Nathwani, J.:— This Revision Application, by one Habib Ahmed Khudabux who had obstructed the execution of a decree obtained by respondent No. 1 against respondent No. 2 is referred to a Division Bench by Mr. Justice Vimadalal as he thought that there were conflicting decisions of single Judges of this Court on the point, namely, whether an appeal lies to a Bench of the Presidency Small Causes Court at Bombay from an order made by a single Judge of the said Court under Order XXI, rule 98 of the Code of Civil Procedure in execution of a decree passed under s. 28(1) of the Bombay Rents, Hotel and Lodging House Rates Control Act of 1947 (hereinafter referred to as the Rent Act).

2. Respondent No. 1 is the owner of a property situate at Victoria Garden Road, Bombay, and, according to him, respondent No. 2 was a monthly tenant of a shop on the ground floor of the said property at a rent of Rs. 50 per month. In 1962 respondent No. 1 (original plaintiff) filed R.A.B Suit No. 257 of 1962 against respondent No. 2 to recover possession of the said shop in the Small Causes Court at Bombay under s. 28(1) of the Rent Act and obtained an ejectment decree on April 9, 1965. Respondent No. 2's appeal to the appellate Bench against the said decree was dismissed on February 25, 1969. In November 1971, respondent No. 1 started execution proceedings in the Small Causes Court to recover possession of the suit premises. As the present petitioner and his mother, respondent No. 3, obstructed the execution, respondent No. 1 took out an obstructionist notice. On February 17, 1972 the learned trial Judge passed an order under O. XXI, r. 98 of the Code directing respondent No. 1 to be put into possession of the said shop. An appeal preferred by the present petitioner against the said order to a Bench of the Court of Small Causes was dismissed on July 14, 1972 on the ground that the said order was not appealable. Against that order the petitioner has preferred this revision application. In order to decide the point it is necessary to refer to relevant provisions of law and rules. The Small Causes Court in Bombay is established under the Presidency Small Cause Courts Act, 1882 (hereinafter referred to as the Small Cause Courts Act). Chapter IV containing ss. 18 to 22 defines the jurisdiction of Small Causes Court. Section 18 restricts it to suits of civil nature when the amount or value of the subject-matter does not exceed Rs. 3,000 and s. 19 specifies suits in which the Court shall have no jurisdiction. Chapter V containing ss. 23 to 36 lays down the procedure in suits cognizable by the Small Causes Court. Chapter VI containing ss. 37 to 40 provides for new trials. Section 37 lays down that every decree and order of the Small Causes Court shall be final and conclusive save as otherwise provided in Chapter VI. Section 38 provides for a new trial of contested cases. Chapter VII which contained ss. 41 to 49 prior to the Maharashtra Amending Act No. XII of 1963 deals with recovery of possession of immovable property. Chapter VIII provides for issue of distress warrant to recover arrears of rent.

3. As regards the procedure to be adopted in a suit or proceeding in any Court of Small Causes, s. 8 of the Civil Procedure Code, 1908, lays down that save as provided in certain specified sections of the said Code and by the Presidency Small Cause Courts Act, provisions of the said Code shall not extend to any such suit or proceeding provided, however, that the High Court may direct that any such provisions with such modifications and adaptations as may be specified shall extend to such suits or proceedings in such Court. Section 9 of the Small Cause Courts Act also empowers the High Court to frame rules and prescribe the procedure to be followed by the Court of Small Causes. Accordingly, in exercise of powers conferred upon it as aforesaid the High Court of Bombay has framed rules known as the Presidency Small Cause Ctourt Rules, Bombay. Rule 1(2) applies to the Small Causes Court the portions of the Code of Civil Procedure with its First Schedule as amended upto May 1, 1968 as specified in the first column of the Schedule to the said rules subject to the addition, alterations and modifications specified in the second and third columns of that Schedule, and the procedure prescribed thereby is the procedure to be followed in the Small Causes Court in all suits cognizable by it, except where such procedure is inconsistent with the procedure prescribed by any specific provisions of the Small Cause Courts Act.

