A.R. Bakshi, J.
1. This second appeal raises a question of law arising out of an execution application filed by the appellants in the Court of the Civil Judge (J.D.) Dhandhuka.
One Rupsing Jethibhai who was the husband of respondent No. 2 Jambai had mortgaged his lands to Rupsangji Kesar and had given possession of the lands to the mortgagee. Rupsangji Kesar thereafter transferred his rights in the lands for Rs. 700/to the appellants and handed over the possession of the lands to them. Respondent No. 2 Jambai filed a suit under Section 15(d) of the D.A.R. Act wherein a decree was passed by the learned Civil Judge Dhandhuka on 23rd December 1948 whereby Jambai was ordered to pay Rs. 700/by five instalments. It was provided under the decree that
If any of the two instalments remain unpaid then the defendant do recover the entire moneys in respect of the instalments accrued and not accrued due by getting the suit property sold or the defendants take the actual possession of the suit property as the mortgagee for the amount that became so due and may go on enjoying the income thereof till the recovery of the mortgage debt. The defendants have today handed over the possession of the field in suit. But in case the plaintiff does not cultivate the said field himself for a period of six years from today then the plaintiff shall give the said field for cultivation as a cultivator to the defendant.
Bai Jambai paid two instalments as provided in the decree but thereafter did not pay the remaining amount which fell into arrears. The appellants thereupon filed Execution Application No. 54 of 1955 in the Court of the Civil Judge (J.D.) at Dhandhuka for restoration of the possession to them as provided in the decree as Jambai had failed to pay the instalment as provided in the decree. In those execution proceedings it was contended that subsequent to the passing of the decree Jambai was given the possession of the mortgaged lands and that since the Bombay Tenancy and Agricultural Lands Act 1948 was made applicable on 29th December 1948 after the passing of the decree and as Jambai had leased out the lands subsequent thereto in about 1951-52 to respondent No. 1 it was not open to the Civil Court to pass any order in the execution proceedings relating to delivery of actual possession to the appellants. It was contended that the right to execute the decree was barred on account of the Tenancy Act of 1948 which would govern the case as respondent No. 1 would be a tenant under that Act and the only remedy available to the landlord to take actual possession was under the Act of 1948. By an order dated 7th April 1956 the learned Civil Judge Dhandhuka negatived this contention of the respondents. The appellants thereupon filed an appeal from that order in the Court of the Assistant Judge Ahmedabad who by his order dated 13th March 1957 allowed the appeal and set aside the order of the learned Civil Judge Dhandhuka and modified it to the extent that the order for delivery as against the respondents should be of symbolical possession under the provisions of Order 21 Rule 36 of the Civil Procedure Code The mortgagees have filed the present appeal contesting the order of the learned Assistant Judge passed in appeal by him.
2. The reasoning on which the learned Assistant Judge has based his order is captained in Para. 5 of his judgment:
It is obvious that he is a tenant as defined in Section 2(18) of the Bombay Tenancy Act. If so under the provisions of Section 5(1) the tenancy is to be held for a duration not less than 10 years. In that event the period of tenancy is still subsisting. Section 29 of the Act lays down the procedure for taking possession from a tenant. It is laid down in Clause (2) that no landlord shall obtain possession of any land held by a tenant except under an order of the Mamlatdar. For obtaining such an order he has to make an application in the prescribed form and to follow a particular procedure. Section 70 enumerates the duties of the Mamlatdar under Clause (n) of that section. It is his duty to take measures for putting the tenant or landlord into possession of the land under the provisions of the Act. Section 85 creates a bar of jurisdiction in so far as Civil Courts are concerned. No Civil Court shall have jurisdiction to settle decide or deal with any question which is under the Act required to be dealt with by the Mamlatdar.
The learned Assistant Judge appears to have been of the view that the appellants had the right to proceed only under the Tenancy Legislation and not by way of execution of the decree passed by the Civil Court. The learned Assistant Judge came to this conclusion on the basis that there existed between the parties a relationship of landlord and tenant and that there was a subsisting tenancy between the parties. In his judgment therefore Section 29 of the Bombay Tenancy Act would apply and that therefore the mortgagees could obtain possession of the lands by no other process except under an order of the Mamlatdar.
In my judgment the reasoning on which the judgment of the learned Appellate Judge is based is erroneous. The rights of the parties to a decree passed by a Civil Court are governed by the D.A.R. Act and are vested in them as available to them on the date of the suit and unless taken away by a specific legislation would continue to exist. The provisions of Section 89 of the Bombay Tenancy and Agricultural Lands Act 1948 set out herein below save any action brought before the Act was applied:
(1) The enactment specified in Schedule I is hereby repealed to the extent mentioned in the fourth column thereof.
(2) But nothing in this Act or any repeal effected thereby
(a) shall affect the amendments made in Section 59 of the Bombay Land Revenue Code, or Sections 6 and 9 of the Khoti Settlement Act 1880
(b) shall save as expressly provided in this Act affect or be deemed to affect
(i) any right, title interest obligation or liability already acquired accrued or incurred before the commencement of this Act or
(ii) any legal proceeding or remedy in respect of any such right title interest obligation or liability or anything done or suffered before the commencement of this Act
and any such proceedings shall be continued and disposed of as if this Act was not passed.
An execution is a continuation of the suit as execution proceedings are taken in enforcement of the rights created by a decree of a Civil Court and would therefore be saved from the operation of the Tenancy Act of 1948.
