D.K. Kapur, J.
(1) This is an appeal by the landlord, Kharaiti Ram Nayar against his tenant, K. B. Advani which is brought against the order of the Rent Control Tribunal directing the tenant to be put back in possession of the demised premises. The ejectment application filed by the landlord resulted in an eviction decree being passed by the Rent Controller ex-parte against the tenant on 10/06/1968. The landlord applied for execution of the eviction order a id obtained possession of the demised premises on 15/07/1968. The tenant filed an application for setting aside the ex-part eviction restoration oforder which resulted in the order being set aside eventually on 18/09/1969. Thereafter, the tenant applied for restoration of possession. The Rent Controller dismissed this application on l 7/11/1970 on the view that no restitution could be allowed. The tenant appealed to the Tribunal, it was held on this appeal that the Rent Controller had the powers of a civil court while executing a decree and hence the Controller had power to restore the premises to the tenant. The appeal was accordingly accepted, a direction was made by the Tribunal to the Controller to issue warrants for delivery of possession in favor of the tenant. The landlord has now appealed to thisCourt.
(2) In support of this appeal, Mr. A. C. Sehgal, learned counsel for the appellant urges that the Rent Control Tribunal erred in directing the issue of warrants for delivery of possession; it is said that the landlord had let out the premises in dispute to other tenants and hence this was a case in which restoration should have been refused, or, atleast the case should have been remanded back to the Controller to decide whether a restitution should be made. It is also urged that the Tribunal erred in holding that the Rent Controller had the power to order restitution.
(3) As far as the first point is concerned, it is necessary to mention that the Rent Controller decided this case only on the preliminary objection concerning the power of the Rent Controller to order restitution. No order was passed regarding the rights of tenants who had been let in by the landlord in the premises in question pending the decision of the tenant's application to set aside the ex-parte eviction order. The facts show that the application for setting aside the ex-parte decree was moved on 15/07/1968 and the new tenants restated to have been let in by the landlord on 1/09/1968. These tenants cannot have any rights superior to the landlord himself and even otherwise the doctrine of lis-pendens would apply to any interest created by the landlord subsequent to the initiation of proceedings bythe tenant to set aside the ex-parte eviction order. The wording of Section 144 of the Code of Civil Procedure is mandatory. Once the eviction order had been set aside, any advantage obtained by the landlord from that order had to be restored to the tenant. This meant that the tenant had to be put back in possession. Any other interest created by the landlord in the meantime would be subordinate to the tenant's rights regarding restitution. I, thereforee, hold that the Tribunal rightly directed that warrants for delivery of possession should issue as there was nothing else that had to be decided in this case.Moreover, the order of the Rent Controller was passed after nearing final arguments. is on the application for restoration of possession and nothing more remained for the Controller to do. I asked Mr. Sehgal to urge before me any point that he wished to show that restitution.should not be ordered is this case because, assuming that a restoration order could be made. His only submission his been that the tenant should be awarded damages instead of possession. I do not think this is possible in restitution proceedings. Even it' it is, I do not think this is a case in which damages would be a substitute for possession of the demised premises.
(4) The second point urged by Mr. Sehgal turns on the interpretation of Section 42 of the Delhi Rent Control Act, 1958. That Section gives to the Rent Controller the powers of a Civil Court while executing its own decrees. Thus, the Rent Controller is entitled to execute an eviction order as if it was an eviction decree passed by a Civil Court It is urged by Mr. Sehgal that the execution of an eviction order is very different from the restitution of possession in case an eviction order is set aside This matter is not at all free from difficulty but is settled to some extent by the judgment of the Supreme Court is Mahajibhai Mohunbhai Barot v. Patel Manibhai Gakalbhai which is the judgment relied upon by the Rent Control Tribunal.
(5) In that case it was held that Section 144 was introduced into the Code in order to avoid the earlier conflict regarding the procedure to be followed when a decree was set aside. The Section expressly bars the filing of a suit. It was also held by the Court on the basis of the decision of the Privy Council in Jai Berham v. Kedar Nath Marwari,that section 144 did not create any rights of restitution but merely regulated the procedure. Subsequently, in !he course of the judgment it was indicated that an order passed in appeal also resulted in -an appellate decree which had to be implemented just like the original decree. The judgment continued thus :-
'THE application flows from the appellate decree and is filed to implement or enforce the same. He is entitled to the relief of restitution, because the appellate decree enables him to obtain that relief, either expressly or by necessary implication. He is recovering the fruits of the appellate decree. Prima facie, thereforee, having regard to the history of the section, there is no reason why such an application shall not be treated as one for the execution of the appellate decree.'
I do riot see why this passage should not be equally applicable to an order setting aside an ex-parte decree. If a Rent Controller can fur the purpose of executing an appellate eviction order passed by say, the Rent Control Tribunal put back the tenant in possession, I cannot see why he cannot do likewise if the order soughs, to be executed is an order setting aside an eviction order which has already been executed. Primafacie,the order setting aside an eviction order is also an order of the Controller which is executable by the Controller. I may reproduce the It runslanguage of Section 42 of the Delhi Rent Control Act, 1958. It runs as under :-
'SAVE or otherwise provided in Section 41, an order made by the Controller or an order passed on appeal under this Act shall 0sexecutable by the Controller as a decree of a civil court and for thispurpose, the Controller shall have all the powers of a civil Court.'
It will be noticed that an order made by the Controller is executable asa decree of the civil court. The order setting aside an eviction order may be passed after the order has already been executed. In such a case it is the duty of the Controller to restore the parties to the same Supreme Court situation that they enjoyed before the order was passed. If the Controller does not have such power he cannot of course do this. In my view,the decision of the Supreme Court lays down that an application for restitution has to be treated as an application for execution. The Supreme Court was dealing only with the situation arising at the appellate stage I think the same situation arises also if an ex-parte eviction order is set aside.
(6) A trial of a suit terminates when a decree or executable order is passed. Thereafter, proceedings are concerned with the execution of the decree or order. An order for restitution can only be passed if an order for execution has already been passed. Restitution proceedings have to take place long after the trial of the suit is over and even after the execution has taken place, in the present case the trial terminated in an exparte eviction order which was set aside. Execution of that order took place, but when the order was set aside the Rent Controller in furtherence of the execution proceedings had to restore the status quo ante.This order for restitution, as had by the Tribunal cannot be considered to be a continuance of the trial of the eviction case but must be treated as a continuance of the execution proceedings. I, thereforee, hold that tie Controller did have jurisdiction to pass an order under Section 144 of the Code of Civil Procedure. A reference has been made by Mr. Sehgal to two decisions of the Madras High Court reported as A. Arunagiri Nadarv. S.P. Rathinasami, and Mohammed Hussain v. A.K.M. Pitchai. These two decisions take opposite views regarding the powers of the Court to pass orders for restitution after ex parte eviction decrees have been passed. Neither of them has referred to the Supreme Court's judgment aforementioned. In view of the reasoning above, I come to the conclusion that the ratio of the Supreme Court's decision is applicable to the facts of the present case and, hence the order for restitution has rightly been passed by the Tribunal and has to be affirmed in this appeal.
(7) This appeal is, thereforee, dismissed but the parties are left to bear their own costs. The parties to appear before the Controller on 5th June, 1972.