division Bench was not called upon to decide the 'controversy in the manner we were called upon to decide. We, however, with profound respect to the learned Judges, do not subscribe to the view contained in the passages reproduced above. In Gauri Shanker Misra v. M/s Shiv Shanker Lal Ram Nath and others,(supra) the controversy was raised in the manner it was raised before us and it arose in a case arising from execution of decree and it was specifically pleaded before K. C. Agarwal, J. that decree for eviction of a tenant from immovable property was not a decree against immovable property but was a decree against the tenant personally in respect of immovable property. The judgment of the Maharashtra High Court in Brij Mohan's case (supra) was also cited. The learned Judge found the said judgment in conflict with the view taken by the Division Bench of this Court in Sarjoo Frasad's case (supra) and sitting singly he felt himself bound by the decision of the Division Bench. He, therefore, did not proceed to examine the merit of the submission made before him. At page 468 of the Allahabad Law Reports our learned brother has observed as follows:- "...THIS raises a controversy whether a decree obtained from the Court of Small Causes by a landlord and against his tenant is a decree, the execution of which is sought against immovable property. Shri P. N. Bhalla contended that a decree for ejectment obtained by a landlord as against his tenant is not a decree falling under sub-clause (ill) of clause (a) of Section 7 inasmuch as a decree obtained by a landlord is for eject ment of a tenant which is sought to be executed through the aid of the Court. The basis of a decree in such a suit is relationship of landlord and tenant and not title. Hence, the execution of a decree by a landlord for ejectment of a tenant could not be considered as execution of decree against immovable property. Reference in this connection was made by Shri R. N. Bhalla to a case of the Maharashtra High Court reported in Brij Mohan v. Dattatraya (supra). It is no doubt true that the aforesaid decision supports the contention of Sri R. N. Bhalla, but a Division Bench of our Court reported in Sarjoo Prasad v. District Judge, Kanpur(supia.), took a contrary view. In the opinion of the Division Bench, a decree obtained by a landlord as against a tenant was one to which sub-clause (iii) of clause (a) of Section 7, C. P. C. applied. I am bound by the decision of the Division Bench, and, therefore, even if it be correct that some of the aspects found in the Maharashtra case were not brought to the notice of the Division Bench deciding the case before it, that does not take away the efficiency and binding character of the said decision on me. I am, therefore, not prepared to accept the argument of the learned counsel for the decree holder that the execution of a decree obtained by a landlord against a tenant is not the execution against immovable property....." Thus the controversy, though raised, was not examined in detail. Since we have respectfully disagreed with the view taken by the Division Bench we, with respect, do not agree with the view taken in Gcturi Shanker's case also. In Hafizur Rehman and others v. Mohammad Askari and another, (supra) also the decision of the Maharashtra High Court was cited before our learned brother K. N. Goyal, J, and on the basis of this decision it was argued that the applicability of Order XXI Rules 35 and 36 of the Code not having been excluded under Order L, Rule 1(b) the decree could be executed by the Court of Small Causes. THIS submission was rejected by the learned Judge with the following observations:- "It has been argued that Order L Rule 1 C. P. C. does not exclude the application of Order XXI Rules 35 and 36 to Courts of Small Causes. The contention does not appear to be correct as clause (a) (ii) has the effect of excluding all those provisions of Order XXI from their applica tion to Small Cause Courts as relate either to the execution of decree against immovable property or to execution of decrees against the interest of a partner in partnership property. In view of the express provisions contained in clause (a) (ii) it was not necessary to repeat the same in clause (b) of Order L Rule 1, By way of comparison it may be noted that Order XIV is also not noted in clause (b) because of a specific provi sion in that behalf in clause (a) (iii)." With the above observations we respectfully agree. Dealing with the question whether a decree for eviction of tenant from immovable property was a decree against the tenant personally or against immovable property the learned Judge observed in paragraph 7 of the judg ment as follows:- "The learned Judge further observed in the same ruling that execution of a decree for delivery of possession of premises in suit does not amount to 'execution of the decree against immovable property' within the meaning of Section 7 (a) (iii) and Order L, Rule 1 (a) (ii). With the utmost respect, I find myself unable to accept the view that execution of a decree for delivery of possession of immovable property is not covered by expression 'execution of decree against immovable property." For the reasons already given hereinabove, we with profound respect, find ourselves unable to subscribe to the above view. From paragraph 8 of the judgment it would be seen that brother Goyal, J. also relied upon the Division Bench decision of this Court in Sarjoo Prasad's case. With respect to this case we have already made our comments hereinabove. Referring to the original argument advanced on behalf of the applicant that the decree was inexecutable inasmuch as it could not be executed by the Court of Small Causes in view of the prohibition contained in Section 7 and Order L of the Code and because it could not be transferred to any other Court under Section 39 of the Code, Sri Tilhari urged that the power to pass order included the power to execute it and, therefore, the Court of Small Causes being the Court which had passed the decree, would be competent under the general law to execute its decree. In support of this argument the learned counsel placed reliance upon the decision rendered by their Lordships of the Supreme Court in The Central Bank of India Ltd. v. P. S. Rajagopalan etc.(A.I.R. 1964 S.C. 743) The learned counsel placed reliance upon the observations contained in paragraph 16 at page 748. The said observations are as follows:- ".....As Maxwell has observed "where in Act confers jurisdiction, it impliedly also grants the power of doing all such acts, or employing such means as are essentially necessary to its execution."......' It is not necessary for us to pronounce upon the applicability of the dictum to the case on hand in view of the fact that we have held that the decree in question is executable by the very Court which had passed it. In view of the above the revision filed by the applicant is dismissed. As observed earlier the applicant had raised two points against the execution of the decree. One of the points became infructuous during pendency of the revision in this Court and on the other point the applicant has lost because we have taken a view contrary to the one which was prevailing at the time the revision was filed. In view of these circumstances it would be just and proper that the parties bear their own costs of this revision. We, therefore, order accordingly. Stay order, if any, is discharged.