DASRATHI RAI CHAUDHURY Vs. KALI CHARAN GHOSH

JUDGEMENT

(1.) This appeal is directed against an order of the District Judge of Patna, dated 19-7-1949, modifying a decision of the Munsif, first Court, Patna, dated 24-5-1949. It arises in the following circumstances.

(2.) The respondent as the owner of a house situated in Holding 189, Circle 18, Ward 10, in the Patna City Municipality, obtained on 18-9-1948, an order from the Controller under Section 11, Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 (Bihar Act III [3] of 1947), which I shall refer to for convenience as Act III [3], directing the appellant as the tenant to vacate the house in favour of the respondent within three months from the date of the order. An appeal against this order was dismissed by the Commissioner on 26-2-1949. The appellant not having vacated the house as directed, the respondent, on 21-3-1949, applied to the Munsif, first Court, Patna, under Section 17 of the Act III [3] for the execution of the order. On 24-5-1949, the appellant filed an application under Section 47, Civil P.C., challenging the executability of the order against him. This was summarily dismissed by the Munsif. In appeal, the District Judge has made a slight modification in the Munsiffs order. Among other grounds of objection, the appellant objected that he is not the tenant of the respondent in respect of Holding 189, and that it is being sought by mentioning boundaries not included in the order of the Controller to execute the order against Holding 175 which is in his occupation. The District Judge has directed : "That the respondent will get delivery of possession over the house situated in Holding 189 and not over any house situated in Holding 175 unless he gets the Commissioner to amend his order."

(3.) Six points have been urged before us: (1) that owing to a delegation of legislative power to the Provincial Government under Sub-section (3) of Section 1, Act III [3] never came into operation ; (2) that under Section 17 of the Act the Small Cause Court and not the Munsif, first Court, in his ordinary civil jurisdiction, can entertain an application for execution of the order ; (3) that the application for execution having been filed within three months of the Commissioner's order it is premature, (4) that the execution cannot proceed against Holding 175 which is in the occupation of the appellant, (5) that the objection under Section 47 should not have been summarily dismissed, and (6) that the respondent by filing a suit for the recovery of arrears of rent in respect of this holding for a period subsequent to the orders of the Controller and the Commissioner has created a new tenancy, which is entitled to protection under Section 11 of Act III [3], and, therefore, the order of eviction is no longer executable.