Indian Kanoon - Search engine for Indian Law

5. On appeal by the defendant, this decree was affirmed by the lower appellate Court, although the learned Civil Judge remarked that the question of the arrears and the question of the defendant's ejectment could be determined only in the execution proceedings. That was on the authority of the case in --'Makhan Lal v. Shankar Lal', 1944 All L W 591 (A), since overruled.

6. The defendant then filed the present second appeal and applied for stay of execution of the decr.se for ejectment, as an application for such execution had been made by the respondent in the trial Court. The prayer for stay was refused. Then the defendant filed an objection to the application for execution on the ground of Section 14, U.P. (Temporary) Control of Bent & Eviction Act, 3 of 1947. That objection was allowed by the execution Court but disallowed by the lower appellate Court. The connected execution second appeal has arisen out of the order of the latter Court.

7. After the regular second appeal had been filed in this Court, the plaintiff respondent, on 8-7-1948, obtained a permission from the Additional District Magistrate in the following terms :

"I, therefore, permit Kunwar Sen to file a civil suit for the ejectment of Mohan Lal if necessary and also for the execution of the civil Court's decree for ejectment if required."

8. Considerable argument has turned in this case on the question of the effectiveness of this permission, a matter with which I shall deal hereafter.