Secondly if the enforcement of the right created by a Civil Court is within the function and duties of the Mamlatdar as provided in the Tenancy Legislation then the rest of the provisions of the Tenancy Act would apply and then alone the jurisdiction of the Civil Court would be barred. Section 70 of the Tenancy Act of 1948 sets out the functions and duties of the Mamlatdar. An execution of a decree passed by a Civil Court is not one of such functions as are enumerated in the said section. Section 85 of the Tenancy Act 1948 excludes the jurisdiction of a Civil Court in cases wherein such questions as arise before the Civil Court are liable to be settled decided or dealt with by the Mamlatdar or the Tribunal. If therefore the question which has arisen before us was such as could be dealt with or decided by the Mamlatdar undoubtedly the executing Court would not be competent to deal with that question. Primarily therefore the question which arises before the executing Court must be such as would be covered by Section 70 of the Tenancy Act 1948 because in that case alone the Mamlatdar would have the jurisdiction to deal with or decide such a question. Since the question about the enforcement of a decree of a Civil Court is not included within the duties and functions enumerated by Section 70 the Mamlatdar would not be competent to decide settle or deal with such a question and Section 85 of the Tenancy Act of 1948 will not therefore debar the jurisdiction of a Civil Court to enforce the terms of the decree. The provisions of Section 85 of the Tenancy Act 1948 therefore in these circumstances cannot be attracted.
Thirdly in order to attract the provisions of the Tenancy Act it is in the first instance necessary that there must be the relationship of landlord and tenant existing between the parties. A decree-holder cannot be said to be a landlord and the provisions of the Tenancy Act would not apply to a person in whose case the relationship of tenancy does not exist at all. Such a relationship never existed at the time of the decree and all the rights of the parties on the passing of the decree merged in the decree which alone determines the true relationship between the parties. Moreover respondent No. 1 became a tenant after the date of the decree and therefore that event cannot override or affect the relationship and the rights created by the decree. The decree makes a clear provision that
If any of the two instalments remains unpaid then the defendant do recover the entire moneys in respect of the instalments accrued and not accrued due by getting the suit property sold or the defendants take the actual possession of the suit property as the mortgagee for the amount that became so due and way go on enjoying the income thereof till the recovery of the mortgage-debt.
3. It is important to note that the restoration of the possession as provided in the clause referred to above was on account of the mortgage and the defendants were to hold the suit property as mortgagees or the amount remaining due. There is a clear clause that the mortgage amount remaining unpaid was to be recovered out of the income of the mortgage property. It is therefore clear that the relationship created by the decree was that of a mortgagor and a mortgagee and it could never be urged that the decree ever created the relationship of tenancy. This provision in the decree cannot be defeated by any subsequent device by letting out the property to any other person and such person who figures after the date of the decree having rights as between himself and the judgment-debtor cannot defeat the rights of the decree-holder which were already in existence. Such a person would be a person who would be bound by the decree. Order 21 Rule 36 itself provides that where a decree is for the delivery of any immovable property in the occupancy of a tenant or other person entitled to occupy the same and not bound by the decree to relinquish such occupancy the Court shall order symbolical possession to be delivered. Obviously Order 21 Rule 36 can have no application in the case of a person who is bound by the decree.
4. Mr. N.C. Shah for the respondents contended that the relationship between the parties was that of a tenancy by virtue of Section 23 of the Tenancy Act 1939 but that section can have no application as Jambai was never a lessee of the appellants. The relationship between Jambai and the appellants was always that of a mortgagor and a mortgagee. Mr. Shah then contended that the relationship between Jambai. and the appellants could be deemed to be that of a landlord and tenant as the effect of the decree was to create a lease within the meaning of Section 105 of the Transfer of Property Act. There is no substance in this contention. Neither of the parties ever intended to create a lease by the decree. What rights were made available to the appellants by the decree were the rights of a mortgagee and the subject matter of the decree arose on account of the existence of a loan or a debt and there was never an intention on the part of either side to create a tenancy. Section 105 of the Transfer of Property Act can therefore have no application. The decree continued the rights of the mortgagees and what was to be recovered by the mortgagees on restoration of possession was to be credited towards the mortgage-debt which could never have formed rent within the meaning of Section 105 of the Transfer of Property Act.
Mr. Shah then relied on a decision of the Bombay High Court in Civil Revision Application No. 356 of 1952 (Babhuta Dagdu Patil and Anr. v. Mangu Mohanji Patil). But that decision can have no application to the facts of the present case as the tenant in that case was a tenant of one of the creditors and one of the mortgaged properties was in possession of the tenant of that case. Since the tenant in that case was already in possession and an order of actual possession could not have been passed against him it was therefore and in those circumstances that an order awarding symbolical possession under order 21 Rule 36 C.P.C. was passed by the High Court
Mr. Shah contended that there were various other questions which had been raised by him in reply to the execution application of the appellants. But we are not concerned with those contentions in this appeal. Here we are only concerned with the question regarding the jurisdiction or the competency of the Civil Court to award actual possession and that is the only question that has been discussed in the judgment of the learned Assistant Judge.
5. For the aforesaid reasons the reasoning on which the decision of the learned Assistant Judge is based cannot be sustained and the order passed by the learned Assistant Judge that the appellants could only be given symbolical possession under the provisions of Order 21 Rule 36 C.P.C. is erroneous. The Civil Court executing the decree had the jurisdiction to enforce the terms of the decree and to pass an order awarding actual possession to the appellants.
The order of the learned Assistant Judge must therefore be set aside and the order of the learned Civil Judge (J.D.) Dhandhuka holding that he was competent to pass orders for delivery of actual physical possession must be restored. The appeal is allowed and the appellants will get their costs throughout from the respondents who will bear their own costs.