K KANDASWAMI Vs. KKNEELAMAGAM PILLAI

JUDGEMENT

(1.) The Rent Controller, Kumbakonam, made an order for delivery of a house to the petitioner. The order is in these terms: The petitioner and 1 respondent are present. The 1 respondent agrees to put the petitioner in possession of the property on 11 December, 1945. The petitioner agrees to this proposal. It is ordered accordingly.

(2.) Possession of the house was not delivered as per the order and the petitioner sought execution of it in the Court of the Subordinate Judge of Kumbakonam not only against the 1st respondent, Muthuswami Thevar, but also against respondents 2 and 3, K. Kandaswami and K. Kamalambal Ammal, the second respondent being the brother-in-law of the first respondent and the third respondent being the second respondent's wife. They were party-respondents to the application for eviction before the Rent Controller. It is pointed out by the learned Subordinate Judge that the second respondent agreed to the eviction order and that the third respondent had no rights independently of her husband. Their objections to delivery of the house were overruled and possession was ordered to be delivered by a particular date. Respondents 2 and 3 to the original petition thereupon preferred an appeal to the District Judge of West Tanjore. A preliminary objection was taken to this appeal by the original petitioner to the effect that no appeal lay from an order in execution by the Subordinate Judge. This preliminary objection was upheld by the learned District Judge and the appeal was dismissed with costs. Respondents 2 and 3 to the original petition, who were the appellants before the lower Court, have now preferred this Civil Miscellaneous Second Appeal and it is urged on their behalf that the view taken by the learned District Judge is wrong and that once the order of the Rent Cortroller is sought to be executed before the Subordinate Judge " as if it were a decree of his Court", as provided in Section 7-A (2-A) of the Madras House Rent Control Order, sectior. 47 of the Civil Procedure Code becomes applicable and the parties are entitled to an appeal. The contention on their behalf is that the Rent Control Order itself provides that it is to be executed as if is were a decree passed by the Subordinate Judge's Court, and that the orders of the executing Court are subject to the appeals provided in the Code, though finality attaches to the order of the Rent Controller, in so far as eviction is directed.

(3.) The ground on which the learned District Judge held that no appeal lay to him is that nc right of appeal is expressly conferred under the Madras House Rent Control Order, which provides that the order made by the Rent Controller is final. He read the words " as if it were a decree passed by him " to mean executable in a like manner as if it was a decree of a Court and not as investing the Court with the jurisdiction of an executing Court and the attendant consequences of an appeal from an order in execution.