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Dayaram Kashiram Vs. Bansilal Raghunath - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberCivil Revn. Appln. No. 39 of 1951
Judge
Reported inAIR1953Bom214; (1953)55BOMLR30; ILR1953Bom387
ActsBombay Rents, Hotel and Lodging House Rates Control Act, 1947 - Sections 11(3), 12, 12(2), 12(3) and 50; Transfer of Property Act, 1882 - Sections 106 and 114; Code of Civil Procedure (CPC), 1908 - Sections 36 - Order 41, Rule 32; Limitation Act - Schedule - Articles 96, 97 and 182(2)
AppellantDayaram Kashiram
RespondentBansilal Raghunath
Appellant AdvocateV.N. Lokur, Adv.
Respondent AdvocateR.B. Kotwal, Adv.
Excerpt:
bombay rents, hotel and lodging house rates control act (bom. lvii of 1947), section 12(3) - transfer of property act (iv of 1882), section 114--suit by landlord for eviction of tenant for non-payment of rent--decree for eviction passed by trial court--payment of rent due in court by tenant before filing of appeal in district court--whether appellate court competent to confirm decree for eviction--words ' at the hearing of the suit' in section 12(3) of rent act whether include hearing of appeal from suit--transfer of property act, section 114--whether words 'at the hearing of the suit' in section include hearing of appeal--appeal court confirming decree for eviction--whether decree to be executed is decree of appeal court.;the words 'at the hearing of the suit' in section 12(3) of the.....rajadhyaksha, j.(1) this application has come before a division bench as it involves decision of a somewhat important point of law in the matter of interpretation of sub-section (3) of section 12, bombay rents, hotel and lodging house kates control act, 1947. the applicant before us is the original defendant who had occupied the suit premises agreeing to pay a monthly rent of rs. 5 to the opponent-plain tiff. the tenancy commenced on 1-11-1846, and was originally intended to last for 11 months. after the expiry of that period, the tenant continued to hold over. the tenant committed a default in the payment of rent and declined to vacate the premises in spite of a notice served upon him by the plaintiff landlord. the plaintiff alleged that he required the suit premises for his own use and.....
Judgment:

Rajadhyaksha, J.

(1) This application has come before a Division Bench as it involves decision of a somewhat important point of law in the matter of interpretation of Sub-section (3) of Section 12, Bombay Rents, Hotel and Lodging House Kates Control Act, 1947. The applicant before us is the original defendant who had occupied the suit premises agreeing to pay a monthly rent of Rs. 5 to the opponent-plain tiff. The tenancy commenced on 1-11-1846, and was originally intended to last for 11 months. After the expiry of that period, the tenant continued to hold over. The tenant committed a default in the payment of rent and declined to vacate the premises in spite of a notice served upon him by the plaintiff landlord. The plaintiff alleged that he required the suit premises for his own use and occupation. The claim was resisted by the tenant on the ground that he had paid all the rent that was due and also on the ground that the plaintiff-landlord did not require the premises for his own use and occupation. Both the trial Judge and the District Judge came to the conclusion that the premises were not required by the plaintiff for his own use and occupation. The trial Court, however, came to the conclusion that the defendant-tenant had not deposited into Court all the arrears of rent and costs of the suit, in which case alone the defendant would have been entitled to claim under Sub-section (3) of Section 12 of the Act that no decrra for eviction shall be passed against him. The trial Judge accordingly passed a decree for eviction as prayed for by the plaintiff-landlord.

