GAJENDRANATH DAS Vs. D.P. MISRA

JUDGEMENT

(1.) THESE two Miscellaneous Second Appeals arise out of Misc. Appeals 151 and 152 of 1960 in the court of the District Judge, Cuttack, which have been disposed of in a single judgment. In T.S. No. 106 of 1957, there was compromise decree on 29 -10 -1959 for ejectment, for house rent and for damages against the present Appellant -judgment -debtor and the said decree was passed ex parte against the other judgment debtor. The decree -holder -Respondent filed execution case No. 67 of 1960 for ejectment, and a separate execution case No. III of 1960 for recovery of rents, damages and costs The present Appellant, but not the other judgment -debtor, filed misc. case No. 92 of 1960 in respect of execution case No. 67 of 1960, whereas both the judgment -debtors filed misc. case No. 176 of 1960 in respect of execution case No. 111 of 1960. The objection in misc case No. 92 of 1960 was that the compromise decree offended the provisions of Section 74 of the Contract Act, and as such was not executable. The objection in the subsequent misc. case was that the execution case for recovery of rents, damages and costs was not maintainable, since reliefs on those accounts could have been claimed in the earlier execution case which had been filed for ejectment only. The executing court rejected both the objection petitions. The other judgment -debtor, who was party to misc. case No. 176, did not come up in appeal. It was the present Appellant alone who came up in two separate appeals before the District Judge, and the learned District Judge, has dismissed both the appeals.

(2.) BEFORE me Mr. Ray for the Appellant conceded that he did not want to challenge the findings of the courts below. But he raised a new contention, and it is that the decree, so far it related to the question of ejectment, was without jurisdiction in view of the provisions of Sections 6 and 7 of the Orissa House Rent Control Act of 1958, which had come into force by the time the decree was passed.

(3.) THE only remaining question, therefore, is whether the Appellant was a tenant. On the face of the decree, the position appears to be misleading. What has been decreed against both the judgment -debtors is ejectment, house rent up to certain period, and damages from thereafter. The decree by itself does not describe the Appellant to be a tenant, and so one has to go back to the pleading to see the real character of the suit. In the plaint, Defendant No. 1 has been clearly sued as a tenant in respect of the suit house. So far the present Appellant is concerned, his position is mentioned in para 7 of the plaint as follows: