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Raja Suryapal Singh Vs. Wahid Ali - Court Judgment

LegalCrystal Citation
Subject Tenancy
CourtAllahabad
Decided On
Reported inAIR1945All238
AppellantRaja Suryapal Singh
RespondentWahid Ali
Excerpt:
.....the view that as section 168 did not in terms correspond to the old section 79 and required a notice in a case where the decree had not been satisfied within one year and also made other provisions as to how the payment was to be made and what consequences were to follow on failure of such payment, it could not be said that section 168 was a corresponding provision to section 79. he was therefore of the opinion that the execution application could not be continued by issue of a fresh notice under section 168 as directed by the executing court and held that the execution application must fail. tenancy act of 1939, came into force on 16th december 1939. under the old act as well as the new act an application for execution has to be filed in accordance with the provisions of order 21,..........orders the court would pass. on 5th january 1940, the judgment-debtor filed an objection that the execution application was no longer maintainable because of the u.p. tenancy act (17 of 1939) and should be dismissed. as has already been stated in the application for execution it was prayed that in case the judgment-debtor did not pay up the decretal amount he should be ejected from the holdings. this was a prayer under section 79, agra tenancy act (3 of 1926) which reads as follows:a decree for arrears of rent against a tenant other than a permanent tenure holder or fixed rate tenant may, in addition to any other mode of execution, be executed by the ejectment of the tenant from the holding in respect of which the decree was passed.the judgment debtor's objection was that under section.....
Judgment:
ORDER

Malik, J.

1. Raja Surya Pal Singh obtained a decree for arrears of rent against Wahid Ali on 80th November 1938. On 14th June 1939, he applied for execution of the decree. The relief prayed for by him was that in case the judgment-debtor did not pay up the amount of Rs. 347-4-0 he should be ejected from the plots set out in the application for execution. Notice of this application was issued to the judgment-debtor and 9th November 1939 was fixed for hearing. On that date the judgment-debtor deposited a sum of Rs. 50 in part satisfaction of the decree and prayed for further time to pay up the decretal amount. The case was thereupon adjourned to 2nd January 1940 on which date the judgment-debtor paid a further sum of Rs. 50 and asked for further time. The Court, however, fixed 6th January to consider what orders the Court would pass. On 5th January 1940, the judgment-debtor filed an objection that the execution application was no longer maintainable because of the U.P. Tenancy Act (17 of 1939) and should be dismissed. As has already been stated in the application for execution it was prayed that in case the judgment-debtor did not pay up the decretal amount he should be ejected from the holdings. This was a prayer under Section 79, Agra Tenancy Act (3 of 1926) which reads as follows:

A decree for arrears of rent against a tenant other than a permanent tenure holder or fixed rate tenant may, in addition to any other mode of execution, be executed by the ejectment of the tenant from the holding in respect of which the decree was passed.

The judgment debtor's objection was that under Section 168 of the New Act the judgment-debtor was not liable to ejectment till after notice as provided for by the new section. The relevant portion of the new section is as follows:

(1) When a decree for arrears of rent against an exproprietary, an occupancy or hereditary tenant has not been completely satisfied within one year from the date of such decree by any mode of execution other than sale of holdings, the landholder may apply to the Court, which passed the decree for the issue of a notice to the tenant for payment of the amount outstanding and for his ejectment in case of the default and the Court shall thereupon issue such notice. (2) The notice shall require the tenant to appear within thirty days of the service of the notice and either to show cause why he should not be ejected from the holding or to admit the claim and obtain leave to pay the amount into the Court within one hundred and twenty days from the date of his appearance in the Court.

* * * *(4) (a) If the tenant appears and obtains leave to pay, then unless within one, hundred and twenty days from the date of his appearance in the Court the tenant has paid the amount or payment thereof has been certified to the Court in accordance with Rule 2, Order 21, Civil P.C. 1908, the Court shall on 31st May next following order his ejectment.

The executing Court held that as the decree had not been completely satisfied within one year from the date of the decree, Section 168 of the new Act was applicable and the notice required by the new Act should be issued. It therefore directed that a notice should be issued under Section 168. It may be mentioned here that after the objection filed on behalf of the judgment-debtor, the decree-holder had applied that a notice as required by Section 168 be issued by the Court. The judgment-debtor was not satisfied with the above order of the executing Court and filed an execution appeal before the learned Additional Civil Judge of Aligarh. The learned Additional Civil Judge held that by reason of Section 296, U.P. Tenancy Act, 1939, the execution application could not be proceeded with and it should be dismissed. It is against that order that this civil revision has been filed on behalf of the decree-holder. The learned Additional Civil Judge relied on the provisions contained in Section 296 of the new Act that

a decree under any of the provisions of either of these Acts (that is, the Agra Tenancy Act, 1926 or the Oudh Rent Act, 1886) which has not been satisfied in full at such commencement, shall be decided or executed as the case may be, in accordance with the corresponding provision of this Act, and if there is no such corresponding provision, the proceedings relating to such suit or decree shall be quashed.

The learned Additional Civil Judge took the view that as Section 168 did not in terms correspond to the old Section 79 and required a notice in a case where the decree had not been satisfied within one year and also made other provisions as to how the payment was to be made and what consequences were to follow on failure of such payment, it could not be said that Section 168 was a corresponding provision to Section 79. He was therefore of the opinion that the execution application could not be continued by issue of a fresh notice under Section 168 as directed by the executing Court and held that the execution application must fail. To my mind, the decision of the Court below is erroneous and cannot be sustained. The decree for arrears of rent passed on 30th November 1938, remained a valid decree even after the new U.P. Tenancy Act of 1939, came into force on 16th December 1939. Under the old Act as well as the new Act an application for execution has to be filed in accordance with the provisions of Order 21, Civil P.C. And so far as an application for execution was concerned, there was no change in the law and it could not be said that it became necessary to file a fresh application for execution because of the new Act. Under the old Act ejectment was one of the reliefs that could be claimed in execution and Section 79, Agra Tenancy Act, was the relevant section that entitled the Court to grant the relief. The corresponding section to that is now Section 168 of the new Act. It has only made some difference in the procedure and all that is necessary now is that in case a decree has not been satisfied within one year notice has to be given by the Court. I do not think it is right to say that there is no corresponding provision to Section 79 in the new Act and that therefore the proceedings relating to the execution of the decree should be quashed. The direction given by the learned Assistant Collector that notice should issue under Section 168 was the proper direction and, to my mind, further proceedings should have continued in accordance with the provisions contained in the new Act.

2. I therefore allow this revision, set aside the order of the Court below and direct that notice under S.168, U.P. Tenancy Act, 1939, shall issue to the judgment-debtor to pay up the balance of the decretal amount and further proceedings shall follow according to law. As the opposite party is not represented I make no order as to costs of this civil revision.


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