(2) Against that decree the defendant-tenant filed an appeal in the District Court of East Khandosh. The learned District Judge upheld the finding of the trial Court that the defendant had not in fact paid the arrears of rent either before or during the pendency of the suit as contended by him. it appears, however, that on the day before the appeal was filed in the District Court on 21-9-1050, the defendant had deposited into the trial Court Rs. 200 which covered all tha rent due till that date and the costs of the trial Court. Thereupon a prayer was made on behalf of the de-fendnnt in the appeal Court that the defendant may be relieved against the consequences of his failure to pay into Court tha arrears of rent and the coals of the suit before the passing of the decree. The learned District Judge held that the defendant had net deposited into Court all the arrears of rent and the costs of the suit. But he further went on to say:

'Assuming, however, that necessary amount has been deposited by the appellant after the decree was passed. I do not think that I have power to relieve the appellant against tha consequences of his failure to make the necessary payment into Court within proper time as required by Section 12(3) of Bombay Act 57 of 1947. it should be noted that the appellant was represented by a pleader in the Court below. it cannot therefore be said that he did not know what the consequences would be if he did not pay up all the arrears of rent and the costs of the suit at or before the date of hearing. For these reasons, I hold that the appellant is not entitled to be relieved and cannot be relieved.'

In the result, therefore, the learned District Judge confirmed the decree for eviction which was passed by the trial Court and dismissed the appeal. Against that order this application has been filed in revision.

(3) Mr. Lokur for the applicant-tenant first pointed out that the learned District Judge was in error in holding that the whole amount due on account of arrears of rent and costs of the suit had not been paid. It is true that the defendant did not produce in the District Court the receipt which was passed by the trial Court Jn acknowledgment of the payment of Rs. 200 on 20-9-1950, Mr. Lokur has been able to give any reason as to why the receipt was not produced. But in view of the receipt it cannot be disputed that the payment was in fact made on 20-9-1950, i.e., one day before the appeal was filed in the District Court on 21-9-1950. There is a statement to that effect in para. 8 of the appeal-memo and an affidavit was also filed in the District Court to the effect that the payment had been made. The learned District Judge appears to have overlooked this affidavit and it has not been disputed before us that the payment was in fact made even before the appeal was filed.

(4) But then the question remains whether the payment of all arrears of rent and costs of the suit in the Court of appeal after the decree has been passed against him by the trial Court entitles the tenant to get the benefit of Sub-section (3) of Section 12, Bombay Rents, Hotel and Lodging House Rates Control Act. 1947. In other words, whether the defendant-tenant is entitled to have the decree for eviction passed against him by the trial Court vacated on payment of all the arrears of rent and costs of the suit in the Court of appeal before the appeal Court passes its decree. This is the only point which has been argued before us.

(5) The question turns upon the interpretation of Sub-section (3) of Section 12 of the Act. Section 12 runs thus :

'(1) A landlord shall not be entitled to the recovery of possession of any premises so long as the tenant pays, or is ready and willing to pay, the amount of the standard rent and permitted increases, if any, and obseives and performs the other conditions of the tenancy, in so far as they are consistent with the provisions of this Act.

(2) No suit for recovery of possession shall be instituted by a landlord against a tenant on the ground of non-payment of the standard rent or permitted increases due, until the expiration of one month next after notice in writing of the demand of the standard rent or permitted increases has been served upon the tenant in the manner provided in Section 106, T. P. Act, 1882.

(3) No decree for eviction shall be passed in any such suit if, at the hearing of the suit, the tenant pays or tenders in Court the standard rent or permitted increases then due together with the costs of the suit.

'Explanation'.--In any case where there is a dispute as to the amount of standard rent or permitted increases recoverable under this Act the tenant shall be deemed to be ready and willing to pay such amount if, before the expiry of the period of one month after notice referred to in Sub-section (2), he makes an application to the Court under Sub-section (3) of Section 11 and thereafter pays or tenders the amount of rent or permitted increases specified in the order made by the Court.'

It has been argued by Mr. Lobur on behalf of the applicant-tenant that the words 'at the hearing of the suit' occurring in Sub-section (3) of Section 12 include the hearing of the appeal arising out of the decree passed in the suit. On the interpretation of these words some guidance may be obtained frorn authorities on the interpretation of Section 114, T. P. Act.

