SURAJ NARAIN PRASAD Vs. JAMIL AHMAD

JUDGEMENT

(1.) The important question for decision in this appeal by the judgment-debtor is whether a Court executing a decree passed by a civil Court for ejectment of a tenant from a house can declare the decree as null and void in view of the provisions of the Bihar House Rent Control Order, 1942, hereinafter to be called the Control Order. The facts are not in dispute. The respondent-decree-holder is the owner of the house which was let out to the appellant as a tenant. The respondent instituted a suit for recovery of rent for the period February 1942 to August 1942 and obtained a decree on 4 November 1943, at a rental slightly lower than that which was claimed by the plaintiff. During the pendency of the suit the plaintiff served upon the defendant a notice to quit the house--the notice is dated 1 June 1942. The defendant not having vacated the house, another suit was instituted by the plaintiff in which he claimed a decree for ejectment and also arrears of rent and damages for the period after August 1942. That suit was decreed ex parte on 27 April 1944. The decree-holder proceeded to execute that decree before the first Subordinate Judge of Patna when an objection was filed by the judgment-debtor under Section 47, Civil P.C., to the effect that the decree for ejectment from the house is not executable as the civil Court has no power to give effect to that decree in view of the provisions of the Control Order read with Rule 81, Sub-rule 2, Clause (bb), Defence of India Rules.

(2.) The learned Subordinate Judge took the view that the Control order does not take away the power of the civil Court to execute a decree for ejectment passed by it in a suit filed by the owner of the house for ejectment of the tenant on the ground that he has wilfully neglected to pay the stipulated rent. It was also contended before the learned Subordinate Judge that it is only the Controller, as defined in Section 2, Clause (b) of the Control Order, who can pass order for recovery of possession of a house by the owner from the tenant, and reliance was placed upon Section 13 of the Control Order which enacts that no order for the recovery of possession of any house shall be made so long as the tenant pays or is ready and willing to pay rent to the full extent allowable by this order and performs the conditions of the tenancy.

(3.) The learned Subordinate Judge decided that the objection was not maintainable in the execution department because if there was any illegality in the order for ejectment that was embodied in the decree passed: in the original suit the remedy of the applicant was to go in appeal against the decree for ejectment and get the decree set aside. Accordingly he dismissed the objections. Against this decision there was an appeal to the District Judge who took the same view. Hence the second appeal to to this Court.