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Mohammad Idris and ors. Vs. Mehar Illahi - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberSecond Appeal No. 54 of 1970, from judgment and decree of J.D. Jain Addl. Dist. J., Delhi, D/- 16-3-
Judge
Reported inAIR1971Delhi262
ActsCode of Civil Procedure (CPC), 1908 - Sections 47; Delhi Rent Control Act
AppellantMohammad Idris and ors.
RespondentMehar Illahi
Appellant Advocate M. Ahmed, Adv
Respondent Advocate Mohd. Main, Adv.
Cases ReferredJoint Hindu Family Firm Ram Chand Sri Ram v. Mangal
Excerpt:
.....a decree for eviction of statutory tenant had been passed, fresh suit for the dispossession of the legal representatives of the tenant on his death was not maintainable. b) the case dealt with the suit filed as application for execution of the decree against the tenant under section 47 of the civil procedure code, 1908 - the court ruled that a suit for eviction of legal representatives of a tenant against whom a decree for eviction had been passed by the controller under the delhi rent control act could not be treated as an application for execution of the decree against the tenant. - section 13: [altamas kabir & cyriac joseph,jj] custody of child - welfare of child vis--vis comity of courts - the minor girl child of 3 1/2 years was brought to india by her mother. the minor girl was a..........left no estate or interest in the property, which could pass on to his sons and daughters, as the legal representatives, could not pled section 47 of the code of civil procedure and section 19 of the slum areas (improvement and clearance) act, 1956, as amended by act 43 of the 1964, herein called `the act' as bars to the suit against them for possession filed by the respondent-owner, involving their eviction. as these important questions of law were being raised too often, the appeal was referred to a larger bench; and that is how it has been placed before us.2. the respondent is the owner of house no. xiv/768, situated in gali munshi abdul rahimwali, qassabpura, sadar bazar, delhi, and is in possession of its first floor. the ground floor was let out by him to one mohd. usman, now.....
Judgment:

P.N. Khanna, J.

1. This second appeal rises the important question about the scope of Section 47 of the Code of Civil Procedure. When it came up for hearing before one of us (S.N. Shankar JJ.) it was urged on the authority of Calcutta Credit Corporation Ltd. v. Happy Homes (Private) Ltd., : [1968]2SCR20 , Sharma Charan v. Ved Paul (1966) 68 Pun Lr 69, Gauri Shankar v. Smt. Shakuntala Devi, , that Mohd. Usman, the tenant having died after suffering termination of tenancy by a notice to quit and then by an eviction decree against him, he left no estate or interest in the property, which could pass on to his sons and daughters, as the legal representatives, could not pled Section 47 of the Code of Civil Procedure and Section 19 of the Slum Areas (Improvement and Clearance) Act, 1956, as amended by Act 43 of the 1964, herein called `The Act' as bars to the suit against them for possession filed by the respondent-owner, involving their eviction. As these important questions of law were being raised too often, the appeal was referred to a larger Bench; and that is how it has been placed before us.

2. The respondent is the owner of house NO. XIV/768, situated in Gali Munshi Abdul Rahimwali, Qassabpura, Sadar Bazar, Delhi, and is in possession of its first floor. The ground floor was let out by him to one Mohd. Usman, now deceased on a monthly rent of Rs.22/-. After serving a notice terminating the tenancy, the respondent filed an application under the Delhi Rent Control Act, 1958, for the eviction of Mohd. Usman from the said premises. An eviction order was passed on November, 10, 1961 against Mohd. Usman. His appeal was dismissed by the Rent Control Tribunal on June 8, 1962. The respondent then applied to the Competent Authority under the Slum Areas Act for permission to eject him from the said premises. This was declined and so was his appeal to the Chief Commissioner. On August 30, 1966 Mohd. Usman died leaving behind two sons and a widow Mst. Rabia. On September 8, 1967 the respondent filed a suit against the said heirs of Mohd. Usman, tenant out of which the present appeal has arisen, for a decree of their ejectment from the said house, on the ground that Mohd. Usman continued to live in the premises in question under the protection of law as a statutory tenant, which was his personal right, and which after his death could not pass on to his heirs, who were said to be his legal representatives.