4. The Rent Act of 1947 which repealed the Bombay Rent Restriction Act, 1939, came into force in Greater Bombay on February 13, 1948. By s. 28(I) of the Rent Act exclusive jurisdiction in Greater Bombay is conferred on the Bombay Small Causes Court to entertain and try any suit or proceeding between a landlord and a tenant relating to the recovery of rent or possession of any premises to which any of the provisions of Part II apply and to decide any application made under this Act and to deal with any claim or question arising out of this Act or any of its provisions. There is an explanation to the said s. 28 which is referred to later. Section 29 provides for appeal and review from a decree or order made by the Court of Small Causes exercising jurisdiction under s. 28 to a Bench of two Judges of the said Court in Greater Bombay. Two provisos were added to s. 29(1) by the Bombay Act No. 61 of 1953 which are considered hereinafter. Section 31 is important and reads as follows:

“31. The Courts specified in sections 28 and 29 shall follow the prescribed procedure in trying and hearing suits, proceedings, applications and appeals and in executing orders made by them.”

5. Section 49 confers rule making powers on the State Government. Sub-clause (iii) of s. 49(2) is material and says as under:

“the procedure to be followed in trying or hearing suits, proceedings (including proceedings for execution of decrees and distress warrants), applications, appeals and execution of orders;”

6. In exercise of the powers conferred on it the State Government has made rules known as Bombay Rents, Hotel and Lodging House Rates Control Rules, 1948 (hereinafter referred to as the Rent Control Rules). Rules 5, 7 (part) and 8 of the said Rules read as follows:

5. Procedure for suits the value of the subject-matter of which does not exceed Rs. 3,000 and for proceedings for execution of decrees and orders passed therein and for distress warrants.—In such of the following suits and proceedings as are cognizable by the Court of Small Causes, Bombay, on the date of the coming into force of these Rules, namely:—

(1) suits relating to the recovery of rents or charges for boarding, lodging or other service provided in a hotel or a lodging house when the amount or value of the subject-matter does not exceed Rs. 3,000;

(2) proceedings under Chapters VII and VIII of the Presidency Small Cause Courts Act, 1882, and

(3) proceeding for execution of any decree or order passed in any such suit or proceedings;

7. the Court of Small Causes, Bombay, shall follow the practice, and procedure provided for the time being (a) in the said Act, except Chapter VI thereof, and (b) in the rules made under section 9 of the said Act.

7. (part): Procedure in applications for fixing standard rent, etc.—(1) In miscellaneous applications the Court of Small Causes, Bombay, shall follow as far as may be and with the necessary modification, practice and procedure applicable to suits referred to in rule 5 as if such applications were suits for sums not exceeding Rs. 1,000:…

8. Procedure for other suits.—In suits and proceedings other than those referred to in rules 5 and 7, the Court of Small Causes, Bombay, shall, as far as may be and with necessary modifications, follow the procedure prescribed for a court of first instance by the Code, including Order XXXVII as modified in its application to the State of Bombay:…”

8. There is a proviso but it is not material for the present purpose.

9. From the provisions of s. 28(1) it will be seen that the Rent Act confers exclusive and complete jurisdiction on the Bombay Small Causes Court to entertain and try suits and other proceedings specified in s. 28(1). Section 29 gives right to appeal and revision from a decree or order made by the Court exercising jurisdiction under s. 28. It is also important to notice here that s. 31 enjoins upon the Court to follow the prescribed procedure in trying and hearing suits, proceedings etc. Therefore, the Court of first instance which hears the matters specified in s. 28(1) must follow the procedure prescribed by the Rent Rules, i.e Rules 5, 7 or 8 according to the nature and amount or value of the subject-matter involved.

10. Now, in considering whether the Order made on February 17, 1972 under O. XXI, r. 98 in the present case is appealable the first question arises, whether in passing the said order the trial Judge was exercising jurisdiction under s. 28(1). Apart from any authorities to which we shall presently refer, the Bombay Small Causes Court has jurisdiction under s. 28(1), inter alia, to entertain and try any suit or proceeding between a landlord and a tenant, relating to the recovery of possession of any premises to which the Rent Act applies. There is no dispute that in executing an ejectment decree obtained in a suit under s. 28(1) the landlord is seeking to recover possession from the tenant, but it is contended by the respondent-landlord that an execution of a decree for possession is not a “proceeding” within the meaning of s. 28(1), and therefore, an order passed under O. XXI, r. 98 of the Civil Procedure Code cannot be said to have been made by the Court in exercise of its jurisdiction under s. 28(1). In our view “proceeding” is a term of wide import and having due regard to the object of the Legislature in creating Courts of exclusive jurisdiction to entertain and try certain matters relating to landlords and tenants, it would include an execution proceeding of a decree passed under s. 28(1). But the point seems to have been put beyond controversy by the Explanation to s. 28. It reads:

“In this section ‘proceeding’ does not include an execution proceeding arising out of a decree passed before the coming into operation of this Act.”

11. In the above proviso it is implicit that a “proceeding” includes an execution proceeding of a decree and insofar as the said provision clarifies this position, it serves as an explanation to the s. 28 but it also excepts from the scope of “proceeding” an execution proceeding of a decree passed before the Rent Act came into force and to this extent it is a proviso to the said s. 28. This view is further reinforced by the provisions of s. 49(2)(iii) which clarifies the scope of the said term “proceedings” by adding thereafter in the bracket the words “including proceedings for execution of decrees…”. This may also explain why s. 31 which, inter alia, refers to “proceeding” does not specifically mention the execution of decrees, though it expressly refers to the execution of orders. In our view, therefore, on a fair and plain reading of the word “proceeding” in s. 28(1) and the Explanation in the light of the said provisions of s. 49(2)(iii), it includes an execution proceeding of a decree, and therefore, in executing an ejectment decree passed under s. 28(1) the Small Causes Court exercises jurisdiction under s. 28(1).

12. Next, s. 29(1) confers a general right of appeal from any decree or order made by the Court under s. 28. Two provisos to s. 29(1), however, cut down the scope of such right of appeal. Proviso (I) says that no such appeal shall lie from a decree or order in respect of which no appeal lies under the Code of Civil Procedure, 1908. In order, therefore, to see whether proviso (I) is attracted in any particular case, one has to turn to the relevant Rent Control Rules, i.e Rules 5, 6 and 8, to find out what provisions of the Code of Civil Procedure are made applicable to the decrees and orders made under s. 28(1) and whether the same do or do not provide for appeal against such decrees or orders. Further, proviso (II) bars an appeal from a decree or order in any suit or proceeding instituted in Greater Bombay (other than suit or proceeding relating to possession) in which the plaintiff seeks to recover rent and the amount or value of the subject-matter of which does not exceed Rs. 3,000. It would have been noticed that a decree or order made in a suit or proceeding relating to possession is excluded from the purview of proviso (II) and, therefore, an appeal from such a decree, or suit is not subject to any pecuniary restriction; and an appeal against such a decree or order will lie, irrespective of the amount or value of the subject-matter involved therein, if the requirements of proviso (I) are satisfied.

