P L MORADA Vs. S D BAKSHI

JUDGEMENT

(1.) This second appeal is directed against the decision of the District Judge Simla, affirming on appeal a decision of the Senior Sub-Judge, Simla, in execution case under Section 47 read with Section 151 of the Code of Civil Procedure, whereby objections of one Major (Retired) P. L. Morada, tenant of Grange Villa, Simla in execution of an order of eviction passed against him by the Rent Controller Simla, in a petition under Section 13 of the East Punjab Urban Rent Restriction Act, 1949 have been dismissed. The case appears to have some chequered history. Sometime in 1970 Shri S. D. Bakshi landlord of Grange Villa filed a petition under Section 13 of the East Punjab Rent Restriction Act 1949 (hereinafter to be referred as the Rent Restriction Act. 1949) against his tenant Major P. L. Morada on ground of personal requirement of the accommodation, which was allowed on 22-3-1972. It is. however, to be noticed that the Himachal Pradesh Urban Rent Control Act, 1971 (hereinafter to be referred as the Rent Control Act 1971) had come into force w. e. f. 5-11-1971, admittedly during the pendency of that application. As against the order of eviction. Major Morada preferred an appeal before the Appellate Authority but his appeal was dismissed on 26-7-1972. Thereafter Major Morada came in revision before the High Court and the revision was dismissed on 9-111972. A review petition was also preferred and the same was also dismissed on 17-1-1973. Thereafter on 12-4-73 another proceeding started, inasmuch as Shri S. D. Bakshi filed an application for the execution of the order passed by the Rent Controller, under Section 17 of the Rent Restriction Act 1949. These proceedings started in the Civil Court and the learned Senior Sub-Judge. Simla, executed the order as if it was a decree of that Court. In this execution proceeding, the present objections were raised by the tenant. His contention was that the Rent Controller who had passed the order of eviction no longer retained his jurisdiction as the Rent Control Act 1971 came into force and a fresh Controller was required to be appointed under Section 2 (b) of that Act. As such the order of eviction passed by the erstwhile Controller was a nullity and the same could not be executed in the Civil Court. It was stated that under Section 23 of the Rent Control Act. 1971, the execution of the order could be undertaken by the Controller appointed under Section 2 (b) of the new Act. Similarly, contended the tenant, that the Appellate Authority was also devoid of jurisdiction because it was not appointed under the Rent Control Act 1971 and the order being a nullity could not be confirmed by it. In this manner, the very order of eviction was vitiated. It was further contended by the tenant that the execution proceedings were not pending on the date of, the commencement of the Rent Control Act 1971 and hence these were not protected under Sub-section (2) of Section 28 of the said Act. As such the provisions of the new Act applied to such proceedings and in view of its Section 14 the order of eviction could not be executed except in accordance with the provisions of that section. These objections were, repelled by the learned Senior Sub Judge and it was held that the order of eviction was a valid one and that the execution could be sought from the Civil Court under Section 17 of the Rent Restriction Act 1949. Against the order of the Senior Sub Judge, the tenant came in appeal before the District Judge but could not succeed. The learned District Judge dismissed the objections. The present second appeal is directed against that decision.

(2.) The contention of the respondent-landlord has been that the Executing Court could not go behind the decree and was concerned only with the questions relating to execution, discharge and satisfaction of the order sought to be executed. Besides that, it is also contended that Section 28 (2) of the Rent Control Act 1971 decidedly conferred jurisdiction upon the Controller and the Appellate Authority appointed under the Rent Restriction Act 1949 and the order was liable to be executed as if the new Act had not been passed.

(3.) On behalf of the appellant, an application was filed indicating that the landlord respondent has assumed possession over a considerable portion of the accommodation which has since fallen vacant and as such he no longer stands in need of any further accommodation so as to eject the tenant-appellant. Whatever new facts regarding vacation of such accommodation, have been alleged by the appellant stand admitted by the respondent. According to the learned Counsel representing the respondent, any subsequent development regarding a portion of accommodation having fallen vacant cannot be taken regard of, and the order of eviction has to be executed in the manner it was passed by the Controller and does not merit reconsideration on any such ground. The appellant, of course, raised the plea that even at the stage of the execution of the order, subsequent developments could be considered and for the purpose of execution the subsequent convenience thus afforded to the landlord who has been put into possession of much more, accommodation than to what he was previously entitled, would be a relevant factor.