After his death, it was stated that his heirs had no right to remain in occupation of the premises or to intermeddle therewith, even as his legal representatives, and were not entitled to any protection. Their occupation was characterised as unlawful. During the pendency of the suit, Mst. Rabia also died and her two daughters Mst. Khadija Begum and Mst. Hajra Begum, who were not in occupation of any part of the premises, were brought on record as legal representatives, besides her two sons, Mohd. Idris and Mohd. Ayub who were already on record. The aforesaid legal representatives are the appellants, who contested the suit. They admitted the factum of the tenancy as well as the aforesaid eviction decree passed by the Rent Control Tribunal and that they were the legal representatives of the deceased; but denied that they could be evicted.

They pleaded, inter alias that under Section 47 of the Code of Civil Procedure, all questions relating to the execution, discharge and satisfaction of the decree between the parties or their legal representatives, have to be determined by the executing court and no separate suit lay. Section 19 of the Slum Areas Act was also specifically pleaded as a bar to the suit. They under the circumstances prayed for the dismissal of the suit. Six issues were framed in the suit, out of which, the following alone need our attention in this appeal.

'1. Whether the suit is barred under S. 47, Code of Civil Procedure? and

2. Whether the suit is barred under the provisions of the Slum Areas Act?'

The contentions of the defendants, the present appellants were, however, repelled by the trial Court and a decree for possession of the suit premises was passed with costs in favor of the respondent against the appellants. The learned Additional District Judge Delhi, concurred with the learned Trial Court and dismissed the appeal with costs.

3. Both the above issues were argued before us; but in view of our answer in the affirmative to the question in the first issue about the bar of Section 47 of the Code of Civil Procedure, it would not be necessary to deal with the other issues about the bar under Section 19 of the Slum Areas Act at length in this judgment.

4. According to the learned counsel for the respondent the cause of action in the earlier proceedings for eviction was different from the cause of action in the present suit and was based on the alleged contract of lease. Whereas the present suit is based on the plaintiff's title and seeks to eject the appellants as `trespassers' (although that word has not been used in the plaint). The earlier proceedings could not have been instituted without there being a lease. In the present case there is no question of any lease between the parties. The respondents-plaintiff has to succeed on his own title and in the absence of any right, title or interest of the appellants, in the suit premises. The cause of action in the two suits thus being entirely different, the present suit would not be barred, urged the learned counsel. This argument refers to the absence of bar under Rule 2 of Order 2 of the Code of Civil Procedure. The earlier proceedings merged into an order of the controller for recovery of possession. It is, thereforee, not the bar created by Order 2, Rule 2 of the Code of Civil Procedure, but the bar created by Section 47 which is to be considered. The appellant's learned counsel submitted that the appellants are the legal representatives of the deceased tenant. An order or decree for recovery of possession having been passed against the deceased, separate suit against his legal representatives was not legally maintainable. The said order, he contended was binding on the appellants. It is, not necessary , under the circumstances to go into the question of `the cause of action' in the two proceedings.

5. In the earlier proceedings, the order of the recovery of possession of the premises was made on November 10, 1961 by the Controller under Section 14 of the Delhi Rent Control Act 1958, Under Section 42 of the said Act, the said order was executable by the Controller as a decree of a Civil Court and for that purpose the Controller had 'all' the powers of a civil court and is, thereforee to be taken as the executing court for that purpose. As execution could not be taken out against the tenant without the permission of the Competent Authority, under Section 19 of the Slum Areas Act, such permission was duly applied for, but refused on March 5, 1964. The appeal against refusal also failed.

After Mohd. Usman, the tenant, died, the landlord filed his suit for possession on September 8, 1967 out of which the present appeal has arisen. Section 47 of the Code of Civil Procedure reads thus,

'47 (1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit.

(2) The court may, subject to any objection as to limitation or justification, treat a proceedings under this section as a suit or a suit as a proceeding and may, if necessary order payment of any additional court-fees.

(3) Where the question arises as to whether any person is or is not a representative of a party, such question shall, for the purpose of this section be determined by the Court.

Explanationn:- For the purpose of this section a plaintiff whose suit has been dismissed, a defendant against whom a suit has been dismissed and a purchaser at a sale in execution of the decree are parties to this suit'.