13. Turning next to the Rent Control Rules it would be seen that Rule 5 applies to the suits and proceedings specified in sub-rules (1), (2) and (3) thereof the practice and procedure provided for the time being (a) in the Small Cause Courts Act, except Chapter VI thereof, and (b) in the rules made under s. 9 of the said Act, Sub-rule (1) of Rule 5 speaks of suits relating to the recovery of rent or charges for boarding, lodging houses etc. when the amount or value of the subject-matter does not exceed Rs. 3,000, sub-rule (2) of proceedings under Chapters VII and VIII of the Small Cause Courts Act and sub-rule (3) of proceedings for execution of any decree or order passed in any such suit or proceeding. It would be noticed from the above provisions that the only suits referred to in rule 5 are suits relating to recovery of rents or charges where the amount does not exceed Rs. 3,000 and the suits relating to recovery of possession under s. 28(1) do not fall within the scope of Rule 5(1). As regards the pecuniary limit of Rs. 3,000 it is worth recalling that s. 18 of the Small Causes Court Act confines its ordinary jurisdiction to suits of civil nature when the amount or value of the subject-matter does not exceed Rs. 3,000. This seems to be the reason why at the beginning of rule 5 it is stated “In such of the following suits and proceedings as are cognizable by the Court of Small Causes, Bombay…” But it is to be kept in mind that after the passing of the Rent Act the jurisdiction to entertain and try suits, inter alia, relating to the recovery of rent or charges is conferred upon the said Court by s. 28(1) of the Rent Act and in so entertaining and trying such suits the Small Causes Court does not exercise its ordinary civil jurisdiction under the Small Cause Courts Act. It appears that since such ordinary jurisdiction of the Small Cause Courts extends upto Rs. 3,000 rule 5(1) also prescribes the same procedure as is to be followed by the Small Causes Court in respect of its ordinary civil jurisdiction under the said Act and the rules made under s. 9 of the said Act. It may be pointed out that under the procedure so prescribed no appeal is provided by O. XXI, r. 98 of the Code of Civil Procedure as the said rule is continued to be applied without providing for a right of appeal from an order thereunder. Therefore, the position regarding appealability of a decree under rule 5(1) or an order made in execution of such a decree accords with the express provision of item (i) of proviso (II) to s. 29(1) of the Rent Act.

14. Coming next to the provisions of sub-rules (2) and (3) of rule 5 in regard to the proceedings under Chapter VII of the Small Cause Courts Act they seem anomalous. So far as proceedings under Chapter VIII (Distress) of the said Act are concerned, they are obviously covered by the rule making power conferred expressly by s. 49(2)(iii) of the Rent Act. Now, the provisions of Chapter VII before the same were amended by the Maharashtra Amending Act (XLI) of 1963 contained a group of ss. 41 to 49 which provided for recovery of possession of immovable property. The reason for including the proceedings under Chapter VII in Rule 5(2) may have been that proceedings under Chapter VII were pending at the date when the Rent Act of 1947 came into force and by virtue of the proviso to s. 50 the same had to be disposed of according to the provisions of the Rent Act. Section 51 which was retrospectively introduced by s. 11 of the Bombay Act No. 3 of 1949 declared that references to suits or proceedings in the Act shall include references to proceedings under Chapter VII of the Small Cause Courts Act, 1882. The above view found favour with the Gujarat High Court in Motibhai v. Panachand . 1971 13 Guj. L.R 508.. However, the said expression in Rule 5(2) would not, in any event, include any such proceedings under Chapter VII commenced after the Rent Act came into force. In a Full Bench decision of this Court in Duttatraya Krishna v. Jairam Ganesh . 1964 66 Bom. L.R 645, F.B the applicability of provisions of Chapter VII as they stood before the Maharashtra Amending Act No. 41 of 1963 came into force on June 1, 1964, was considered. The said provisions are summarised at page 670 and it is not necessary to set them out here. It was held by the Full Bench that in view of the exclusive jurisdiction conferred on the Small Causes Court under s. 28 of the Rent Act applications under ss. 41, 47 and 49 of the Small Cause Courts Act did not lie against a tenant for possession of premises to which Part II of the Rent Act applies. (See pages 673 and 674). It is to be added that by the Maharashtra Amending Act No. 41 of 1963 ss. 45, 46 and 47 in the said Chapter VII were deleted and s. 49 was amended so as to make it clear that an order for recovery of possession under s. 41 shall bar a suit on the basis of title other than title as a tenant, and a new s. 42A was added which provides that when an ejectment application is filed by a landlord against an occupier-tenant under s. 41 and the occupier contends that he is a protected tenant the Small Causes Court is to try as a preliminary issue the question, notwithstanding anything contained in the Rent Act, whether the defendant is a protected tenant. From the foregoing discussion it would have been seen that when the Small Causes Court deals with the question of occupier being a protected tenant under s. 42A, it exercises jurisdiction under the Small Cause Courts Act and not under the Rent Act and that when the Small Causes Court entertains a suit for possession as a Special Court under the said s. 28, no question of any proceeding under Chapter VII of the Small Cause Courts Act arises and, therefore, the procedure to be followed in a suit relating to recovery of possession under the said s. 28 and in executing the decree passed therein is, irrespective of the value of the subject-matter, the one prescribed by rule 8 of the Rent Control Rules.

