1. This is an appeal against the order of the learned District Judge of Guntur, made in A.S. No. 38 of 1946 filed against the order in execution made in E. P. No. 326 of 1945, on the file of the Subordinate Judge of Guntur. The said execution was filed to execute an order made by the Rent Controller of Guntur in favour of one Rabia Bibi on the 12th September, 1945. An appeal was taken from the Rent Controller's order and that order was upheld by the Collector of Guntur on the 10th October, 1945. A period of two months had been granted for the tenant who is the appellant before this Court to vacate the premises. On the 6th November, 1945, Rabia Bibi died and the application for execution was made by the legal representatives of Rabia Bibi before the learned Subordinate Judge of Guntur. Objection was taken by the tenant to the execution on the ground that the order for eviction was personal to the landlady and intended to enure only for her benefit as her case was that she required the premises for her personal occupation and was therefore entitled to an order in ejectment. She having died, it is contended that the order is not capable of execution at the instance of her legal representatives who apparently possess houses of their own which they are occupying. The learned Subordinate Judge while finding that the order for eviction was personal and for the benefit of Rabia Bibi ordered delivery holding that Section 7-A(5) of the Madras House Rent Control Order, 1945, stood in the way of the contention set up by the tenant. In my view this section seems to have no bearing on the case. Section 7-A(5) is in the following terms:
The Controller shall summarily reject any application under Sub-clause (2) or Sub-clause (2-A) which raises substantially the same issues as have been finally decided under the provisions of this order in a former proceeding between the same parties or between parties under whom they or any of them claim.
This provision is clearly intended to bar frivolous applications which may be made on the same grounds by a landlord for eviction against his tenant. It has no reference to different circumstances which may exist at different times enabling a landlord to apply for eviction subsequently, though his application for eviction against the tenant might have been refused on an anterior date having regard to the circumstances then present. The learned District Judge in appeal held that the appeal itself was incompetent and that even otherwise the order of the learned Subordinate Judge directing the appellant to deliver possession of the house to the legal representatives was justified and did not call for interference.
2. The question that arises for decision in this C.M.S.A. is bereft of authority. The order protects the rights of tenants to continue in possession of property leased to them notwithstanding that decrees in ejectment might have been passed prior to the commencement of the order and enables eviction of tenants only in certain circumstances. One of the provisions enabling a tenant to be evicted is Rule 7-A(2-A), which is in the following terms:
A landlord who is not living in a house of his own in a city, town or village and who desires to occupy his house in such city, town or village which is in the occupation of a tenant may apply to the Controller for an order directing the tenant to put the landlord in possession of the house. The Controller shall if he is satisfied that the landlord is acting in good faith make an order directing the tenant to put the landlord in possession of the house on such date as may be specified by the Controller and if the Controller is not so satisfied, he shall make an order rejecting the application.
This provision enables a landlord who desires to occupy his house which is in the occupation of a tenant, to apply to the Controller for an order directing the tenant to put the landlord in possession of his house. In the present case the landlady for whose personal benefit the order for eviction was made is dead. Mr. Ramachandra Rao on behalf of the appellant has contended that there may be several cases in which orders or decrees which had been made could not be executed after the death of the decree-holders. In the case of a decree for restitution of conjugal rights, on the death of either the husband or the wife the decree becomes incapable of execution. A decree in favour of a widow to reside in a house is purely personal and would become unenforceable on her death. Mr. Ramachandra Rao has cited the decision in Kalloo Chaudkri v. Ramzan I.L.R.(1942) Luck. 578. That was a case where a person who was ex-communicated filed a suit for a declaration that the ex-communication was not valid and for damages. The trial Court dismissed the suit. The appellate Court granted the declaration that the ex-communication was bad but disallowed the claim for damages. An appeal was filed by the defendants and it was held that in so far as the decree for declaring that the ex-communication was not valid was concerned it was personal and on the death of the plaintiff the appeal abated. Mr. Krishnamurthi on behalf of the respondents has contended that the attempt of the appellant is really to question the validity of the order for eviction before the executing Court and that this is not permissible. I do not agreed. The appellant does not contest the validity of the order but states that on the death of the landlady the order has become unenforceable and I am inclined to agree with this contention.
3. My decision, however, does not mean that if in future there are circumstances which would entitle the legal representatives to ask for eviction against the tenant, they would not be in a position to do so on a proper application being made to the Rent Controller. My decision is only with reference to the order appealed against. With reference to the decision of the Iower appellate Court that the appeal before it was incompetent I need only refer to the decision of this Court in Kandaswami v. Neelamegam Pillai : AIR1947Mad112 . An appeal lay to the lower appellate Court and lies to this Court.
4. The appeal is therefore allowed with costs throughout.