Section 114, T. P. Act, which enables the Courts to grant relief against forfeiture for the non-payment of rent also contains similar words. Section 114, T. P. Act, is as follows:

'Where a lease of immoveable property has determined by forfeiture for non-payment of rent, and the lessor sues to eject the lessee, if, at the hearing of the suit, the lessee pays or tenders to the lessor the rent in arrear, together with interest thereon and his full costs of the suit, or gives such security as the Court thinks sufficient for making such payment within fifteen days, the Court may, in lieu of making a decree for ejectment, pass an order relieving the lessee against forfeiture; and thereupon the lessee shall hold the property leased as if the forfeiture had not occurred.'

The words 'at the hearing of the suit' have been interpreted by several High Courts, and the majority of the High Courts have taken the view that these words include the hearing of the appeal also and that therefore the, payment or tender may be made at the hearing of the appeal and relief against forfeiture may be claimed under this section. In -- 'Habib Ahmed v. Keoti Kuer'. : AIR1946All328 the Allahabad High Court took a different view, viz., that the word 'suit' in Section 114, T. P. Act, did not include an appeal. It held that (p.329).

'It would be unfair to the lessor if the lessee is allowed to take advantage of that provision after a decree has been obtained.'

A contrary view was, however, expressed by the Madras High Court in -- Thirthaswamiar v. Rangappayya', 25 M L J 486. In that case it was held that :

'The High Court in Second Appeal is not precluded from granting relief against forfeiture because the tenant did not make an application for it in the Courts below.'

A similar view was taken by the Nagour High Court in -- 'Shrikishanlal v. Ramnath' . in the course of the judgment the Division Bench observed as follows (p. 230) :

'The next argument repelled by Niyogi J. is that the arrears of rent must be deposited in Court at the first hearing of the suit. Niyogi J. has relied on the decision in -- 'Ramakrishna v. Baburaya', 23 M L J 715 which was followed in -- 'Thirthaswamiar v. Rangappayya' (B). The first case, however, was a case where two Courts below had decided that no forfeiture had been incurred and it was when the second appellate Court reversed this decision that it relieved against the forfeiture. This fact was not noticed in the next Madras case. The point is one not without difficulty because if no attempt is made in the trial Court to obtain relief against forfeiture by paying money into Court and a decree for ejectment is therefore given, it may be difficult for an appellate Court to say that the decree of the trial Court is wrong, and we think that in many cases money not offered at the time of the trial should not be received to relieve forfeiture in appeal, the more especially when the case has been fought out on other grounds such as denial of tho plaintiff's right to sue. Nevertheless, the hearing of the suit does continue throughout tha stage of appeal. It is the appellate Court's decree which supersedes the decree of the trial Court, and we are not prepared to say that an appellate Court has no power under Section 114, T. P. Act, to grant relief against forfeiture. Much less are we prepared to say that when Section 114 does not apply in its terms to the case, an appellate Court is precluded from granting relief against forfeiture for non-payment of rent if on a consideration of all the facts it considers it to be equitable.'

In a recent decision of Chainani J. In -- 'Chudgar Usmanbhai Alimahomed v. Valand Trikam-lal Keshavlal', S. A. No. 261 of 1948 (Bom) (E) the learned Judge has followed the view taken bv the Madras and the Nagpur High Courts, viz. that Section 114, T. P. Act, can be availed of by the defendant even in appeal. That appeal was decided by the learned Judge after Act 57 of 1847 had come into force, and apparently no plea was taken before the learned Judge that as the arrears of rent and the costs of the suit had been paid, the decree of the trial Court for eviction could not be confirmed, relying on Sub-section (3) of Section 12 of the Act. All that was prayed for was that Section 114 may Jja pressed into service and the relief against forfeiture may be granted even at the appeal stage. The learned Judge examined the equities of the case, and although the arrears of rent and the costs of the suit had been deposited, he declined to relieve the defendant against forfeiture, because the conduct of the defendant showed that he was trying to raise disputes with the plaintiff on various points. He, therefore, did not think that that was a case in which he should grant relief under Section 114, T. P. Act. Accordingly he confirmed the order of eviction and dismissed the appeal.

(6) In view of these decisions, it must be held that under Section 114. T. P. Act, the defendant can be relieved against forfeiture even at the appeal stage; but that it is entirely in the discretion of the appeal Court whether to grant such relief or not. It has been argued by Mr. Kotwal for the opponent-landlord that the ratio of the decisions under Section 114, T. P. Act, should not be applied to cases arising under the Bombav Rents, Hotel and Lodging House Rates Control Act, 1947, although both Section 114, T. P. Act and Sub-section (3) of Section 12, Bombay Rents, Hotel and Dodging House Rates Control Act, 1947, contain the same words, viz.. 'at the hearing of the suit.' He argued with a considerable degree of plausibility that Sub-section (3) of Section 12 of Act 57 of 1947 should receive strict construction and that the words 'at tho hearing of the suit' must not be interpreted to mean 'at the hearing of the appeal.' He pointed out that under Section 114, T. P. Act, it is entirely a matter of discretion whether relief against forfeiture should be given or not, whereas Sub-section (3) of Section 32 is mandatory and no decree can be passed against a tenant if he pays all the arrears of rent and the costs of the suit. It is easier to hold, according to Mr. Kotwal, that a suit includes an appeal in Section 114, T. P. Act, because the appeal Court in considering whether relief should be granted to the tenant or not can look to the equities of the case and adjust the equities if it decides that relief should be granted to the defendant. But under Sub-section (3) of Section 12, the Court has no choice in the matter, and even when it thinks that the conduct of the defendant is such that he does not deserve any concession, it would be bound to vacate the order of eviction jf the words 'at the hearing of the suit' are interpreted to mean 'at the hearing of the appeal' and the tenant, during the course of the appeal pays all the arrears of rent and the costs of the suit. The kind of mischief that is likely to arise if the wider interpretation is given to the words 'at the hearing of the suit' is illustrated by what happened in this particular case. In this case the defendant put up a story that the money was paid to the plaintiff's wife. Then he contended that the full amount had been paid, although there was no evidence forthcoming of his having paid any amount either to the plff. or the plff.'s wife. He refused to make the necessary payment before the decree was passed against him in the trial Court, When all these contentions failed, and a decree for eviction was passed, then only he made the full payment at the time of filing the appeal. If the word ''suit' in this section was construed as including an appeal, it would be open to the defendant to set up all kinds of false defences to the suit and after he finds that all his pleas ara rejected, then to make the payment in appeal Court after an order of eviction has been passed against him. We see a great deal of force in this argument.