15. It is also material to notice that if the language of rule 5(2) were to be strained as including a suit filed under the said s. 28(1) for possession of property not exceeding Rs. 3,000 in value such a construction will be in direct conflict with the express provisions of second proviso to the said s. 29(1). As already seen, proviso (II) expressly excepts from its purview a decree or order made in a suit or proceeding relating to possession, and therefore, an appeal from such a decree or order is competent if it otherwise fulfills the conditions of proviso (I). It is, therefore, not lightly to be inferred that the rule making authority and the Legislature intended (assuming that there was such a power) to override the said express exception in the proviso (II). In our opinion, therefore, rules 5 and 8 lay down the procedure to be followed in two specific categories of suits respectively mentioned therein and in the execution proceedings arising out of the decrees passed therein, and hence, suits for the recovery of possession under s. 28(1) fall only within rule 8, irrespective of the value of the subject-matter, and the procedure to be followed under rule 8 for executing a decree is one prescribed by the Code of Civil Procedure as amended in its application to the State of Maharashtra by the High Court under s. 122. Order XXI, r. 98 of the Code of Civil Procedure was so amended by the High Court on November 1, 1966 whereby a right of appeal against an order under r. 98 is expressly provided. Therefore, the bar provided by the proviso (I) to s. 29(1) does not apply to an order made under O. XXI. It, therefore, follows that the appeal filed by the tenant against the said order dated February 17, 1972 was competent and the appellate Bench was in error in holding to the contrary.

16. We now refer to the authorities of this Court cited before us on this point. The first decision is by Mr. Justice V.S Desai in Hemchand v. Subhkaran . 1966 68 Bom. L.R 857. In that case, in an ejectment suit filed by a landlord against a tenant in the Court of Small Causes at Bombay under s. 28 of the Rent Act an ex parte decree was passed on November 10, 1964. The tenant applied for setting aside the decree under O. IX, r. 13 of the Civil Procedure Code. That application was rejected by the trial Court. On an appeal by the tenant the said order was set aside by the appellate Bench and the case was remanded to the trial Court. Against the said order the landlord filed a Civil Revision Application to this Court and contended that the appeal to the appellate Bench was not competent as in entertaining the application for setting aside the ex parte decree and in so ordering the Small Cause Court did not exercise jurisdiction under s. 28 of the Rent Act as it came to an end as soon as the ex parte decree for eviction was passed and tenant's application for setting aside the ex parte decree could be regarded as an application to the Bombay Small Causes Court exercising jurisdiction under the Small Causes Court Act. The learned Judge rejected the said contention and observed (p. 861):

“…No doubt the jurisdiction of the Special Court set up under s. 28 is confined to matters specified therein, which include, among others, the entertaining and trying of suits or proceedings between a landlord and a tenant….But once the Special Court entertains and tries a suit or proceeding which falls within its exclusive jurisdiction, all orders made by it in the said suit or proceeding or in relation thereto, are made by it as a Special Court, that is a Court exercising jurisdiction under s. 28 and not only such of them as actually relate to the recovery of rent or possession. Appeal provided under s. 29 of the Act is not confined only to the final decree or order or to an order, which relates to recovery of rent or possession but it lies against all orders except those which are excluded under the proviso to the section.”

