GANESH PRASAD BHAGAT Vs. ANUGRAHANANDA SAHU

JUDGEMENT

(1.) THE landlord (Appellant) obtained an ex -parte order from the House Rent Controller for delivery of possession of the disputed house from the tenant (Respondent) on 1 -5 -1963. The ex -parte order dated 1 -5 -1963 was set aside by the Rent Controller on 16 -10 -1963. On 18 -10 -1963, the tenant filed an application for restitution under Section 144 Code of Civil Procedure before the First Munsif, Cuttack who allowed it. An appeal by the landlord was dismissed on 4.7 -1964. Against the appellate order, the Miscellaneous Second Appeal has been filed.

(2.) MR . Dasgupta advanced two contentions:

(3.) THE next question for consideration is whether an application for restitution is an application in execution or whether such application is entertainable only by the trial court and not by the executing court as Mr. Dasgupta contends. There is some conflict of authority on this point. The controversy was settled by a Full Bench decision in Bhaunath v. Kedarnath : AIR 1934 Pat. 246. It overruled a previous Full Bench decision in : A.I.R. 1925 Pat 1. Their Lordships held by majority that an application for restitution is an application in execution. This decision holds the field for over 30 years so far this State is concerned. With great respect I accept this decision as lying down sound principles. The Munsif and not the Rent Controller is the executing Court. An application for restitution being an application in execution is maintainable only in the Court of the Munsif and not before the Rent Controller.