1. This is a plaintiffs' second appeal against a decree of the lower appellate Court confirming a decree of the Court of first instance dismissing the plaintiffs' claim. The plaintiff-appellants Mohammad Ibrahim Khan and others brought this suit against the defendant, respondents Nazir Ahmad and others to recover a sum of Rs. 135-10-0 as damages for the wrongful removal of crops from a holding from which the defendants had been ordered to be ejected. The lower appellate Court came to the conclusion that the crops in question could be cut and removed by the defendants and that being so, dismissed the plaintiffs' claim-It is against that decision that this present appeal has been preferred.
2. The defendants who had been tenants' of the plaintiffs had failed to pay the rent due for their holding for some time and consequently the plaintiffs had brought a suit in the revenue Court for arrears of; rent and had obtained a decree for the same. Later, the plaintiffs had taken proceedings under Section 79 and 80, Agra Tenancy Act, and on 18th November 1929 an order for ejectment of the defendants was passed. On 29th November 1929 the execution Court ordered that an order for delivery of possession to the plaintiffs be issued in pursuance of the order of 18th November 1929 which was to be executed. In the meantime the tenants had applied1 for a review of the order of ejectment, to which I have referred, and on 14th December 1929 the execution Court ordered the amin to return the process to the Court without executing the same. It was further provided in this order that the execution proceedings would be carried out after the review proceedings had been disposed of. In due course the application for review of the order of ejectment was heard, and on 28th August 1930 it was dismissed. On 29th August 1930 the amin was again ordered to execute the order for ejectment and on 30th August 1930 the plaintiffs-obtained possession. It is admitted that the crops in question were sown by the tenants after the order for ejectment was passed consequent upon the decree for the arrears of rent due. During the period in which execution was stayed the crops had grown but had not been cut by 30th August 1930 when possession was delivered to the plaintiffs. The defendants, however, entered upon the land and cut and removed these crops. It was in respect of this removal of the crops that the present proceedings were brought. Section 97(2), Agra Tenancy Act, 1926, deals, with the respective rights of the landlord and tenant with respect to ungathered crops or other products sown or planted by a tenant after the date of the order for execution of a decree or order for ejectment. The sub-section is in these terms:
If on the date of actual delivery of possession to the landholder there are upon the land ungathered crops or other products sown or planted by the tenant after the date of the order for execution of the decree or order for ejectment without the permission in writing of the landholder the tenant shall have no right in such crops and the title to them shall pass to the landholder with the land.
3. It is common ground that the crops in question were sown after the order for ejectment was passed pursuant to the decree for arrears of rent and the appellants contend that as such was the case the defendants were not entitled to the crops in question. According to the appellants any crops sown by a tenant after the date of an order for execution of a decree or the date of an order for ejectment belong to the landlord unless of course such crops were sown with the latter's written permission. On the other hand, the respondents contend that crops sown even without the permission of the landlord after the date of an order for ejectment belong to the tenant and that the sub-section only governs the rights of the parties to crops sown after the date of an order for execution of an order for ejectment.
4. Section 93(1), Agra Tenancy Act, provides that every decree or order for ejectment shall be enforced in accordance with the provisions of the Civil Procedure Code, 1908, relating to the execution of decrees for delivery of immoveable property. Whether the landlord holds a decree against a tenant or an order for ejectment against the same he must go to the execution Court and obtain an order from that Court for the execution of the same. In short, to obtain possession the landlord must have an order from the execution Court for the execution of his decree or order for ejectment. Bearing in mind the provisions of Section 93(1), Agra Tenancy Act, it is clear that the construction placed upon Section 97(2), Agra Tenancy Act, by the defendants-respondents, is the correct one. The material date in that subjection is the date of the order for execution of the decree or the date of the order for execution of the order for ejectment. In Section 97 (2), Agra Tenancy Act, 1926 the phrase 'after the date of the order for execution' governs both the word 'decree' and the phrase 'order for ejectment'. If the section was intended to mean what the present appellants contend, it would have read 'after the date of the order for execution of the decree or of the date of the order for ejectment'. In my judgment the fact that the crops were sown without permission after the order for ejectment in this case was made does not in itself disentitle the defendants to these crops.