17. In the opinion of the learned Judge the passing of an ex parte decree did not make the Court trying the suit functus officio with regard to the same, and therefore, he rejected the contention that the Court exercised jurisdiction under s. 28 only till the stage of the passing of the ex parte decree and did not exercise that jurisdiction when it subsequently entertained and decided the application under O. IX, r. 13 of the Code of Civil Procedure and held that the order made under O. IX, r. 13 was made in its character as a special Court exercising jurisdiction under s. 28.

18. It will be seen that Mr. Justice Desai was not dealing with the question which arises before us, namely, whether the execution of a decree is a proceeding within the meaning of s. 28(1). Consequently he did not decide or even consider whether the suit relating to the possession of the property fell within rule 5(2) of the Rent Control Rules. No doubt, he observed that (p. 860):

“…a perusal of the said rules (Rent Control Rules) would show that if the suit fell under r. 5(2) the procedure to follow was the procedure prescribed under the rules framed under s. 9 of the Presidency Small Causes Courts Act, and if the suit fell under r. 8, the procedure prescribed by the Civil Procedure Code.”

19. And, then, the learned Judge proceeded to point out that in either case, i.e whether rule 5 or rule 8 applied, the result would be the same as in both the cases procedure under O. IX was applicable and therefore, an appeal lay against the order of a single Judge of the Court refusing to set aside the ex parte decree. It is clear from the perusal of the judgment that the issue whether a suit for recovery of possession under s. 28(1) was a proceeding under Chapter VII of the Presidency Small Causes Courts Act within the meaning of rule 5(2) was not raised and it is evident that it was held that even assuming that the suit fell within rule 5(2) and not within rule 8 still the appeal was competent against the said order. This case, however, is an authority for the proposition that the Small Causes Court in exercising its exclusive jurisdiction under s. 28 is not exercising its ordinary jurisdiction under the Presidency Small Cause Court Act and the decrees or orders passed by the Special Court under s. 28(1) are appealable under s. 29(1) of the Rent Act.

20. The Gujarat High Court has also in Keshavlal v. Chinubhai . 1967 8 Guj. L.R 772. taken the same view in regard to the appealability of an order under O. IX, r. 13 to a Bench of Small Causes Court.

21. Next authority is an unreported common judgment of Mr. Justice Palekar in: Pranlal Calanchand Shah v. Dinyar Apsandyar Karmani and Shah Pranlal Calanchand v. Vithal Thavda Shetty . 1967 Civil Revision Application No. 1934 of 1962, with Civil Revision Application No. 1935 of 1962, decided by Palekar, J., on February 1, 1967 Unrep.. in two Civil Revision Applications respectively numbered 1934 of 1962 and 1935 of 1962. There the facts were as follows:—Landlord had let out shops Nos. 5 and 6 of his building situated in Bombay to one N.M Shetty on a monthly basis. He filed an ejectment suit on June 12, 1954 in the Small Causes Court at Bombay, against the tenant and obtained an ex parte decree on September 29, 1954. The landlord, however, was obstructed by obstructionists in the execution of the said decree on November 27, 1954. The landlord's motion for removal of obstruction was rejected on September 14, 1955. So the landlord filed a suit in the Bombay Small Causes Court against the obstructionists for a declaration that the decree obtained by him against the said tenant was liable to be executed against the obstructionists. The obstructionists contested the suit inter alia on the ground that the Court had no jurisdiction to try the suit. The trial Judge held that the Court had jurisdiction to try the suit and the said decree was binding on the obstructionists and accordingly he decreed the suit on October 15, 1959. In appeal No. 416 of 1959 filed by the obstructionists the appellate Bench of the Small Causes Court held that the trial Court had no jurisdiction. Against the said order the landlord preferred Civil Revision Application No. 1934 of 1962. In the meanwhile, the landlord had executed on August 30, 1961 the Warrant of Possession against one Vithal Shetty. From that order Vithal Shetty preferred a revision application to the appellate Bench on October 9, 1961. Both the appeal No. 416 of 1959 filed by the obstructionists and the said revision application filed by Vithal Shetty were heard together by the appellate Bench and as it took the view that the Small Causes Court had no jurisdiction to hear the suit, landlord's execution proceedings against Vithal Shetty did not survive and discharged the obstructionist notice against Vithal Shetty. The landlord filed the second revision application, being C.R.A No. 1935 of 1962, against the said order. Mr. Justice Palekar heard both the civil revision applications together. In the first civil revision application the real controversy between the parties was whether the suit was between a landlord and a tenant within the meaning of s. 28(1) of the Rent Act. It was common ground before him that as the respondents (original defendants to the suit) claimed to be assignees of the tenancy rights under s. 15 of the Rent Act the dispute related to a claim or question arising out of the provisions of the said Act. Mr. Justice Palekar held that having regard to the averments in the plaint filed by the landlord, landlord's claim in the suit was that the decree obtained by him against his tenant was executable against the obstructionists and, then, the learned Judge proceeded to observe:

