DRAUPATI Vs. FATTU S O CHIRKUTRAO SHELARE

JUDGEMENT

(1.) THE applicant plaintiff obtained a decree for eviction against the respondent/non-applicant in Small Cause Suit No. 458/82. This decree was challenged before the District Judge vide Civil Appeal No. 254/85. The decree, inasmuch as it related to eviction was stayed by the District Court. However, this stay order came to be vacated on 15-10-1985. On 17-10-1985, the plaintiff filed an execution for possession. Possession warrant was issued and the Possession was delivered on 30-10-1985. The execution was accordingly disposed of.

(2.) ON 1-11-1985, the judgment debtor applied for restoration of the premises under section 144 of Code of Civil Procedure. The Executing Court held that the decree put in execution being void, no possession could have been delivered. But as it was already delivered, it directed restitution not under section 144 of Code of Civil Procedure, but under section 151 of Code of Civil Procedure. The observations of the Court were that it was the duty of the Court to take care that the act of the Court does not cause any injury to parties. The application for restitution was allowed. The plaintiff was directed to put the defendant in possession of the house within six months. This order was passed on 1-1-1987.

(3.) IT is this order which has been the subject matter of challenge in this revision. Mr. De, the learned advocate for the petitioner strenuously urged before me that the decree passed by the trial Court in Small Cause Suit No. 458/82 had become final, inasmuch as the appeal before the District Court was withdrawn by the defendant. As far as the finality is concerned, there is hardly anything to say against it. Admittedly, the decree was based on the relationship between the landlord and the tenant and the exemption given by the State Government to the premises constructed after 1-1-1951, under Clause 30 of the C. P. and Berar Letting of Houses and Rent Control Order. As these premises were exempted from the operation of the Rent Control Order, the plaintiff instituted a suit for eviction before the Small Causes Court without approaching the Rent Controller. In (Prabhakar Tanbaji Rokde v. State and others) 1985 Mah. L. J. 548, this Court adjudicated that the Notification issued under Clause 30 of the Rent Control Order was ultra vires, as it was violative of Article 14 of the Constitution. With the quashing of this exemption, the permission of Rent Controller became a condition precedent for instituting a suit for eviction against a tenant. This was the legal position which prevailed on 15-10-1985.