K P S THANGASWAMY CHETTIYAR Vs. ABAPOO SAHIB

JUDGEMENT

(1.) The property which forms the subject-matter of these proceedings is a shop in Big Bazaar Street, Tiruchirapalli town. The appellant who is the owner of the property applied to the Rent Controller for eviction of the respondent who was his tenant on the grounds that he required the shop for his own use, and that the tenant was in arrears with his rent. The Rent Controller recorded no finding on the question whether the landlord required the shop for his own use; but he found that the respondent was in arrear of rent for June 1947 and therefore passed an order evicting him from the premises. The appellant put the order in execution as soon as he could and actually took possession of the property on 22nd June, 1948. The tenant appealed to the Sub-Judge who reversed the order of the Rent Controller and dismissed the petition for eviction. That order was pronounced on the 25 of August, 1948. Mr. Vaidyanatha Aiyar for the appellant complained that the order made in the appeal was inequitable; but into that matter we cannot go for the reason that under Section 12(4) of Madras Act XV of 1946 the decision of the appellate authority is final. On 30 August, 1945, i.e., five days after the Sub- Judge had pronounced the order in the appeal the tenant applied for restitution, and without notice to the appellant the learned Subordinate Judge ordered re-delivery of the property by 30 September, 1948 and re-delivery was actually effected. It is against this order that the present appeal has been filed.

(2.) Before examining the contentions of Mr. Vaidyanatha Aiyar for the appellant it may be stated that so far as execution is concerned, the scheme of Madras Act XV of 1946 is that in the mofussil all orders passed under Section 7,8 or 12 of the Act, i.e., the orders of the Rent Controller and the Appellate Authority--are executable in the Court of the appropriate Subordinate Judge or where there is no Subordinate Judge, in the Court of the District Judge.

(3.) For the appellant, Mr. Vaidyanatha Aiyar contended that the lower court had no jurisdiction to order restitution. His reasoning was that it could derive the necessary power only from Section 144, Civil Procedure Code but that section has not yet been made applicable to proceedings under Madras Act XV of 1946. Besides, even assuming that Section 144 does apply to a matter of this kind the procedure laid down by the decisions in respect of Section 144 has not been followed. Before restitution can be made, there must be a separate and specific order directing restitution and particularising the nature and extent of the restitution that should be made. There must be an order, said Mr. Vaidyanatha Aiyar, " crystallising " and formulating the rights of the party seeking restitution. Such an order can be made only, by the court of first instance, i.e., in the present case, the Rent Controller. The Rent Controller has made no such order, and therefore there was no order on the basis of which any restitution could be made. Further the order which the Rent Controller passed in the first instance was sent to the Sub-Court for execution, and the moment the Sub-Court executed that order, it became functus qfficio.