6. In the present suit, it is stated in the plaint by the respondent that he is the owner of the premises, that an order for the eviction of Mohjd. Usman, the tenant was passed under the Delhi Rent Control Act, 1958 which was maintained in appeal; that Mohd. Usman died on August 30, 1966 leaving the appellants as his legal representatives; that the right to sue survived against the first two appellants, who are in occupation of the premises; that Mohd. Usman's tenancy had been terminated, but he enjoyed protection against eviction which was a personal right not heritable and the which terminated on this death; and that the appellants who are stated to be his legal representatives are not entitled to any protection and are liable to restore possession, which they have failed to do. The cause of action was said to have quit, dated 4-4-1960, served on Mohd. Usman, and then on 10-11-1962 on the passing of the order of his eviction by the Controller and on 8-6-1962 on the dismissal of his appeal and lastly on 30-8-1966 on his death and on the appellants 'holding over and not restoring possession.' It was under these circumstances that the present suit for `ejectment' of the appellants was filed.

7. Apart from the questions of title, thereforee, the following questions arise in this suit; Whether the appellants, as the legal representatives or representatives of the deceased-tenant, have derived any rights or interest in the property from the deceased as claimed by them; whether they are liable to be dispossessed as not having derived any such rights or interest; and whether they are entitled to any protection under Section 19 of the Slum Areas Act, as claimed by them. These questions have to be considered in the background of the order for recovery of possession passed against Mohd. Usman, deceased, in the earlier proceedings, which is executable against the appellants, not only by virtue of the provisions of Section 25 of the Delhi Rent Control Act, 1958, but also under Section 50 of the Code of Civil Procedure.

8. Section 25 of the Delhi Rent Control Act, 1958, reads as follows:-

'25 Vacant Possession to landlord - Notwithstanding anything contained in any other law, where the interest of a tenant in any premises is determined for any reason whatsoever and any order is made by the Controller under this Act for the recovery of possession of such provisions of Section 18, be binding on all persons who may be in occupation of the premises and possession thereof shall be given to the landlord by evicting all such persons there from;

Provided that nothing in this section shall apply to any person who has an independent title to such premises'

Section 50 of the Code of Civil Procedure reads as follows:-

'50 (1) Where a judgment-debtor dies before the decree has been fully satisfied the holder of the decree may apply to the court which passed it to execute the same against the legal representatives of the deceased.

(2) Where the decree is executed against such legal representative, he shall be liable only to the extent of the property of the deceased which has come to his hand and has not been duly disposed of; and for the purpose of ascertaining such liability, the Court executing the decree may, of its own motion or on the application of the decree holder compel such legal representative to produce such accounts as it thinks fir.'

9. The said order of eviction against Mohd. Usman, is binding on the appellants, who are in occupation of the premises and have to be evicted there from. The said order, thereforee, is executable against them, as is contended by the appellants' learned counsel. In the execution proceedings the questions that will arise, will be: Whether the appellants, as the representatives of the deceased tenant have derived form him any right or interest in the property in dispute and whether they are liable to be dispossessed or whether they have any independent right; and whether Section 19 of the Slum Areas Act operates as a bar to the execution. The questions that will arise in the two proceedings, thereforee, are identical and relate to the execution, discharge or satisfaction of the decree in the earlier proceedings for recovery of possession, and have to be determined under Section 47 of the Code of Civil Procedure, by the executing Court, which is that of the Controller, in this case. These questions cannot be determined and the possession of the premises cannot be claimed by means of a separate independent suit.

10. In Ramanand v. Jai Ram, Air 1921 All 369, the plaintiffs brought a suit against the defendants to pre-empt the property in dispute. A compromise decree was passed, according to which, the plaintiffs were to obtain possession of the property on payment of certain amount, which was duly paid; but the plaintiff did not obtain possession. After the period of limitation for an application for execution has expired, the plaintiffs instituted a second suit for recovery of possession of the property. The Allahabad Bench, consisting of Sulaiman, J., as he then was, and Gokul Prasad, J. observed: 'Stripped of all unnecessary details, the relief claimed by the plaintiffs, in substance amounts to asking for the fruits of the decree which they are unable to execute owing to lapse of time. The suit in effect does raise a question `relating to execution, discharge or satisfaction of the former decree and cannot be determined by a separate suit. The plaintiff's claim in reality is that this property, the defendants have not given them possession in spite of the said decree, and thereforee, the Court should compel the defendants to carry out their obligation under that decree. In our opinion such a suit falls clearly within the purview of Section 47, and if it did not, we fail to see what other form of suit would'.

The Bench referred to the following observations in Dhanraj Singh v. Lakhrani Kuar : AIR1916All163 : 'this dictum, if correct, would mean that suit after suit could be brought upon barred decrees. If this is correct law, it is a very alarming situation' In Daulat Ram v. Smt. Bhagwanti, (1963) 65 Pun Lr 606, it was held that an order of eviction passed against a tenant could be executed after his death, and his widow and sons in occupation of the building could be evicted in execution of the same. It was further held that the concept of `representative' in Section 47 of the Code of Civil Procedure, was not to be equated with that of a `legal representative. The expression under in Section 47 was held to pression under in Section 47 was held to have a wider connotation and content than the term `legal representative'. A person who claims or steps in the shoes of another or intermeddles with the property of another was his representative. An order of ejectment against a tenant could, thereforee, be enforced against a tenant and could be enforced against his widow and sons who continue to remain in possession of he building after his death. They were held to be his representatives within the meaning of Section 47 of the Code. They could not be deemed to be statutory tenants within the concept of the terms as defined in East Punjab Urban Rent Restriction Act. The right of the statutory tenant was held to be personal which could not be transmitted to his heirs after his death. In Mal Singh Bika Singh v. Mohinder Singh Mehra Singh, , it was held that if the nature of a decree requires that it should be executed, a decree holder cannot after allowing the period of limitation to lapse without issuing process of execution, seek by a fresh suit of the decree to obtain that which he should have sought for by execution. (Also see Harchand Singh v. Narain Singh Air 1921 Lah 394, Sasi Sekhreshwar Ray v. Lalit Mohan Maitra and Lachmi Narayan v. Muhammed Mehdi : AIR1941Pat70 .

11. It is thereforee manifest, that on the death of a statutory tenant, against whom an order of recovery of possession of the tenanted premises was passed, his widow, children and legal representative do not acquire any independent right or interest to continue in possession. The said order does not become inexecutable against the legal representatives; and they, not having inherited any rights in the premises in dispute from the deceased, do not become independent trespassers, who can be dispossessed only by a separate and fresh suit for possession. They, on the other hand, remain bound by the said order for possession in favor of the landlord and are liable to be dispossessed in execution thereof. The question of their execution, discharge or satisfaction of the earlier decree or order for recovery of possession, and, thereforee, has to be determined under Section 47 of the Code of Civil Procedure by the court below that the order for recovery of possession passed against the tenant, Mohd. Usman now deceased, has lapsed or abated with his death, has neither any basis nor justification and cannot be maintained.

12. It was then contend by the respondent's learned counsel, that if the present suit be considered to be barred by the provisions of Section 47 of the Code of Civil Procedure, the suit should be treated as an execution application and proceedings therein as proceedings in execution. But as was said by the Supreme Court in Merla Ramanna v. Nallaparaju, : [1955]2SCR938 , this can be done provided that on the date when the plaint in the present case was presented the application for the relief in execution was not barred by limitation and provided further that the court in which it was filed was competent to execute the decree. Although the bar of limitation may be no hurdle in the present case, as the time during which the respondent has been prosecuting with due diligence, the other proceedings, may have to be executed. But without going into that question the court in which the present suit was filed was not competent to execute the order for recovery of possession, which under the provision of the Delhi Rent Control Act, 1958 could be executed by the Controller only. The Civil Courts have no jurisdiction to execute the said order. In view of this, the present suit cannot be treated as proceedings in execution.

13. For the aforesaid reason, we are of the view that the order for recovery of possession passed by the Controller against Mohd. Usman is executable against his legal representatives the present appellants. Even Section 19 of the Slum Areas Act, as was held by one of us (P.N. Khanna, J) in Joint Hindu Family Firm Ram Chand Sri Ram v. Mangal, Esa 107-D of 1966, D/- 16-3-1971 (Delhi) would be no bar to such execution of the eviction order against the appellant, legal representative of Mohd. Usman. But it is not necessary to deal in detail with the alleged bar under the said Section 19, as this appeal stands disposed of view of the opinion we have expressed above on the scope of Section 47 of the Code of Civil Procedure, as a result of which the present suit is not maintainable.

14. In the result, this appeal succeeds. The impugned judgment and that of the trial Court are set aside and the respondent's suit is dismissed. In the circumstances of this case, however, there shall be no order as to costs.

15. Appeal allowed.


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