Another argument which was advanced by Mr. Kotwal against a wider interpretation being placed on the word 'suit' in Sub-section (3) of S 12 of the Act is this. Section 114, T. P. Act, deals with obligations arising out of a lease by a contract between the parties, while Sub-section (3) of Section 12 deals with statutory leases arising by operation of law. Under the Act even if a contractual lease comes to an end, the defendant can continue to be a'Statutory tenant. This js the first concession shown to him by the Act. The second concession which is shown to him is under Sub-section (2) of Section 13. Under that subsection, no suit can be instituted against a tenant for recovery of possession on the ground of non-payment of rent until the expiration of one month next after, a notice in writing of the demand of the standard rent or permitted increases has been served upon the tenant in the manner provided in Section 106, T. P. Act. Sub-s. (3) of Section 12 precludes a Court from passing a decree for eviction even though a notice has been served under Sub-section (2) of Section 12 of the Act if, at the hearing of the suit, the tenant pays or tenders in Court the standard rent or permitted increases then due together with the costs of the suit. These two latter concessions were not available to the tenant under the repealed Acts of 1S3D and 1344. It was, therefore, argued by Mr. Kotwal that in view of these concessions the provisions of Sub-section (3) of Section 12 should receive a strict construction, and the expression 'at the hearing of the suit' should not be interpreted as meaning 'at the hearing of the appeal' so as to give the tenant an additional concession, which presumably tho Act did not intend to confer upon him. There is sonic force in this contention also and we might have been inclined to examine the matter further but for the fact that there is a full bench decision of our own Court in the matter arising under this very Act, in which it has been observed that the words 'at the hearing of the suit' are capable of bearing the interpretation 'at the hearing of the appeal.' in -- 'Nilkanth Ramchandra v. Kasiklal', AIR 1949 Bom 210 the Full Bench had to consider the question as to whether the Act and particularly Sections 50 and 12 were retrospective in their operation. In that case the suit and the first appeal resulting in the eviction of the defendant-tenant were decided before Act 57 of 1947 came into force On 13-2-1948. In the second appeal it was urged that the rights of the parties had to be determined by the provisions of Act 57 of 1947 and not of the Act which was in force when the suit was filed and the decree was passed in favour of the plaintiff. After consideration of the provisions of the new Act, the Full Bench took the view that the provisions of the new Act only applied to what was expressly stated in Section 50 of the Act and that Section 12 of the Act was prospective and not retrospective. The benefit of Section 12(3) could, therefore, be given only to suits which were instituted after the Act came into force. One of the arguments advanced before the Full Bench was that Sub-section (3) of Section 12 used the words 'at the hearing of the suit', and inasmuch as an appeal was a continuation of the hearing of the suit, Sub-section (3) of Section 12 could be applied to the appeals also. In dealing with this argument, the l Chief Justice observed as follows (p. 212):

'There is a decision of a Division Bench (Weston and Dixit JJ.) which has taken the view contrary to the one we have formed of the correct view of the law. The view taken by that Bench was that the whole Act was intended to be retrospective and that all pending litigation was intended to come within the ambit of the new Act. And inasmuch as an appeal is a continuation of a suit, the mere fact that a decree has been passed would not preclude a Court of appeal from applying the provisions of the new statute to the appeal when it came before it, treating the appeal as the re-hearing of the suit, and passing a decree in accordance with the law as it applied to the parties at that date. With very great respect to these two learned Judg?s we entirely agree with the principles of law to which they have given expression. It is perfectly true that if the Legislature retrospectively affects pending proceedings, then it would be the duty of the Court of appeal to apply the law prevailing at the date of appeal which was pending before the Court. It is also perfectly true that the mere passing of the decree does not preclude a Court of appeal from taking into consideration the change in the law eiTeeted after tha passing of the decree. But all these principles of law proceed on the assumption that the legislation which the Court is considering has been made retrospective by the Legislature.'

It was because the learned Judges came to the conclusion that the legislation was not retrospective in its effect that they held that the provisions of the new Act could not be applied at the appeal stage. They did not dispute the contention that that appeal was a re-hearing of the suit, and if the new Act had applied to both the suit and the appeal, then they would undoubtedly have given effect to Sub-section (3) of Section 12 and declined to confirm a decree for eviction if the arrears of rent and the costs of the suit were paid at the hearing of the appeal. In the present case, the suit was filed and the appeal decided after the Act came into force and therefore it must be held following the dictum of the Full Bench that the words 'in the suit' in Sub-section (3) of Section 12 will include an appeal arising out of that suit. The Full Bench were hearing a second appeal arising out of a suit, and it was at the hearing of the second appeal that the provisions of Sub-section (3) of Section 12 were sought to be pressed into service. If the Full Bench had been of the view that the word 'suit' in Section 12(3) did not include an appeal-then on that point alone the appeal could have been rejected. It was not necessary for them to examine elaborately whether the provisions of Sections 12 and 50 were retrospective in their operation. On the plain ground that the suit did not include-an appeal, it was possible to reject the defendant's contention. But because they were, of the view that the word 'suit' includes an appeal on the ground that an appeal is nothing more than a re-hearing of the suit, they felt compelled to examine as to whether the sections were retrospective in their operation. This decision of the Full Bench has been approved of by the Supreme Court in -- 'Chandrasingh v. Surjit Lal', : [1951]2SCR221 . In that case the Supreme Court were hearing the appeal against the judgment of Weston and Dixit JJ. which was disapproved by the Full Bench. In view of these decisions we are bound to hold that the words 'at the hearing of the suit' in Sub-section (3) of Section 12 include the hearing at the stage of appeal.

