MADHORAO RAMCHANDRA SALUNKE Vs. RAMBHAROSESINGH ZALIMSINGH

JUDGEMENT

(1.) The disputed facts are that in Civil Suit No. 68 of 1949 the additional Civil Judge, Second Class, Gwalior passed a decree in favour of the petitioner for arrears of rent and also for ejectment. The respondent on the other hand took proceedings for the assessment of fair rent before the Rent Controller. On 1-31949 a rent of Rs. 19-6-0 per year was fixed as fair rent of the premises by the Rent Controller and that was affirmed by the High Court of Madhya Bharat on 1st February 1955. The petitioner (decree-holder) recovered Rs. 362-10-6 on the basis of the rate of rent which was the basis of the decree in Civil Suit No. 68 of 1949. Then he brought the present suit in the Court of Small Causes alleging that only Rs. 119-14-6 were due, and thus the decree-holder had realized an excess amount of Rs. 242-12-0. The suit has been decreed. Aggrieved by the same the present revision application has been preferred by the defendant.

(2.) Shri Garg, learned counsel for the petitioner first of all contends that whatever the decree-holder recovered was in execution of the decree which was passed by the Civil Judge and the present decree passed by the Small Cause Court is without jurisdiction because it amounts to setting aside of the decree passed by the Civil Judge. In my opinion, this contention has no substance. The Small Cause Judge has not set aside any decree. He has only granted the relief which the plaintiff became entitled to because of the assessment of the fair rent and the declaration therein that the landlord was not entitled to recover from the plaintiff a rent higher than Rs. 19-6-0 per year.

(3.) Then Shri Garg contends that the Small Cause Judge had no jurisdiction because of Article 2 of Schedule II. That article runs thus :