“The notice of obstruction has been, summarily disposed of, and in a sense, the suit filed by the petitioner was merely a continuation of the execution proceedings he had started against the tenant. In my opinion, in a very real sense, the suit is still a suit between the landlord and tenant relating to possession in which a claim or question under the Act arises.” (Italics supplied.)

22. The learned Judge, therefore, held that the suit fell within the scope of s. 28(1) and the Court had jurisdiction to try the suit. It may incidentally be pointed out that subsequently in a recent decision in Sushila Kashinath v. Harilal Govindji . 1969 73 Bom. L.R 320, S.C 1969 3 SCC 223, the Supreme Court held that the claim or question arising out of Rent Act or any provision thereof need not be between the landlord and tenant.

23. As regards Civil Application No. 1935 of 1962, Mr. Justice Palekar, in view of his decision in the first revision application, remanded the same to be disposed of by the appellate Bench of the Small Causes Court, in accordance with law. It may be mentioned that in 1962 when the obstructionist notice of the landlord was decided by the executing Court, O. XXI, r. 98 did not provide for an appeal against an order thereunder. The obstructionists had not, therefore, filed an appeal but a revision application to the appellate Bench and thus there was no occasion for Mr. Justice Palekar to consider the question which has now arisen before us, though from the observations quoted above it may seem that the learned Judge assumed that an execution of a decree is taken in by s. 28(1).

24. Next is an unreported common judgment of Mr. Justice Bhasme in V.M Bhaskar v. R.A Haveliwala: and Mrs. Safia Sheikh Abdul Latif v. Aminabai G.B Shivji . 1970 Special Civil Application No. 2553 of 1967, with Special Civil Application No. 1421 of 1970, decided by Bhasme, J., on August 27, 1970 Unrep... The same question of law which arises in the present case arose in those cases. The facts in both the special civil applications were the same except that in the second revision application the order against the petitioner who obstructed the execution of the ejectment decree was passed on June 18, 1970, i.e after December 13, 1968, when O. XXI, r. 98 as applied till then to the proceedings under the Small Cause Courts Act was amended by deleting the provision for appeal from an order thereunder. Mr. Justice Bhasme held that s. 28(1) of the Rent Act refers only to original proceedings which will result in the passing of final decisions or orders and the proceeding under O. XXI, r. 98 was, therefore, outside its scope and, therefore, the Small Causes Court in executing the decree made under the Rent Act does not exercise jurisdiction under s. 28(1). He further held that when an obstructionist raises a claim or question arising out of the Rent Act or any of its provisions the Special Court in determining that point does not exercise jurisdiction under s. 28(1). He, however, held that the suit for possession in which the decree was passed fell under rule 5(2) and, therefore, the procedure in executing the decree laid down by the rules made by the High Court under the Small Cause Courts Act as varied by the rules made by the High Court was to be followed. In our opinion, the learned Judge, with respect, was in error in holding that s. 28(1) did not apply to execution proceedings in respect of a decree passed under s. 28(1). Apparently, his attention was not drawn to the Explanation to s. 28 or to the proviso to s. 50 which required the proceedings under Chapter VII to be disposed of according to the provisions of the Rent Act and s. 51 which retrospectively declared that reference to suits and proceedings in the Rent Act shall include references to proceedings under Chapter VII. As already seen a general right of appeal is provided by s. 29(1), though the two provisos cut down the scope of such a right of appeal. Proviso (I) limits the right of appeal from a decree or order in any suit or proceeding in respect of which an appeal lies under the Code of Civil Procedure. It is for this purpose of finding out whether an appeal is provided or not under the relevant provisions of the Code of Civil Procedure that may have been prescribed by the rule making authority that a reference is to be made to the Rent Control Rules. As already seen, rule 5(2) does not take in suits for possession of property and the same will fall within rule 8.