(7) It is further obvious that in some cases at least the provisions of Sub-section (3) of Section 12 must apply even at the appeal stage. A suit filed by the landlord against a tenant for eviction may be dismissed by the trial Court. The landlord may go in appeal and it may be that the appeal Court may be inclined to grant the plaintiff's prayer for eviction. If at that stage at hearing of the appeal the tenant pays into Court all the arrears of rent and the costs of the suit, the appeal Court would not be precluded from passing a decree for eviction if it were held that Section 12(3) did not apply at tha appeal stage. It is true that in such a case, the decree for eviction is being passed for the first time at the appeal stage. But it would be idle to contend that the defendant is not entitled to the benefit of the provisions of Sub-section (3) of Section 12 merely because the decree for eviction was about to be passed for the first time in appeal. If then tile defendant is entitled to claim the benefit of Sub-section (3) of Section 12 in order to prevent a decree tor eviction being passed against him for the first time in appeal, this result can follow only if the words 'at the hearing of the suit' are interpreted as meaning 'at the hearing of the appeal'. We are therefore, of the opinion that the words 'at the hearing of the suit' in Sub-section (3) of Section 12 must be interpreted as including the hearing of the appeal arising from that suit.

(8) The only decision directly bearing on this point which has been brought to our notice is that of Dixist J. In 'Huchaya Basaya v. Naga-paya', Section A. No. 422 of 1950 (Bom) (H). In 2nd appeal which came before him, the decree of the trial Court directing eviction of the defendant tenant was passed on 17-9-1048, i.e. after the new Act came into force. That decree was confirmed in appeal by the District Court. In second appeal, which came before Dixit J., it was contended that the case was governed by Section 12(3) and that no decree for eviction could be passed against him on the ground that after the trial Court's decree was signed, the amount of rent & the costs of the suit were deposited into Court on 6-10-1948. It was contended that tne provisions of Section 12(3) could not apply at the stage of an appeal. In repelling this contention, Dixit J. observed as follows:

'.....Mr. Gumaste at one time suggested that the provisions of Section 12(3) cannot apply to the stage of an appeal. But I think this contention is not correct because it may well happen that the trial Court may dismiss the suit in which case the plaintiff may appeal and the appellate Court may pass a decree for eviction. If at that stage at the hearing of the appeal which is but a continuation of the suit the defendant tenders the amount, it can hardly be suggested that Section 12(3) is not complied with.'

It would thus appear that the learned Judge accepted the view that the provisions of Sub-section (3) of Section 12 could be applied at the appeal stage. Even so, the learned Judge dismissed the appeal for the reasons which are embodied in the following quotation:

'But the question still remains as to whether the conditions mentioned in Section 12(3) are satisfied. If a strict view of the provisions of Section 12(3) is taken, the defendant cannot be said to have fulfilled the conditions mentioned in the section and I think it is not possible to avoid the strict construction and this is especially so because of the expressions in Sub-section (3), viz. no decree shall be passed in such suit, so that the payment must be at the hearing which is antecedent to the decree and once the payment is made as provided is Sub-section (3), it prevents the Court from passing a decree. Howsoever favourably I may be inclined to consider the case of the defendant, I cannot avoid the conclusion that the conditions mentioned in Sub-section (3) are not complied with in this case.'

