HARI KISHEN Vs. AMAR NATH

JUDGEMENT

(1.) THIS appeal arises in the following circumstances On 8 -6 -1948 a compromise was arrived at between the landlord Amar Nath and the tenant Hari Kishan during the course of execution proceedings that the tenant shall vacate the promises a shop within six months and the latest on 8 -12 -1948. This not having been done, the landlord Amar Nath took out execution of that decree. The judgment -debtor pleaded a fresh compromise by virtue of which he could not be ejected. On 19 -3 -1949 the objections were dismissed and on 21 -5 -1949 the appeal was also dismissed. Before this, the date of which is not quite clear, a regular suit was brought by Hari Kishan for a declaration that a compromise had boon made between him and Amar Nath and, therefore, he could not be ejected. He also prayed for injunction but this suit was dismissed as also the appeal against that decree. On 14 -6 -1949 fresh objections were filed under Section 13 of Act III [3] of 1949, which came into force on 23 -3 -1949, in which it was pleaded that the judgment -debtor could not be ejected in view of Section 13 of the now Act which provided that a tenant in possession should not be evicted in execution of a decree passed before or after the commencement of that Act or otherwise except in accordance with the provisions of Section 13 of that Act. This plea did not find favour either with the executing Court or with the Court of the learned District Judge to whom appeal was taken by the judgment -debtor.

(2.) AGAINST this order of dismissal the judgment -debtor has come up in second appeal to this Court and Mr. Shamair Chand, the learned Counsel for Amar Nath landlord has taken a preliminary objection that an appeal would not lie in the circumstances of this case. His submission is that if no second appeal lay in the original matter, no second appeal can lie in execution and in support of his submission he has relied on a Division Bench judgment Sant Prasad v. Bhawani Prasad : 43 ALL. 403 : A.I.R. 1921 ALL. 55 where Piggott and Walsh JJ. while dealing with an appeal in execution of a matter which was entertainable by a Small Cause Court held that a second appeal would not lie in execution if a second appeal would not have lain in the suit itself. A largo number of cases were relied upon. With this view I most respectfully agree and I am of the opinion that in this case if no second appeal lay from the original matter under Section 13 of Act IV [4] of 1947 no second appeal would lie in execution of the order passed under that section.

(3.) IN the result, this appeal fails and is dismissed with costs throughout.