25. It remains now to advert to the referring judgment of Mr. Justice Vimadalal. The learned Judge, relying on Hemchand's case (supra) and the unreported judgment of Palekar, J. (supra), held that the order under O. XXI, r. 98 of the Code of Civil Procedure passed by the learned single Judge of Small Causes Court was made by the Court in exercise of its jurisdiction under s. 28 of the Rent Act. He, however, construed the expression ‘Civil Procedure Code’ in the Proviso (I) to s. 29(1) as portions of the Civil Procedure Code made applicable to the Small Causes Court under rules made by the High Court under s. 9 of the Small Cause Courts Act known as the Presidency Small Cause Courts Rules. In support of his view the learned Judge relied upon the provisions of rule 1(2) of the said rules which provides that the procedure laid down in the said rules is to be applied to the Court “in all suits cognizable by it” and observed that in that view, O. XXI, r. 98 so made applicable would apply and as the r. 98 as amended from December 13, 1968 does not provide for an appeal against an order thereunder no appeal would lie against an order thereunder, and that it did not matter whether a suit fell within rule 5 or rule 8 as in either case O. XXI, r. 98 as applied under the Presidency Small Cause Courts Rules would bar an appeal. He, however, referred to two decisions of Mr. Justice Desai and Mr. Justice Bhasme above referred to and thought that there was a direct conflict in their views. With respect, the learned Judge was in error in his view that portions of the Civil Procedure Code as applied under the Presidency Small Cause Courts Rules would govern appeals in respect of decrees or orders, irrespective of whether a suit fell within rule 5 or within rule 8. Rule 1(2) of the said Rules applies to suits which are cognizable by the Small Cause Court in exercise of its ordinary jurisdiction under the Small Cause Courts Act and not to suits cognizable by it as the Court of exclusive jurisdiction under the Rent Act. It is true that in suits and execution proceedings under rule 5(1) and (3) the same procedure as applies to the suits cognizable by the Small Causes Court in its ordinary jurisdiction is made applicable to such suits and execution proceedings under the Rent Act. It may be worth repeating that but for the Rent Act suits for recovery of rent and charges specified in rule 5(1) not exceeding Rs. 3,000 in amount would have been tried by the Small Cause Court in exercise of its ordinary jurisdiction under the Small Cause Courts Act and that is why it seems the rule making authority prescribed the procedure to be followed in such suits and execution proceedings as the one adopted in the Presidency Small Cause Court Rules.

26. For the reasons expressed above we hold that the order passed under O. XXI, r. 98 of the Code of Civil Procedure is appealable and the Bench of Small Causes Court, Bombay is competent to hear it.

27. We make the rule absolute, and the appeal is directed to be heard by the Bench on merits.

28. As there has been delay and the petitioner has not been able to execute the decree obtained in 1965, we direct the Bench to hear this matter as expeditiously as possible and dispose of the same within two months from the receipt of the order. Costs of the revision application to be the costs before the Bench.

29. Rule made absolute.