With very great respect, we think that this conclusion of his is somewhat in conflict with his view expressed earlier in the course of his judgment that Sub-section (3) of- Section 12 applied even at the appeal stage. it is true that in the earlier part of his judgment Dixit J. was visualising a case where the trial Court had dismissed the plaintiff's suit, and the appeal Court was inclined to decree it and to order eviction. in such cases the payment of arrears of rent and costs of the suit could, even according to Dixit J. prevent a decree for eviction using passed at the appeal stage, and that could be done only if the words 'at the hearing of the suit' are interpreted to mean 'at the hearing of the appeal.'

(9) Mr. Kotwal for the opponent has raised another point, viz. what the Court is called upon to decide is not merely the interpretation of the words 'at the hearing of the suit', but also the words 'no decree shall be passed'. His argument is this. The words used in Sub-section (3) of Section 12 are, 'no decree shall be passed.' They should not be interpreted as if the section read, 'no decree shall be passed, or, if passed, shall be confirmed, if at the hearing of the suit or appeal the tenant pays or tenders in Court the standard rent and permitted increases then due together with the costs of the suit.' His argument is that this interpretation distinctly amounts to adding to me section tne words which are not there. in substance, his contention is that the relief under Sub-section (3) of Section 12 can be given only before the decree of the trial Court is passed, and he says that this interpretation also confirms his submission that the words 'at the hearing of the suit' means 'at the hearing of the suit' and not 'at the hearing of the appeal.' We have already expressed the view that the words 'at the hearing of the suit' must be held to include the hearing of the appeal, and the question is whether the expression 'no decree shall be passed' precludes such an interpretation being put upon those words. it has got to be noted that Sub-section 3 of Section 12 is general in its application. It is not confined to a decree passed in the Court of first instance. it applies to decrees passed at all stages of tho litigation provided they constitute a decree for eviction, The question, therefore, is whether when a decree for eviction is confirmed by the appeal Court, is the appeal Court passing a decree for eviction?

(10) Mr. Kotwal has argued that when an appeal Court confirms a decree, the decree to be executed is the decree o the trial Court, and when therefore there is a decree for eviction in the trial Court, the confirmation of that decree by the appaal Court does not mean that the appeal Court has passed a decree for eviction. We are unable to agree with Mr. Kotwal and are of the opinion that when an appeal Court confirms a decree for eviction, it in effect passes a decree for eviction. As has bom pointed out by Sir Dinshaw Mulla in his Notes on Section 36, Civil P. C., when the appellate Court makes a decree, the decree of the original Court is merged in that of the superior Court, and it is the latter decree alone that can be executed. When an appeal is heard, Order 41, Rule 32 requires that the judgment should confirm, vary or reverse the decree from which the appeal is preferred and the decreo capable of execution is the decree of the Court of appeal. When the decree of the Court of first instance is confirmed by the High Court and the latter decree by the Privy Council, the decree capable of execution is the decree of the Privy Council. it would thus appear that the trial Court's decree is merged in the appeal Court decree and a darkhast has to be filed for the execution of the appeal Court decree even when the appeal Court merely confirms the trial Court's decree. in -- 'Sakhalchand Rikhawdas v. Velchand Gujar', 18 Bom 203 (I) it was laid down by this Court that

'.....when the Appellate Court confirms the decree of the Court below, the latter becomes incorporated in the decree of the Appellate Court, which is thenceforth the only dscree to be executed.'

It is true that the trial Court's decree can be executed even when an appeal against that decree is pending. But when the appeal is decided, the decree to be executed is the appeal Court's decree. Mr. Kotwal has referred us to the case of -- Juscurn Boid v. Pirthi-chand Lal', AIR 1918 P C 151 the following, observations occur:

'.....Their Lordships fee! no doubt that as between these two decrees this is the correct view, tor whatever may be the theory under other systems of law, under the Indian law and procedure an original decree is not suspended by presenting of an appeal nor is its operation interrupted where the decree on appeal is one of dismissal.'

