MAGGI BAI Vs. SITARAM

JUDGEMENT

(1.) THIS second appeal in execution proceedings by Maggi Bai is directed against the judgment dated December 9. passed by the learned Additional District judge No. 1, Jodhpur, whereby he set aside the order dated November 12, 1975 passed by the learned Munsiff City, Jodhpur in Execution Case No. 83 of 1975. By the same order he remanded the case back to the learned Munsiff and directed him to enquire as to whether the landlord's case was covered by section 14 (2) of the Rajasthan Premises (Control of Rent and Eviction) Act. 1950 (hereinafter referred to as 'the Act') as amended by the Act No. 14 of 1976. If covered thereunder, he was asked to proceed to execute the decree by delivering the possession to the landlord in accordance with the law but not otherwise. The facts giving rise to this appeal are that the appellant is the landlord of a shop situated in Ada Bazar, Jodhpur, rented out by her to Sita ram--respondent. The appellant Maggi Bai filed a suit for eviction against the respondent on a number of grounds including the ground of personal necessity. The suit was decreed on the ground of personal necessity by the learned munsiff, City Jodhpur on November 29. 1971 and a decree for ejectment was passed against the respondent in favour of the appellant. This decree was challenged by the respondent by preferring an appeal before the learned district Judge. Jodhpur, which came up for decision before the learned additional Civil Judge, Jodhpur, who by his judgment and decree dated April 25, 1973 reversed the decree and judgment passed by the learned Munsiff and dismissed the suit.

(2.) THE aggrieved landlord plaintiff has come up in appeal before this Court. A single Bench of this Court by its judgment and decree dated April 28, 1975 allowed the appeal, set aside the judgment of the first appellate Court and decreed the suit of the plaintiff. Thereafter the appellant-landlord filed an execution petition in the Court of Munsiff City, Jodhpur on July 29, 1975 which was registered as Execution Case No. 83 of 1975. During the pendency of this execution petition, the tenant-respondent filed a Special Leave to Appeal before the Hon'ble Supreme Court of India under Article 136 of the Constitution against the judgment and decree dated April 28, 1975 delivered in S. B. Civil second Appeal No. 496 of 1973. The petition for special leave to appeal was dismissed on September 24, 1975. Thereafter the respondent filed an objection petition on October 16, 1975 challenging the executability of the decree and the right of the landlord to evict the tenant. The leai'ned Munsiff rejected the objection petition by his order dated November 12, 1975. Being aggrieved of this order, the respondent went up in appeal before the learned District Judge, jodhpur. The appeal filed by the respondent came up for decision before the learned Additional District Judge No. 1, Jodhpur, who by his order dated december 9, 1975 accepted the appeal, set aside the order dated November 12, 1975 and passed the order as mentioned above. Hence this appeal.

(3.) THE learned counsel for the appellant, Mr. M. B. Singhvi, has vehemently challenged the correctness of the impugned order and contended that Section 26 of the Act has no applicability to the facts of this case. It applies only to the decrees passed before the date of commencement of Act No. 17 of 1950.