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Pirdan Jethmal Vs. Mt. Sarswati - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtRajasthan
Decided On
Case NumberCivil Case No. 34 of 1949
Judge
Reported inAIR1951Raj148
ActsTransfer of Property Act, 1882 - Sections 114; Code of Civil Procedure (CPC) , 1908 - Sections 38; Bikaner Prevention of Eviction Order, 1942
AppellantPirdan Jethmal
RespondentMt. Sarswati
Appellant Advocate Pannalal Parik, Adv.
Respondent Advocate Joshi Kewalchand, Adv.
DispositionAppeal dismissed
Excerpt:
- - the section is clearly confined to the stage of the proceedings before the passing of a decree......of the dist, j. also the j. d. applied that he was willing & ready to deposit in ct. the amount of rent decreed against him for payment to the d. h. & that he may not be made to vacate the house vide his appln. dated 24-5-1949 on the file of the dist. j. at no. 10. the j. d. has now come in s.a. to this ct. with the same prayer as in the lower cts.2. on behalf of the appct. it has been argued by his counsel that under the prevention of eviction order, 1942, promulgated by notfn. no. 33 of 26-6-1942, published in the bikaner rajputra of 27-6-1942 read with this principle embodied in section 114, t. p. act, the applt. cannot be ordered to vacate the house and in support of the argument two published judgments of the bikaner h.c. printed in 17 bikaner l.r. part. iii on p. 59 & 18 bikaner.....
Judgment:

Gupta, J.

1. This is judgment-debtor's S. A. in execution proceedings under Section 40, Bikaner Civil P. C. A decree was passed against the J. D. for Rs. 23-9-6 on account of rent & for eviction from a house occupied by the J. D. as a tenant of the decree-holder. The decree was passed by the City Munsif of Bikaner on 10-8-1948, & because there was no appeal therefrom, it had become final. The decree holder applied for execution of the decree on 15-10-1948. On 26-8-1949 i. e., more than five months alter the execution appln. was male & after taking several adjournments for vacating the house in question, the J. D. made an appln. that he was willing & ready to pay the decretal amount of rent & (not the amount of rent that had become due from him this date) that he may be allowed to deposit the same in Ct. for payment to the D. H. & that be may not be made to vacate the house & the execution appln. be struck of the file of the Ct. This request was not granted by the executing original Ct. which dismissed the same on 19-4-1949 & ordered that the J D. be evicted through the Ct. The J. D. went up in appeal to the Dist. J. from this order of the City Munsif. The Dist. J. also dismissed his appeal on 25-8- 1949. In the Ct. of the Dist, J. also the J. D. applied that he was willing & ready to deposit in Ct. the amount of rent decreed against him for payment to the D. H. & that he may not be made to vacate the house vide his appln. dated 24-5-1949 on the file of the Dist. J. at No. 10. The J. D. has now come in S.A. to this Ct. with the same prayer as in the lower Cts.

2. On behalf of the appct. it has been argued by his counsel that under the Prevention of Eviction Order, 1942, promulgated by notfn. No. 33 of 26-6-1942, published in the Bikaner Rajputra of 27-6-1942 read with this principle embodied in Section 114, T. P. Act, the applt. cannot be ordered to vacate the house and in support of the argument two published judgments of the Bikaner H.C. printed in 17 Bikaner L.R. Part. III on p. 59 & 18 Bikaner L.R. Part II on p. 16 & judgment of the same Ct. dated 10-7-1944, a copy of which has bean filed by the applt. on the records of Ct. of the Dist. J. have been cited. On the other hand, it has been argued on behalf of the resp. that this Ct. is hearing the appeal on the execution side, that this Ct. has got to give effect to the terms of the decree which cannot be made a nullity & a judgment of the Bikaner H C. dated 15-4-1948, has been cited & a copy filed on the records of the Ct. of the Dist. J. It may be pointed out that the judgments that have been cited are not binding on this Ct. They, however, are entitled to respect just as judgments of any other independent H.C. The relevant provisions of the Prevention of Eviction Order, 1942 are as follows :

'3. No notice of eviction served by a landlord on his tenant requiring him to vacate his house on or after the 80th day of June shall be valid & no action would be open under it either in Ct. or otherwise.

Provided that nothing herein contained shall be a bar to eviction for non-payment of rent or for any material breach of the terms of the tenancy.'

3. By subsequent amendments & modifications of the said order, the tenant has been made liable to eviction if he sublets in full or in part or shares with another in part of a house without obtaining the permission in writing of the owner (vide Notfn No. 34 published in the Bikaner Rajpatra of 24-6-1944); or if the house were bona fide required by the landlord for his own occupation (vide Notfn. No. 80 of 16-10-1946). Nowhere has it been laid down that a decree passed by a competent Ct. & which has become final & irrevocable would not be given effect to by any Ct. Therefore, so far as the said not. Notfn No. 33 goes with all its amendments & modifications not only can a tenant be evicted in execution of a decree seed against him but even a decree can be passed against him for eviction from a house on three grounds of which non-payment of rent is one. As regards Section 114, T. P. Act, it has been argued by the counsel for the resp. that the T. P. Act is not in force in Bikaner State. This is admitted by the counsel for the applt. No doubt, acting on the spirit of the provisions of the section the Cts. in Bikaner appear to have given relief to the tenants even at the execution stage of proceedings. With all respect due to the Judges deciding those cases I am unable to agree with the view taken. The section is clearly confined to the stage of the Proceedings before the passing of a decree. In my opinion after a decree has been passed, the executing Ct. has no power to lessen rigour of the decree so far as it relates to eviction because the J. D. expresses his willingness & readiness to pay the rent decreed. In my opinion, the executing Ct. is bound to give effect to the decree & cannot go behind the decree & say that the decree should not have been passed. This appeal of the tenant J.D. has no force & deserves to be dismissed. Moreover, from the proceedings of the Ct executing the decree, it appears that the applt. has been evicted & the landlord D. H. has been put in possession of the house: vide order dated 10-8-1949. It would not be proper, now to restore possession to the tenant. The appeal is, therefore, dismissed with costs. The records may at once be returned to the lower Cts. for remaining proceedings.


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