5. The appellants, however, contend that even if this be so they were still entitled to the crops by reason of the fact that they were actually sown without permission after the date of the order for the execution of the order of ejectment. The tenants admit that the crops were actually sown after 29fch November 1929 when the execution Court first ordered the execution of the order for ejectment, but they contend that that order of the execution Court was recalled or set aside and that thereafter no order for the execution of the order for ejectment was in existence. That being so, they contended that they were entitled to sow these crops without the appellants' consent and to gather them when they had grown and ripened.
6. The rights of the parties depend upon whether or not the order for the execution of the order for ejectment which was made on 29th November 1929 was ever set aside or recalled by the order of the execution Court dated 14th December 1929. By this latter order the Court certainly ordered the amin to return the process unexecuted, but in my judgment this order merely stayed the earlier order of 29th November 1929. The order of 14th December 1929 expressly provides that though the amin is to return the process unexecuted to the Court the execution proceedings will be carried out after the review proceedings have been disposed of. In other words, this order provides for the contingency of the review proceedings being dismissed in which case the order for the execution of the order for ejectment will take effect immediately. In fact that is what occurred because the application for review was dismissed on 28th August 1930 and possession was actually delivered to the plaintiffs on 30th August 1930 pursuant to an order of the execution Court dated 29th August 1930. From the terms of this latter order of 29th August 1930 it is clear that the amin was directed to execute the original order for execution of the order of ejectment dated 29th November 1929.
7. In my judgment the execution of the order for ejectment was merely suspended in this case because of the respondent's application to review the original order for ejectment. The appellants were in no way responsible for the delay which was due entirely to the acts of the respondents. In Chhattar Singh v. Kamal Singh : AIR1927All16 a Full Bench of this Court consisting of four Judges held that where the execution of a decree has been suspended through no act or default of the decree-holder he has a right to ask the Court to revive and carry through the execution proceedings which have been suspended and this right can be exercised by means of a proper application to that effect made within three years of the date on which the right to make it accrued as such application would be one for which no period of limitation has been expressly provided and would, therefore, fall under Article 181 of the schedule to the Limitation Act. The law as amended in Section 15, Limitation Act, does not prohibit either expressly or by necessary implication the making of applications for revival which the Courts both before and since the commencement of the Limitation Act have treated as competent. In my judgment this Full Bench decision governs the present case. In the case under consideration the execution of the order for ejectment had been suspended through no act or default of the appellants and therefore they had a right to ask the Court to revive and carry through the execution proceedings which had been so suspended. They did ask the execution Court to revive the proceedings on 29th August 1930 and in pursuance of such an application the proceedings were revived and possession actually given to the appellants on the following day. In my judgment the order for the execution of the order for ejectment remained in existence from the date upon which it was passed, viz., 29th November 1929. It is true that its operation was stayed, but it was never recalled or set aside. The order for the execution of the order for ejectment which was carried into effect on 30th August 1929 was not a new order passed on 29th August 1930 but the original order passed by the execution Court on 29th November 1929.
8. The crops in question were therefore, in my view, sown after the date of the order for execution of the order for ejectment and as this was done without the written permission of the appellants the latter were entitled to the crops when possession was delivered to them. Had the old order for the execution of the order for ejectment been set aside and possession actually given on 30th August 1930 in pursuance of a new order for the execution of the order for ejectment, then the defendants would have been entitled to the crops which they had sown without permission before such new order for execution had been passed. As the old order for execution remained and was actually carried out the defendants had no right to the crops which they had sown without permission after the date of such order.
9. As the defendants had no right to retain these crops when possession was delivered to the appellants their acts in entering upon the land and removing these crops were clearly wrongful. The plaintiffs were therefore entitled to the value of the crops so removed. The Court of first instance found that the value of the crops removed was Rs. 100 and with that finding the lower appellate Court agreed. That being so, it is unnecessary to ask the lower appellate Court to assess the damages in this case. Clearly the appellants are entitled to the full value of the crops wrongfully removed, that is, to a sum of Rs. 100. The result, therefore, is that this appeal must be allowed and the decree of the lower appellate Court dismissing the plaintiffs' claim set aside and the plaintiffs' claim decreed for the sum of Rs. 100. The respondents must pay to the appellants their costs of this appeal and their costs of the appeal to the lower appellate Court. The parties will pay and receive costs in the Court of first instance in proportion to their success and failure. Leave to appeal under the Letters Patent is granted.