Relying on these observations, Mr. Kptwal has contended that the operation of tha trial Court's decree continues uninterrupted even when there is an order of the appeal Court confirming the trial Court's decree. But it will be noticed that the observations of the Privy Council quoted above were made for the purpose of computing the period of limitation under Article 97, Limitation Act. in that case consideration was held to have failed when the sale in the Patni Taluk was set aside and the time having begun to run from the date of the sale, limitation could not be interrupted by the fact that the sale was confirmed in appeal. This case is no authority for the proposition that even if the appeal Court confirms the decree, the decree to be executed is the trial Court's decree. Mr. Kotwal has also relied on the case of--'Martand Mahadev v. Dhondo Moreshwar', AIR 1921 Bom 184. This case merely followed the decision of the Privy Council in -- 'AIR 1918 PC 151 and it was held that (p. 185):

'.....Under the Indian law an original decree is not suspended by presentation of an appeal nor is its operation, interrupted where the decree on appeal is one of dismissal.'

But that again was a case where a mistake was discovered when the trial Court's decree was passed, and it was held that the limitation began to run unde.r Article 96, Limitation Act from the date of the trial Court's decree and could not be interrupted either by the finding of the appeal or by the decision of the appeal Court confirming the, trial Court's decree On the other hand, it was held in -- 'Jowad Hussain v. Gendan Singh', AIR 1923 PC 93 that :

'When an appeal has been preferred against a preliminary decree the time for applying for final decree runs from the date of appellate decree.'

In -- 'Abdulla v. Ganesh Das' , their Lordships held that:

'When an order is judicially made by an appellate Court which has the effect of finally disposing of an appeal, such an order gives a new starting point for the period of limitation prescribed by Article 182 (2).'

In -- 'Ramagopal Shriram v. Ramgopal Bhutadn', AIR 1934 Bom 307, Divatin J. made the following observations (p. 305):

'But, apart from that, we think that even according to the general provisions of the law the decree would mean the final decree in the proceedings between the parties, and it has been recently held by our Court in -- 'Pandharinath v. Thakoredas', AIR 1929 Bom 202, that a suit and all appeals made therein are to be regarded as one legal proceeding, and that in the legal pursuit of a remedy, suit, appeal and second appeal, are really but steps in a series of proceedings connected by an intrinsic unity. That bring so, even according to the general provisions of the law, the execution of the decree would mean the execution of the final decree in the proceedings between the parties, and from that standpoint also, it is the appellate decree that has to be executed.'

If then the decree to be executed is the of the appeal Court, then the confirmation of a decree for eviction by the appeal Court must, therefore, mean that it was the appeal Court's decree for eviction that was to be executed. In this sense, therefore, when an appeal Court confirms a decree for eviction, it, in eSect, passes a decree for eviction, and that is the only decree which is to be executed.

(11) In this view it follows that under Sub-section(3) of Section 12, Bombay Rents, Hotel and LodgingHouse Rates Control Act of 1947 an appealCourt cannot confirm a decree for eviction ifbefore the passing of the order in appeal, thetenant pays or tenders in Court the standardrent or permitted increases then due togetherwith the costs of the suit and also appeal. Inthe present case the tenant has paid only Rs.200 which represent the rents due till the decreeof the trial Court and costs of the trial Court. If the tenant-appellant wants the decree to bevacated and does not desire the appeal Courtor the Court of revision to confirm the decreefor eviction, he must pay a!l the arrears of the-rent together with the costs of the suit, theappeal and the revision application. For thepurpose of this payment we fix the date. 23-6-1952, and if by that time all the amounts dueto the respondent-landlord and costs are paid,then the decree of the trial Court for evictionwill be vacated. Otherwise, the decree willstand confirmed.

(12) Order accordingly.


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