Document Fragment View

Matching Fragments

Provided further that the provisions for appeal under the said Acts shall continue in force in respect of suits and proceedings disposed of thereunder."

6. It is manifest "suits and other proceedings" pending at the commencement of the new Act were to be continued and disposed of in accordance with the provision of old Acts "as if the said Act had continued in force and this "new" Act had not been passed". The crux of the matter lies in the interpretation of the expression ''pending" used in this sub-section. It can admit of no doubt that the execution application was filed on 12-4-1973 when the Rent Control Act 1971 had come into force. Much less to say even the order of ejectment was passed on 22-3-1972 when the new Act was in force. The execution proceeding has been considered under entirely a separate provision in the two Acts. Under Section 17 of the Rent Restriction Act. 1949, every order passed by the Controller under Section 13, and every order passed on appeal under Sec-section 15 of that Act, are executed by a Civil Court having jurisdiction in the area as if it were a decree of that Court. Therefore, the order of eviction passed by the Controller under Section 13 stands independent of the order passed under Section 17 in execution of that order by the Civil Court. Similar is the position under the Rent Control Act, 1971. The order made by the Controller or an order passed on appeal under that Act is executable bv the Controller as a decree of a Civil Court and for this purpose the Controller shall have all the powers of a Civil Court. The marked difference in the two provisions has to be noted. Under the Rent Restriction Act, 1949 the execution is to be made by the Civil Court while under the Rent Control Act. 1971 the execution is to be made by the Controller. There can be no denial that execution application has to be moved and only then an order of ejectment can be obtained. The order of eviction which may have been passed under Section 13 of the old Act, or under Section 14 of the New Act, if left to itself would not give possession to the landlord. A fresh proceeding of execution of that order has got to be commenced within the relevant provision. There may be a case where the order of eviction is left as such and is not executed by the landlord as some compromise may have arrived between him and the tenant. A reading of Section 28 makes it clear that a separate provision has been made therein for appeals and the second proviso, which in fact should not be a proviso to Sub-section (2) but should rather be an independent sub-section, although that point is not material, lays down, that the appeals against orders passed under the Rent Restriction Act. 1949 could be continued within the provisions of that Act. The legislature therefore, thought that a separate provision should be made for appeals and had they thought it proper to do so they could have similarly made a separate provision for execution applications. The very fact that they have not done so, gives strength to our argument that an execution case has got to be pursued under Section 23 of the Rent Con-trol Act, 1971 as Section 17 stands repealed under Sub-section (1) of Section 28.

14. In this view of the matter we allow the appeal and set aside the order of ejectment passed by the learned Senior Sub Judge Simla. We also set aside the order passed in appeal by the learned Distrct Judge, We allow the objections of the tenant-appellant preferred under Section 47 read with Section 151 of the Code of Civil Procedure and hold that he cannot be ejected in these execution proceedings.

15. In view of the special circumstances of the case we leave the parties to bear their own costs all through.